March 2012 Advocacy Update

AFFORDABLE CARE ACT

 

Two Year Anniversary

March 23 marked the two year anniversary of the Affordable Care Act, which included key provisions that are improving access to quality, affordable health care for people with cancer and those at risk of developing the disease. These provisions include critical patient protections that:

 

• Ban pre-existing condition exclusions that are used to deny lifesaving coverage to people with cancer;
• Eliminate annual and lifetime benefit limits that can cut off access to critical cancer care;
• Enable children with a history of chronic disease such as cancer to stay on their parents' health plan until age 26;
• Prohibit insurers from charging people more for coverage because they have a condition such as cancer;
• Refocus the health care system on disease prevention and early detection; and
• Require insurers to provide consumers with brief, easy-to-understand information about their plan.

 

The American Cancer Society and ACS CAN support these provisions because the Society's own peer reviewed studies show that the uninsured are more likely to be diagnosed with cancer at advanced stages, and are less likely to survive the disease. The organizations are working to ensure that these and other critical provisions are implemented and protected in a way that works for people with cancer. Read the ACS CAN press release and an op ed by Midwest Division CEO Jari Johnston-Allen.

 

Litigation

Last week was a blockbuster for the Supreme Court, which hosted three days of arguments on the Affordable Care Act, an unprecedented amount of time in the modern era which underscores the critical nature of the challenges. Media coverage was extensive, but we wanted to provide you with ACS CAN's perspective. As you know, the Society and ACS CAN, along with the American Diabetes Association (ADA) and American Heart Association (AHA), jointly filed a friend-of-the-court brief with the Court arguing that the "individual responsibility" provision -- the so-called individual mandate --  is critical to sustaining patient protections in the law that are so important to people with cancer and their families. The Society and ACS CAN hope that the provision  is upheld so provisions that are improving access to quality, affordable health care can be successfully implemented. CNN ran an op ed to that effect authored by Society and ACS CAN CEO John Seffrin and his counterparts from ADA and AHA last week.

CNN Op Ed.pdf 

 

Day One - Anti-Injunction Act

The justices began with a procedural matter as to whether the Anti-Injunction Act, which bars lawsuits to invalidate taxes from being imposed before a tax is actually levied, would preclude the court from hearing arguments on the merits of the cases. The issue was raised by the Court of Appeals for the Fourth Circuit, which determined that no case could be brought at this time regarding the provision individual mandate because it was not yet in effect. Despite 90 minutes of oral arguments, the justices seemed to agree with both challengers and defenders of the law that the case should be heard on the merits. Based on their questions, the justices are expected to dismiss the procedural problem and proceed to other issues.

 

Day Two - Individual Mandate

The second day was more eventful, with the court debating whether the individual mandate is constitutional. The mandate has been challenged on the grounds that it exceeds Congress' authority under the Constitution to require people to purchase a good or service. Challengers say Congress has never required anyone to purchase anything as a condition of merely living in the US, as all other types of insurance (such as auto or property) are based on an individual's desire to engage in certain types of activity (such as driving a car or owning a home). The federal government defended the law, saying health care is a unique commodity because everyone will consume it at some point, but no one knows exactly when. The rationale for the individual mandate is that it spreads risk across the entire population, essentially acting as a financing scheme for emergency care, which hospitals are required to provide under federal law. Under the government's theory, Congress appropriately used its constitutional authority to regulate commerce in creating the mandate.

 

The justices asked tough questions of both sides. Of particular note, Chief Justice John Roberts and Justice Anthony Kennedy, thought to be swing votes on the issue, pressed the government's attorney particularly hard. Justices Antonin Scalia and Samuel Alito appeared opposed to the mandate. Although Justice Clarence Thomas did not ask any questions, experts believe he will oppose the mandate based on his previous rulings.  Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, Sonia Sotomayor appeared to defend the law as part of overall insurance reform.

 

On a side note, a new report from the Robert Wood Johnson Foundation and Urban Institute averring that the individual mandate would not affect most Americans. In fact, 94 percent of the population would currently meet the requirement. The report also finds that by bringing more people into the health insurance market, the mandate would lead to lower premiums and more stable insurance markets.

 

Day 3 - Severability and Medicaid

The third and final day addressed two separate issues. The first was what would happen to the remainder of the law if the individual mandate is found unconstitutional. In legal terms, the question is whether the mandate can be "severed" from the law's other provisions. The law's challengers maintain that if the individual mandate is struck down, the entire law be struck down too. The government argues that much of the law should remain in place without the mandate, although the law's insurance could not be sustained,  such as the ban on denying coverage to people with pre-existing conditions. According to the government, the mandate is spreads risk across populations. Without it, the health insurance market fails.

 

Because neither challengers nor defenders of the law believe that the individual mandate can be severed from the rest of the law  (as the 11^th Circuit Court of Appeals held) the Supreme Court appointed an outside attorney to argue for severance. During the questioning, it was evident that certain justices, most notably Scalia and Alito, felt the whole law must be overturned, while Breyer and Ginsburg made it clear that unrelated provisions, such as menu labeling and expansion of funding for the Indian Health Service, should remain intact.

 

The final issue was Medicaid expansion in the Affordable Care Act. Under the law, the program's current coverage would expand to all adults earning up to 133 percent of the federal poverty level in 2014, with the federal government assuming 100 percent of the costs of the newly eligible individuals for the first three years (2014-2016). (Federal support will phase down slightly over the following several years, so that for 2020 and all subsequent years, the federal government is responsible for 90 percent of the costs of covering these individuals.) The states challenging the law aver that the provision amounts to unauthorized coercion by the federal government and forces states to expand their Medicaid rolls in a way that violates their rights. None of the lower courts that have considered this argument have accepted it, but some justices voiced concerns about the program.

 

Next Steps

It is important to keep in mind that a justice's apparent position during oral arguments is never a certain indicator of how he or she will ultimately vote. The Court held a conference on Friday, March 30 and took a preliminary vote before assigning who will write the opinions. Multiple drafts will then circulate back and forth and justices can change their votes and opinions at any time. A final ruling is expected in June of this year, before the court adjourns for the summer. In the meantime, implementation will continue.

 

Washington State First to Select Essential Benefits Benchmark

On March 23, the governor of Washington signed a law providing for continued implementation of the state's health insurance exchange, making it the first state to decide on a "benchmark plan" that defines the essential health benefits all plans will be required to offer in the state's individual and small group market, both inside and outside their health insurance exchange, beginning in 2014. The determination was made through the legislative process, with the law specifying that the benchmark plan is the largest (by enrollment) small-group health plan in the state. Most state legislatures will, as happened in Washington, play a role in determining the essential health benefits, if only because the exchange or executive branch lacks the legal authority to decide how the benefits apply to plans outside the exchange.

 

All states must choose a benchmark plan from among 10 plans already in place. If states do not select a benchmark plan by September 30, the decision will automatically default to the largest small-group plan in the state. ACS CAN, along with other consumer and patient advocacy groups, are working to determine how this approach assures adequate coverage, "adequate" being one of  the Society and ACS CAN's "four A's for expanding access to care. During 2014 and early 2015, HHS will evaluate the effectiveness of the benchmark plans and their impact on consumers and patients before moving forward with guidance for essential health benefits in 2016 and beyond. 

 

State insurance commissioners play a critical role in implementing the essential benefits provision. As one of the National Association of Insurance Commissioners' (NAIC) consumer representatives, ACS CAN presented information to the NAIC's full membership at their most recent meeting about how state insurance commissioners can help consumers better understand how various plans impact cancer care and cancer patients.  

 

NAIC statement on EHB  FINAL 2.12.pdf 

 

In addition, states need to decide on a Medicaid benchmark plan for newly eligible Medicaid enrollees, which will take effect on January 1, 2014. The deadline for the decision is not yet final, but ACS CAN is concerned that the traditional Medicaid program may not provide an adequate essential benefits package for cancer patients.  Attached is a one-pager that describes ACS CAN's concerns.

3-29-12 Medicaid EHB FAQ concerns 2.12.pdf 

 

Final Health Exchange Rule 

The Department of Health and Human Services (HHS) released the final regulation on state health insurance exchanges and three complementary final regulations. As expected, the exchange regulation gives states considerable flexibility to make the final decisions on rules and procedures critical to operating a successful exchange. ACS CAN's most serious concern is that the rule does not clearly require consumer representatives to comprise the majority of an exchange's governing board; however, other areas of the regulation represent improvements from the proposed rule, including network adequacy and patient navigators. 

Another troubling issue is the role of independent brokers and "private exchanges" (for-profit internet sites that sell health plans inside and outside the exchange). The regulation states that brokers and private exchanges will be allowed to actively engage in marketing and selling exchange products, but it is unclear how consumer protections will be maintained. ACS CAN and other consumer groups will likely comment on this provision and ask for greater clarification on how consumer protections in the Affordable Care Act will be preserved.

In Congress

ACS CAN is deeply concerned about the budget the House of Representatives recently approved for the 2013 fiscal year because it contains provisions that could increase the number of cancer patients and survivors who forgo lifesaving treatment because they lack health coverage. Even though this budget will never become law because the Senate will oppose it, ACS CAN has strong concerns about the following provisions:

 

• The repeal of key patient protections contained in the Affordable Care Act
• The plan to finance Medicaid through block grants to the states, which could dramatically reduce eligibility and limit benefits for the critical safety net program that provides 1 million cancer patients with their medical treatment
• The proposal to restructure Medicare from which half of all newly diagnosed cancer patients receive and eliminate their guarantee of health care in old age

 

ACS CAN is urging lawmakers of both political parties to work together to oppose those  elements of the House budget proposal that would impede patients' access to adequate, affordable health care as well as those that imperil future strides in cancer research and prevention. Read the ACS CAN press release

 

Coverage Limits Lifted for 105 Million

An estimated 105 million Americans are no longer facing lifetime coverage limits on their health care, according to a new HHS report. The report found that 59 percent of employees with employer insurance and 89 percent of people with individual market plans had lifetime coverage limits in 2009. Read coverage from The Hill.

 

ACS CAN worked hard to include bans on annual and lifetime limits in the Affordable Care Act and pressed to have the ban apply to both new and existing plans. The provision will help ensure patients can focus on getting well and not have to worry about suddenly losing their coverage or their life savings. Read a letter from ACS CAN volunteer Amy Wilhite about how the provision is helping her daughter Taylor, a cancer survivor, and her family. You can also read about Taylor in the American Cancer Society's brochure "The Affordable Care Act: How It Helps People With Cancer and Their Families." 

 

Rate Reviews

HHS recently exercised its "rate review" authority, a provision in the Affordable Care Act that allows for greater state, federal, and public scrutiny of premium hikes. Under the law, insurers must justify any premium hikes of 10 percent or more by providing information on where the money is going, including a breakdown of medical services, profits, and administrative expenses. Following an independent review, HHS determined that insurance premium increases proposed by two insurance companies serving nine states were unreasonable. HHS, however, does not have the authority to force insurers to reduce their premiums -- that decision is left to the states. Read the HHS press release and CQ story.

 

In a new report, HHS found that fewer health insurers are proposing double digit rate hikes since the rate review provision took effect in 2011. HHS also believes insurance companies are being more forthcoming with information for consumers regarding proposed increases. In addition, HHS credits several states for taking a more active role in reducing premium rates. Since the Affordable Care Act passed, the number of states with rate review authority has gone from 30 to 37.

 

ACS CAN believes the rate review provision, working in tandem with other consumer protections in the Affordable Care Act, will help ensure that consumers receive value for their premium dollars and that significant premium increases in all states are justified and transparent.

Polling

ACS CAN and several other patient and consumer groups recently participated in a national public opinion poll designed to messaging that supports the establishment of strong health insurance exchanges that will help people with cancer and their families obtain quality, affordable insurance. The poll, which involved both a Democratic and Republican pollster, resulted in several interesting findings:

 

• Already popular provisions of the Affordable Care Act -- such as the requirement that insurers offer coverage to people with pre-existing conditions such as cancer -- also help to build public support for strong health insurance exchanges.
• The public responds strongly to values-based messaging about the benefits an exchange could offer them, such as the security of knowing that they will have the choice of quality plans, the peace of mind that they won't be discriminated against for having a pre-existing condition, and the control they have in choosing the best plan for them.
• The public responds well to the idea that states can set up exchanges that fit the needs of their residents. A majority of respondents want their state to move ahead to create an exchange rather than wait for the federal government to create one for them.

 

 

CANCER RESEARCH AND PREVENTION PROGRAMS

 

In the House

The House of Representatives recently approved a budget resolution for the 2013 fiscal year (FY 2013) which imposes a $1.028 trillion discretionary spending limit for defense and domestic programs. That ceiling is $19 billion below the $1.047 trillion spending cap set for FY 2013 set under the Budget Control Act, the law passed in August 2011 to raise the debt limit and greatly reduce federal spending. The House budget's spending level puts funding for all priority cancer programs at risk and jeopardizes progress made in the fight against the disease. As noted in the Affordable Care Act section of this update, ACS CAN opposes elements of the House budget that would impede patients' access to adequate, affordable health care as well. Read the ACS CAN press release.

 

In the Senate

The Senate Budget Committee has set discretionary spending levels in at the $1.047 trillion established in the Budget Control Act, which is $4 billion above current 2012 fiscal year spending levels.  The Senate Appropriations chairman will now set individual spending limits for each appropriations bill.

 

The Appropriations Subcommittee that funds health agencies held a hearing on March 28 on the National Institutes of Health (NIH) budget request. NIH Director Dr. Francis Collins testified as did National Cancer Institute (NCI) Director Dr. Harold Varmus. If the automatic across-the-board spending cuts called for in the Budget Control Act are implemented in January 2013, NIH funding could be cut by nearly eight percent. Read the ACS CAN statement. 

 

Looking Ahead and Next Steps

The House and Senate are more than likely going to draft appropriations bills with different spending levels, making the outcome of the FY 2013 appropriations process more drawn out and uncertain than originally contemplated. ACS CAN continues to monitor developments and meet with members of Congress to discuss cancer funding priorities. ACS CAN volunteers are also engaged in ongoing activities to urge their representatives and senators to make investments in cancer research, prevention, and early detection a national priority. ACS CAN is also working with its partners in One Voice Against Cancer (OVAC) on the issue, with OVAC lobby days planned for May and July.

 

ACS CAN Ad Wins Award

Last fall ACS CAN launched its second ever national television ad campaign, which called on Congress to make cancer a national priority by protecting funding for cancer research, prevention, early detection and access to health care. Recently the ad received a Telly Award, which honors achievement in film and video productions, online video content and local, regional and cable TV commercials and programs. As you will recall, the ad features the creation of a "Wall of Hope" in front of the U.S. Capitol made up of more than 1,500 sticky notes with messages from people across the country to loved ones who have battled cancer. Watch the ad.

 

COLON CANCER

 

Colorectal Cancer Prevention, Early Detection, and Treatment Act

ACS CAN participated in a Capitol Hill briefing on colorectal cancer to advocate for passage of the bipartisan Colorectal Cancer Prevention, Early Detection, and Treatment Act. The legislation creates a federal program, modeled after the successful National Breast and Cervical Cancer Early Detection Program that offers screenings and a gateway to treatment for low-income, uninsured, and underinsured individuals within the recommended age for colon cancer who cannot afford to get tested. The program would also bridge the gap age-appropriate men and women who may not be able to access new prevention benefits in the Affordable Care Act.

FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT

 

Litigation

On March 19, in a significant victory for public health, the Sixth Circuit Court of Appeals upheld most of the Family Smoking Prevention and Tobacco Control Act (FSPTCA), which gave the Food and Drug Administration's (FDA) the authority to regulate tobacco products. Specifically, the ruling maintained critical provisions in the law that:

 

• Require large, graphic health warnings on cigarette packs;
• Require tobacco manufacturers to reserve significant packaging space for textual health warnings; and
• Ban several forms of tobacco marketing that appeal to children, including brand name sponsorships, tobacco-branded merchandise such as caps and t-shirts, free samples of tobacco products.

 

The appeals court also prohibited tobacco companies from making health claims implying that FDA authority makes their products safer. Unfortunately, the appellate court struck down the requirement that tobacco advertisements appear exclusively in black and white. Read the ACS CAN press release

 

Reduced Harm Products

On March 30, the FDA issued strong draft guidelines detailing the obligations of the tobacco companies to provide scientific proof of any claims that their products reduce harm to the public, including existing and potential consumers, and to report the quantity of each of the potentially most lethal elements in its products. For the first time, Big Tobacco will have to provide proof to the FDA that a product poses less risk to public health before marketing it as such, and to disclose previously unknown information about the harmful substances in its products. With the announcement, the FDA signaled that it is boldly moving forward with implementation of a crucial piece of the FSPTCA.

 

In a related development, the FSPTCA-created FDA Tobacco Scientific Advisory Committee recently released a report on the use and impact of dissolvable tobacco products (DTPs) on public health, including among children. The panel allowed that DTPs could reduce health risks compared to cigarette smoking, but at the same time could encourage more people to use tobacco products. They also stipulated that more research and surveillance was necessary before a definitive determination could be made.

 

For decades, the tobacco industry has led aggressive and misleading marketing campaigns to addict the American public to its products. Evidence shows smokers have historically been harmed thinking they were using less dangerous products due to false information provided by Big Tobacco. ACS CAN continues to work to strongly implement the landmark law and protect the public from Big Tobacco's unscrupulous efforts to addict new users and keep current smokers hooked.

 

SMOKE-FREE

ACS CAN continues to provide strategic, financial, and tactical support for smoke-free campaigns nationwide, yielding recent successes in the South Atlantic Division. Chatham County, Georgia passed a smoke-free ordinance covering all non-hospitality workplaces, restaurants and bars that took effect on March 25. In South Carolina, Timmonsville and Quinby recently approved smoke-free ordinances.  Once in effect, all restaurants and bars in these communities will be smoke-free.

 

Unfortunately, despite a strong and concerted campaign on the part of the Great Lakes Division, ACS CAN, and its coalition partners, the effort to pass a comprehensive statewide smoke-free law in Indiana has fallen short. While this is disappointing, it is by no means the end of the fight. The state adopted a law barring smoking in non-hospitality workplaces and restaurants that ACS CAN will work to strengthen. In addition, local smoke-free campaigns are ongoing, including implementation of a newly adopted ordinance in Evansville. Effective April 1, all of the city's non-hospitality workplaces, restaurants, and bars will be 100 percent smoke-free.

 

TOBACCO CONTROL

 

Tobacco Atlas

The American Cancer Society and the World Lung Foundation recently released the fourth edition of The Tobacco Atlas, which graphically details the worldwide scale of the tobacco epidemic and progress in tobacco control as well as exposing the latest products and tactics the tobacco industry is deploying to undermine tobacco control policies. Notably, the new Atlas tracks a geographic shift in tobacco's deadly toll from developed countries to low- and middle-income countries, which account for nearly 80 percent of deaths from tobacco-related illnesses. Read the press release and the Reuters story.

 

Last year, tobacco use killed almost 6 million people worldwide. Tobacco-related deaths have nearly tripled around the world in the past decade. If trends continue, 1 billion people will reportedly die from tobacco use and exposure during the 21st century - 1 person every 6 seconds.

When considering 2010 deaths with tobacco industry revenue, the tobacco industry realizes almost $6,000 in profit for each death caused by tobacco.

 

The Atlas' release coincided with the 15^th World Conference on Tobacco OR Health held in Singapore from March 20-24. Held every three years, the conference attracts thousands of academics, health professionals, non-government organizations and public officials from more than 100 countries. Volunteer and staff leadership from the Society and ACS CAN participated in the conference and the launch of the Tobacco Atlas.

 

Through its Global Health program, and in partnership with ACS CAN, the Society is working to reduce the incidence of tobacco-related cancers in low- and middle-income countries with a special emphasis on sub-Saharan Africa. In collaboration with a worldwide network of partnerships, governments and international organizations are being urged to recognize that cancer is a global priority requiring an urgent response.

 

New Federal Advertising Campaign

On March 19, the Centers for Disease Control and Prevention launched an historic federally funded advertising campaign aimed at educating the public about the harmful effects of smoking and living with a medical condition caused by smoking. The campaign, called "Tips from Former Smok