Aaron E. Carroll's Blog, page 121

The lawsuit to restore the cost-sharing payments.

Yesterday, a group of 19 states asked a California district court to stop the Trump administration from cutting off the cost-sharing payments. To prevail, the states will have to convince the court that they face irreparable injury if the payments are terminated and that they’ve got a substantial likelihood of eventually winning their lawsuit.

To my mind, the states have a good case on irreparable injury. But their merits case is weaker. In their motion, the states make three arguments: (1) first, that the money to make the cost-sharing payments has been appropriated and that the Trump administration must therefore adhere to statutes and rules requiring payment; (2) that abruptly terminating the payments is arbitrary and capricious within the meaning of the Administrative Procedure Act; and (3) that President Trump has violated his constitutional duty to take care that the laws are faithfully executed.

There’s lots to say about each of these claims. But let me cut to the chase. I think the states can prevail on the second and third arguments only if they can win on the first—and they can’t, in my judgment, win on the first.

On the APA claim, I’m sympathetic to the states’ argument that the administration’s stated reason for cutting off the payments—that the money hasn’t been appropriated—is pretext. If the stated reason isn’t its real reason, that’s probably enough to make out an APA violation.

But what’s the remedy for that violation? Unless there’s an appropriation, the court can’t order the resumption of the payments: that would be tantamount to ordering the Trump administration to break the law. Any arbitrariness would be harmless because it wouldn’t change the bottom line that the payments are unlawful. The viability of the APA claim thus rises and falls on whether there is, in fact, an appropriation.

So too for the take care claim. Refusing to pay money that hasn’t been appropriated shows fealty to the law, not the reverse. So unless there’s an appropriation, cutting off the payments can’t violate President Trump’s duty to faithfully execute the laws. That’s true even if President Trump has acted in bad faith. He might be abiding by the law for bad reasons, but he’d still be abiding by the law.

The linchpin to the states’ case, then, is the claim that Congress has in fact appropriated money for the cost-sharing payments. Here, the states are pressing the same argument that the Obama administration previously made and that the district court rejected in House v. Burwell. As I’ve explained before, however, the Obama administration’s argument has never held water. If I’m right about that, the states don’t have a case.

About the best that can be said for the states’ motion is that appropriations law is hard (true) and that cutting off the payments will inflict serious harm (also true). Maintaining the status quo to allow the district court to better understand the case holds some appeal.

But I still think the district court is unlikely to order restoration of the payments. As the judge said yesterday, “I understand that it’s a big deal to order the federal government to spend $600 million.” That’s especially so where both the president and Congress agree that the money hasn’t been appropriated. And even if the court does rule in the states’ favor, the federal government would take an immediate appeal from an adverse judgment. I have a hard time seeing how any injunction withstands Ninth Circuit and Supreme Court review.

I wish and hope that I’m wrong about this. Lord knows that I’d like to see the payments continue, and it’s reckless and wasteful for the Trump administration to cut them off on the eve of open enrollment. Remember, insurers will almost certainly be able to recover every nickel of cost-sharing money that they’re owed by suing in the Court of Federal Claims. Not making the payments serves no other purpose than to introduce chaos into the insurance markets.

But the law is what it is. To prevail, the states have to show that Congress has appropriated the cost-sharing payments. I’m skeptical that they can make that showing.

@nicholas_bagley

Waiver changes

In broad strokes, the bipartisan deal from Senators Alexander and Murray would restore cost-sharing payments through 2019 in exchange for some amendments to the rules governing ACA waivers. Now that we have the bill text, we can start to wrap our hands around the practical effects of those waiver changes.

Most importantly, the bill would relax one of the guardrails governing state waivers. In its current form, section 1332 of the ACA requires any waiver to include cost-sharing protections that are “at least as affordable” as those in the ACA. Under the new bill, the waiver would just have to provide “cost sharing protections against excessive out-of-pocket spending that are of comparable affordability, including for low-income individuals with serious health needs, and other vulnerable populations.”

To my eyes, that’s a pretty modest change. The category of waivers with cost-sharing protections that are “of comparative affordability” to those in the ACA, but are not “at least as affordable,” is tiny. The new language may signal that HHS could approve waivers where the states would offer protections are slightly less robust than what we’ve already got under the ACA. But that’s it.

There’s been some talk that the language change might allow the approval of Iowa’s waiver. I don’t see it. As I understand it, Iowa wants to undo cost-sharing protections for its residents.* [See the update below; Iowa’s position has softened from its original waiver proposal.] How is an absence of cost-sharing protections the same as “cost sharing protections … that are of comparable affordability” to those in the ACA? I’ve explained before that the decision to grant a waiver can be challenged in court. If Iowa’s waiver wasn’t viable before, it won’t be viable even if the Alexander-Murray bill becomes law.

Apart from the guardrail change, the bill would require HHS to decide on waivers within 90 days, not 180 days, which should speed processing. Of particular relevance to Iowa’s waiver, the bill also creates an expedited approval pathway of 45 days for “urgent situations.”

What’s an urgent situation? It’s one where the Secretary determines that all or part of a State is “at risk for excessive premium increases or having no health plans offered.” But there’s less than meets the eye here. An urgent waiver isn’t automatically granted when that time has elapsed: the Secretary still has to approve an urgent waiver before it can take effect. The default is still “no.”

Of perhaps greater significance, the bill would prohibit HHS from yanking a state waiver for six years “unless the Secretary determines that the State materially failed to comply with the terms and conditions of the waiver.” That last clause means that, if a state’s waiver is approved, the next Secretary of HHS can’t terminate the waiver—even if it turns out that the waiver doesn’t comply with the guardrails.

It’s not hard to see how that change might make a difference if a Democrat takes office in 2020. Still, it’s a far cry from changes to the waiver rules in previous Republican bills, which would have outright prohibited HHS from terminating waivers for eight years, however recklessly or foolishly states spent their ACA money.

Finally, the legislation would undo HHS guidance and regulations pertaining to waivers. The Obama administration, for example, declined to allow states to package their 1332 waivers with Medicaid waivers, and use savings from one waiver to offset an increase in spending from the other. The field would be clear for the Trump administration could revisit that. Then again, the Trump administration could have revisited those Obama-era rules anyhow, so I can’t see why vacating the regulations and guidance makes much of a difference.

All in all, the changes to the waiver rules are real but minor. To borrow from Hamilton, it looks like Senator Murray got more than she gave, and wanted what she got.

@nicholas_bagley

* Update: David Anderson has pointed me to an October 5 revision that Iowa made to its waiver request that would extend cost-sharing protections to individuals up to 200% of the poverty line (the ACA affords protection up to 250%). With those protections in place, Iowa says that people up to 150% of poverty “will not see an increase in their out-of-pocket costs,” and that people between 150% and 200% of poverty will have a “lower average total cost of care,” taking into account premiums and out-of-pocket spending. Those in the 200% to 250% range won’t receive out-of-pocket protections.

Are Iowa’s revised cost-sharing protections comparably affordable to those under the ACA? The protections are certainly thinner, and for people in the 200% to 250% range, nonexistent. Whether that package as a whole is “comparable” is a question of degree: I can see an argument either way. Which is to say that the revised Iowa waiver might be approved under the new standard, but I wouldn’t be surprised to see a lawsuit over any such approval.

How a Healthy Economy Can Shorten Life Spans

The following originally appeared on The Upshot (copyright 2017, The New York Times Company).

The health of a nation’s economy and the health of its people are connected, but in some surprising ways. At times like these, when the economy is strong and unemployment is low, research has found that death rates rise.

At least, in the short term. In the long term, economic growth is good for health. What’s going on?

One study of European countries just before and during the Great Recession found that a one-percentage-point increase in the unemployment rate is associated with an 0.5 percent decline in the overall mortality rate. Other studies of Europe during different periods, as well as those of the United States, found a similar relationship between joblessness and mortality.

This is counterintuitive, since economic growth is a major factor inhigher living standards. When the economy is more productive, we have more resources to promote health and well-being.

But a surging economy does more than generate greater income. An industrial economy also pumps out more air pollution as more goods are produced. Polluted air, it turns out, is a major contributor to the mortality-increasing effect of an economic boom. In their analysis of how economic growth increases mortality, David Cutler and Wei Huang, of Harvard University, and Adriana Lleras-Muney, of U.C.L.A., found that two-thirds of the effect can be attributed to air pollution alone.

It’s a different story with agricultural economies. The Cutler, Huang and Lleras-Muney study, published as a National Bureau of Economic Research working paper, found that mortality rates fall when such economies are growing. Before 1945, when agriculture was more dominant in the U.S. economy, growth was not associated with rising mortality either.

Other research published in the journal Health Economics supports the pollution hypothesis. In their analysis of the Great Recession in Europe, José Tapia Granados of Drexel University and Edward Ionides of the University of Michigan found that a one-percentage-point increase in the unemployment rate is associated with a one percent lower mortality rate for respiratory illnesses, as well as reductions in mortality for cardiovascular disease and heart conditions, which are known to be sensitive to air pollution. In countries where the recession was more severe — the Baltic States, Spain, Greece and Slovenia — respiratory disease mortality fell 16 percent during 2007-2010, compared with just a 3.2 percent decline in the four years preceding the recession.

Other factors contribute to rising mortality during expansions. Occupational hazards and stress can directly harm health through work. Some studies find that alcohol and tobacco consumption increases during booms, too. Both are associated with higher death rates. Also, employed people drive more, increasing mortality from auto accidents.

During recessions, people without jobs may have more time to sleep and exercise and may eat more healthfully. One study found that higher unemployment is associated with lower rates of obesity, increased physical activity and a better diet. On the other hand, suicides increaseduring economic downturns.

Some recent work suggests that economic booms may have become less deadly and busts more so in recent years. This could be a result of less polluting production in modern, expanding economies, or of better medical care for those with conditions sensitive to pollution. Safer roads and cars, and less driving under the influence of alcohol and other substances, could also play a role.

“It’s also possible that opioids and other drugs may have made recessions more harmful to health than they used to be,” Mr. Cutler said.

Other analysis shows that although smaller economic booms increase mortality, larger ones decrease it. Japan’s economic booms in the 1960s and 1970s are associated with longer life spans there, for example. Serious and lengthy downturns — like the Great Depression — are associated with shorter lives, even as smaller ones lengthen them.

Wealthier nations are healthier nations, an effect seen across generations. People in their formative years — children and teenagers — are particularly sensitive to the economic environment. Conditions in utero can have lasting health and economic effects. Graduating from college during a recession can depress one’s earnings for a decade. People growing up during a strong economy are more likely to have access to resources and to develop skills and opportunities that promote health. These benefits can last a lifetime, increasing longevity.

In total, there’s little question that long-term economic growth broadly improves the human condition. But not everyone enjoys the gains equally. In the short run, economic expansions can cut short the lives of some.

@afrakt

Ateev Mehrotra on a controversial Texas emergency medicine study

In February, Annals of Emergency Medicine published a paper by Vivian Ho, Leanne Metcalfe, Cedric Dark, Lan Vu, Ellerie Weber, George Shelton Jr., and Howard Underwood. The main finding was that in a sample of Texas patients, it cost more for patients to be treated at emergency departments compared to comparable patients treated at urgent care centers. According to Health Data Buzz, the paper “caused an uproar among emergency department physicians.”

Subsequent to publication, errors were found in an appendix, which the authors corrected and with no implications for the study’s main findings.

Nevertheless, “the journal [conducted] another investigation, triggered by emergency physicians with reimbursement expertise in Texas, who raised additional concerns about the accuracy of the data.” During this investigation, the paper was temporarily removed from the journal’s website.

After further review, Annals of Emergency Medicine republished the paper in September. It is available here, along with numerous commentaries, critiques, and rebuttals in the right-hand sidebar. One critique is by Paul Kivela, president-elect of the American College of Emergency Physicians, the publisher of Annals of Emergency Medicine. Asserting discrepancies between the paper’s findings and that of his own analysis, he requested the paper be retracted. The authors responded to Dr. Kivella’s critiques here.

About this incident, I corresponded with Ateev Mehrotra, an associate professor of health care policy and medicine at Harvard Medical School and a hospitalist at Beth Israel Deaconess Medical Center who has worked extensively with health plan claims data and is conducting research on free-standing emergency departments.

Austin: What is a freestanding emergency department? What is an urgent care center? How are they different?

Ateev: As implied by the name, FSEDs are emergency departments that are not within the confines of a hospital. Though they are free-standing FSEDs should still be able to address the full spectrum of illnesses treated at a hospital-based ED and when necessary transfer patients to a hospital when a hospital admission is required.

In contrast an urgent care center does not offer care for the full spectrum of illness. Urgent care centers typically focus on low-acuity illnesses (e.g., sinusitis, strep throat) as well as sprains, strains, and simple fractures. Problems that are more complicated than this are referred to an emergency department.

While both FSEDs and urgent care centers have extended and weekend hours, hospital-based EDs are typically open 24 hours a day and some free-standing EDs are also open around the clock. Urgent care centers are typically not open all the time.

I’ve used the word “typically” a number of times in these descriptions. It is important to highlight that word as there is notable variation within FSEDs and urgent-care centers in their capacity. For example, some urgent care centers are simply after-hours clinics at a primary care practice with no laboratory or radiology services. At the other extreme, some urgent care centers have both x-ray and CT scans and can provide many IV medications.

Austin: The study found that prices for patients with the same diagnosis were 10 times higher at freestanding EDs than at urgent care centers. For example, the study found that a routine urinalysis at a freestanding ED cost $51 versus only $3 at an urgent care center. How much of this could be due to differences in patient severity? What other factors that could explain it?

Ateev: None of these results are surprising. It is widely recognized that hospital-based EDs are much more expensive than UCC. Because FSEDs are paid at similar rates as hospital-based EDs than we should also expect them to be more expensive.

In the current payment system in the US, the relative price or reimbursement of a test such as a urinalysis or CT scan does not depend on patient severity. Rather, the level of reimbursement is primarily driven by where the care was provided.

Austin: The study used data from one insurer (Blue Cross Blue Shield) in one state (Texas). How far would you generalize the findings beyond this one insurer and state?

Ateev: As with any scientific study, we must be cautious when generalizing the results. However, I would not expect the results to be different in other states or with a different insurer, because the underlying reason for the price differences are similar in those contexts. FSEDs have been successful financially because they have been paid similar rates as hospital-based EDs.

Austin: In his critique, Dr. Kivela used reported charges (not allowed amounts) from a freestanding facility in a Dallas suburb, finding significant differences with the paper’s results. How do reported charges differ from allowed amounts? To what extent could this explain the differences between Dr. Kivela’s analysis and the paper’s? How far would you generalize results based on one freestanding facility?

Ateev: Charges are fiction. They have little relationship to what is the actual reimbursement. The best analogy is to the “rack rate” at a hotel. The rack rate is the rate for a night in the hotel you see posted in the room. But no one pays that rate for a night in the hotel.

I have argued that we should simply eliminate the publication and dissemination of charge data. They are a relic of the past and all they do is cause confusion.

Austin: This paper was controversial, particularly among some emergency physicians who didn’t want it to be published. Why?

Ateev: The easy answer is money. Outside the controversy about FSEDs, the emergency medicine community is frustrated by the rhetoric around “overuse” of the emergency department for low-acuity conditions such as sinusitis or ear infections. Though they might have a straightforward diagnosis such as sinusitis, many in the emergency medicine community have argued that these patients had more severe symptoms and are not directly comparable to the care provided in a primary care office or urgent care. Concerns about emergency department spending among insurers has increased over the last decade as they have observed a dramatic increase in the reimbursement for the average emergency department visit. The severity of this conflict is illustrated in Anthem’s recent decision to deny emergency department claims for what it deems unnecessary visits.

In that context come FSEDs. They are likely big profit generators for their investors and they also employ many emergency medicine physicians. Dr. Kivela is both an investor in FSEDs as well as a head of an organization of emergency medicine physicians. Feeling threatened by this research, ACEP is naturally going to attack the article.

ACEP’s response was similar with when the New England Journal of Medicine published an article on balance billing in emergency departments. The findings of this balance billing article were also viewed as threatening by the emergency medicine community and again, ACEP attacked the methodology as flawed and accused the researchers of being biased.

@afrakt

Healthcare Triage: Is Medicaid Coverage Better or Worse than Private Insurance?

As we have discussed repeatedly here on HCT, it’s better for patients to have Medicaid than to be uninsured, contrary to critics of the program. But is having Medicaid, as those critics also say, much worse than having private insurance?

This episode was adapted from a column  Austin and I wrote for the Upshot. Links to further reading and sources can be found there.

@aaronecarroll

Trump has declared open war on the ACA

That’s the headline for an op-ed of mine that ran this weekend in the Los Angeles Times.

Back in 2013, the Obama administration asked Congress to appropriate the money for the cost-sharing payments. The Republican-controlled Congress refused. Concerned for the fate of its healthcare bill, the Obama administration then adopted a dubious legal theory that allowed it to make the payments even in the absence of a clear appropriation from Congress.

Incensed, the House of Representatives sued the administration. A federal court ruled in the House’s favor but put its opinion on hold to allow the Obama administration to appeal.

 That’s where matters stood when President Trump took office. At that point, he decided that the threat of withholding the payments would give him leverage in negotiations over repealing and replacing Obamacare. “You’ve got a lot of nice people with insurance there, Democrats,” he might as well have said. “It’d be a shame if something happened to them.”

Ten months later, Trump has followed through on his threat, claiming to finally appreciate that the payments cannot lawfully be made. But the constitutional rhetoric is pure pretext. Ending the cost-sharing payments is only the most visible manifestation of a systematic campaign to sabotage the ACA.

Go read the whole thing!

@nicholas_bagley

Today’s interview, basically: CSR edition

Hypothetical discussion with a journalist:

Q: If the federal government doesn’t pay the cost sharing reductions, consumers that rely on them are screwed, right?

A: No, insurers have to pay them anyway.

Q: Oh! Well, then insurers are screwed, right?

A: Not necessarily. They could raise premiums to cover the costs.

Q: Ah ha! But, then consumers are screwed, yes?

A: Some could be, yes, those that aren’t protected by premium tax credits. But those who get those credits are protected from premium increases.

Q: Umm, so almost nobody is worse off?

A: Well, like I said, those who aren’t protected by premium tax credits could pay higher premiums. But there is actually a scenario under which they aren’t worse off, and could be better off. It’s tricky, so I won’t go into it here. Go talk to Charles Gaba. But also keep in mind, since premiums go up, so do the tax credits, which the government pays.

Q: But the government saves money in the end because of not paying cost sharing reductions, right?!

A: No, the premium tax credit increases are larger than the cost sharing reductions savings. The government pays more, so taxpayers are worse off.

Q: So this doesn’t even save money?! Ooookaaaayy, but it does cause some turmoil in the markets, right?

A: Yes, it could. But there will be lawsuits. A very likely consequence is that the government ends up paying for the cost sharing reductions anyway. And, in the meantime, an immediate injunction could be granted to keep the cost sharing reduction payments flowing.

Q: So all of this could end up leading to … literally no change for anybody?

A: Yeah, that sounds about right.

Q:

@afrakt

Why America Needs Foreign Medical Graduates

The following originally appeared on The Upshot (copyright 2017, The New York Times Company).

As our recent eight-nation bracket tournament showed, many people think the United States health care system has a lot of problems. So it seems reasonable to think of policy changes that make things better, not worse. Making it harder for immigrants to come here to practice medicine would fail that test.

The American system relies to a surprising extent on foreign medical graduates, most of whom are citizens of other countries when they arrive. By any objective standard, the United States trains far too few physicians to care for all the patients who need them. We rank toward the bottom of developed nations with respect to medical graduates per population.

When physicians graduate from medical school, they spend a number of years as residents. Although they have their degrees, we still require them to train further in the clinical environment to hone their skills. Residents are more than learners, though; they’re doctors. They fill a vital role in caring for patients in many hospitals across the country. We don’t have enough graduates even to fill residency slots. This means that we are reliant on physicians trained outside the country to fill the gap. A 2015 study found that almost a quarter of residents across all fields, and more than a third of residents in subspecialist programs, were foreign medical graduates.

Leaving training aside, foreign medical graduates are also responsible for a considerable share of physicians practicing independently today. About a quarter of all doctors in the United States are foreign medical graduates.

As in many other fields, foreign medical graduates work in many of the areas that other doctors find less appealing. More than 40 percent of the American primary care work force is made up of people who trained in other countries but moved here. More than half of all the people who focus on caring for older people are foreign medical graduates as well.

As if this weren’t enough, foreign medical graduates are more likely to practice in geographic areas of the country where there are physician shortages (typically nonurban areas), and they’re more likely to treat Medicaid patients.

As a physician who graduated from a domestic medical school, I’ve often heard others disparaging doctors who went to medical school outside the country as if they were inferior. Those complaints are not supported by data. A study from Health Affairs in 2010 found that patients with congestive heart failure or myocardial infarction had lower mortality rates when treated by doctors who were foreign medical graduates. Another from earlier this year in the BMJ found that older patients who were treated by foreign medical graduates had lower mortality as well, even though they seemed to be sicker in general.

A recent study in Annals of Internal Medicine shows that these graduates are also responsible for a significant amount of teaching. Of the 80,000 or so academic physicians in the country, more than 18 percent were foreign medical graduates. More than 15 percent of full professors in medical schools in the United States were educated elsewhere, most often in Asia, Western Europe, the Middle East, Latin America and the Caribbean.

Foreign medical graduates also do a lot of research. Although they are ineligible for some National Institutes of Health funding — which is granted only to citizens of this country — they still manage, through collaboration, to be primary investigators on 12.5 percent of grants. They led more than 18 percent of clinical trials in the United States and were responsible for about 18 percent of publications in the medical literature.

“Our findings suggest that, by some metrics, these doctors account for almost one fifth of academic scholarship in the United States,” said the lead author of the study, Dhruv Khullar, who is a physician at NewYork-Presbyterian Hospital, a researcher at Weill Cornell and a contributor to The Upshot. “The diversity of American medicine — and the conversations, ideas and breakthroughs this diversity sparks — may be one reason for our competitiveness as a global leader in biomedical research and innovation.”

The United States is not the only country that relies on doctors trained or educated in other countries. We’re not even the country with the highest percentage of such physicians. According to data from the Organization for Economic Cooperation and Development, almost 58 percent of physicians practicing in Israel are foreign medical graduates. About 40 percent of the doctors in New Zealand and Ireland were trained outside those countries.

Because of the sizes of those nations, even though the percentages of foreign medical graduates are higher there, the total numbers aren’t as high as in the United States. In 2015, the O.E.C.D. estimated that the United States had more than 213,000 foreign-trained doctors, and no other country was close. Britain had about 48,000, Germany had about 35,000, and Australia, France and Canada had between 22,000 and 27,000.

For years, I’ve listened to doctors tell me stories of physicians who leave Canada — because they were dissatisfied about working in a single-payer health care system. That might have been true decades ago. But in the last 10 years, that number has dropped precipitously. The number of Canadians returning to their country to practice may actually be higher than the number leaving.

Although many feared that coverage expansions from the Affordable Care Act might lead to an overwhelmed physician work force, that didn’t happen. That doesn’t mean that America doesn’t have a shortage of physician services, especially when it comes to the care of the oldest, the poorest and the most geographically isolated among us. Even though we know foreign medical graduates care for those patients disproportionately, we make it very difficult for many born and trained elsewhere to practice here. Some Americans need these doctors desperately. Evidence suggests that policies should be made to attract them, not deter them.

@aaronecarroll

Cutting off the cost-sharing payments.

Politico just broke the news that the Trump administration will terminate the Affordable Care Act’s cost-sharing payments, further destabilizing the already-fragile exchanges on the eve of open enrollment. Although state regulators and insurers have taken steps to protect themselves (see this great explainer from David Anderson, Charles Gaba, Louise Norris, and Andrew Sprung), the abrupt end to the cost-sharing payments will have unpredictable and unhappy consequences.

For those who are coming late to the story, read my take on the long-simmering dispute over at Vox. This is the backdrop:

The Affordable Care Act provides two kinds of subsidies to help low- and middle-income people pay for insurance on the exchanges. Premium subsidies defray the cost of premiums for people making less than four times the poverty level. For those who make less than that, cost-sharing reductions help cover the costs of deductibles and other out-of-pocket spending.

Although they serve similar goals, the two subsidies function in different ways. The premium subsidies are refundable tax credits that go to individuals: They are administered through the tax code. For cost-sharing reductions, the ACA requires insurers to cut their lowest-income customers a break on their out-of-pocket spending. In turn, the statute says the federal government will, reimburse insurers for doing so.

Here’s the catch. The Constitution says that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Under the persnickety rules governing appropriations law, it’s not enough for a statute to order the government to make a payment. Congress must adopt a law that specifically appropriates the money to make that payment. And while the Affordable Care Act does link the premium subsidies to an existing appropriation, it’s silent about the cost-sharing reductions.

Some years back, the House of Representatives sued the Obama administration for continuing to make the cost-sharing payments in the absence of an appropriation. Although I still don’t think that the House had standing to sue, I thought its legal argument was sound: the money hadn’t been appropriated. The Trump administration apparently agrees, and is using that as its pretext to terminate the payments.

So what happens now? Lawsuits, lawsuits, and more lawsuits. Right out of the gate, I’d put dimes to dollars that that the 16 states that have intervened in the ongoing litigation will seek an immediate injunction from the D.C. Circuit to keep the cost-sharing payments flowing. The states may also file a separate lawsuit in district court seeking the same relief. I don’t know if either gambit will work, but the states will try.

If the Trump administration successfully brushes back those efforts, I explained what comes next in an article for the Penn Law Review:

Even without an appropriation, the ACA creates an entitlement to cost-sharing reductions. Health plans can vindicate that entitlement before the Court of Federal Claims. Payment would then come from the Judgment Fund—a permanently appropriated fund to pay court judgments where “payment is not otherwise provided for.” The question is thus not whether the government will pay, but when.”

This year, cost-sharing payments have amounted to about $7 billion. Unless Congress moves to repeal or amend the Affordable Care Act—good luck with that—obligations of similar size will accrue through 2018 and beyond.

In other words, we’re about to see witness of the largest lawsuits, dollar-wise, in United States history.

What’s more, I think the lawsuits are viable. We’ve already seen a couple of district courts grant multi-million dollar judgments in litigation over risk corridor payments. And the risk corridor cases raise some tricky questions about what sorts of promises the federal government has made to insurers. The cost-sharing cases don’t. On the law, they’re really straightforward.

Now, Congress could always appropriate the money. That would stanch the bleeding and restore some confidence to the rattled insurance markets. Or, alternatively, Congress could prohibit the Judgment Fund from paying out any judgment in cost-sharing litigation, although that would amount to a government default on its obligations. The damage to the government’s reputation would be severe, as Craig Garthwaite and I discussed in this New York Times op-ed.

If Congress doesn’t act, it’s really the worst of all worlds. To compensate for the loss of cost-sharing payments, insurers will have to raise their premiums for silver plans. Because premium subsidies are keyed to the price of silver plans, the size of the subsidies will increase along with the rise in premiums. And because many more people are eligible for premium subsidies than for cost-sharing reductions, total federal outlays will actually increase.

So taxpayers will have to pay increased premium subsidies at the front end. Then they’ll also pay the cost-sharing money through litigation at the back end. It’s a financial bath, and for no good reason other than sheer political cussedness.

What a stupid, profligate, and unnecessary mess.

@nicholas_bagley

Doubtful Science Behind Arguments to Restrict Birth Control Access

The following originally appeared on The Upshot (copyright 2017, The New York Times Company).

In a new rule about coverage of contraception, the Trump administration argues against the positives of birth control and highlights potential harms. But those claims don’t stand up to scrutiny.

The new rule weakens the mandate for health coverage of contraception under the Affordable Care Act, giving more leeway to employers with religious or moral objections. It’s a move with many legal and economic implications, but my interest here is with the science — specifically with the assertions made by the Department of Health and Human Services about the benefits and harms from contraception.

Page 44 of the 163-page document begins an effort to dismantle many of the arguments for contraceptive use. It first focuses on unintended pregnancies, reviewing some of the studies from the 2011 Institute of Medicine report to justify its assertions of “complexity and uncertainty in the relationship between contraceptive access, contraceptive use and unintended pregnancy.”

There is no uncertainty in the fact that contraceptive use significantly reduces the risk of unintended pregnancy. There is also no uncertainty in the fact that increasing access to contraception increases contraceptive use. The question most on point is whether the mandate to provide free contraception to all women in the United States provides a benefit.

The H.H.S. department notes that from 1972 through 2002, as “the percentage of sexually experienced women who had ever used some form of contraception rose to 98 percent, unintended pregnancy rates in the United States rose from 35.4 percent to 49 percent.” This statement cited three different sources for those three percentages — and even then it cherry-picked facts. It’s not surprising that nearly all women who are “sexually experienced” have used “some form of contraception” at one point. What matters is whether they use effective contraception regularly.

The ending date of 2002, even though we have much more current data, is also strange. If we looked more recently, we’d see very different results. In 2011, the unintended pregnancy rate hit a 30-year low. And the teenage pregnancy rate and teenage birthrate right now are at record lows in the United States. This is largely explained by the use of reliable and highly effective contraception.

In addition to arguing against the positive results, the H.H.S. rule also argues that contraception is associated with negative health effects. First, it highlights the side effects of hormonal contraceptives. Those are real, and include spotting and nausea, with the potential for mood changes.

But if the government were to use the mere existence of side effects to decide not to cover therapies, there would be no therapies to cover. All medical treatments, including all drugs, have side effects. Every health decision weighs benefits and harms, and birth control provides benefits beyond preventing pregnancies, including reduced rates of some cancers, regular cycles and reduced bleeding and menstrual cramps.

More important, the report argues that enrolling families who object to contraception may “affect risky sexual behavior in a negative way.” The citation supporting this assertion is a law review article published in 2013 saying that much of the research in favor of contraception lacks proof of causality, and that other research supports the idea that normalizing sex through easier access to contraception increases the likelihood that teenagers will engage in risky sex.

In 2014, researchers published results from the Contraceptive CHOICE project, a study of more than 9,000 women, more than 4,000 of whom were 14 to 24, who were at risk of an unplanned pregnancy. They were given long-acting reversible contraception at no cost, and followed for two to three years to see what would happen. The number of women who reported recent multiple sexual partners went down, not up. There were no increases in the rates of sexually transmitted infections.

Further, if we can get beyond a war of handpicked studies, we can look at what has happened in the real world. The proportion of teenagers who “ever had sex” dropped to 41 percent in 2015 from 47 percent in 2011. The proportion who were “currently sexually active” dropped to 30 percent from nearly 34 percent. The proportion who “had sexual intercourse with four or more persons” dropped to less than 12 percent from 15 percent.

The percentage of those using long-acting birth control, however, has been increasing. “There is no evidence that contraception increases high-risk sexual behavior,” Dr. Jeffrey Peipert, chairman of the Department of Obstetrics and Gynecology at the Indiana University School of Medicine and author of the study, told me.

Of course, disparities exist in family planning as in almost any aspect of health care. A 2016 study in The New England Journal of Medicine showed that the unintended pregnancy rate among women who earn less than the federal poverty line was two to three times the national average in 2011. An earlier study showed that in the years before, that rate was up to five times higher.

Effective, long-acting birth control can be expensive. First-dollar coverage, or coverage without co-pays or deductibles, was what the Affordable Care Act required, a requirement the Trump administration’s new rule undoes. Such coverage can offer women who don’t have upward of $1,000 of disposable income options that they otherwise wouldn’t have. The proportion of women who had to pay out of pocket dropped from more than 20 percent before Obamacare to fewer than 4 percent in 2014. Women saved more than $1.4 billion in 2013 because of this change.

“From a societal perspective, contraception saves health care dollars,” Dr. Peipert said. “Every dollar of public funding invested in family planning saves taxpayers at least $3.74 in pregnancy-related costs. It seems clear that providing contraception is a cost-saving preventive service and benefits public health.”

Many things remain unclear with this new rule. We don’t know how many women will actually be affected by it. One survey showed that more than 10 percent of employers with more than 200 employees would stop covering contraception if it weren’t required by law. It’s not clear, though, how many would actually follow through. The administration estimates that only nine employers who use the accommodation process now will make use of this new rule to become fully exempt. It thinks fewer than 10 will end coverage based on “moral objections.” It believes no more than 120,000 womenwould be affected over all.

Regardless of the numbers, many women’s and public advocates assailed the new order as an attack on women’s rights. It’s notable that one of the arguments the administration uses to support the move is that “the government already engages in dozens of programs that subsidize contraception” for low-income women. The government is trying to reduce funding to those programs as well.

We aren’t going to settle many of those arguments here. But we can move the scientific and medical ones forward. There is ample evidence that contraception works, that reducing its expense leads to more women who use it appropriately, and that using it doesn’t lead to riskier sexual behavior.

@aaronecarroll