The US Supreme Court has voted to uphold all provisions of the Affordable Car Act, including the hotly debated individual mandate and Medicaid expansion provisions. Both provisions have been contested as unconstitutional and outside the scope of the government’s authority.

The individual mandate is a provision within the law that would require most Americans to obtain a minimum level of health insurance by 2014, or else begin paying a new tax. The amount of the tax would be determined by factors such as the person’s income bracket, number of dependents and filing status. The tax would not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold established by the IRS.

Another key provision challenged in the Act is the requirement to expand the scope of coverage for the Medicaid program and increase the number of individuals States must cover. For example, extending coverage to all individuals under age 65, including those without children, who have incomes less than 133% of the federal poverty level by 2014. If States do not comply, they are threatened with losing federal funding.

Supreme Court Justice John Roberts delivered the court’s opinion:

“Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earn­ing income… The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax,” Roberts said in his opinion.

The Supreme Court did agree that threatening to revoke federal funding to States for noncompliance with the Medicaid expansion clause is unconstitutional. The Justices struck down this clause in their final opinion, allowing the mandated expansion of Medicaid, but precluding the Secretary from withdrawing existing Medicaid funds from States for failure to comply. No other provisions in the Affordable Care Act were impacted by this change.

Standing provisions within the Act that impact Medicare and DME, include: enhanced supplier screenings (i.e. revalidation); the expansion of Competitive Bidding and the application of bid prices nationwide by 2016; the elimination of the first month purchase option for standard power wheelchairs; the 2.3% medical device sales tax; authority for the OIG to enact payment suspensions during fraud investigations; authority for CMS to enact enrollment moratoriums (not yet enacted); and a face-to-face requirement for all billable DME items (not yet enacted).

A copy of the full court opinion is available here.

This article is posted as published in the June 2011 issue of Vista Notes.

On May 16, 2011, CMS published a proposed rule in the Federal Register (Vol. 76, No. 94) announcing a new initiative to better align Medicare and Medicaid benefits. The new Alignment Initiative seeks to improve access to care for dual eligible patients by eliminating regulatory conflicts and cost-shifting between the two programs.

 The Alignment Initiative is not simply an effort to catalogue the differences between Medicare and Medicaid, or to make the two programs identical; rather, it is an effort to advance dual eligible beneficiaries’ understanding of, interaction with, and access to seamless, high quality care that is as effective and efficient as possible.

As part of the initiative, the Medicare-Medicaid Coordination Office worked with industry stakeholders to develop a detailed list of areas in which Medicare and Medicaid alignment opportunities exist. Each area falls into one of the following categories:

• Coordinated Care
• Fee-for-service benefits (FFS)
• Prescription Drugs
• Cost Sharing
• Enrollment
• Appeals

 Under the FFS category, the following differences were identified between Medicare and Medicaid coverage for DME:

CMS is seeking public comment on the current list of identified alignment opportunities, which may be viewed at: http://www.gpo.gov/fdsys/pkg/FR-2011-05-16/pdf/2011-11848.pdf (page 4, Addendum 1). They have also posed the following questions for consideration: 

• How can the Medicare and Medicaid programs better ensure dual eligible individuals are provided full access to the program benefits? 
• What steps can CMS take to simplify the processes for dual eligible individuals to access the items and services guaranteed under the Medicare and Medicaid programs? 
• Are there additional opportunities for CMS to eliminate regulatory conflicts between the rules under the Medicare and Medicaid programs? 
• How can CMS best work to improve care continuity and ensure safe and effective care transitions for dual eligible beneficiaries? 
• How can CMS work to eliminate cost-shifting between the Medicare and Medicaid programs? How about between related health care providers? 

Comments must be received by 5pm on July 11, 2011. Comments may be submitted electronically by visiting: http://www.regulations.gov. Select the “submit a comment” tab, and enter CMS–5507–NC in the search field.

CMS will post periodic updates on the Alignment Initiative at: http://www.cms.gov/medicare-medicaid-coordination/.