In November of 2014, the U.S. Supreme Court agreed to hear the case of King v. Burwell.  The case challenges the subsidies paid to those enrolled in Qualified Health Plans in states with a Federally-Facilitated Marketplace (FFM), such as Ohio. Subsidies help make health insurance affordable for those with low and moderate incomes.

 The Court did not have to review this case. The case does not present a constitutional issue, and there was no disagreement among the federal Courts of Appeals that first heard the case. Why did four justices (the minimum number needed to accept a case) decide to take this case? Many think the Supreme Court wants to reverse the Court of Appeals ruling that protected the subsidies in the majority of the states.

 If so, will they find their 5^th vote to throw the subsidies of over 150,000 Ohioans into doubt?  Not if UHCAN Ohio and thousands of consumer activists across the country can persuade them otherwise, through the powerful stories of people currently getting subsidies in Ohio and the 26 other affected states.  If you are a person who is getting a subsidy in the Marketplace or know someone who is, we want to hear from you. Email us at kgmeiner@uhcanohio.org

 The Supreme Court will hear oral arguments on March 4, 2015, and a decision is anticipated by the end of June 2015.

 The following Q&A will help you understand what this case is all about.

 
1.      Who is King and who is Burwell?

 David King is the first among four plaintiffs who are Virginia residents. These plaintiffs, for whatever reason, do not wish to purchase comprehensive health insurance and do not want to pay a penalty. According to the opinion written by the federal Fourth Circuit Court of Appeals (that handles cases coming out of Virginia), “Without the premium tax credits [subsidies], the plaintiffs would be exempt from the individual mandate under the unaffordability exemption.” 

 Sylvia Burwell is the Secretary of the U.S. Department of Health and Human Services (HHS).  She is the first defendant, and the other defendants include the Department of HHS, the Secretary of the Treasury, the Treasury Department, the Director of the Internal Revenue Service, and the IRS.

 
2.      What is the legal argument that people in Federally Facilitated Marketplace (FFM) states, such as Virginia and Ohio, should not be entitled to a subsidy under the Affordable Care Act?

The ACA creates subsidies for persons between 100% and 400% of the poverty level in State Exchanges (Marketplaces). The ACA contains a provision for the federal government to run the Exchange in the states that don’t create one. The plaintiffs argue that Congress should have said that the subsidies also apply to the federal marketplaces, and that without having said that, no one in an FFM state can claim a subsidy.

 
3.      What is the legal argument that persons insured in the FFM states should be entitled to a subsidy?

The ACA defines an Exchange as a health insurance marketplace run by the state.  The ACA then provides that the federal government will run an Exchange if the state does not. The federal government is acting on behalf of the state when it runs the Exchange, so there is no reason that the subsidy shouldn’t go with it. As Families USA notes on its website, it would make no sense for the federal government to undertake the responsibility of running a state’s Exchange if all the moderate- and low-income residents were not eligible for a subsidy and thus could not afford health insurance.

 
4.      How will King v Burwell affect Ohioans who are getting subsidies in the individual Marketplace?

If the Court rules against David King and the other plaintiffs, everything will continue as is.  If the Court rules in favor of King and against the government, the State of Ohio must decide if it will run an Exchange and save the subsidies of more than 160,000 Ohioans.  This decision may depend on whether the State could run its own Exchange but still use the federal web site and application processing system.  Congress could also amend the language of the ACA, but politically that is a challenge.

 
5.      Would there be any other effects from a bad decision in King v Burwell?

If subsidies go away, it could also hurt the whole individual insurance market. Who would stay in?  Primarily those who use a lot of medical services.  This would cause health premiums to go up and threaten the stability of the individual market.  

 
6.      Should we be worried?

We should pull out all the stops to make sure that decision makers know the stories of those who are getting subsidies. The legal argument in favor of continuing the subsidies is very strong. What is troubling is that the Court took this case, and that is why advocates are being vigilant.

 7.      Should people continue to enroll before February 15, 2015?

Yes!  Ohioans should continue to enroll in coverage up to the February 15^th deadline.  The Supreme Court’s opinion is expected in June.  Anyone not enrolled by the deadline would not get another chance to buy insurance in 2015 and would be subject to a penalty.  See Question 4 above as to what might happen after a negative ruling.  If the Court rules against the subsidies, consumers will NOT have to pay them back.

 8.      What are UHCAN Ohio and Ohio Consumers for Health Coverage doing to fight against a bad decision in King v Burwell?

We are looking for stories of people currently receiving subsidies whose health and financial situation would be harmed if they were taken away.  We are sharing those stories with the organizations filing “Friend of the Court” briefs and with the media.  We will hold a press conference the day before the March 4^th oral argument where people who are going to be impacted by this decision can share their stories.  Want to help?  Contact kgmeiner@uhcanohio.org.

Ohio Department of Medicaid (ODM) has taken action to terminate thousands of Medicaid recipients who have not responded to recent requests for information. Here’s what people need to know:

 ODM is required to verify continued eligibility for most people on Medicaid every 12 months.  This process is called “Medicaid Redetermination,” “Recertification,” or “Renewal”. Each month starting in January, ODM is sending enrollees a 14-page packet to complete. Many people did not receive their packets due to incorrect addresses.

 Recipients who receive a packet can renew their benefits by supplying the required information in one of the following ways:

• online at benefits.ohio.gov (click on the “renew my benefits” tab)
• by going to their county Job and Family Services office, or
• mailing the packet back to your county Job and Family Services office, with $.70 postage (Note: some packets have the wrong address).

 What to Do if You Receive a Letter Terminating Your Benefits

If the renewal information is not received on time, Medicaid recipients will receive a letter terminating (ending) their benefits. People who get a termination letter have 90 days to appeal the decision. If the hearing officer decides in your favor, your Medicaid will be reinstated and it will be retroactive – your medical bills for those 90 days will be covered.

If you appeal within the first 15 days, you get to keep your Medicaid while waiting for the appeal. You will probably get your Medicaid back faster if you appeal within the 90 days rather than re-apply.

 If you miss the 90-day deadline, you can re-apply for Medicaid.

 People who need help renewing their eligibility or getting their benefits back should contact their local legal aid office or a Certified Application Counselor or Navigator who provides enrollment assistance. To find your local legal aid office, go to http://bit.ly/1A0pT4y or call 1-866-529-6446,

Here are the five items you can use to talk with Medicaid customers:

1.   If the customer states they received a re-determination/recertification packet, they need to complete it to the best of their abilities, then mail the packet to the address on the top of the front page of the letter.  There is no envelope so they need to mail the packet in their own envelope and the amount of postage required is about 70 cents to be on the safe side.

2.   If the customer no longer has the packet or is unable to fill it out or mail it,  they will have to walk into a county Job and Family Service office or call the county office and renew at the JFS office.

3.   If the customer has received a termination notice they have 90 days from the date of termination to recertify.  During this period the customer’s Medicaid will not be active so they need to recertify and the Medicaid will be retroactive up to 90 days.

4.   It is not necessarily in the best interest of the customer to reapply as a new applicant unless the 90 days from the date of determination is over.  This may slow down their Medicaid more.

5.   In many instances this should be treated in the same way as previous Medicaid recertification in terms of documents and household information.

Advocates for people with disabilities who are on Medicaid were shocked, on February 2^nd, when the Kasich administration announced , as part of its proposed budget, the  phase-out of Medicaid funding for Independent Providers (IPs) of home care services. Under the proposal, no new IPs could bill for Medicaid after July 2016 and would be phased out entirely by 2019. Instead, individuals would have to hire personal caregivers exclusively through agencies.

But, while advocates were shocked, many people with disabilities who use independent providers were FRIGHTENED – that they would lose the assistants they depend on for carrying out basic activities of daily living, including dressing, bathing, eating and other personal activities.

This latest twist comes right on the heels of enrollment of Medicare/Medicaid beneficiaries into “MyCare Ohio” managed care plans, which has caused major disruptions in vital services, such as transportation and approval of services, for many enrollees. The most widespread disruption from MyCare Ohio came when large numbers of Independent Providers found themselves without pay for months at a time, due to a glitch in planning by the managed care plans and the state.

What reason did the Ohio Office of Transformation, which oversees Medicaid, give for this surprising announcement about ending IPs? According to one budget summary http://1.usa.gov/1LdvIjO:

The Executive Budget requires Ohio Medicaid to eliminate the “independent service provider” option as a strategy to improve the administrative oversight of the program, decrease programmatic fraud and abuse, and improve health outcomes for individuals.

The rationale makes sense – unless you know people who have relied on IPs for decades. Many individuals with disabilities have switched to hiring their own IPs, based on extensive personal experiences with agencies. They say that, with an agency, you don’t always know who will show up (it’s up to the agency) or if they will show up. Not only do personally selected IPs tend to be more reliable than agency aides, but many individuals report having the same IP for a decade or more. Whether to use an agency or independent provider is a matter of personal choice – a hallmark of the promise of MyCare Ohio.

According to national experts on home care policy, the Kasich administration may have another reason for phasing out IPs – a change in federal rules governing home care services for people with disabilities and older adults that requires adjustments to Ohio policy regarding IPs. When the IPs billed the state for services, the state treated the IPs as “independent contractors,” who were responsible for paying their own taxes and were not eligible for overtime. The new rule clarifies that IPs are employees of the state, adding significant expenses to the state. In response to this situation, California allows IPs to bill for up to 20 hours of overtime pay over 40 hours of work. For Ohio to do the same would require increased funding in the budget.

There’s at least one other way that consumers can retain their IPs – by participating in the consumer-directed care program, where the consumer becomes the employer or shares responsibilities with a “fiscal intermediary” – a person or organization to help with the financial and other requirements (although this may be problematic with the new rules). Consumer-directed care is a wonderful option for some beneficiaries, but it’s not a good fit for every beneficiary because of the responsibilities. Now that we’ve uncovered a genuine roadblock to continuing the present access to Independent Providers, OCVIC and other advocates are exploring potential ways to expand access to IPs to more people who prefer them. 

The Administration’s Surprise Smacked of Insensitivity

Whether or not, in the end, the administration’s proposal is justified by federal changes and other considerations, the manner in which the announcement was made – with no prior conversation with the disabilities community and advocates – inflicted unnecessary pain on consumers and advocates. These stakeholders have a long history of dialogue and collaboration with OHT, whose leaders know full well that many people with disabilities not only prefer independent providers (IPs), but rely on IPs for their daily survival. OHT has, in the past, previewed controversial proposals with stakeholders to seek input and improve the level of deliberations. The lack of advance discussion in this instance showed a surprising lack of sensitivity to the individuals involved, as well as the long relationship with the advocacy community.

We hope that OHT won’t repeat this “February Surprise” and, in the future, engages people early in decisions that may critically alter their well-being and subject them to undue harm.

On March 4, the US Supreme Court will hear oral argument in the case of King v. Burwell. This case challenges the Affordable Care Act’s provision of tax subsidies in states, such as Ohio, using the federally operated Marketplace. If the Court strikes down subsidies, the decision is likely to send shockwaves not only through Ohio and other states using the federal Marketplace, but through individual insurance markets across the country.  

What Ohioans – Especially Those Receiving Subsidized Marketplace Insurance – Need to Know:

Thanks to the ACA, millions of Americans – including 734,000 in Ohio – now have quality, affordable health coverage who didn’t have it before. In many states, like Ohio, that didn’t create their own state-run Marketplace, residents purchase coverage and obtain subsidies through the federal Marketplace. 234,000 Ohioans receive coverage through the federal Marketplace.

This lawsuit is another politically motivated attack on the ACA – this time, claiming that the law does not permit people purchasing coverage through the federal Marketplace to receive tax subsidies. Most legal scholars agree that there is no legal basis for the Supreme Court to take away health coverage from millions of Americans. Congress, the Congressional Budget Office, everyone – Republicans and Democrats alike – agreed that subsidies would be available through both the federal and state Marketplaces.

The Court is hearing legal arguments on March 4 and will likely make a decision by June – or even earlier. In the meantime, while the Court considers this case, people receiving subsidies will continue to receive their tax credits. They can continue using their insurance and paying their premiums as usual.

What If the Court Strikes Down the Subsidies?

Even though the lawsuit has no legal merit, the Court could still rule against the ACA. But, a Supreme Court decision in favor of the challengers would be highly political and call into question its historic independence from the political branches of government. A decision by the Supreme Court to take health coverage away from so many Americans would be unprecedented in American history.

If the Court strikes down the federal subsidies, the change will probably go into effect within a month or so. The decision will likely come in June, or even sooner. That means, to be on the safe side, people receiving subsidies through the federal Marketplace should make sure they schedule needed preventive care, tests, and treatments soon, if they cannot afford their insurance without the subsidy.

How Will Access to Affordable Insurance Be Affected?

People in states like Ohio that use the federal Marketplace would lose their subsidies. Those who could not afford to pay the full price of their insurance would soon lose their insurance. “Healthy” people would be more likely to drop their insurance than people with significant health care needs, who might find a way to purchase insurance even without the subsidy. As healthy people leave the market, insurance premiums would rise, driving more relatively healthy people from the market. That’s known in the insurance world as the “Death Spiral,” for obvious reasons.  Experts believe that loss of subsidies in states using the federal Marketplace would spill over to the individual insurance markets in all states.

For more on this gloomy scenario, see Julie Rovner’s article in Kaiser Health News.

What Can We Do to Save the Subsidies?

UHCAN Ohio is holding a press conference and using social media to raise the voice of people who care about their subsidies.  The first line of defense is making sure the Court knows that the consequences of overturning the subsidies have no easy fix.  Secondly, since Congress could pass an amendment clarifying that the ACA provides subsidies to states using the federal Marketplace, it is important to call or write your Representative and Senators. However, opposition to the Affordable Care Act makes Congressional action a major challenge. We can push the Governor and Ohio’s legislature to create a state Exchange – another heavy lift. But UHCAN Ohio will be doing all of this – hopefully with you—when we weigh the outcome of the case. Share your story with us – help us to demonstrate what affordable coverage has meant in the lives of real Ohioans.

In the new Ohio 2-year budget, the Ohio legislature proposes to create a new health care program for most people on Medicaid. It is called “Healthy Ohio,” but names can be deceiving.  If approved, Healthy Ohio will restrict access to health care for many thousands of low income adults.

The good news is that the federal government must give Ohio permission to make such radical changes in Medicaid, and public input matters.

Under the proposal, all non-disabled adults over age 18 with incomes up to 138% of the poverty level will be required to enroll in “Healthy Ohio” if they are on Medicaid.

How Healthy Ohio would change health care:

What’s Wrong with “Healthy Ohio?” 

Healthy Ohio will lead to poorer health for Ohioans on Medicaid.  So many people will lose coverage that the state will estimate the cost of the program based on the assumption that many Ohioans will lose their Medicaid.  That’s because studies show that requiring even small contributions prevent low income people from accessing health care. Many people will lose coverage and seek care – often in emergency departments – only when they are sicker and more expensive to treat.

Healthy Ohio is complicated:

1. The health savings account and point system is difficult to understand and use.
2. Healthy Ohio uses debit “swipe” cards that are expensive to set up and operate.
3. Patients could wait weeks or months between application and coverage.

Healthy Ohio is a Big Waste of Taxpayer Money. Setting up and operating the debit card and point system will cost millions of dollars that could be spent more wisely. 

What’s Next? The Ohio Department of Medicaid is responsible for applying to the federal government – Centers for Medicaid and Medicare Services – for permission to change the way Ohio operates Medicaid now. 

Two Important Opportunities to Weigh In On Proposed Changes to Ohio Medicaid: People concerned about changes to Ohio’s Medicaid program have two chances to express their concerns and ask regulators to reject Ohio’s request.

1. State Comment Period (later this fall or winter) before the Department of Medicaid submits its application; and 
2. Federal Comment Period once the application is submitted the federal government.

Bottom line:  Ohio’s current expanded Medicaid program is working well. It has made health care a reality for hundreds of thousands of low income Ohioans. Ohio Medicaid helps Ohioans get and keep employment, stabilizes their families, and helps them stay healthy. Making it harder for Medicaid enrollees to get the health care they need will take us in the wrong direction.

If you want to have an information session on “Healthy Ohio,” contact Kelsey Raines at UHCAN Ohio. 

Last month, I started a series on affordability with an article entitled “The ACA’s Role in Creating Equity in Our Health Care System.” I started out the series by sharing my own story about going to the doctor for free preventive exams and leaving with bills that I did not expect. This month, I want to talk more about the growing problem of going to a hospital that’s in your insurance company’s “network” of providers (doctors and hospitals) and coming out with bills from a provider who is not in your network.

Two recent articles detail the issue. The first, from the Atlantic, is entitled “Don’t Pay that Medical Bill,” which discusses balance billing, “the term for a situation in which an entire hospital stay or procedure is covered by insurance, but one of the specialists involved is out-of-network and bills the patient separately.” In this article, a woman shared her story about her husband’s emergency surgery. She asked their hospitals and doctors if they would accept her insurance and was told they would. However, she then received $32,000 in medical bills from the surgeon who operated on her husband. Because of her persistence – and a new law in New York protecting against balance billing – she was able to have these bills covered. The insurance company paid this bill and the provider had to accept much less. Ohio, like many other states, does not have such a law. However, passing similar legislation could be the answer to many balance or “surprise” billing issues in Ohio.

The second article I wish to discuss is by Kathleen Gmeiner in this month’s newsletter, entitled “ODI Moves Forward with Provider Network Disclosure Amid Calls to Do More.” This article, like the first one, provides a story of a person affected by this issue. Wendy McVicker of Athens, Ohio was life-flighted to a nearby hospital, only to find out that the air ambulance service was not totally covered by her insurance provider. Her insurance company paid only $10,000 of the $25,000 cost of the ambulance. The article discusses a new Ohio rule that is being finalized, Rule 3901-8-16. This new rule will require insurance companies to regularly update their network lists, make them more available to those enrolled in their plans and prospective enrollees, and provide information about the cost of out-of-network services. The Ohio Department of Insurance expects the rule to be generally effective 1/1/16, but a few provisions will not go into effect until the following year. The rule would give consumers like you and me more information about the cost of treatment at the beginning of the process of seeking treatment and finding a provider. But the new Ohio rule doesn’t go far enough. Ohio consumers need a law like the one passed in New York.

This is why UHCAN Ohio exists. Our role is to find out what is happening to consumers like you and me, research legislation across the country that addresses the issues we are seeing, and engage you in our efforts to change policies, rules, and legislation to help the health care system work better for you. We do this in many ways including writing policies, analyzing policies, educating legislators on the impact of emerging and existing legislation, and engaging consumers in advocacy actions. Watch for more information on how you can help us advocate for a law like New York’s. 

Nita Carter