By Melissa Attias, CQ Roll Call

June 10, 2015 -- President Barack Obama would not sign a leading GOP measure that outlines a congressional response if the Supreme Court rules against the availability of subsidies in federal marketplace states because it is tantamount to repealing the 2010 health law, according to Health and Human Services Secretary Sylvia Mathews Burwell.

Burwell told the House Ways and Means Committee Wednesday that the Obama administration considers legislation (S 1016) introduced by Sen. Ron Johnson of Wisconsin to be a de facto repeal of the overhaul because it removes protections for people with preexisting conditions and takes away subsidies from everyone over time, among other issues.

The bill would also repeal the mandate that most individuals have health coverage and that employers offer it or pay a penalty, while extending subsidies through August 2017 for recipients in 34 states that use the federal insurance exchange. The Supreme Court is expected to rule on whether the language of the health law allows subsidies to be distributed in those states by the end of the month in the case, King v. Burwell.

"That is a bill that, from our perspective, is repeal," Burwell said. "We've spoken to the issue of something that repeals the Affordable Care Act, something that the president will not sign."

Burwell's comments foreshadow how difficult it would be for Republican lawmakers and the Obama White House to agree on a solution in the potential aftermath of any Supreme Court ruling against the administration. While Democrats can be expected to rally behind legislation adjusting the statute to allow the federal exchange subsidies to continue, any Republican plan is almost guaranteed to take swipes at the law's other provisions.

Among the 31 GOP cosponsors of the Johnson bill are Senate Majority Leader Mitch McConnell of Kentucky and Senate Finance Chairman Orrin G. Hatch of Utah. Hatch is also part of a trio of Senate leaders working on a separate response, paralleled by a similar effort from House GOP committee chairmen. A number of other Republicans have introduced their own bills.

Top Republicans on the Ways and Means Committee also repeatedly pressed Burwell on how Obama would respond to a court ruling that takes away subsidies from people in the 34 states.

Chairman Paul D. Ryan of Wisconsin asked whether the president would dictate a response or be willing to work with Congress if the high court sides with the plaintiffs, maintaining there is a good chance that case will not go the administration's way.

"If the court makes that decision, we're going to do everything we can and we're working to make sure we're ready to communicate, to work with states and do everything we can," Burwell said. But she added that "the critical decisions will sit with the Congress and states and governors to determine if those subsidies are available."

Health Subcommittee Chairman Kevin Brady, R-Texas, also pressed Burwell on whether Obama would sign legislation that takes an approach other than a straight extension of the subsidies for federal exchange states. Burwell declined to commit.

Democrats emphasized how Congress could quickly pass a simple fix to the court decision if lawmakers were willing. Earl Blumenauer of Oregon said "it would not be rocket science" to make changes to line up the statute with the law's intent. "I think the committee could take one weekend and fix it and move on," he said.

By Rebecca Adams, CQ Roll Call

June 9, 2015 -- The White House and its allies are intensifying a public campaign to explain how a possible Supreme Court ruling against the president's signature health care law could strip more than 6 million people of subsidies that help them pay for medical coverage, leaving many uninsured.

At the forefront of the effort is President Barack Obama, who portrayed the law's effects in dramatic terms in a recent address to a conference of the Catholic Health Association in Washington, D.C. The administration is seeking to frame the narrative in case justices later this month rule in King v. Burwell against the law's federal subsidies, thus setting the stage to blame the high court or congressional Republicans for any resulting coverage losses. King v. Burwell is the third challenge of the health care law to come before the high court and attacks the financial underpinnings of the statute's coverage expansion.

"Many people died each year because they didn't have health insurance" before the health care law passed, Obama said. He argued that in the United States, the only industrialized nation that did not have widespread health care coverage and the one with the highest per-capita medical costs, health care should not be seen as a commodity. Instead, he said, "Health care is a fundamental right."

The message will be amplified by Health and Human Services Secretary Sylvia Mathews Burwell, who is set to testify on Wednesday before the House Ways and Means Committee. Burwell, who has been in office a year, also will appear Thursday at a national conference of the nonprofit group that led the efforts to sign people up for coverage, Enroll America. Other allies such as the liberal Center for American Progress released materials such as a new video showing how people would be hurt by an adverse ruling against the administration.

Congressional Democrats haven't always been eager to promote the law, but Democratic leaders have recently touted it.

"The fact is the Affordable Care Act is working, and we're going to continue to defend it as the American people want us to do," said Senate Minority Leader Harry Reid, D-Nev., in remarks prepared for a floor speech.

Obama said last week that partisan criticisms of the law ignore the reality of improved coverage for Americans. He listed ways that the health care system can further be improved, including addressing the quality of medical care, bringing down costs, expanding coverage further and changing the way that care is delivered. But he reiterated that millions of people have more security than they did before the law passed.

"You'd think that it'd be time to move on. Let's figure out how to make it better," Obama said. "It seems so cynical to want to take coverage away from millions of people."

The court case takes up whether Congress intended to provide subsidies in those states that did not establish their own insurance markets but that rely on the federal health exchange healthcare.gov. The acrimonious nature of the debate over the law—and the way a ruling against subsidies could force responses by states and possibly Congress—means any decision could factor prominently in the 2016 elections.

Opposition Complaints

Critics of the law pounced on the president's remarks. Senate Majority Leader Mitch McConnell of Kentucky released a statement last week questioning a comment president Obama recently made, when he said, "We haven't had a lot of conversation about the horrors of Obamacare because none of them come to pass."

McConnell's office countered with a list of 16 news stories outlining complaints about the law's effects.

McConnell is supporting a bill that Sen. Bill Cassidy, R-La., re-introduced last week to replace the health care law in case the court eliminates the subsidies.

Obama's appearance before the Catholic Health Association (CHA) put him in front of a politically important group that has disagreed with the administration on some aspects of the law, such as contraceptive coverage, but provided a full-throated defense of the overhaul.

"Many presidents tried and failed but not President Obama," said Sister Carol Keehan, CHA's president and chief executive officer.

"As long-time supporters of a health care system that works for everyone and pays special attention to those who are poor and vulnerable, we are grateful for the president's leadership" on the law, Keehan said when the group announced the address. "This important law has provided meaningful health coverage to at least 16 million people who needed and deserved it, as well as improved both the benefits and finances of Medicare and Medicaid."

The White House's publicity offensive also includes new website features outlining the history of the law and decades of efforts to reshape the health system that preceded enactment. The administration recently released new information on the state-by-state effects of the health care law.

By Kerry Young, CQ Roll Call

June 10, 2015 -- Health professionals intend to ask Congress to change some of the rules for Medicare's accountable care organization (ACO) program, which is considered a key tool for shifting the agency away from a fee-for-service approach to payments based more on coordinated care, said the head of a trade group that represents the industry.

Clif Gaus, president and chief executive officer of the National Association of ACOs, or NAACOS, said the Centers for Medicare and Medicaid Services (CMS) should allow waivers for telehealth services and direct admissions to skilled nursing centers without requiring a previous three-day hospital stay for organizations participating in the Track 1 version of the program.

"These are things we will be advocating for on the legislative side," Gaus said in a recent interview with CQ HealthBeat.

NAACOS is among the groups that have said CMS didn't go far enough with a new set of changes announced last week for the Medicare shared savings plan and ACO model. Gaus also said that groups supporting the ACOs were disappointed that CMS has not changed rules on Track 1 ACOs, so they get a clear picture prospectively about the pool of patients for which they will be accountable and measured on. There's still just a retrospective assignment option, he said.

In the new final rule, CMS did allow for organizations to continue to participate in the Track 1 version, which allows hospitals and physician groups to potentially benefit from savings seen through more coordinated care of patients. Track 2 and the newly created Track 3 offer added incentives for participation but also require that the hospitals and practices involved be willing to accept some financial risk. CMS, for example, allowed waivers of the three-day stay rule for skilled nursing facility case for people prospectively assigned to organizations participating in Track 3.

The American Hospital Association praised CMS for allowing extended participation in the Track 1 program, but urged the agency to offer more flexibility on matters such as telehealth to make the program more attractive to new and current participants.

The Medicare shared savings program is one of the main tools that CMS is using to try to change the delivery of health in the United States. More than 400 organizations participate, providing care to more than 7 million people enrolled in Medicare. That's a population bigger than most U.S. states.

CMS estimates that at least 90 percent of the groups acting as ACOs will renew participation under the revised rules, mostly through the Track 1 option.

In the view of J. Michael McWilliams, an associate professor in the department of health care policy at Harvard Medical School, the new CMS rule was incredibly thoughtful and responsive to the concerns of participating groups, but also showed that there is more challenging work ahead.

Among the most pressing issues is the benchmark used to judge whether an ACO is saving Medicare money, McWilliams wrote in an email to CQ HealthBeat.

Under the old rule, an ACO that successfully lowered spending in one contract period would be penalized by a lower benchmark, or spending target, in the next, said McWilliams, whose research on ACOs has appeared in Health Affairs and the New England Journal of Medicine.

The new rule weakens the link between an ACO's benchmark and its savings in the prior period, but it does not sever it, he said. CMS has said that it plans this summer to release a proposal on benchmarking and risk adjustment, which will further explore the issue.

Medicare, which covers more than 50 million Americans and spends more than $600 billion a year, is often a leader in setting health policy throughout the nation. With ACOs, though, private insurers, such as UnitedHealth, also have tried out the ACO approach in their own operations. This model and related approaches, such as aggregations of physician practices, have the potential to cause major upheaval in the years ahead in how Americans pay for health care, Minnesota-based United said in a recent regulatory filing.

"Such organizations or groups of physicians may compete directly with us, which could adversely affect our operations," the company said. "In addition, if these providers refuse to contract with us, use their market position to negotiate favorable contracts or place us at a competitive disadvantage, our ability to market products or to be profitable in those areas could be materially and adversely affected."

The ACO model is still in its early days, and both CMS and private payers will be tinkering for years with the rules and different approaches to it, said Stuart Guterman, vice president for Medicare and Cost Control at The Commonwealth Fund.

"This isn't something where in 2017 or 2021 we will have the complete answer," Guterman told CQ HealthBeat in an interview. "This is an ongoing effort."

There's a marked difference between the ACO model and the rapid growth of health maintenance organizations, or HMOs, in the 1990s, he said. The HMO market grew through insurance companies' purchases of physician practices. With ACOs, the doctors and other health professionals are at the helm, he said. Most of them would prefer a model in which the emphasis is on how well their work preserves or restores their patients' health, instead of the current one that rewards them for generating volume, Guterman said.

People have been talking about this for a long time, he said, adding that the ACO experience at CMS is part of the evidence that real changes are in progress.

June 10, 2015 -- Concerns about a $30 billion federal program meant to encourage the adoption of electronic health records are likely to be addressed in a Senate medical innovation bill later this year, according to Health, Education, Labor, and Pensions Chairman Lamar Alexander.

"This will be a central piece of our innovation project...that's why I'm spending so much time on it," the Tennessee Republican told reporters after a recent hearing. "The purpose of our innovation bill is to align federal polices so cures, treatments and devices can get through discovery to the medicine cabinet. This is just a part of it, but an important part."

Alexander said his panel is on track to consider its version of legislation to speed medical cures after it finishes a planned reauthorization of higher education law in September. Parallel efforts in the House have been on a much quicker timeline, with the full chamber expected to consider its so-called 21st Century Cures bill (HR 6) as early as next week.

Lawmakers in both parties largely agree the government's six-year-old Meaningful Use Program included in the 2009 stimulus package (PL 111-5) needs improvements. The effort was intended to incentivize doctors and hospitals to adopt electronic medical records, in the belief that they could facilitate information sharing and improve the quality of care.

But more than 250,000 physicians have struggled to meet the program's second phase of requirements and have begun losing one percent of their Medicare payments as part of a penalty, according to the Centers for Medicare and Medicaid Services. The final rule for the next stage of the program is expected later this year.

"Physicians and doctors have said to me that they are literally terrified on the next implementation stage of electronic health records, because of its complexity and because of the fines that will be levied," Alexander said at the hearing.

One witness suggested that Congress delay the third phase of the program until improvements are made. However, Christine Bechtel, advisor for the National Partnership for Women and Families and chairwoman of a Health IT Policy Committee Consumer Workgroup that advises the federal government, cautioned that could squelch a technical fix that would help us unlock data that is currently siloed. "I just want to recognize that wholesale delay of Meaningful Use stage three should be very thoughtfully considered in light of the things we would give up," she said.

Alexander, however, said it "might be better to step back on some of the rules and take some advice on how to improve things."

Five or Six Steps

Wednesday's hearing was part of efforts to identify "five or six" steps to improve electronic health records, according to Alexander. In addition to weekly meetings between staff and regular communication with the Health and Human Services Department, there will be at least two more hearings that will address the burdens facing physicians and the control that patients have over their own health information.

Potential solutions identified Wednesday include improving documentation requirements for doctors, refocusing and streamlining regulations, establishing unique identifiers for patients and supporting patient-centered care delivery.

"No place knows where my records are other than me. There is no system," said Neal L. Patterson, co-founder and chief executive officer of Cerner Corp. "And everybody is very afraid and cautious of letting records out because of [Health Insurance Portability and Accountability Act federal privacy rules], which has very stringent penalties for sharing patient information."

But one of the biggest challenges in improving electronic medical records is getting systems to talk to each other, an issue known as interoperability. Provisions meant to enhance communication between different systems were included in the House Cures bill and related language is likely to land in the Senate version as well.

Witnesses suggested implementing a public-private partnership on interoperability governance in order to provide "clear rules of the road," developing functional data standards, establishing transparency in the free flow of information and preventing deliberate information blocking by a company or provider.

"The goal should be to design and implement a secure health IT ecosystem that enables an easy exchange of health information in timely and cost-effective ways," said Craig D. Richardville, senior vice president and chief information officer of Carolinas Healthcare System. 

By Melissa Attias, CQ Roll Call

June 11, 2015 -- Health and Human Services (HHS) Secretary Sylvia Mathews Burwell recently announced the launch of a new prevention and health literacy campaign to help educate both the newly insured and those who have long had health coverage.

Speaking before a friendly crowd at the Enroll America national conference, Burwell said HHS, the White House and the surgeon general are collaborating on the campaign—called Healthy Self—and also will be partnering with the private sector. By the end of August, she said, 50 events will have occurred across the country to help link people with health care. Enroll America is the group that led the effort to sign people up for coverage under the 2010 health care law.

"Coverage is an important step, and it gets a lot of attention, but it's only one piece of the puzzle," Burwell said in her prepared remarks. "How we get people to use their coverage has the potential to create healthier communities, discover illnesses earlier on when they're easier to treat and drive down health costs across the system."

A HHS spokesman said the 50 outreach events will begin June 15 when Burwell travels to Wisconsin and that each of the department's 10 regions will host five events. A big chunk of the campaign will be digital to connect with the so-called young invincibles who aren't using preventive services, such as encouraging individuals to post a "#HealthySelfie" on social media of healthy activities like taking the stairs or choosing to eat a salad.

Burwell also noted that many people still do not know about the free preventive services and consumer protections that they have access to under the health law. The campaign will build on the Coverage to Care initiative created last year by the Centers for Medicare and Medicaid Services to help newly-insured people learn about their insurance and how to use it.

Burwell said Surgeon General Vivek H. Murthy will focus on issues such as healthy eating, physical activity, staying tobacco- and drug-free as well as mental well-being and violence. That work will connect with other government efforts, including First Lady Michelle Obama's Let's Move! initiative.

At the White House, the HHS spokesman said Senior Adviser Valerie Jarrett will be working at length on outreach to providers, nonprofits, hospital associations and other places where people receive care and health information.

The campaign also will prioritize reaching women, because they often make the health care decisions for their families and have distinct health needs, according to Burwell.

By Kerry Young, CQ Roll Call

June 12, 2015 -- Advocates for telehealth services say they are optimistic about expansion in the field even after recent setbacks, including decisions that may hamper the more widespread use of medicine delivered over computer or phone by the Medicare program.

This week, leaders at the American Medical Association (AMA) sent a report on telemedicine ethics back to an internal council for further consideration. There were concerns raised by radiologists, a group that's been at the forefront in this field, and some spillover from a fight between the Texas Medical Board and Teladoc Inc., a firm that connects doctors and patients through the Internet and phone. The two are at odds about a state requirement that seeks to have at least one initial in-person contact with a health professional.

Last week, Medicare officials rebuffed requests to expand use of telemedicine in the highly watched accountable care organization, or ACO, program. And bids to expand use of telemedicine through the House Energy and Commerce's 21rst Century Cures bill have so far fallen short.

But Krista Drobac, executive director of the Alliance for Connected Care, said she is pleased that discussion of federal payments for telemedicine has expanded beyond the currently approved uses in Medicare, that often serve people who live in areas where health care can be scarce.

"It takes a while," Drobac said. "We are just pleased that policymakers are looking at this as more than a rural issue."

Among the developments that people advocating for telehealth see as a positive sign is the requirement in the recent Medicare payment overhaul (PL 114-10) for a Government Accountability Office (GAO) report on telehealth. The law directs GAO to study how the private health insurance industry is using remote patient monitoring and financial incentives for telemedicine, and examine the barriers to the adoption of such services in Medicare. The results of the work could make lawmakers more willing to expand Medicare's use of telehealth, said Alice B. Borrelli, director of global health and education policy for Intel Corp.

"We have had some setbacks, but there is so much interest in finding a solution," Borrelli said.

The field of telemedicine is growing rapidly in the private sector, with potential annual savings for companies of $6 billion, according to an analysis released last year by the actuarial firm Towers Watson. About 37 percent of employers surveyed said that by 2015 they expect to offer their employees telemedicine consultations as an alternative to emergency room or physician office visits. 

And federal health officials see promise in this approach.

Officials at the Centers for Medicare and Medicaid Services intend to allow more access to telehealth in an advanced version of its ACO program, known as the Next Generation initiative.

Groups supporting telehealth have not given up on getting provisions into the Cures bill and also are continuing to press for legislation to widen its use. Among the bills supported by the American Telemedicine Association is one (S 1465) from Sen. Mark Kirk, R-Ill., that would expand the use of health services provided at a distance for people recovering from strokes.

State officials also are working to define how best telemedicine can be used, an exercise that can lead to disputes with professionals in the field. The Texas Medical Board is seeking to require that a health professional be in attendance for at least the initial contact between patients and physicians. Patients should be at a location where there is sufficient medical staff and diagnostic equipment for an exam, a spokesman for the board said.

Contesting that rule is New York-based Teladoc Inc., which connects people to physicians via mobile devices, the internet, video and phone. It handled 300,000 interactions last year.

The challenge from Teladoc marks the third lawsuit filed in Texas courts against the state's medical board, according to a regulatory filing. These disputes center on the Texas board's bids to define the terms of the relationship between doctor and patient in ways that would limit Teladoc's physicians from prescribing medicines, according to the filing.  The company announced on May 29 that a federal court had issued an injunction regarding the April rule adopted by the Texas Medical Board. The ruling blocks enforcement of the revised rule until after a trial to determine whether it violates the law. Teladoc said the decision marks the sixth occasion in the four years that the courts have sided with Teladoc against the state medical board.

"Not only is telehealth the wave of the future, but Texas physicians have been treating patients without a prior in-person visit for decades," said Jason Gorevic, chief executive officer of Teladoc, in a statement, adding that other states have been more welcoming on telehealth.

The AMA could revisit the question of telemedicine as early as November. Arlo Weltge, the emergency room doctor who spoke for the Texas physicians at the June AMA meeting, agrees that there is promise in the expanded use of telemedicine. But the draft that was slated for consideration this week didn't address some of the downsides of telehealth or make clear the standards that are needed to practice medicine safely at a distance, Weltge said in a recent interview.

Doctors need a good baseline reading on patients' physical condition, he said. This doesn't necessarily require a meeting with the doctor. A patient could visit a center where a physician's assistant or another trained medical worker could check blood pressure and assess health risks, including signs of kidney damage that can raise risks for complications with some prescription drugs, according to Weltge.

"There needs to be a face-to-face some interaction," Weltge said in an interview with CQ HealthBeat. "One of the most important parts [in the practice of medicine] is taking a history."