Move over, Tim Tebow, “Linsanity” has taken over.

Yes, as in Jeremy Lin, the very first Asian American to ever make the NBA.  A walk-on at Harvard University, not exactly known for its men’s basketball program, and not even drafted by any NBA team.  And as recently as last December, I believe, 23 year-old Jeremy may have been cut by some team and picked up by the Knicks to fill space on the roster.

To understand what “Linsanity” is, watch the minute-long video from the Knicks-Raptors game a couple nights ago at http://bit.ly/wR7mm3.

Since Jeremy has been starting in place of the injured NBA superstar, Carmelo Anthony, the Knicks have won 7 games in a row! And what’s great is if you ever hear him interviewed he is really humble, praises his teammates, and deflects compliments, like Tebow, sincerely acknowledging his Lord for whatever gifts and talents that he has.

Team sports, regardless of the level they’re played at, are all about coaching and the chemistry between teammates.  This kid has inspired confidence, and his obvious leadership is helping to elevate the play of his teammates to the point where his team looks to be really competitive all of a sudden.

It will be interesting to see what happens when Carmelo Anthony returns from his injury.  His team really does not miss him at all, despite his superstar status.

It wasn’t all about the Summary of Coverage documents last Thursday. The Departments of Labor, HHS and Treasury also issued new guidance on frequently asked questions by employers and health plans concerning the auto-enrollment, employer requirements and waiting periods in PPACA. The agencies have asked for comments on the new guidance, which is due by April 9th.  My industry trade, NAHU, plans to submit a letter on behalf of its members, and the Employers for Flexibility In Health Care coalition is expected to submit detailed comments as well.

For those of you who like who prefer the Cliff Notes version rather than reading the seven detailed questions and their answers, here is a run down of some of the key points made in the document.

• Don’t worry about auto-enrollment any time soon. ”The Department of Labor has concluded that its automatic enrollment guidance will not be ready to take effect by 2014.”
• What do employers have to do to determining if their coverage is “affordable” or not (a.k.a. whether or not the employee is allowed to drop employer coverage and go seek individual subsidized coverage through a state exchange)? The document states that “Treasury and the IRS intend to issue proposed regulations or other guidance permitting employers to use an employee’s Form W-2 wages (as reported in Box 1) as a safe harbor in determining the affordability of employer coverage.”
• What about a look-back/stability period safe harbor for employers? ”It is anticipated that the guidance will allow look-back and stability periods not exceeding 12 months.”
• If you were wondering how and when you are supposed to decide if an employee is full-time or not: ”Treasury and the IRS intend to propose an approach under which the period of time that an employer will have to determine whether a newly-hired employee is a full-time employee (within the meaning of section 4980H) will depend upon whether, based on the facts and circumstances, (a) the employee is reasonably expected as of the time of hire to work an average of 30 or more hours per week on an annual basis and (b) the employee’s first three months of employment are reasonably viewed, as of the end of that period, as representative of the average hours the employee is expected to work on an annual basis.”
• Employers are not required to offer coverage to part-time employees.
• When does the benefit waiting period clock begin to tick? ”The 90-day waiting period begins when an employee is otherwise eligible for coverage under the terms of the group health plan.”
• What is the interaction between 90-day wait periods and employer penalties? “The upcoming guidance is expected to provide that, at least for the first three months following an employee’s date of hire, an employer that sponsors a group health plan will not, by reason of failing to offer coverage to the employee under its plan during that three-month period, be subject to the employer responsibility payment under Code section 4980H.”

The Obama administration released the final rules for the Patient Protection and Affordable Care Act’s (PPACA) Summary of Benefits and Coverage (SBC) on February 9th. The requirements have been the subject of much contention between insurers, employers and consumer groups over the past two years, and the final rules have been much anticipated by the benefits community.

One of the most contentious parts of the debate about the new requirements was their effective date. PPACA specified that the SBC provisions begin on March 23, 2012, but the law also specified that this final rule be issued by March 23, 2011, so it is almost a year late. To give insurers and employers time to implement the provisions, the new requirements kick in on the first day of the first open enrollment period that begins on or after September 23, 2012. “For administrative simplicity, with respect to disclosures to participants and beneficiaries who enroll in group health plan coverage other than through an open enrollment period (including individuals who are newly eligible for coverage and special enrollees), PHS Act section 2715 and these final regulations apply on the first day of the first plan year that begins on or after September 23, 2012. For disclosures to plans, and to individuals and dependents in the individual market, these requirements are applicable to health insurance issuers beginning September 23, 2012.”

The final coverage summary rule also specifies that the SBC requirements apply to all health plans and insurers, not just fully insured plans. One of the professional trade associations that I am a member of, the National Association of Health Underwriters (NAHU) and other groups asked that large group plans be exempted, as they already provide extensive customized information to enrollees and this requirement would just create another expensive compliance requirement, but the Department of Health and Human Services (HHS) ruled that it did not have the authority under PPACA to exempt certain size groups or types of plans from the requirements.

The final rule removes a requirement that the benefit summaries include premium information.  It also reduces the number of “coverage examples” that must be provided in each SBC from three to two. Under the final rule, insurers will have to illustrate what the plan would cover, and what the patient would pay, under two scenarios—having a baby and managing diabetes.

The rule specifies that it is only providing guidance on what the SBC must contain for the first year of applicability; additional guidance will be provided before January 1, 2014 about how to communicate whether the plan provides minimum essential coverage.

On a technical level, the SBC no longer has to be a standalone document, and it may be provided in color or grayscale. The new materials also create a special rule for cases in which a plan’s terms “cannot reasonably be described in a manner consistent with the template and instructions.” In those cases, plans must make an effort to describe coverage in a consistent manner.

Additional Information:

• Summary of Benefits Final Guidance
• Diabetes Narrative and Scenario
• Maternity Narrative and Scenario
• Instruction Guide for Group Coverage

The Department of Health and Human Services’ Center for Consumer Information and Insurance Oversight (CCIIO) issued final regulations for the Summary of Benefits and Coverage (SBC) and Uniform Glossary today. These rules require employers sponsoring group health plans to distribute an SBC to all applicants (at the time of application), policyholders (at issuance of the policy), and enrollees (at initial enrollment and annual enrollment). This requirement was originally supposed to be effective on March 23, 2012.

In response to comments received regarding the proposed regulations in August 2011, the agencies issued sub-regulatory guidance in the form of FAQs on November 29, 2011. In this guidance, the agencies simply indicated that plans and insurers were not required to comply with the SBC requirement until final regulations were issued and applicable.

The final regulations do delay the effective date of the requirement. The new effective date is (i) the first day of the plan’s open enrollment period on or after September 23, 2012 for disclosures required to be provided to re-enrollees or late enrollees; and (ii) the first day of the plan year that begins on or after September 23, 2012 for individuals newly eligible for coverage (such as new hires or special enrollees). For example, a calendar year plan with an open enrollment period beginning November 15 would need to begin complying with the new regulations on November 15, 2012 for re-enrollees and late enrollees and January 1, 2013 for newly eligible individuals.

To view the final template for the summary of benefits and coverage, visit:

http://cciio.cms.gov/resources/other/index.html#sbcug

To view the final regulations, visit: http://www.ofr.gov/inspection.aspx

Other technical information is available at: http://cciio.cms.gov/

To view the fact sheet, visit:

http://www.healthcare.gov/news/factsheets/2011/08/labels08172011a.html

USA Today /Kaiser Health News (2/9, Appleby) discusses “a new twist” to the cost of out-of-network healthcare: “a growing number of insurers have changed the way they calculate reimbursements to shift more of the expense to patients. Now, instead of paying a percentage of the ‘usual and customary’ charges from physicians and other providers, insurers are basing reimbursements on a percentage of what Medicare pays, which can be much less.” Insurers argue that “the new approach offers greater consistency and thwarts efforts to game the system,” citing cases “‘where 98% of the physicians would charge $5,000, but some outlier would decide to charge $50,000,’ which would drive up the average.”

The Hill (2/8, Pecquet) reports in its “Healthwatch” blog, “Americans who are eligible for Medicare benefits can’t give them up, a federal appeals court ruled Tuesday. The unusual case was brought by five people who would prefer not to be on Medicare because their private insurer limits hospital coverage for customers who are entitled to the government health program.” The plaintiffs, “who include former House Majority Leader Dick Armey (R-Texas), sued to stop their automatic enrollment into Medicare,” but the court explained in its decision that the plaintiffs “seek a legal declaration that Medicare Part A benefits cannot be paid on their behalf” and concluded that the law “does not provide a mechanism for beneficiaries to opt out.”

The AP (2/8) reports, “‘We understand plaintiffs’ frustration with their insurance situation and appreciate their desire for better private insurance coverage,’ Judge Brett Kavanaugh wrote in a majority opinion joined by Douglas Ginsburg, both Republican appointees. But they agreed with the Obama administration that the law says those over age 65 who enroll in Social Security are automatically entitled to Medicare Part A, which covers services including hospital, nursing home care, hospice and home health care.” Meanwhile, attorney Kent Brown, “who argued the case for the plaintiffs, says they want to keep their Social Security because they believe they earned it, but none of them want Medicare Part A,” and he vowed to appeal the ruling, calling it “outrageous” and contending that it was never intended by Congress to be unable to “decline Medicare Part A and not opt out of Social Security.”

The attorney who argued the case for the plaintiffs is none other than Kent Masterson Brown, the same attorney who achieved some notoriety in 1993 when he was counsel for the plaintiffs in the case that forced the White House to open the meetings and the records of Hillary Clinton’s Health Care Task Force.  Since it appears that the appellate court ruling will be appealed, the next stop for this lawsuit will be the Supreme Court of the United States (SCOTUS), that is if the SCOTUS agrees to hear the case.

Yes, the clock is still ticking and Congress is still searching for a way to avoid the looming massive cuts in Medicare’s payments to doctors (again). Not to mention a payroll tax increase, oh, and unemployment benefits, too.  The conference committee charged with resolving all of these issues by March 1 held two meetings last week, the first of which included a more extensive discussion of the need for a long-term fix to the Medicare physician payment problems stemming from the sustainable growth rate formula.

Although support for using savings from the draw down of the wars in Iraq and Afghanistan had appeared to be growing, that option seems be losing steam at week’s end. Senators Tom Coburn (R-OK) and Joe Lieberman (I-CT) sent a letter to Senate Majority Leader Harry Reid (D-NV) and Senate Republican Leader Mitch McConnell (R-KY) expressing their opposition to using the war savings to pay for an SGR (Medicare Sustainable Growth Rate) fix and vowing to oppose any such effort.

House Ways and Means Committee Chairman Dave Camp (R-MI), who also is serving as chairman of the conference committee, has scheduled three meetings this week to try and come to some resolution. It sounds like those meetings are necessary, as Democratic conferee Representative Chris Van Hollen of Maryland told reporters today that the group has “made progress on the edges of some of the secondary issues but we haven’t tackled the core issues yet.” Meanwhile, Senate Majority Leader Reid told reporters that Senate Democrats are preparing a backup plan in case the conference committee does not reach an agreement.

Two more key deadlines occurred yesterday in the legal battle over the constitutionality of the Affordable Care Act. The 26 states and the National Federation of Independent Business (NFIB) who are suing the federal government over the law, and the Justice Department had until 5:00 p.m. EST today to file briefs about the central question of the their lawsuit—whether or not Congress overstepped its constitutional authority with the individual mandate provisions of the law.

They are likely to argue that Congress does not have the constitutional authority to make the purchase of any product (like health insurance) a requirement of citizenship, and that if the individual mandate in  is upheld, it could trigger countless other mandates and lead to unprecedented government intervention in the lives of individual citizens.

The states and NFIB also must file their briefs today concerning the applicability, or lack thereof, of the Anti-Injunction Act in this case. The Anti-Injunction Act is a relatively obscure federal law that specifies entities may not sue over a tax until it has actually been levied. If the individual mandate’s penalty requirements are deemed an applicable tax in this case, then it could prevent the Supreme Court from reaching a decision on the mandate’s constitutionality until it goes into effect in 2014. All parties in the case (the states, the NFIB and the Obama administration) have stipulated that they believe the Anti-Injunction Act is not relevant to this matter. However, a lower court ruled in a separate challenge to the health care law that the Anti-Injunction Act did apply, and so the Supreme Court has called for arguments about its potential applicability in this case and has appointed independent counsel to argue in its favor.

In 2014, health insurance plans offered through state insurance exchanges, as well as non-grandfathered plans offered in the individual and small group markets, will be required to cover a set of health benefits and services called “essential health benefits.” The essential benefit packages must cover 10 broad categories of services specified in PPACA, but the bill gave the federal Department of Health and Human Services (HHS) discretion to determine the details of what exactly is to be covered and how.

In December 2011, HHS issued a bulletin to give states some instructions about how they may determine the essential benefit package structure in their states. Comments on the proposed bulletin were due on January 31st.  We are members of the National Association of Health Underwriters (NAHU) which submitted comments on behalf of its membership, and NAHU also collaborated with its Essential Health Benefit Coalition partners to submit these detailed comments.

Further, NAHU CEO Janet Trautwein participated in a widely attended briefing on the topic by the Alliance for Health Reform and The Commonwealth Fund on February 3.  Other speakers included John Santa of Consumer Reports, Rhode Island Health Insurance Commissioner Chris Koller, and Kavita Patel of the Brookings Institution.  Ed Howard (Alliance for Health Reform) and Sara Collins (The Commonwealth Fund) co-moderated. To watch the very informative panel session and view the presenter’s slides, click here.

On February 1st the House of Representatives voted 267-159 to repeal the CLASS Act provisions of PPACA, which would create a voluntary, federal long-term care program that the Obama administration has conceded would never be financially viable. Twenty-eight Democrats joined all Republicans in support of the repeal measure.

The Obama administration currently has no plans to implement the CLASS Act provisions of  PPACA, but has said the program should not be formally struck down. However, supporters of the repeal CLASS measure argue that failing to implement a program that is still on the books could lead to legal challenges.

In addition to voting on the overall repeal bill, the House considered the following four amendments, all of which were ultimately voted down. Two were offered by Representative Sheila Jackson Lee (D-TX). Her first amendment, to prevent the repeal of the CLASS program until more studies are done, was rejected 161-263. Her second, which was to prevent the repeal of the CLASS program until the government certifies that 60 percent of people aged 25 years and up have private long-term care insurance was rejected 157-264.

Representative Ted Deutch (D-FL) also offered a proposal to prevent the repeal of CLASS until 90 days after the government certifies that failing to implement the program will not increase state or federal spending for long-term care, which was rejected 164-260. His final amendment, to require the government to provide more information to Congress before CLASS can be repealed, was also rejected by a vote of 160-264.

The CLASS repeal bill now goes to the Senate where the Democratic leadership has no plans to bring the bill up for a vote. Senator John Thune (R-SD) plans to attempt to force a vote, but it’s unclear how successful he will be. In terms of the future of the issue in the House, Congressman Boustany (R-LA) is in the process of developing an alternative measure that will focus on private market long-term care incentives. This bill has been in the development process for several months, and is likely to be dropped later this spring.