News
August 2011 Monthly Advocacy Update
CANCER RESEARCH AND PREVENTION PROGRAMS
On August 2, after weeks of intense negotiations among Democrats and Republicans, the president signed legislation to raise the nation's debt limit and reduce federal spending over the next decade. A new and different era of congressional spending has arrived and all federal initiatives, including priority cancer programs, will be deeply impacted.
The debt ceiling agreement allows the president to make increases in the debt ceiling sufficient to carry the debt into 2013 and achieves deficit reduction in two steps. The first step cuts domestic discretionary spending by a little more than $900 billion over the next 10 years. Most of the cuts take place in the latter years, but in the first two years the reductions are applied equally to domestic and defense spending. No cuts were made to entitlement programs, such as Medicare and Medicaid. As a result, cancer research, prevention and early detection programs are less likely to suffer serious cuts next year. What happens in fiscal year 2013 and beyond is more difficult to predict.
The second step is the establishment of a bipartisan joint "super committee" of 12 representatives and senators tasked with developing legislation by Thanksgiving to achieve at least $1.2 trillion in additional savings over 10 years. The House and Senate would have to vote on the committee's proposal, which could include entitlement cuts or revenues, by December 23 of this year. If the bipartisan committee fails to produce a bill, or Congress is unable to enact the committee's recommendations, automatic cuts would be triggered beginning in fiscal year 2013 shared equally between domestic discretionary and defense programs. Social Security, Medicaid, veterans' benefits, and other essential programs would be exempt. Medicare cuts would be limited to two percent and impact providers only, with no cuts for Medicare beneficiaries.
If the automatic cuts are triggered there would be a total loss of more than $2.1 trillion entirely from domestic discretionary and defense programs. This scenario should serve as a powerful incentive for the bipartisan committee to forge an agreement that puts entitlement and tax reform on the table, but if the Committee fails to find common ground, Congress would likely have to revisit the entire deal sometime between January 2012 and January 2013, when the automatic cuts would take effect.
Without question, this agreement saved the economy from major harm by forestalling an historic default on the nation's debt. But once again, the hardest choices have been postponed, making it hard to predict beyond 2012 what the ultimate impact on research and other programs important to cancer patients and survivors will be. As ACS CAN continues to press forward, we will keep you apprised of further developments as they occur.
During the debt limit negotiations, ACS CAN wrote to the president and the bipartisan leadership of the House and Senate today asking that a full scale effort against cancer be made a top priority as negotiations continue. Read the letter.
State Programs
July 1 marked the start of the new fiscal year in most states. Even though many states are beginning to recover from the recession, spending is still well below pre-recession levels. In addition, federal aid from the American Recovery and Reinvestment Act expired on June 30. As a result, budget shortfalls are still an issue and state funding for key programs is at risk, such as the National Breast and Cervical Cancer Early Detection Program (NBCCEDP), tobacco control, and Medicaid, which treats about nine percent of cancer patients -- including women referred for treatment through the NBCCEDP.
Exchange Regulation
The Department of Health and Human Resources (HHS) released the long-awaited draft regulation governing health benefit exchanges. The proposal provides a detailed framework that affords states the flexibility to tailor their health benefit exchanges to meet the needs of their populations, as the law intended. At the same time, that flexibility comes with a responsibility for states to create exchanges that meet the wide-ranging needs of people with cancer and other life-threatening chronic diseases. ACS CAN will review the rule keeping in mind the attached threshold questions that were distributed to Division advocacy staff to use in evaluating state exchange proposals. Read a background paper on exchanges.
Key issues for states to resolve include:
Structuring governance boards so its members do not have conflicts of interest and its deliberations are transparent and open to public comment;
Establishing rules for the insurance market outside the exchanges that complement those within the exchanges to prevent outside plans from selling policies under more favorable terms and cherry picking the healthiest consumers;
Integrating state Medicaid programs into the exchanges to ensure seamless enrollment for those most in need;
Making information such as premium rates, benefits and enrollment forms easily available to consumers;
Providing a consistent and stable source of funding for the exchanges to insulate them from the often unpredictable legislative appropriations process; and,
Empowering exchanges to select which plans they offer and limiting participation to high quality plans.
Litigation Update
On June 29, the US Court of Appeals for the Sixth Circuit issued the first appellate decision in litigation challenging the constitutionality of Affordable Care Act. The court upheld the law, reasoning that Congress had acted within its constitutional authority when it required individuals to purchase health insurance (the so-called "individual mandate"). One of the court's leading conservatives -- George W. Bush appointee Jeffrey Sutton -- wrote the concurring opinion, making him the first Republican-nominated judge to rule in favor of upholding the mandate. The plaintiff's in the case, The Thomas More Law Center, are appealing the decision to the Supreme Court.
Decisions in similar cases challenging the law are still pending in the Fourth and Eleventh Circuits, and are expected before Labor Day. Read a joint statement on the Sixth Circuit ruling from the American Cancer Society, ACS CAN, the American Diabetes Association and the American Heart Association, who, as you know, filed a joint amicus brief in the case.
State Update
Since the passage of the Affordable Care Act, governors in 11 states -- California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, Washington and West Virginia - have signed legislation to establish a state health exchange. The others are. Eight others have passed legislation that keeps the process moving forward towards establishing an exchange.
Any state that intends to operate its own exchange will have to pass legislation and then quickly begin the implementation process to satisfy HHS, which will evaluate which states can adequately and effectively run their own exchange and which cannot beginning in January 2013.
While a majority of states adjourned their 2013 regular legislative sessions without enacting exchange legislation, many states continue to prepare proposals in anticipation of their next session. Preparatory work now being done includes conducting informational public hearings, surveying stakeholders and stakeholder groups, and holding meetings that bring together individuals with specific expertise in areas relevant to an exchange's implementation and operation.
External Appeals
On July 25, ACS CAN joined 14 other patient and consumer groups and individuals in filing comments on the administration's amendment to the interim final rule regarding the rights of patients to appeal denials of claims under the Affordable Care Act. The comments commend the administration for working with patient and consumer representatives to develop a workable appeal process that ensures that consumers have a meaningful opportunity to contest denials of health insurance coverage. But the comments also list improvements to the rule that are necessary to fulfill the new law's promise to significantly strengthen the rights of patients to appeal denials of claims. Read the ACS CAN press release.
Menu Labeling
ACS CAN recently submitted comments to the Food and Drug Administration (FDA) on the implementation of menu and vending machine labeling requirements in response to two proposed rules from the agency. Under the Affordable Care Act, all restaurants and similar food retailers that are part of a chain of 20 or more must provide calorie information for standard items on menus and menu boards and make additional nutrition information available upon request. The law also requires vending machine owners or operators of 20 or more machines to post calorie information for items that do not already have such information visible on packaging prior to purchase. States and localities are prohibited from enacting stricter requirements for venues or items covered under the Affordable Care Act. Read the ACS CAN press release.
ACS CAN believes consumers should be equipped with information that helps them make healthy food choices and supported both of the proposed rules. But at the same time ACS CAN is encouraging the FDA to broaden the scope of the menu labeling requirements to include venues such as movie theaters, airplanes, and cafes within general merchandise stores and also want the FDA to require calorie labeling for alcoholic beverages, which are not currently required. Finally, ACS CAN recommends that the rule's preemption provisions be interpreted narrowly, to preserve as much local control as possible over other types of nutrition labeling.
Medical Loss Ratio
Legislation
A National Association of Insurance Commissioners (NAIC) task force recommended that the NAIC endorse a bill in Congress to amend the Affordable Care Act to exempt insurance agent and broker fees and commissions in calculating medical loss ratios (MLR) -- the percentage of premium dollars spent directly on medical care versus administrative expenses. Under the law, health plans in individual and small group markets must have MLRs of 80% and large plans MLRs of 85%. Beginning this year if a plan falls short, the insurance company must give consumers a rebate.
ACS CAN had serious concerns about the task force's recommendation since it did not support NAIC's earlier recommendation to include broker and agent commissions in the MLR. Together with other consumer groups, ACS CAN reached out to members of the task force and the NAIC Executive Committee to express reservations about diluting the purpose of the MLR - to assure premiums dollars are being spent on care. The NAIC Executive Committee then decided to send the legislation to the full NAIC membership for a vote without the task force recommendation. Although this does not preclude the NAIC from further considering the issue, the move slows the bill's momentum in Congress for now.
The MLR is one of the most important short-term consumer protections the ACA provides. There is growing evidence that the MLR is in fact having a positive effect on mitigating health insurance premium increases and it is clearly an important tool for consumers. Had the provision been in effect for 2010, insurers would have had to rebate almost $2 billion to consumers although rebates are likely to be less in 2011 because insurers are expected to reduce premiums or limit premium increases to avoid paying rebates.
Waivers
HHS recently responded to requests from several states for waivers to the Medical Loss Ratio (MLR) provision in the Affordable Care Act. The waivers do not exempt states permanently from federal MLR rules, but rather provide a state with more time to comply. Iowa and Kentucky were granted partial waivers, while North Dakota became the first state to be denied a waiver outright. Seven states are still awaiting decisions while applications from three states -- Maine, Nevada, and New Hampshire -- had been accepted previously.
Preventive Services for Women
HHS released guidelines this week on additional preventive health services for women that should be included as health plan benefits with no cost to patients. These services include HPV testing as part of cervical cancer screening for women over 30 and annual well-woman visits. The Institute of Medicine developed the guidelines in accordance with an amendment to the Affordable Care Act.
CO-OP Health Insurance Plans
HHS proposed standards for establishing Consumer Oriented and Operated Plans (CO-OPs). CO-OPs are private, non-profit health insurers with a board made up primarily of CO-OP plan member, designed to offer quality, affordable health plans in every state. CO-OPs were created through the Affordable Care Act to provide more competition and choice to consumers and would be available through a state's health exchange. The proposal, which reflect the recommendations of an independent advisory group, lays out basic requirements for CO-OPs and seeks public comments.
Under the proposal, eligible organizations seeking to establish a CO-OP will be able to apply for a portion of the $3.8 billion in repayable loans made available under the Affordable Care Act to fund start-up and capitalization costs. CO-OPs will have to meet the same standards as all other health insurers in the state where they offer coverage and must also demonstrate that premiums and any federal loans are being used appropriately and for the benefit of enrollees. Any profits a CO-OP realizes must be reinvested in the form of lower premiums, better benefits, or other improvements in health care quality. CO-OPs also have the option to sell coverage to small businesses.
FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT
The Food and Drug Administration (FDA) Tobacco Scientific Advisory Committee, created under the Family Smoking Prevention and Tobacco Control Act, began discussions on the use and impact of dissolvable tobacco products on public health, including among children on July 22. Just prior to that, the Committee met to consider additional comments and deliberate proposed changes to the Committee's March 2011 report on menthol. As you know, the Committee concluded that eliminating menthol flavoring in cigarettes would benefit the public health and found that menthol flavoring has a detrimental effect on youth starting to smoke and on smokers being able to quit. ACS CAN and other leading public health organizations support the Committee's conclusions. In June the FDA Center for Tobacco Products announced it would conduct an independent analysis of the available science on the impact of menthol cigarettes on public health as part of the agency's continuing due diligence on the issue.
In addition, on July 27, the US Court of Appeals for the Sixth Circuit (the same court that issued the ruling on the Affordable Care Act described above) heard arguments in Commonwealth Brands v. United States, a lawsuit brought by the tobacco industry against the Family Smoking Prevention and Tobacco Control Act. A trial judge has already upheld the majority of the law's provisions, but struck down its ban on the use of color imagery and its prohibition on claims implying that a tobacco product is safer because of FDA approval. The American Cancer Society, ACS CAN, and other public health groups filed an amicus brief in support of the law.
In a significant development, a majority of Americans - 59 percent - support public smoking bans for the first time according to a Gallup poll released on July 15. In 2001, support stood at 39 percent and remained there until 2007 when it began building steadily.
Growing support for smoke-free laws is evident in places like the cities of Fultondale and Saraland in Alabama, which recently adopted comprehensive smoke-free workplace laws that include bars and restaurants. In addition, in West Virginia the city of Morgantown passed a comprehensive smoke-free law that takes effect September 29 and a comprehensive smoke-free law in Pendelton County takes effect on October 10 - the 19th county in the state with such a law. Congratulations to the volunteers and staff of the Mid-South and South Atlantic Divisions on these important victories! Read ACS CAN volunteer Virginia Bear's letter to the editor in the Birmingham News.
Unfortunately, despite a strong and concerted campaign on the part of the High Plains Division, ACS CAN, and its coalition partners, the effort to pass a comprehensive statewide smoke-free law in Texas during the legislature's special session fell short. While this is disappointing, it is by no means the end of the fight. Local smoke-free campaigns are ongoing, including implementation of San Antonio's 100 percent smoke-free bar, restaurant, and workplace law on August 19, 2011.
OBESITY
ACS CAN filed comments with the Federal Trade Commission on industry-proposed voluntary principles regarding foods marketed to children and adolescents. ACS CAN strongly supports the principles, which are consistent with American Cancer Society guidelines. In addition, ACS CAN believes the proposal could be further strengthened through the inclusion of calorie limits for all foods and beverages, the marketing of water to children and adolescents, and a prohibition on the marketing of fried foods and processed meats to children. ACS CAN further recommends the implementation of a brand marketing standard requiring more than half of the sales of foods marketed to youth come from products that meet nutrition principles.
QUALITY OF LIFE
Congratulations to the New England Division, where the governor of Connecticut signed legislation guaranteeing coverage for routine care costs for patients enrolled in clinical trials.
Also, last week the governor of Illinois signed legislation ensuring oral chemotherapy drugs are covered in the same way as intravenous drugs. Please join me in celebrating with the Illinois Division, which led the fight to enact this important law.
Christopher W. Hansen
President
American Cancer Society Cancer Action Network (ACS CAN)