This blog post was written by Kyla Kaplan and Tess Pocock, summer interns with the Harvard Law School Food Law and Policy Clinic.
On Wednesday, July 19th, FLPC interns Kyla Kaplan and Tess Pocock along with their clinical instructor Nicole Negowetti, presented to attendees of the Delta Regional Forum as part of the Panel on Land, Food Systems, and Policy. The presentation, titled “What’s at Stake for Mississippi in the 2018 Farm Bill,” provided an overview of the structure of the farm bill as well as how changes to farm bill programs and funding will impact Mississippi and the Delta at large.
The purpose of the presentation was to provide a history of the Farm Bill, an overview of the Farm Bill Law Enterprise (FBLE) (including the four published reports), and snapshots of current Farm Bill programs that significantly impact Mississippi and the Delta region, including: SNAP and Nutrition, Conservation, and Support for Minority and Women Farmers. The presentation also discussed opportunities and challenges these programs face during the reauthorization process of the 2018 Farm Bill.
The Supplemental Nutrition Assistance Program (SNAP) is the nation’s largest food safety net, helping 41 million individuals access food annually. Currently SNAP serves 537,000 Mississippi residents, or 18% of the state population (1 in 6 individuals). Since SNAP serves so many in Mississippi and the Delta region as a whole, the added work requirements and physical barriers to access SNAP will greatly impact individuals.
Since the mid-1980s, the farm bill has contained conservation programs aiming to address the impact of agriculture on natural resources and the environment.These programs support anything from relieving land of production to supporting conservation practices on land currently being used. Two of the most important conservation programs–the Environmental Quality Incentives Program (EQIP) and the Conservation Stewardship Program (CSP)–play a major role in the Delta region. For example, in Mississippi, the top 13 funded counties receiving EQIP and CSP were located in the Delta.
Minority and women farmers have had disproportionately less access to credit under decades of racist and sexist lending practices in USDA programs. As a result, many have lost the opportunity to own land and to transfer land to successive generations. Criticism surrounding USDA practices caused the agency to confront its structural inequities in cases such as Pigford. In response, the USDA has implemented programs that support beginning, women, and minority farmers, including the Beginning Farmer and Rancher Development Program, the Section 2501 Program, and the Microloans Program. In 2013, the year the Microloans Program was implemented, Mississippi was the number one state in the country to receive microloans.
The presentation concluded by discussing opportunities for the Delta region in the 2018 Farm Bill, including: enhancing SNAP, improving access to loans for socially disadvantaged producers, strengthening insurance programs for diverse production systems, and increasing USDA transparency in its lending practices.
Originally published by Modern Healthcare on July 19, 2018. Written by Virgil Dickson.
The CMS may soon restart making billions of dollars in risk-adjustment payments to insurance companies with plans on the individual market via a new rulemaking. The agency on Wednesday sent an interim final rule related to the payments to the White House Office of Management and Budget for review.
It’s unclear what exactly the rule will do. However, health policy insiders say there are clues in the rule’s name: “Ratification and Reissuance of the Methodology for the HHS-operated Permanent Risk Adjustment Program under the Patient Protection and Affordable Care Act.”
“It appears from the title of the rule that CMS is attempting to resolve the issue and resume the retrospective payments,” said Phil Waters, a clinical fellow at the Center for Health Law and Policy Innovation at Harvard Law School.
The CMS does not comment on pending regulation under review at the OMB, according to a spokesperson.
The agency halted the payments earlier this month, citing a federal judge’s ruling in New Mexico earlier this year. U.S. District Judge James Browning determined the agency did not adequately justify its payment methodology for the payments and it needed to do so via rulemaking that’s subject to public comment.
The CMS has said that until that legal conflict is resolved it can’t make the payments or receive adjustments from insurers. All in all, the agency was slated to shift $10.4 billion among exchange insurers for 2017.
The CMS likely is addressing the procedural deficiencies that the court cited as a basis for its decision, Waters said.
Since the payment freeze, patient advocates accused the agency of attempting to sabotage the ACA exchanges by not making the payments.
Legal experts argue that the agency could have just paused payments in New Mexico while the legal challenge remained unresolved rather than halting the program across the country. The accusations have bothered CMS Administrator Seema Verma. “We really are in a tough spot,” Verma said to reporters at an event hosted by Alliance for Health Policy on July 12. “I think there has been a lot of discussion about whether the Trump administration made a decision, but we weren’t. The court told us what to do, and we have to follow what it said.”
Christopher Condeluci, an employee benefits lawyer who used to work for Republicans on the Senate Finance Committee, said he believes the agency when it says it was not attempting to sabotage the exchanges. He noted that administration officials have not repeated their usual rhetoric that Obamacare is a failure. Instead, they say they are looking for ways to fix the problem.
“I truly believe this was an instance where HHS lawyers were erring on the side of being conservative, not politically, but legally,” Condeluci said.
Sabrina Corlette, a research professor at Georgetown University’s Center for Health Insurance Reforms, had worried that consumers would have trouble gaining coverage due to the payment halt. It was unclear whether some companies would leave the individual market without the funds.
“I really hoped it was a temporary glitch and not an active attempt to undermine the marketplace,” Corlette said of the CMS’ decision to halt the payments. “I am even more hopeful today.”
Chris Coleman, an attorney for the Tennessee Justice Center, an advocacy organization, said he was holding off on celebrating until the CMS fully resolves the issue. Before CMS made its announcement, at least two plans were going to be on the marketplace for each county in his state and premiums in many areas were slated to decrease. Coleman hopes that doesn’t change while the rule is reviewed.
“It’s a good sign, but I will suspend judgment until I see final rule in place and payments flowing again,” Coleman said.
Originally published by ProPublica and NPR on July 17, 2018. Written by Marshall Allen.
To an outsider, the fancy booths at last month’s health insurance industry gathering in San Diego aren’t very compelling. A handful of companies pitching “lifestyle” data and salespeople touting jargony phrases like “social determinants of health.”
But dig deeper and the implications of what they’re selling might give many patients pause: A future in which everything you do — the things you buy, the food you eat, the time you spend watching TV — may help determine how much you pay for health insurance.
With little public scrutiny, the health insurance industry has joined forces with data brokers to vacuum up personal details about hundreds of millions of Americans, including, odds are, many readers of this story. The companies are tracking your race, education level, TV habits, marital status, net worth. They’re collecting what you post on social media, whether you’re behind on your bills, what you order online. Then they feed this information into complicated computer algorithms that spit out predictions about how much your health care could cost them.
Are you a woman who recently changed your name? You could be newly married and have a pricey pregnancy pending. Or maybe you’re stressed and anxious from a recent divorce. That, too, the computer models predict, may run up your medical bills.
Are you a woman who’s purchased plus-size clothing? You’re considered at risk of depression. Mental health care can be expensive.
Low-income and a minority? That means, the data brokers say, you are more likely to live in a dilapidated and dangerous neighborhood, increasing your health risks.
Insurers contend they use the information to spot health issues in their clients — and flag them so they get services they need. And companies like LexisNexis say the data shouldn’t be used to set prices. But as a research scientist from one company told me: “I can’t say it hasn’t happened.”
At a time when every week brings a new privacy scandal and worries abound about the misuse of personal information, patient advocates and privacy scholars say the insurance industry’s data gathering runs counter to its touted, and federally required, allegiance to patients’ medical privacy. The Health Insurance Portability and Accountability Act, or HIPAA, only protects medical information.
“We have a health privacy machine that’s in crisis,” said Frank Pasquale, a professor at the University of Maryland Carey School of Law who specializes in issues related to machine learning and algorithms. “We have a law that only covers one source of health information. They are rapidly developing another source.”
Patient advocates warn that using unverified, error-prone “lifestyle” data to make medical assumptions could lead insurers to improperly price plans — for instance raising rates based on false information — or discriminate against anyone tagged as high cost. And, they say, the use of the data raises thorny questions that should be debated publicly, such as: Should a person’s rates be raised because algorithms say they are more likely to run up medical bills? Such questions would be moot in Europe, where a strict law took effect in May that bans trading in personal data.
This year, ProPublica and NPR are investigating the various tactics the health insurance industry uses to maximize its profits. Understanding these strategies is important because patients — through taxes, cash payments and insurance premiums — are the ones funding the entire health care system. Yet the industry’s bewildering web of strategies and inside deals often have little to do with patients’ needs. As the series’ first story showed, contrary to popular belief, lower bills aren’t health insurers’ top priority.
Inside the San Diego Convention Center last month, there were few qualms about the way insurance companies were mining Americans’ lives for information — or what they planned to do with the data.
The sprawling convention center was a balmy draw for one of America’s Health Insurance Plans’ marquee gatherings. Insurance executives and managers wandered through the exhibit hall, sampling chocolate-covered strawberries, champagne and other delectables designed to encourage deal-making.
Up front, the prime real estate belonged to the big guns in health data: The booths of Optum, IBM Watson Health and LexisNexis stretched toward the ceiling, with flat screen monitors and some comfy seating. (NPR collaborates with IBM Watson Health on national polls about consumer health topics.)
To understand the scope of what they were offering, consider Optum. The company, owned by the massive UnitedHealth Group, has collected the medical diagnoses, tests, prescriptions, costs and socioeconomic data of 150 million Americans going back to 1993, according to its marketing materials. (UnitedHealth Group provides financial support to NPR.) The company says it uses the information to link patients’ medical outcomes and costs to details like their level of education, net worth, family structure and race. An Optum spokesman said the socioeconomic data is de-identified and is not used for pricing health plans.
Optum’s marketing materials also boast that it now has access to even more. In 2016, the company filed a patent application to gather what people share on platforms like Facebook and Twitter, and link this material to the person’s clinical and payment information. A company spokesman said in an email that the patent application never went anywhere. But the company’s current marketing materials say it combines claims and clinical information with social media interactions.
I had a lot of questions about this and first reached out to Optum in May, but the company didn’t connect me with any of its experts as promised. At the conference, Optum salespeople said they weren’t allowed to talk to me about how the company uses this information.
It isn’t hard to understand the appeal of all this data to insurers. Merging information from data brokers with people’s clinical and payment records is a no-brainer if you overlook potential patient concerns. Electronic medical records now make it easy for insurers to analyze massive amounts of information and combine it with the personal details scooped up by data brokers.
It also makes sense given the shifts in how providers are getting paid. Doctors and hospitals have typically been paid based on the quantity of care they provide. But the industry is moving toward paying them in lump sums for caring for a patient, or for an event, like a knee surgery. In those cases, the medical providers can profit more when patients stay healthy. More money at stake means more interest in the social factors that might affect a patient’s health.
Some insurance companies are already using socioeconomic data to help patients get appropriate care, such as programs to help patients with chronic diseases stay healthy. Studies show social and economic aspects of people’s lives play an important role in their health. Knowing these personal details can help them identify those who may need help paying for medication or help getting to the doctor.
But patient advocates are skeptical health insurers have altruistic designs on people’s personal information.
The industry has a history of boosting profits by signing up healthy people and finding ways to avoid sick people — called “cherry-picking” and “lemon-dropping,” experts say. Among the classic examples: A company was accused of putting its enrollment office on the third floor of a building without an elevator, so only healthy patients could make the trek to sign up. Another tried to appeal to spry seniors by holding square dances.
The Affordable Care Act prohibits insurers from denying people coverage based on pre-existing health conditions or charging sick people more for individual or small group plans. But experts said patients’ personal information could still be used for marketing, and to assess risks and determine the prices of certain plans. And the Trump administration is promoting short-term health plans, which do allow insurers to deny coverage to sick patients.
Robert Greenwald, faculty director of Harvard Law School’s Center for Health Law and Policy Innovation, said insurance companies still cherry-pick, but now they’re subtler. The center analyzes health insurance plans to see if they discriminate. He said insurers will do things like failing to include enough information about which drugs a plan covers — which pushes sick people who need specific medications elsewhere. Or they may change the things a plan covers, or how much a patient has to pay for a type of care, after a patient has enrolled. Or, Greenwald added, they might exclude or limit certain types of providers from their networks — like those who have skill caring for patients with HIV or hepatitis C.
If there were concerns that personal data might be used to cherry-pick or lemon-drop, they weren’t raised at the conference.
At the IBM Watson Health booth, Kevin Ruane, a senior consulting scientist, told me that the company surveys 80,000 Americans a year to assess lifestyle, attitudes and behaviors that could relate to health care. Participants are asked whether they trust their doctor, have financial problems, go online, or own a Fitbit and similar questions. The responses of hundreds of adjacent households are analyzed together to identify social and economic factors for an area.
Ruane said he has used IBM Watson Health’s socioeconomic analysis to help insurance companies assess a potential market. The ACA increased the value of such assessments, experts say, because companies often don’t know the medical history of people seeking coverage. A region with too many sick people, or with patients who don’t take care of themselves, might not be worth the risk.
Ruane acknowledged that the information his company gathers may not be accurate for every person. “We talk to our clients and tell them to be careful about this,” he said. “Use it as a data insight. But it’s not necessarily a fact.”
In a separate conversation, a salesman from a different company joked about the potential for error. “God forbid you live on the wrong street these days,” he said. “You’re going to get lumped in with a lot of bad things.”
The LexisNexis booth was emblazoned with the slogan “Data. Insight. Action.” The company said it uses 442 non-medical personal attributes to predict a person’s medical costs. Its cache includes more than 78 billion records from more than 10,000 public and proprietary sources, including people’s cellphone numbers, criminal records, bankruptcies, property records, neighborhood safety and more. The information is used to predict patients’ health risks and costs in eight areas, including how often they are likely to visit emergency rooms, their total cost, their pharmacy costs, their motivation to stay healthy and their stress levels.
People who downsize their homes tend to have higher health care costs, the company says. As do those whose parents didn’t finish high school. Patients who own more valuable homes are less likely to land back in the hospital within 30 days of their discharge. The company says it has validated its scores against insurance claims and clinical data. But it won’t share its methods and hasn’t published the work in peer-reviewed journals.
McCulley, LexisNexis’ director of strategic solutions, said predictions made by the algorithms about patients are based on the combination of the personal attributes. He gave a hypothetical example: A high school dropout who had a recent income loss and doesn’t have a relative nearby might have higher than expected health costs.
But couldn’t that same type of person be healthy? I asked.
“Sure,” McCulley said, with no apparent dismay at the possibility that the predictions could be wrong.
McCulley and others at LexisNexis insist the scores are only used to help patients get the care they need and not to determine how much someone would pay for their health insurance. The company cited three different federal laws that restricted them and their clients from using the scores in that way. But privacy experts said none of the laws cited by the company bar the practice. The company backed off the assertions when I pointed that the laws did not seem to apply.
LexisNexis officials also said the company’s contracts expressly prohibit using the analysis to help price insurance plans. They would not provide a contract. But I knew that in at least one instance a company was already testing whether the scores could be used as a pricing tool.
Before the conference, I’d seen a press release announcing that the largest health actuarial firm in the world, Milliman, was now using the LexisNexis scores. I tracked down Marcos Dachary, who works in business development for Milliman. Actuaries calculate health care risks and help set the price of premiums for insurers. I asked Dachary if Milliman was using the LexisNexis scores to price health plans and he said: “There could be an opportunity.”
The scores could allow an insurance company to assess the risks posed by individual patients and make adjustments to protect themselves from losses, he said. For example, he said, the company could raise premiums, or revise contracts with providers.
It’s too early to tell whether the LexisNexis scores will actually be useful for pricing, he said. But he was excited about the possibilities. “One thing about social determinants data — it piques your mind,” he said.
Dachary acknowledged the scores could also be used to discriminate. Others, he said, have raised that concern. As much as there could be positive potential, he said, “there could also be negative potential.”
It’s that negative potential that still bothers data analyst Erin Kaufman, who left the health insurance industry in January. The 35-year-old from Atlanta had earned her doctorate in public health because she wanted to help people, but one day at Aetna, her boss told her to work with a new data set.
To her surprise, the company had obtained personal information from a data broker on millions of Americans. The data contained each person’s habits and hobbies, like whether they owned a gun, and if so, what type, she said. It included whether they had magazine subscriptions, liked to ride bikes or run marathons. It had hundreds of personal details about each person.
The Aetna data team merged the data with the information it had on patients it insured. The goal was to see how people’s personal interests and hobbies might relate to their health care costs. But Kaufman said it felt wrong: The information about the people who knitted or crocheted made her think of her grandmother. And the details about individuals who liked camping made her think of herself. What business did the insurance company have looking at this information? “It was a dataset that really dug into our clients’ lives,” she said. “No one gave anyone permission to do this.”
In a statement, Aetna said it uses consumer marketing information to supplement its claims and clinical information. The combined data helps predict the risk of repeat emergency room visits or hospital admissions. The information is used to reach out to members and help them and plays no role in pricing plans or underwriting, the statement said.
Kaufman said she had concerns about the accuracy of drawing inferences about an individual’s health from an analysis of a group of people with similar traits. Health scores generated from arrest records, home ownership and similar material may be wrong, she said.
Pam Dixon, executive director of the World Privacy Forum, a nonprofit that advocates for privacy in the digital age, shares Kaufman’s concerns. She points to a study by the analytics company SAS, which worked in 2012 with an unnamed major health insurance company to predict a person’s health care costs using 1,500 data elements, including the investments and types of cars people owned.
The SAS study said higher health care costs could be predicted by looking at things like ethnicity, watching TV and mail order purchases.
“I find that enormously offensive as a list,” Dixon said. “This is not health data. This is inferred data.”
Data scientist Cathy O’Neil said drawing conclusions about health risks on such data could lead to a bias against some poor people. It would be easy to infer they are prone to costly illnesses based on their backgrounds and living conditions, said O’Neil, author of the book “Weapons of Math Destruction,” which looked at how algorithms can increase inequality. That could lead to poor people being charged more, making it harder for them to get the care they need, she said. Employers, she said, could even decide not to hire people with data points that could indicate high medical costs in the future.
O’Neil said the companies should also measure how the scores might discriminate against the poor, sick or minorities.
American policymakers could do more to protect people’s information, experts said. In the United States, companies can harvest personal data unless a specific law bans it, although California just passed legislation that could create restrictions, said William McGeveran, a professor at the University of Minnesota Law School. Europe, in contrast, passed a strict law called the General Data Protection Regulation, which went into effect in May.
“In Europe, data protection is a constitutional right,” McGeveran said.
Pasquale, the University of Maryland law professor, said health scores should be treated like credit scores. Federal law gives people the right to know their credit scores and how they’re calculated. If people are going to be rated by whether they listen to sad songs on Spotify or look up information about AIDS online, they should know, Pasquale said. “The risk of improper use is extremely high. And data scores are not properly vetted and validated and available for scrutiny.”
As I reported this story I wondered how the data vendors might be using my personal information to score my potential health costs. So, I filled out a request on the LexisNexis website for the company to send me some of the personal information it has on me. A week later a somewhat creepy, 182-page walk down memory lane arrived in the mail. Federal law only requires the company to provide a subset of the information it collected about me. So that’s all I got.
LexisNexis had captured details about my life going back 25 years, many that I’d forgotten. It had my phone numbers going back decades and my home addresses going back to my childhood in Golden, Colorado. Each location had a field to show whether the address was “high risk.” Mine were all blank. The company also collects records of any liens and criminal activity, which, thankfully, I didn’t have.
My report was boring, which isn’t a surprise. I’ve lived a middle-class life and grown up in good neighborhoods. But it made me wonder: What if I had lived in “high risk” neighborhoods? Could that ever be used by insurers to jack up my rates — or to avoid me altogether?
I wanted to see more. If LexisNexis had health risk scores on me, I wanted to see how they were calculated and, more importantly, whether they were accurate. But the company told me that if it had calculated my scores it would have done so on behalf of their client, my insurance company. So, I couldn’t have them.
Written by Hanh Nguyen, Whole Person Care Project Assistant.
Community health workers (CHWs) are trained public health workers who play a critical role in helping patients navigate the healthcare system to access essential medical and social services. What makes CHWs unique is their exceptionally close understanding of the communities that they serve—they usually share ethnicity, language, socioeconomic status and/or life experiences with those residing in their community.
Thanks to this close community connection, CHWs are the frontline of real and necessary change. CHW programs across the country are helping to reduce health disparities by bridging the information, communication, and cultural gaps that members of underserved populations often face when seeking the care they need. Studies show that CHWs are a powerful force for promoting healthy behaviors in resource-constrained settings, and patients who receive CHW services improve in health outcomes and have less need to access high-cost services, such as Emergency Department visits and hospital readmissions.
In support of the important role that CHWs play in improving patient care, CHLPI has released an issue brief to assist Maryland healthcare providers who are interested in developing effective training programs to enhance the ability of local CHWs to help patients prevent illness and manage their health. The issue brief explores strategies for designing a CHW curriculum, identifies systemic issues in CHW training, such as funding and credentialing, highlights recent changes to Maryland law that will impact these issues, and provides a series of recommendations for the next steps that Maryland healthcare providers can take to create sustainable, successful CHW programs.
CHWs are critical to a well-coordinated and effective system of care. We are therefore excited to see all of the efforts being made across the nation to support CHW training and enhance the ability of CHWs to provide essential services to their communities. CHLPI will continue to assist healthcare providers and other stakeholders as they work to build these important programs. Check back regularly for updates on our work with community health workers!
The Center for Health Law and Policy Innovation (CHLPI) welcomes Andrea Kunst to the team as theFoundations and Corporate Relations Officer!
Andrea Kunst has practiced philanthropic fundraising, strategic advancement, and non-profit organization management for twenty years. She is an accomplished fundraising generalist with a track record of creating successful customized advancement plans for schools and nonprofits, consistently meeting and exceeding fundraising goals. She is founder and executive director of Cushing Mill Contracting, offering development and advancement services to schools and mission driven, non-profit start-ups. She was the Director of Advancement at Boston Day and Evening Academy, a competency-based, student-centered alternative high school within Boston Public Schools for 10 years; chaired the board of Dorchester Arts Collaborative during the period that it founded Dorchester’s first community art gallery; was Director of Development for Nativity Preparatory School during their successful capital campaign; and has broad experience as a teacher, writer, and manager.
Andrea currently sits on the board of PieRSquared, an after-school math tutoring non-profit in Roxbury, and is an alumnus of the Education Policy Fellowship Program. She received both her B.A. in Communications and her M.A. in Writing and Publishing from Emerson College and lives in her adopted community of Dorchester, MA.
(Providence, RI – July 10, 2018) The Executive Office of Health & Human Services (EOHHS) and advocates for patients with Hepatitis C (HCV) today announced a change to the state’s Medicaid policy that will increase access to life-saving treatment for people living with the virus. HCV, which is a bloodborne virus affecting the liver, is considered the deadliest communicable disease in the United States.
EOHHS and the Rhode Island Department of Health (RIDOH) worked with attorneys from Jones Kelleher, LLP, in conjunction with the Rhode Island Center for Justice, and the Center for Health Law and Policy Innovation of Harvard Law School and with other community partners to make this voluntary policy change. This occurred after the law firms notified Rhode Island officials on behalf of a Rhode Island Medicaid recipient who had been denied treatment for HCV that they were challenging the policy on her behalf and on behalf of other Medicaid patients. The new policy brings Rhode Island in line with federal medical necessity requirements for Medicaid.
“We continue to strengthen access to healthcare in Rhode Island,” said Governor Gina M. Raimondo. “All Rhode Islanders living with this disease deserve treatment and an opportunity to live a full and rewarding life. I appreciate the Rhode Island Center for Justice and partners for working with us to improve access to care and treatment – and my team for taking swift action. We must remain vigilant and continue to work together to further our leadership, protect Rhode Islanders, and promote public health.”
Rhode Island’s new HCV policy, now in effect, removes previous Medicaid coverage restrictions for HCV treatment that permitted only those people with severe liver damage or cirrhosis to be covered. Under the new policy, any Medicaid beneficiary living with HCV and requiring treatment will be covered.
“This new policy goes to the heart of what Medicaid exists to do: ensure people, regardless of life circumstance, have the medical care and supports they need,” said Medicaid Director Patrick Tigue. “Few policies have this type of direct, immediate impact on people’s lives. I am thankful for the partnership that made this possible and the leadership our state continues to demonstrate in implementing responsible public health policies that put Rhode Islanders first.”
“A comprehensive, public health approach of prevention and screening, that now includes treatment for all, is key to our goal of eliminating HCV in Rhode Island,” said Director of Health Nicole Alexander-Scott, MD, MPH. “Public health, State institutions, clinical organizations, and community agencies need to all work together to address this epidemic and ensure that access to prevention and treatment does not depend on one’s ZIP code, insurance status, or any other factors.”
This expansion of access to treatment complements RIDOH’s efforts to prevent hepatitis C transmission through the ENCORE needle exchange program, administered by AIDS Care Ocean State, which provides services annually to over 500 clients. In addition, RIDOH funds community-based agencies to conduct rapid hepatitis C testing and link people to care. RIDOH has recently established a relationship with the RI Health Center Association to facilitate improvements in hepatitis C screening, diagnosis, and treatment in Federally Qualified Health Centers that serve low-income patients.
“This policy change will directly improve the lives of many of our clients, some of Rhode Island’s most vulnerable citizens,” said Jennifer Wood, Executive Director of the Rhode Island Center for Justice. “We appreciate the Administration’s partnership on this issue.”
Michelle Giron, a Rhode Island Medicaid enrollee directly affected by the policy change, adds “The weight of the world has been lifted off my shoulders. Now, I’m excited about my future. I think that everyone else who’s in my position feels the same way. It’s like getting a new lease on life.”
HCV is a communicable disease that causes chronic inflammation throughout the body and can lead to serious liver damage and infections, liver cancer, and death. At least 20,000 people in the United States die each year due to liver disease caused by HCV. Even before the advanced state of the disease, individuals with HCV can suffer from diabetes, lymphoma, fatigue, joint pain, depression, myalgias, arthritis and jaundice. In 2011, the United States Food and Drug Administration (FDA) began approving Direct Acting Antiviral drugs to treat HCV, and in 2014 the FDA approved new medications to effectively cure the disease. Many states have lagged behind providing Medicaid coverage in accordance with the standard of care. With this week’s policy change, Rhode Island removed itself from that list.
“Rhode Island has taken an important step here,” said Kevin Costello, Director of Litigation at the Center for Health Law and Policy Innovation of Harvard Law School. “This change is not only the right thing to do from a public health and legal point of view, but it also been proven that this policy will be cost-effective for the state in the long run. And it goes without saying that the real potential of this cure is the eradication of HCV altogether, a goal that is furthered by early treatment of Medicaid beneficiaries that makes, in their case, further transmission of the virus impossible.”
Originally published by Healio on July 13, 2018. Written by Janel Miller.
The CMS decision to stop further collections or payments under the risk adjustment program leaves many questions about future health coverage and insurance premiums unanswered, experts and medical associations told Healio Family Medicine.
The action was seen by many as putting another nail in the Affordable Care Act’s coffin, which would help the current administration achieve its long sought-after goal of dismantling former President Barack Obama’s signature legislative achievement while raising significant questions for the health care coverage of thousands of patients. CMS said in a press release it was ceasing payments and collections after a New Mexico district court voided the agency’s use of the statewide average premium in the risk adjustment transfer formula for Affordable Care Act for benefit years 2014 to 2018.
“We were disappointed by the court’s recent ruling,” CMS administrator Seema Verma, MPH, said in the release. “CMS has asked the court to reconsider its ruling and hopes for a prompt resolution that allows CMS to prevent more adverse impacts on Americans who receive their insurance in the individual and small group markets.”
Victoria Wallace, an associate at the Washington, DC-based law firm Arnold & Porter, said CMS’ decision impacts the medical community in a variety of ways. “Primary care physicians and internists’ patient populations are generally mixed between low, moderate, and high-risk patient populations,” she said. “The decision will likely have a stronger impact on high-risk patients since those are the patients that the risk adjustment policy was intended to help in the first place. Although high-risk patients may self-select into more frequent primary care visits, primary care physicians presumably have a greater patient mix than, for example, specialists, and may not be as greatly impacted in the short term and long-term.”
There were other avenues CMS could explore rather than stop the payments, Phil Waters, a clinical fellow at the Center for Health Law and Policy Innovation at Harvard Law School said in an interview.
“The court’s decision occurred in February but CMS waited until now to announce its policy at a critical time for insurers. CMS could potentially issue an interim final rule to remedy the procedural deficiencies cited by the court — something CMS must have considered, as it has already addressed these concerns for 2019. By fixing the problems identified by the court, CMS would have grounds to challenge the court’s decision immediately,” he said.
“The administration could also have asked for a stay of the ruling pending appeal of the decision, if it truly wished to maintain the status quo. Alternatively, CMS could simply choose to continue the payments everywhere but New Mexico, where the case was filed, as the court did not issue a nationwide injunction,” Waters continued.
He added that CMS’ decision to dig in its heels and not pursue these options puts the status of, and cost of, insurance coverage of an untold number of Americans at risk. “This decision arrives just as insurers are making crucial decisions about whether they will participate in the Affordable Care Act’s Marketplaces and their premium rates,” he said. “Physicians may see effects as early as 2019 if their patients are forced to switch plans and provider networks, or potentially drop coverage altogether. If this decision causes premiums to increase further than already expected, some patients, particularly those without access to the Affordable Care Act’s subsidies, may end up priced out of the marketplace,” he said.
Wallace provided another possible consequence of CMS’ action. “Plans may also begin implementing more utilization management tools (i.e., prior authorization, step therapy) to ensure medical necessity for higher cost items and services,” she said.
The CMS action appears to be another attempt to eliminate the Affordable Care Act. Since President Donald J. Trump was inaugurated in January 2017, the administration has issued a new insurance rule that weakens patient protections. In addition, the President signed a tax bill that narrowly passed the Republican-controlled House and Senate that eliminated the Affordable Care Act’s individual mandate.
Further, a lawsuit against the United States government, HHS, IRS and several others argues that Congressional action to lower the tax on those who did not comply with the individual mandate to buy insurance voids the Affordable Care Act. The case is awaiting action in a U.S. district court based in Texas and could void or negate much of the law. An attempt to completely repeal the Affordable Care Act narrowly failed in the Senate last year, and CNN has previously reported that the Trump administration cut the advertising budget for the Affordable Care Act by 90%.
Waters agreed that the CMS action removes another piece from the Affordable Care Act puzzle, and clouds its future. “This decision adds to the pattern of uncertainty that has been present since the current administration took office. The Affordable Care Act has been consistently undermined by design, and this only contributes to the growing hurdles the law has to continually overcome. It is entirely possible that this was a deliberate move to continue the pattern of uncertainty and intentional undermining of the Affordable Care Act by the administration,” he said.
The American Academy of Family Physicians and American College of Physicians were among the medical societies expressing “concern” over CMS’ action. “These [risk adjustment] payments are funded by contributions from insurance plans and not from taxpayer dollars. The funds help protect patients by allowing insurers to compete without cherry-picking healthy consumers over those with chronic illnesses and pre-existing conditions,” the organizations said in a statement, which was also issued simultaneously by the AAP, American College of Obstetricians and Gynecologists, American Osteopathic Association, and American Psychiatric Association.
“This decision contradicts the administration’s pledge to provide individuals and families with more options to secure affordable health care coverage,” the statement continued. “Stabilizing our health care system and lowering the overall cost of health care is part of our mission, and should remain the focus of the administration in addressing health care. We strongly urge the [CMS] to reverse its decision to halt the risk adjustment payments, and to instead pursue innovative policy solutions that improve affordability for all individuals,” the societies’ statement concluded.
The American Health Insurance Plans, a national trade association representing 1,300 health insurance companies that provide health care coverage to more than 200 million patients in the United States, also said the timing of CMS’ action is unfortunate. “We are very discouraged by the new market disruption brought about by the decision to freeze risk adjustment payments,” the organization said in a statement. “It will create more market uncertainty and increase premiums for many health plans—putting a heavier burden on small businesses and consumers and reducing coverage options. Costs for taxpayers will rise as the federal government spends more on premium subsidies.”
Waters said that the judge in this case has previously indicated CMS’ motion will be denied; a final decision could come by summer’s end.
For its part, CMS has said additional guidance is forthcoming “shortly” on how the agency will handle other risk adjustment payment concerns, including appeals of risk adjustment amounts from 2017, EDGE server data collection operations, and how issuers should treat risk adjustment amounts in the calculation of medical loss ratios.
Rhode Island’s Medicaid policy has been revised to cover the costs of treatment for all beneficiaries who are living with the potentially deadly blood-borne Hepatitis C virus. Until now, only those individuals with HCV who were experiencing severe liver damage or cirrhosis were covered by the plan.
The change follows action by the Executive Office of Health and Human Services, the Rhode Island Center for Justice, the Center for Health Law and Policy Innovation of Harvard Law School, and community activists and lawyers from the Jones Kelleher firm to bring the state into compliance with federal guidelines. That action began when a state resident living with the virus received legal representation after initially being denied treatment.
“A comprehensive, public health approach of prevention and screening that now includes treatment for all is key to our goal of eliminating HCV in Rhode Island,” said health department Director Dr. Nicole Alexander-Scott. “Public health, state institutions, clinical organizations, and community agencies need to all work together to address this epidemic and ensure that access to prevention and treatment does not depend on one’s ZIP code, insurance status, or any other factors.”
As many as 22,660 Rhode Islanders have been infected with HCV, according to health department estimates, but since symptoms do not always or immediately develop, many are unaware that they carry the disease. When symptoms do develop, they can progress to irreversible liver damage resulting in death. In 2014, 102 Rhode Islanders died of the disease, compared with 20 who died from the HIV virus.
“This new policy goes to the heart of what Medicaid exists to do: ensure people, regardless of life circumstance, have the medical care and supports they need,” state Medicaid Director Patrick Tigue said. “Few policies have this type of direct, immediate impact on people’s lives. I am thankful for the partnership that made this possible and the leadership our state continues to demonstrate in implementing responsible public health policies that put Rhode Islanders first.”
“Rhode Island has taken an important step here,” said Kevin Costello, head of litigation at the Center for Health Law and Policy Innovation of Harvard Law School. “This change is not only the right thing to do from a public health and legal point of view, but it also been proven that this policy will be cost-effective for the state in the long run.”
“This policy change will directly improve the lives of many of our clients, some of Rhode Island’s most vulnerable citizens,” said Jennifer Wood, executive director of the Rhode Island Center for Justice. “We appreciate the Administration’s partnership on this issue.”
According to the Centers for Disease Control and Prevention, an estimated 3.5 million Americans are affected by HCV. “In 2016, 18,153 U.S. death certificates had HCV recorded as an underlying or contributing cause of death,” the CDC reports. “However, this is a conservative estimate.”
The disease can be transmitted through injection drug use, transfusion of contaminated blood, and, less commonly, sex with an infected person and “unregulated tattooing,” among other ways, according to the CDC.
Other notable items for the industry include a USDA study on the volume and cost of food waste, with the provision that agency programs “do not disrupt existing food waste recovery and disposal by commercial, marketing, or business relationships.” Multiple other items regarding spoilage prevention, food recovery and donation liability protections are also included.
While no new items can be introduced during conference committee negotiations with the House, the inclusion of even some of what’s currently in there would mark a new level of federal action on food waste.
Waste and recycling issues rarely get national attention, but recent events show that food waste may present a rare opportunity for bipartisan collaboration. USDA Secretary Sonny Perdue has pledged to make the issue a priority. Reps. Chellie Pingree, D-Maine, and David Young, R-Iowa, even launched a new Food Waste Caucus in May. Many of the relevant items in this Farm Bill draft came from legislation introduced by Pingree and others, including the Senate’s bipartisan-sponsored Food Donation Act, and have helped inform the conversation.
This level of federal attention makes sense, given the USDA and EPA goal of cutting food waste 50% by 2030, though some in the field had begun to wonder if it was still possible given the current political climate.
In a June interview during the U.S. Food Waste Summit at Harvard, the USDA’s Elise Golan told Waste Dive there was “no reason” this issue couldn’t fit into President Trump’s goals. “This really is about making American farmers stronger, American consumers stronger and utilizing everything that we are producing to its highest value.”
The summit had plenty of focus on how to maximize upstream reduction — in line with the EPA’s food recovery hierarchy—but also growing recognition that processing infrastructure investment was still needed. CalRecycle’s cap-and-trade model of funding projects has proven popular, so much so that the agency is looking for ways to potentially form philanthropic partnerships to enhance its reach. New York’s Department of Sanitation commissioner spoke about the need to prove a policy’s longevity to attract processing investments. Other conference sessions touched on how state policies, including disposal bans, can help incentivize this.
While all involved recognize that the 2030 goal is lofty, and the voluntary programs introduced so far may not be enough to achieve it, they also view this as an evolving conversation across all levels of government. If the final Farm Bill does include both federal research and local funding, it will be a notable step on the long road toward ending the food waste epidemic.
40 percent of food in the U.S. goes to waste each year, causing economic and ecological harm. Given the importance of preventing unnecessary food loss and providing wholesome food to those in need, there is a growing movement to address this at the federal level. The 2018 Farm Bill represents a valuable opportunity to elevate the importance of this issue, since it is the first farm bill to be released since USDA and EPA announced a national goal to cut U.S. food waste in half by 2030. FLPC published Opportunities to Reduce Food Waste in the 2018 Farm Bill last year with this in mind, outlining ways to incorporate food waste measures into this piece of legislation. FLPC was pleased to see both the House and Senate versions of the farm bill incorporate some of the recommendations from this report, despite several missed opportunities.
Senate Farm Bill Process
The Senate introduced a draft farm bill on June 8, 2018. FLPC’s earlier blog post outlines the food waste priorities included and omitted in Senate’s initial draft of the farm bill. The Senate advanced its farm bill out of committee on June 13, 2018, adding several amendments. Still more amendments were added to the version that came to the Senate floor on June 27, 2018. On June 28, 2018 the Senate passed its bipartisan version of the farm bill, called the Agricultural Improvement Act of 2018, on an 86-11 vote.
Below, we provide updates on relevant food waste measures included in the draft, and discuss additional relevant amendments that made it into the final version.
Updates to Food Waste Measures Since Initial Draft
Note: For more information about each program mentioned below, see FLPC’s initial blog post on the Senate farm bill draft.
Grant Resources for Food Recovery Infrastructure Investments: The first draft of the Senate’s version of the farm bill allocated $10 million per year for the Emergency Food Assistance Program (TEFAP) to support projects “harvesting, processing, or packaging” donated agricultural commodities. States can use this funding for projects that reduce the waste of agricultural products through donation, provide food to food insecure individuals, and create new partnerships to distribute food to those in need. This program made it into the final Senate bill, but with funding of only $4 million.
Pilot Project to Support State and Local Composting and Food Waste Reduction Plans: The Senate’s draft version of the farm bill included $25 million per year for pilot projects in at least ten states to support the development of local composting and food waste reduction efforts, aligning with FLPC’s recommendation that the Farm Bill allocate federal funding to support state and local efforts to implement organic waste bans and food waste reduction plans. FLPC is pleased to see that this program is included unchanged in the version of the farm bill that passed the Senate.
Study on Food Waste: The Senate’s original draft of the farm bill called for a study to evaluate the available methods to measure food waste, standards for food waste volume, and factors that cause food waste. The study is included in the final version of the Senate farm bill, with a list of more topic areas for the USDA study on food waste, such as the cost and volume of food loss of domestic and imported fresh food products, as well as the reason for and potential economic value of this loss. In addition, the study must research measures to ensure that USDA programs “do not disrupt existing food waste recovery and disposal by commercial, marketing, or business relationships.” FLPC applauds the support for this research, which aligns with its recommendation that Congress provide funding for comprehensive research on food waste.
Local Agriculture Marketing Program: The Senate farm bill would establish the Local Agriculture Market Program (LAMP), combining the Farmers’ Market and Local Food Promotion Program (FMLFPP) with the Value-Added Producer Grant (VAPG) program and providing $60 million per year in permanent mandatory funding. The new LAMP program includes promotion of “new business opportunities and marketing strategies to reduce on-farm food waste” as an eligible activity. The version of the farm bill that passed the Senate maintains this program, aligning with FLPC’s recommendation to ensure that food recovery organizations can access these grants.
Spoilage Prevention: In both Senate’s original draft and passed version of the farm bill, a change in the Speciality Crop Research Initiative would provide funding for efforts to “improve and extend the storage life of specialty crops,” which includes fruits and vegetables. This aligns with FLPC’s recommendation that Congress provide grant funding for new technologies to slow food spoilage.
Milk Donation Program: The Milk Donation Program would reimburse dairy farmers for donating class 1 fluid milk products to public or private nonprofit organizations that will then distribute the milk. This program, which replaces the Dairy Product Donation Program from the 2014 Farm Bill, lists reducing food waste as one of the purposes of the program, in addition to encouraging the donation of eligible milk and providing nutritional assistance to low income individuals. The program is allocated $9 million for 2019 and $5 million for each subsequent year until 2023.
New Food Waste Measures
The new programs below were not included in the Senate’s original draft of the farm bill, but were added via amendments and are included in the version of the farm bill that passed the Senate.
Food Donation Standards for Liability Protections: FLPC was excited to see an amendment to the Senate bill that provides some clarity around liability protections for food donation and allows for food donation directly from certain donors to individuals. This amendment is based on a portion of the Food Donation Act introduced earlier this year by Senator Hatch and co-sponsored by Senator Blumenthal. According to this amendment, USDA will be instructed to provide guidance as to liability protections for “qualified direct donors” when donating surplus food to those in need.
Previously, the federal Bill Emerson Good Samaritan Food Donation Act only provided liability protection for donations made to a nonprofit organization, which then would distribute the food to those in need. This amendment aims to expand protection to donations made by a “qualified direct donor” directly to individuals in need. “Qualified direct donor” is defined to include only entities that have food safety certification and licensing, such as retail food stores, restaurants, and agricultural producers, so that food will be donated safely. Extending protection to these donations can increase efficiency, reduce costs, enable timely use of perishable food, and support donation where quantities of surplus food are too small to be used by a food recovery organization.
This amendment also instructs USDA to create guidance about the protections available to qualified direct donors, consistent with another FLPC recommendation: the creation of guidance on the Emerson Act. Despite the great protections offered by the Emerson Act, the majority of food businesses cite fear of liability as a reason for not donating surplus food. Yet no agency has created guidance that raises awareness and clarifies the language of the Act. When creating guidance on the protections for qualified direct donors, USDA has an opportunity to provide clarity on terms like “apparently wholesome food” that remain unclear in the Emerson Act itself.
FLPC has long advocated for changes to the Emerson Act to provide guidance on the Act and expand liability protections to align with current food donation practices, so this addition to the Senate version of the farm bill is a valuable step in the right direction. However, FLPC had also hoped to see the full text of the Food Donation Act incorporated into the bill, since it more fully addresses these recommendations. FLPC hopes to see other elements of the Food Donation Act incorporated into future legislation, such as liability protection for food that is sold at a nominal price and protection for food mislabeled in ways that are not related to safety.
Biogas Research and Adoption of Biogas Systems: An amendment from Senator Bennet (D-CO), introduced in the Senate’s committee markup, would support efforts to develop the biogas industry. Biogas can be produced from any organic waste, including food waste, animal manure, and waste in landfills. Biogas operations capture gases that would otherwise contribute to local air quality problems and climate change and use them to generate electricity.
The amendment creates an Interagency Biogas Opportunities Task Force that will coordinate policies, programs, and research around biogas. It also calls for a study and data collection on biogas and provides funding for competitive grants to educate biogas producers on opportunities to aggregate organic waste from multiple sources in a single system.
FLPC’s Opportunities to Reduce Food Waste in the 2018 Farm Bill recommends that Congress provide research and development funding to expand the range of compostable and digestible materials and explore additional applications for compost and digestate. The Bennet amendment grant program is a useful step towards developing biogas as part of an organic waste system.
Next Steps for the Farm Bill
Now that versions of the farm bill have passed both the Senate and the House, a conference committee must meet and reconcile the two bills. The committee will produce a compromise bill, called the conference report, that must pass both chambers. The conference committee process addresses differences between the two bills, but cannot bring in topics not included in either bill. This means that areas that FLPC had been hoping to see included that were not incorporated into either version, such as standardized date labeling, will not be addressed in the farm bill. We hope the food waste priorities already written into the bills, including the valuable programs in the Senate bill addressed above and the Food Waste Liaison position in the House bill, will make it into the final conference report and become law in the final 2018 Farm Bill. We hope that other top priorities for food waste reduction will be included in future legislation.