At this point the election is some 36 days away. How would different outcomes in the races for President, and control of the Senate and House of Representatives affect health care policies relating to prevention or treatment of obesity? What are the issues? What are the candidates saying about them? What policies might or might not change?
One of the major issues in the campaign has been the Affordable Care Act (ACA) with Republicans vowing to repeal and/or replace it and Democrats pledging to defend it.
The Affordable Care Act (ACA) is also referred to as “Obamacare.” While Republicans initiated the term ‘Obamacare’ as a derisive term, Democrats, including President Obama, have become more comfortable using it.
This may be because their overall favorability rating in the polls has gone from very unfavorable to 50% favorable. While the reasons for the shift are not clear, it is likely that it is at least in part due to some of the benefits kicking in, such as no pre-existing conditions exclusions for children, coverage of children on their parents plan up to age 26, and state insurance programs for those unable to acquire individual insurance coverage, strengthening of consumer’s hands in appealing insurance denials, covering USPSTF preventive services without charge in new (i.e. not grandfathered) health plans, rebates to consumers of $1.1 billion this spring from health insurers with excessive administrative costs.
For many months, the ACA has been under legal attack as unconstitutional, especially the requirement that all individuals purchase health insurance. However, in June, 2012 the Supreme Court upheld the law’s constitutionality in this respect.
The ACA has many provisions of importance to persons with obesity. (See http://www.downeyobesityreport.com/category/policy/health-care-reform-policy/page/2/)
In addition to the above mentioned policies, the biggest benefit to persons with obesity is being able to access insurance without their weight being considered a pre-existing condition. This will come into fruition in 2014 when the state health exchanges are operational but state insurance programs are available now until the exchanges are operational. The ACA also established a Prevention Wellness Fund and a National Prevention Council which developed a national prevention strategy. The strategy has been developed and grants have been issued to a number of states.
The ACA did not change Medicare coverage of bariatric surgery; nor did it eliminate the exclusion of drugs for weight loss in Part D. The decision by the Centers for Medicare and Medicaid Services to expand Medicare benefits to include intensive behavioral counseling for obesity in adults, as recommended by the US Preventive Services Task Force, was authorized by prior Congressional statute, not the ACA. Therefore, were the ACA to be repealed, it would not affect this coverage.
Medicaid was greatly expanded by the ACA but the Supreme Court decision in NFIB v. Sebelius has thrown this aspect into some doubt. Medicaid coverage of bariatric surgery, anti-obesity medication and counseling vary widely (See http://www.stopobesityalliance.org/research-and-policy/research-center/gw-research/)
Other provisions of the bill expanded comparative effectiveness research, required employers with over 50 employees to provide private areas for breastfeeding newborns and restaurant chains with 20 or more outlets are required to post calorie information on the menu boards. A controversial provision, offered by Republicans, provides added ‘incentives’ for employer wellness programs in terms of having employees pay more of their health insurance premium costs if they not reach certain specific health metrics, such as BMI. More and more employers have expanded using these ‘incentives’.
The Democrats have no reluctance to pointing to Republican nominee Governor Mitt Romney’s own legislation in Massachusetts as the grandfather of Obamacare, particularly the individual mandate to purchase insurance.
Other policies can affect persons with obesity, outside of the ACA. Balancing the federal budget, reducing the federal debt are also issues in the campaign and can affect funding for the National Institutes of Health and other federal research programs. “Entitlement reform” referring to changes in the Medicare, Medicaid and Social Security programs can also affect both participation in those programs and how benefits of those programs are structured.
The Presidential Race
Recently, the New England Journal of Medicine published editorials by Governor Romney and President Obama on their health care proposals, giving us the most recent and authoritative statements for each camp.
President Obama’s editorial is an strong defense of the ACA. He writes, “Today, 105 million people have seen a lifetime cap on their coverage lifted, so your patients no longer face the tragedy of approaching a lifetime limit in the middle of a round of chemotherapy or an episode in the ICU. Most of your patients can now get preventive care without paying deductibles and copays, care that you know saves lives, from early colon-and breast cancer screenings to cardiovascular tests and flu shots. Because of these new limits on insurance overhead costs, 13 million Americans got more than $1 billion in rebates – and by 2019, economists believe, family premiums will be about $2,000 less.” He goes on to cite saving seniors an average $600 by closing the ‘donut hole’ in Medicare drug coverage, adding 3 million young adults under age 26 to their parent’s insurance coverage, providing that up to 17 million children with preexisting conditions are no longer at risk of being denied coverage. He looks forward to 2014 when 30 million currently uninsured Americans will have health insurance which will stay with them, regardless of employment status. He promises to work on ACA implementation, fix the Medicare physician payment problem and supports medical malpractice reforms without arbitrary “caps”, continue support for the life-sciences research (read NIH) and ensure that the regulatory system (read FDA) helps bring new tools to patients and health care professionals. Finally, he criticizes the Republican ticket for proposing a budget which would eliminate 1,600 NIH grants, make Medicaid into a block grant and cut funding by 1/3 and turn Medicare into a voucher program. NEJM: Perscpective_President Obama
Governor Romney’s editorial criticizes Obamacare and pledges to repeal it and replace it with “not another massive federal bill that purports to solve all our problems from Washington, but with common- sense, patient-centered reforms suited to the challenges we face.” Under his plan, “families will have the option of keeping their employer-sponsored coverage, but they will also be empowered to enjoy the greater choice, portability, and security of purchasing their own insurance plans.” He argues that this will increase competition, improve quality and lower costs. He would eliminate mandates (presumably state benefit mandates), facilitate purchasing pools and open up an interstate market. Regulation (presumably federal) would prevent insurers from discriminating against people with pre-existing conditions “who maintain continuous coverage.” He pledges better approval of innovations by the FDA and malpractice reforms. He would replace the current Medicare program with one like how Members of Congress choose from among plans, “including today’s traditional fee-for-service option.” The government will provide premium support…more for low income seniors and less for well off seniors…in purchasing their plans. He notes that insurers have said that they would keep coverage for children up to age 26 on their parent’s plans, regardless of Obamacare because they are responding to the market. Finally, he promises to transform Medicaid into a block grant. NEJM: Perspective_ Governor Romney
Three items of interest. First, President Obama nowhere mentions the “public option” which was a major issue within his own party during the legislative process. That idea is clearly off the table. In fact, the Democratic party platform did not mention it, nor does it appear that any Democratic Members of Congress running for re-election who supported the idea are campaigning on it. Second, Governor Romney did not repeat his promise, made on his website, that on “day one” he would grant waivers from the Obamacare to all fifty states. MittRomney.com:Issues/health care. There is no way of knowing if this omission indicates a change in his position but he may have learned that the ACA does not provide for waivers for states from its mandates. A couple of specific provisions have allowance for waivers. But the key section, regarding the individual mandate, only allows waivers where states offer innovative plans for its citizens which are at least as comprehensive and affordable as the ACA and cover at least as many residents, i.e. Vermont’s single-payer system. Waiver applications from the states have to be reviewed by Department of Health and Human Services and the Internal Revenue Service. Waivers are limited to 5 years but can be renewed. Public hearings are required as well as a 10-year budget plan and periodic evaluation of the program. In any event, waivers are not available until 2017, the year after the next President’s four year term. Of course, Congress could pass legislation to provide waivers by the President on his own volition but if Congress were to do that, why not just repeal the statute altogether? Third, both candidates, but especially President Obama are inexplicitly silent on Medicaid and the Supreme Court’s opinion that Medicaid expansion be “optional.” Medicaid has become even more important in this recession as the health care safety net for millions of Americans who have lost private coverage. Tim Jost Health Blog: behind-the-uninsured-numbers-a-diminishing-sense-of-urgency/ In 2013, the provision of Obamacare which gives a state an additional 1% of the federal share of Medicaid spending in that state if they cover USPSTF recommendations, such as intensive behavioral counseling for adult obesity, is scheduled to go into effect. There is no indication if or how the Supreme Court opinion might affect this provision’s implementation.
(For a detailed non-partisan analysis of the health plans of President Obama and Governor Romney see this report just issued by the Commonwealth Fund: http://www.commonwealthfund.org/Publications/Fund-Reports/2012/Oct/Health-Care-in-the-2012-Presidential-Election.aspx?page=all.
This leads us to the variations in the Congressional elections.
The Presidents proposes but the Congress disposes is an axiom of American government. Obviously, whatever a President may want, it is up to Congress to decide what he gets to sign into law or veto. So, what are the possible President-Congress combinations, and how would they affect the above policies?
- President Obama, Democratic Senate, Republican House
Today, this appears the most likely outcome, identical to the past four years. However, strategies might change. The Senate would block any House legislation to repeal Obamacare. However, it is unclear if the Republican strategy would change or not. For the past four years, the Republican strategy has been to limit President Obama to one term by denying him major legislative accomplishments. With an Obama victory, this strategy no longer has meaning. Depending on the extent of an Obama victory, Republicans may decide not to oppose virtually everything. Winning counts and Republicans may decide to become somewhat more cooperative. The Democrats are likely to be comfortable with staying with the implementation of the ACA and only making legislative changes of narrow scope, much like the changes to Medicare and Medicaid which Congress makes on a pretty regular basis.
2. President Obama, Democratic Senate, Democratic House
It is possible, that with only a change of 25 seats needed, that Democrats could take back control of the House of Representatives. While some very liberal members might bring up the ‘public option,’ in my opinion the White House and Congressional leaders will have little stomach for another health care fight when other pending issues have gone unattended, like immigration reform and the federal deficit. The one factor that can change this is the Supreme Court’s limitation on Medicaid expansion. Making Medicaid expansion optional may mean than more people will remain uninsured than expected. If the numbers bear this out, the Dems may be forced to go back to the drawing board. At this point and given the Supreme Court decision, the public option could be back on the table. This complete Democratic control is probably the only scenario in which Medicare Part D would be re-opened, providing an opportunity to change the statutory language prohibiting payment for drugs causing weight loss.
3. President Obama, Republican Senate, Republican House
This is a nightmare scenario for the White House. While President Obama has said he would veto a repeal of the ACA this would be very problematic especially if repeal were included in must-do legislation. Remember Obama agreed to extend the Bush tax cuts which he opposed because he needed Senate votes to approve a treaty extension with Russia and continuation of unemployment benefits. All kinds of legislative games could be played with repeal of the ACA.
4. President Obama, Republican Senate, Democratic House
It is highly unlikely that both the Senate and House would flip party control but all things are possible. In this scenario, more gridlock is foreseeable.
5. President Romney, Democratic Senate, Republican House
Gridlock. A Democratic Senate could kill most bills coming from a Republican House. Romney needs the Senate to confirm his Cabinet and other personnel, so Senate Democrats would have a lot of leverage. Democrats would not be expected to announce that they will act to make a President Romney a one-term President, but they will probably act that way. President Romney would have the power to re-open many of the regulations already issued to implement the ACA. The law also provides for a great deal of interpretation by the Secretary of Health and Human Services in its implementation which a Romney Administration could affect. Probably the provision of most importance and undefined at this point is the definition of “essential health benefits” which would be included in plans offered in the federal and state health exchanges. Here, a Romney Administration would have significant latitude.
6. President Romney, Republican Senate, Democratic House
This is probably the least likely scenario. While Democrats would control one House of Congress, the greater constitutional authority in the Senate would give an edge to enactment of the Republican agenda. However, regarding the ACA, that agenda may be a little murky. In elections in 2014 and then in 2016, when President Romney would run for re-election, 37 Republican Senate seats will also be on the ballot compared to 32 for the Democrats. 2016 will have one of the most un-balanced slates facing the Republicans in some time with 24 Republican seats and only 12 Democratic seats up. It is likely that a number of Republican Senators would not want to see their opponents using repeal of popular ACA provisions against them. So, rather than outright repeal, they might want a more ‘nuanced’ approach which doesn’t leave them politically exposed. Just what that would look like is very unclear. Also, there are a number of provisions of the ACA favored by Republicans including the employer wellness program incentives and the development of Affordable Care Organizations or ACOs.
As long as the Republicans controlled one house of Congress, they could use the “reconciliation” process to avoid a Senate filibuster and enact legislation by majority vote. (Democrats used this at the end of the legislative process to make key changes in the ACA.) However, reconciliation is not for every issue. Under what is known as the “Byrd Rule” a provision excluded from a reconciliation bill if extraneous, i.e., it does not produce a change in federal outlays or revenues; or it produces changes in outlays or revenues that are merely incidental to non-budget components of the provision; or would increase the deficit. So a reconciliation bill could address equalizing the tax treatment of individual and employer purchased health insurance; Medicaid expansion; premium tax credits or the individual mandate. But reconciliation could not be used for changing the insurance reforms, banning use of health status on underwriting or the ban on pre-existing conditions. See Tim Jost Health Blog: dismantling-the-affordable-care-act-what-could-a-president-romney-and-hill-republicans-do/ On the other hand, were a reconciliation bill to repeal the Medicare provisions of the ACA, the federal deficit would actually increase, and so run afoul of the Byrd Rule. (Widely misunderstood, the Byrd Rule is not a Senate Rule but a federal statute.)
7. President Romney, Republican Senate, Republican House
While this sounds like a dream scenario for the Republicans, it is actually fraught with danger. The Republican base will expect the party to deliver on its promises on the ACA, Medicare and Medicaid and on the deficit. How the public will react to seeing the Republican positions move from rhetoric to reality will be fodder for pundits and policy-makers for years. Will the public be comfortable with governmental programs, Medicare, Medicaid, Obamacare, being largely turned over to the private insurance market? Certainly, Republican control of Congress and the White House will allow for the de-funding of ACA implementation, including areas like comparative-effectiveness research and the fund for prevention programs.
8. President Romney, Democratic Senate, Democratic House
This is Romney’s nightmare scenario. Democrats would be expected to pass legislation almost begging for a veto. Romney would have to demonstrate great skill to show leadership on the national political agenda. Given his signature health care legislation as Governor of Massachusetts, I would not expect a President Romney to pick a fight with a Democratic Congress over repeal of Obamacare.
In the meantime, we should not lose sight that many businesses, health care providers, insurers and others are anticipating that current law, i.e. the ACA, will continue. They are making changes to their businesses accordingly. For example, of the 29 state governments under Republican control, only seven are not developing state health care exchanges, while 22 are.
States setting up their own exchanges are submitting their list of ‘essential health benefits.’ We know that Colorado is including the preventive recommendations of the USPSTF, evidently including the recommendation for intensive behavioral counseling for adult obesity while Oregon has decided not to include bariatric surgery.
Litigation over provisions of the ACA will continue. However, it is unlikely that any future challenge will change the Supreme Court’s interpretation of its constitutionality. Implementation may also present problems in satisfying the law’s requirements. Specific provisions may change and will need to be addressed in remedial legislation.
Looking at specific obesity treatment modalities, for bariatric surgery, it seems as if current Medicare coverage will stand. Indications are not good that it will be part of many states’ essential benefit packages under the ACA. Medicaid coverage is unlikely to change because of the election.
Coverage of drugs to treat obesity has gradually improved over the past few years. It may be that the newly approved drugs by the Food and Drug Administration will spur additional private sector coverage. However, adding such drugs to Medicare Part D or Medicaid Plans remains a long shot. I have not seen what states may do with drug coverage under essential health benefits for the state health exchanges but I would expect most states will go with what they cover in the Medicaid program.
The recent coverage of intensive behavioral counseling for adults with obesity would continue even if the ACA were repealed. However, the ACA would bring intensive counseling in other programs, such as Medicaid and non-grandfathered health plans. So repeal of the ACA would delay or deny expansion of intensive counseling.
So this election and the subsequent make-up of Congress will have a major impact on obesity.