A nation of health reform violators

Ron Bachman Contributor
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If ObamaCare is upheld as constitutional, we will spend the rest of our lives trying to understand its complexities and contradictions.  We will likely all be in violation of some part of the law.

For example, ObamaCare’s complexity has created confusion surrounding lifetime limits on benefits coverage. Under ObamaCare, insurance plans cannot include lifetime limits on coverage — or can they?  Maybe yes, maybe no.

The lifetime coverage mandate applies to any individual covered by an insurance plan or a self-insured contract providing group or individual health coverage.  It is effective for plan years beginning on or after September 23, 2010.  For most plans, this date is likely to be January 1, 2011.

Lifetime limits? Maybe no: The law mandates that group and individual health plans cannot have dollar restrictions on lifetime limits for government-defined “essential benefits.”

Annual limits? Maybe yes:  Prior to January 1, 2014, plans may establish “restricted annual limits” on the dollar value of “essential health benefits.”

Confusion?:  A plan using a “restricted annual limit” must ensure that there is access to needed services.  The law states, “In defining the term ‘restricted annual limit’ the Secretary of Health & Human Services (HHS) shall ensure that access to needed services is made available with a minimal impact on premiums.”

Uncertainty?:  As of October 2010, HHS has not clarified “restricted annual limits” or established standards for determining “access to needed services.”

No details?: The law only defines “Essential Health Benefits” in broad categories:

(A) Ambulatory patient services.

(B) Emergency services.

(C) Hospitalization.

(D) Maternity and newborn care.

(E) Mental health and substance use disorder services, including behavioral health treatment. Note: Mental health parity is required under the legislation.

(F) Prescription drugs.

(G) Rehabilitative services and devices.

(H) Laboratory services.

(I) Preventive and wellness services and chronic disease management.

(J) Pediatric services, including oral and vision care.

Major uncertainty?: As of October 2010, HHS has not defined “essential health benefits” beyond the general service categories listed above.

Limits? Maybe yes: Plans can place dollar annual limits or dollar lifetime limits on covered benefits that are not “essential health benefits.”

More limits? Maybe yes: The law only states that plans cannot use dollar lifetime limits for “essential health benefits.”  Prior to the law, some plans used dollar limits for certain benefits (e.g. home health, physical therapy, hospice care).  Plans may be able to implement day limits, visit limits, episodic limits, or other allowed coverage restrictions even for benefits classified as “essential health benefits.”

Lifetime limits? No for mental health and substance use: Impacting potential “essential health benefit” limits is a separate section of the law requiring application of the previously passed Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).  The MHPAEA restricts the use of annual, lifetime, visit, day, and episodic limits that are different from medical surgical limits. Therefore, even if a non-dollar limit is allowed for other essential benefits, it is unlikely that a non-dollar limit on mental health or substance abuse would meet the standards of MHPAEA.

Nancy Pelosi said, “We will have to pass the law to see what is in the law.”  But, confusion reigns as we see what is in the law.  With undefined terms, a lack of regulatory guidance, and differing legal opinions and interpretations, compliance will be nearly impossible.

As a nation of “health reform violators,” we will be subject to penalties and fines that can be levied against any disfavored plan or group.  We have already seen selective political targeting and harassment of insurers, specific employers, business associations, and individuals who raised questions and challenged the healthcare law.  Why should we expect implementation enforcement of fines and penalties to be any different?

HHS states that, “Our approach to implementation is and will continue to be marked by an emphasis on assisting (rather than imposing penalties on) plans, issuers and others that are working diligently and in good faith to understand and come into compliance with the new law.”

Who defines “good faith” before HHS imposes a penalty?  If this sounds arbitrary to you, welcome to a world of political influence and government-controlled healthcare.  As Dr. Seuss might have written, “I don’t like this kind of hope.  I don’t like it, nope, nope, nope.”

Ronald E. Bachman FSA, MAAA, president & CEO of Healthcare Visions. He is a Senior Fellow at the Center for Health Transformation, an organization founded by former U.S. House Speaker Newt Gingrich, a Senior Fellow at the Georgia Public Policy Foundation, an independent think tank that proposes practical, market-oriented approaches to public policy to improve the lives of Georgians. He is also and a Senior Fellow at the National Center for Policy Analysis (NCPA).  To better understand health reform and the new preventive care guidelines, go to www.healthreformnavigator.net.