Other Laws and Requirements

Tuesday, December 15, 2009

Laws, rules, and regulations do not live in isolation from other laws, rules, and regulations. Rather they must coexist in an environment full of amendments, exceptions, and caveats. I am often asked to provide or obtain a “hard and fast rule” for some specific situation. Usually my response and the response others include a number of exceptions. The Affordable Health Care for America Act is going to be no exception.

The Act does not relieve carriers, providers, and plan sponsors form complying with the various State and Federal laws, including the Hawaii Prepaid Health Care Act. The Hawaii Prepaid Health Care Act is considered to be “qualified health benefits plan” and has met the “essential benefits package” test to the extent that the Secretary of Labor finds that the Act “is substantially equivalent … to the essential benefits package”. The Act is silent and does not specifically address Massachusetts’s health care reform of 2006, which has severed as somewhat of a model for the current national health care reform. Are the carriers, providers, and plan sponsors in Massachusetts somehow exempted from the Act? Are health care plans that meet the requirements under the Massachusetts law to be afforded the same treatment as Hawaii?

One interesting aspect of the Act is the repeal of the exception of health insurers, including malpractice insurers, form antitrust laws. While efforts to repeal this provision in the antitrust laws date back to the Regan era, it appears to have been successful with the passage of the current Act. It is somewhat difficult to predict the outcome of such a repeal since insurers are regulated by State insurance commissioners to a high degree. When Christine Varney, an antitrust official at the Department of Justice, testified before Congress. she reported that “the most egregiously anti-competitive claims, … are virtually always found immune.” Varney testified that repeal of certain antitrust laws, “would allow competition to have a greater role in reforming health … insurance markets than would otherwise be the case.” Does increased competition “always” resulting lower costs? Does increased competition “always” result in better services or products? Why were health insurers exempted from antitrust in the first place? Did some wise person conclude 60 years ago that it was in the national best interest to exempt insurers?

Since significant savings are expected through the deployment of electronic health care recordkeeping systems (EHR), the Secretary of Health and Human Services is required to study methods to increase their use in small providers (How big is small?) Methods might include monetary incentives to implement such systems, development of low cost software, make VA software available to providers, provide training, and provide implementation support.

in addition, this subtitle of the Act addresses issues as wide ranging as discrimination, whistleblower protection, collective bargaining, state and federal laws regarding abortion, rights of conscience on abortion.