Guest post: Jessie Kavanagh, Health Policy Intern at Community Service Society of New York
Last week, a 3-judge panel of the U.S. Court of Appeals for the District of Columbia ruled 2-1 that states using the federally-facilitated marketplace (healthcare.gov) cannot offer government subsidies to their residents. The same day, a 4th U.S. Circuit Court of Appeals in Virginia unanimously came to the opposite conclusion– that the states using the federal marketplace should be able to offer subsidies.
What to make of this conflict? Regardless of the disagreement, the bottom line for New Yorkers is simple: the decisions have no immediate impact on New Yorkers’ eligibility for the ACA tax credits and subsidies.
The main issue in these cases concerns the language in the ACA regarding the subsidies. The language states that subsidies are only available “through an exchange [aka marketplace] established by the state.” The U.S. Court of Appeals for the DC Circuit argued that this language means subsidies should be available only to people who enroll through a state-based marketplace. However, the 4th Circuit Court said that the law was ambiguous, and that the IRS was entitled to its interpretation that the federal marketplace acts as a state’s marketplace, and therefore all states can offer subsidies to their residents.
Ultimately, the ACA was written with the intent to make insurance more affordable for all Americans. And, it seems to be working. In New York, 3 out of 4 enrollees in commercial Qualified Health Plans during open enrollment- or 274,247 New Yorkers – were eligible for tax credits that made insurance more affordable.
We all know finding the right health insurance plan can be complicated and overwhelming – even with the launch of the insurance marketplaces offering one-stop shopping under the ACA. One of the most exciting features of the ACA is the establishment of assister programs to help people enroll (e.g. Navigators and Certified Application Counselors). A new survey from Kaiser Family Foundation shows just how effective these groups were during the first open enrollment period.
According to the survey, administered to directors of assister programs around the country:
28,000 assisters helped 10.6 million people apply for coverage and financial assistance.
States with State-based Marketplaces, like New York, had a much higher ratio of assisters to uninsured and helped two times as many people relative to the uninsured population when compared to states with a Federally-facilitated Marketplace. Our own NY State of Health‘s recent enrollment report shows that 643 Navigators and nearly 4,000 Certified Application Counselors helped over 413,000 New Yorkers enroll in coverage. That’s nearly half of enrollees.
Most consumers who sought help applying for coverage were uninsured and had limited health insurance literacy.
The vast majority of programs reported that consumers seeking help had a limited understanding of the ACA and struggled with basic health insurance terms, like “deductible.” As a result, assistance took time – between one to two hours in most cases.
Nearly all assister programs have been “re-contacted” by consumers with post-enrollment problems, including questions about how coverage works.
Questions from consumers don’t stop at enrollment. However, assister programs are not trained on post-enrollment issues, and in many cases don’t have funding that allows them to provide this type of assistance. Instead, the ACA established Consumer Assistance Programs (CAPs) to provide these services, but these programs haven’t received federal funding since 2012. Luckily, New York legislators recently approved $2.5 million in the 2014-2015 budget for the State’s CAP, Community Health Advocates (CHA). Thanks to the funding, CHA will be able to provide more robust hotline and in-person services through community-based organizations in the coming months.
Bob Cohen, Policy Director, Citizen Action of New York/Public Policy and Education Fund;
Theo Oshiro, Deputy Director, Make the Road New York
New York took a big leap forward in enrolling nearly a million New Yorkers in health coverage during the first open enrollment period under the ACA that ended in March, but we still have a lot to do to ensure that all New Yorkers, including traditionally excluded communities, fully benefit from the federal law. This is the simple message of a new “white paper” released in June by two HCFANY partners, the Public Policy and Education Fund and Make the Road New York, in conjunction with the Alliance for a Just Society, a national network for research, policy and organizing.
The report, “Addressing Health Disparities Through the Marketplace: An Action Agenda for New York State of Health,” applauds NY State of Health for a number of steps it has already taken, like easing enrollment in emergency Medicaid. The white paper establishes a broad agenda with 11 recommendations for further actions by NYSOH and the Legislature. For example, the report recommends a greater focus on outreach aimed at reaching diverse communities through steps like stronger targeting of ethnic media and reexamining current restrictions on navigators on contacting New Yorkers in their homes. It suggests that public numerical targets be set for enrollment of groups like immigrants and people of color, that NYSOH move forward aggressively with translating its website into languages other than English, stronger enforcement of requirements that health plans develop clear strategies to address health disparities, and the establishment of a stakeholder task force focused on the reduction of disparities.
The Supreme Court’s decision this week in the Hobby Lobby case is a blow to the hard-fought campaign to ensure that women have affordable health insurance coverage for contraception. The court, in a 5-4 ruling, said that family-run corporations like the crafts chain store Hobby Lobby can refuse to provide contraceptive coverage to their employees if the owners say contraception violates their religious beliefs.
Women’s health advocates are concerned that the decision could begin to undermine valuable gains for women’s health and economic well-being that we’ve started to see as a result of the Affordable Care Act’s Women’s Preventive Services provisions. Last year, the share of women with no out-of-pocket costs for the types of contraception covered by the law increased to 56 percent from 14 percent only one year earlier. The contraceptive coverage mandate saved women an estimated $483 million in out-of-pocket spending last year, according to the IMS Institute for Healthcare Informatics.
Prior to the Hobby Lobby decision, the Obama administration already had exempted purely-religious organizations, such as churches and seminaries, from complying with the contraceptive mandate. In addition, the administration had fashioned an accommodation for religiously-affiliated non-profits, such as Catholic hospitals and nursing homes, that allows them to shift the burden of providing contraceptive coverage to their insurance companies or third-party health plan administrators.
The court’s ruling carves out an exception to the contraceptive coverage mandate for another type of employer (so-called “closely-held corporations” in which more than half the stock is held by five or fewer people), when the owners of the company (such as the conservative Christians who own Hobby Lobby) have religious objections to contraception. By some estimates, as many as 90 percent of all corporations are closely-held entities, and they employ about half of American workers. Hobby Lobby runs more than 600 stores across the country, with 13,000 employees.
Justice Samuel Alito, who authored the majority opinion by five male judges in the Hobby Lobby case, suggested that the employees of corporations like Hobby Lobby could still get contraceptive coverage if the government granted those companies the kind of accommodation already in place for religiously-affiliated employers, or if the government simply paid for their contraception. However, the accommodation is being challenged in separate lawsuits by religious entities. Moreover, Justice Ruth Bader Ginsburg, who authored the dissent that was joined by the other two female justices, wondered: “Where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines or paying the minimum wage [...] or according women equal pay for substantially similar work [...]?”
The Hobby Lobby decision was the first time that corporations were granted legal protections under the federal Religious Freedom Restoration Act for the religious beliefs of their owners, a step that was very troubling to Ginsburg and the dissenters. “The exemption for these employers from the requirement to provide contraceptive coverage would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure,” Ginsburg wrote.
Fortunately for women in New York State, the decision and the federal RFRA does not apply to state contraceptive coverage laws, such as the Women’s Health and Wellness Act in New York. The Women’s Health and Wellness Act requires employers to cover contraception, as well as other important women’s health services. This state law was upheld by the state’s highest court, the Court of Appeals, which rejected a challenge by religious groups in our state.