Professor Timothy Jost, Washington and Lee University School of Law

Mark Masselli: This is Conversations on Health Care, I’m Mark Masselli.

Margaret Flinter: And I’m Margaret Flinter.

Mark Masselli: Well Margaret the year’s winding down, business is picking up on the
state and federal exchanges. The White House is saying that over 300 bugs have
been fixed on the federal side, healthcare.gov and that it should be able to handle
the anticipated load of 50,000 customers at ones at hopefully 800,000 in a day.

Margaret Flinter: And there are still some fixes underway I know including
challenges to be worked out on the Spanish language sites as well it’s a small
business exchange. Those fixes were pushed back so that the repairs could be
made to the main site. But I think we’ll see more activity on the federal exchange
now that the both of these bugs have been worked out in not a moment too soon.

Mark Masselli: And there is more deadline pressure factor as well but the deadline
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has been pushed back a little. You now have until December 23 to select plan in
time to make sure your covered for the first of the new year and some other
deadlines have been pushed back as well. Insurers are being given some extra time
next year to set up their rates for 2015.

Margaret Flinter: And there was another interesting developme nt Mark, the supreme
court has decided not to hear a case brought against the Affordable Care Act by
Liberty University. That’s Jerry Falwell’s conservative college and they were
challenging the law’s requirement that institutions must provide insurance f or their
employees or pay a fine and the high court has opted not to hear that case.

Mark Masselli: There are still other legal challenges pending, Margaret including
claim by private for a profit company, they shouldn’t have to pay for birth control
bas ed on religious grounds that decision is still looming.

Margaret Flinter: Well our guest today can speak to some of the legal issue
surrounding the Affordable Care Act Dr. Timothy Jost is a Law Professor at
Washington and Lee University. He’s a Legal An alyst for the Health Care Industry
and he’s been writing and speaking extensively about the Affordable Care Act, he’s
going to shed some light on the rollout of the health care law, some of the changes
that have been required and the impact that is likely to have overall on health care
consumers.

Mark Masselli: Lori Robertson Managing Editor of FactCheck.org will be stopping by
to shine a spotlight on misstatements about health policy spoken in the public
domain.

Margaret Flinter: And no matter what the topic you can hear all of our shows by
Googleing CHC Radio, we’ll get to our interview with Timothy Jost in just a moment.

Mark Masselli: But first here is our producer Marianne O’Hare with this week’s
headline news.

(Music )

Marianne O’Hare: I’m Mari anne O’Hare with these Health Care Headlines. Well
glitches have been fixed many of them on the federal insurance exchange site
healthcare.gov. Many issues and questions still linger, there are still concerns
across the country on the functionality of th e part of the site that verifies income and
identity as well as residence status of those applying for health care coverage. And
some states who have proactively set up their own exchanges are seeking to further
distance themselves from the federal site w hich just had numerous scheduled and
non - scheduled downtimes which hampers the states abilities to carry our enrollment.

Meanwhile administrators or healthcare.gov use web analytics software to track the
insurance exchanges performance and real time. The software from startup new
relic was a key tool that led to several of the fixes including a new feature that alerts
consumers via email when the exchange is available to process their request.

And want your daughter to be a science or math wiz, well the answer may lie on the
soccer field. Turns out it helps young girls wire their brains for a special math,
physics and other complex scientific ideas. I’m Marianne O’Hare with these Health
Care Headlines.

( Music)

Mark Masselli: Today we’re speaking with Timothy Jost, Law Professor at
Washington and Lee University of Virginia Professor Jost is an expert on the
Affordable Care Act and health policy is a regular contributor to peer reviewed health
industry publication health affairs and he’s a frequent commentator on health law on
NPR and CNN, professor welcome back to Conversations on Health Care.

Timothy Jost: Thank you good to be here.

Mark Masselli: You know I remember the last time you are on just before the
Supreme Court ruled you ar e a little worried about the states argument that the feds
can’t constitutionally require them to expand the Medicaid program. And you thought
that, that was sort of at the heart of federalism that if this was sort of approved that
this could pose problem s for the Medicaid program and so I wanted to get your sort
of thoughts on that it’s a little while but I also wanted to ask you about the – now that
we’re out in – on the (inaudible 4:46) full implementation of the Affordable Care Act
what changes have ha ppened to the act since the supreme court decision and how
are they strengthen or weaken the law.

Timothy Jost: Well we’re really beginning to see now and I think we will really see
after the first of the year what a devastating effect the Supreme Court’ s opinion has
had on trying to expand health insurance in the United States to cover the uninsured.
We now have probably about half the states that have decided at this point at least
not to expand Medicaid to cover people under a 138% of poverty level. And the
premium tax credits will pick up people over a 100% of poverty. But, for people
under a 100% of poverty and in many state such as Virginia, even parents with minor
children whose incomes are not very, very low I think in Virginia it’s about 30% of
poverty that you can earn and still qualify for Medicaid for all those people, they’re
going to be too poor to qualify. And so you’re going to see a situation where families

over a 100% of poverty level will qualify for really at the 100% level will qual ify for
very generous tax credits, very low cost sharing. You could have the same income
level and yet the people would be below the poverty level and won’t qualify for
anything and that’s going to be millions of people. So I think we’re going to see the
consequence of that Supreme Court decision very soon, where people are target just
going to be too poor to qualify for anything.

In terms of other changes in the law, there really haven’t been any changes in the
law itself. There has been a whole series of regulations and guidance and
implementing the law. Some of them delaying the implementation of certain parts of
the law and so those will make a practical difference but there are not actually
changes in the law itself.

Margaret Flinter: Which they may wonder as you’ve talk about the impact of
Medicaid we certainly have questions whether there would be a last minute or
sometime in the new year of 2014, pressure brought to bear on those states under
legislatures and governors from the health care indu stry if nobody else if not for the
people themselves for the health care industry to go ahead and expand Medicare
and if you like to do any crystal ball gazing for us, do you think that, that’s in the
cards, do you think we’ll beginning to see a shift ---

Timothy Jost: Well it think the pressure is going to be tremendous in Virginia where I
live that the economic study was done that projected that we would be losing almost
four billion dollars a year in federal spending in Virginia. Three to four hundred
thousand people, more would be uninsured and we’d lose 30,000 jobs. But I really
do think I mean you’re seeing moderate republican governors really pushing for this
and legislatures because they realize that this is – this is a tremendous lost to their
s tates but for those who care more about ideology then about jobs and insurance for
poor people they’re going to continue to dig in their heels and so we’ll just see how
the balance of power goes.

Mark Masselli: You know the act has, had so many big chall enges and certainly the
website’s not the only one certainly the president was accused of not keeping his
promise around the sort of ability for Americans to keep their existing plan and the
president offered a fix for one year saying insurance company sho uld allow those
plans to continue through 2014. First of all you say that the promise was seriously
misrepresented in the media is the president’s fix at a good idea and does it
compromise any other aspects of law in your mind.

Timothy Jost: The promise of the law itself was that if you have a health insurance
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policy that is enforced on the day that this law is adopted March 23 2010 nothing in
this law will take that to health insurance policy or plan away from you actually I
mean there were a few real ly important provisions that the plans had to comply with
but that was basically done and it wasn’t a big problem. So basically people who still
have health insurance policies that were in effect they still have those policies,
they’re still enforced. Bu t it didn’t mean that any policy you buy any time in the future
you’ll be able to keep forever it couldn’t have meant that because the whole point of
the law was to change the way in which health insurance is sold in the United States.
And so, you know, h ere we are almost four years later, and all of a sudden people
are surprised that this law that was intended to change the way health insurance

been sold and the way it – this policies are written is actually doing that. And I’m a
little disappointed that the president didn’t communicate more clearly to people what
the promise was. Now I frankly think that for probably the majority, probably the vast
majority of people who have plans now they’re going to see that, that they can get
more affordable coverag e once they go through the exchanges and take advantage
of the premium tax credits. But for some higher income people who have been
getting very low rates because they’re healthy. They are going to see higher rates
and maybe even coverage that isn’t gene rous. So that’s a real problem but that’s
kind of the nature of change that people who have been completely closed down as
a market because of pre - existing conditions will be able to get health care but people
who have benefit it from the market are now g oing to have to pay more.

Margaret Flinter: You’ve also noted that, that this could pave the way for a different
payment structure that supports a high risk poll as is done with Medicare but that
you’ve saw that there would be an inherent risk in that. That I think is another whole
area that would be certainly a little bit murky to me at best, could you clarify that for
us a little what do you mean by that?

Timothy Jost: The law itself includes three premium stabilization programs.
Because there is th e fear that you’re going to have a lot more people and I think
we’re seeing this right now actually. A lot more higher risk people entering the
market would have been closed out of the market. And that is going to kind of
increase the risk tool for healt h insurers. And I think also there’s concern that the
presidents plans and then to a much greater extent some of the fixes that congress
is considering right now that would allow people to continue to buy 2013 plan s in to
2 014 would really segregate t he ri sk poll and I think that’s probably what you’re
referring to. This premium stabilization program s are intended to help with that, one
of them is to reinsurance program that would collect a fee from people from insure rs
and then would use that to back up i nsurer s in the individual market who have very
high close cases . The federal gover nment going to absorb some of that cost. The
second program on risk adjustment program move funds from insurers that tend to
do very well, have low risk in re lease to those who have high risk and really . And
then a third plan which has not go tten much coverage but is starting to get more
c overage now is a risk quarter program so that insurer s in the exchange mainly
insurers who’ve qualified health plan s. Who end up losing money because the risk
p oll turns out to be worst th a n what they anticipated would be compensated again by
insurer who make money because they put their premiums high enough to cover
their cost. But in that program, the federal government would be the ult imate back
stop so that if all the insurer s lost money if the federal government would, would kick
into to, to back stop them in that program.

Mark Masselli : We’re speaking today with Timothy Jost, a Law Professor at
Washington and L e e University in Virg inia. Professor Jost is a expert on the
Affordable Care Act and health policy and is a regular contributor to the public ation
health affairs as well as a frequent commentator and health law issues on NPR and
CNN. Tim let’s go back to the problematic roll out of the federal exchange and lots of
people have had a various solutions to help with the enrollment process but people
have suggested that perhaps direct enrollment in the future might be helpful where
customers would be able to buy the plans directly from the insurers and then figure

out the federal subsidy part later . What are your t houghts a bout direct enrollment
and does it adequately protect consumers?

Timothy Jost: The idea there is not that insurer s would be able to bypass
healthcare .gov because the law simply doesn’t allow that. And they would have to
tell the person , you know, there are more plans available to you in healthcare. g o v if
you would like to use the public website . But if you want to enroll with us, these are
the plan s that are available. The web brokers can do the same thing like
eHealthInsurance . And I think this is problematic because o bviously people won’t
see the same range of choices they can choose to but if they de cide to stay with
their insurer, they won’t see the stand range of choices that they would see one the
government website. On the other hand, one of the goals of the exchange is to get
millions of people enroll ed in health care and if we can do that more easily by having
the insurers help out, direct enrollment then , you know, the price you pay for that is,
is probably having somewhat more constrained choice. But one thing that is not
being considered as far as I’ve heard and would not be legal under the current law, it
would take a change in the law for them to do this w ould be to allow insurers to
simply directly enroll people without having any contact with the website, and
somehow qualified people for premium tax graded. I don’t see how you can have
private businesses deciding whether somebody get s it a tax credit or not.

Margaret Flinter: Well you noted in a recent health affairs blog post. Something
else, that I think very few consumers probably are aware of and that’s the
department of health and human services has issued rulings on determini ng which
health plans rank as quality health plans or QHPs I am sure is the new acronym. So
I understand the consumer will play a role in that determination by engaging in
surveys tell us about these ratings, how are they going to work. Why did they matt er
and when does this element of change actually get underway?

Timothy Jost: So they are starting to put out now proposed matrices that they would
use for rating the plans. And so you’ll probably see a star rating just like you do now
when you go to tri p advisor or Amazon or one of the websites. And then the other
thing and well actually it would be part of that is a consumer satisfaction ranking.
One thing people have to understand is that this is a process that we are going to
start with something pre tty basic and then over the next few years it will ramp up and
so you know, if we’re having this conversation two years from now, the consumers
are going to have a lot more information available than they do now when they are
picking plans but you have to start somewhere.

Mark Masselli: I wonder what’s your thoughts are about the change in the Filibuster
Rule in the Senath and how that’s going to impact the cour ts . You know it’s probably
a longer term play but some of these federal district are not condu cive to raising
some important questions but certainly the DC district quarters in focus, how do you
see the long term play in terms of the change in landscape with th is change in center
goals.

Timothy Jost : I think the DC circuit the specific issue s tha t was before a congress
the DC circuit is terribly important in that – that’s where a lot of the key challenges
and the federal laws and the DC circuit has some very conservative judges on it who
I think in some rulings tend to look more outcome oriented t h a n law oriented from my

perspective . And to the extent that challenges are you know are brought in the DC
circuit to the law having three more moderate j udges on the court I think makes it
somewhat more likely that those challenges will not succeed. Rig ht now the
Filibuster Rules have only been changed for the appointment of lower court judges
and administration appointees should the Filibuster Rule change at some point for
laws and the re publicans take control of the Senath then I think that could be a more
existential threat to the Affordable Care Act so I think to that extent it’s troublesome.
I should also know however th at o ne of the challenges was brought against the
Affordable Care Act . The challenge to the individual mandate before the DC circuit
which ended up before, at least a couple of the three judges who were very
conservative and they actually ruled in favor of the individual mandate and in some
very interest decision s. So I don’t know how this is all going to work out but I think
you are right that it probably may have an impact eventually on the future of the law.

Margaret Flinter: Well there certainly have been a lot of legal challenges have been
under statement to the law and I think we you know in our pr imary care space tend
to think about individual enrollment but there is also that issue of the small business
mandate which did get a one year delay. I know we are doing a lot of asking you to
do a little somewhere between analytics and crystal ball gazin g but what’s the key
change going to be for small businesses in the country?

Timothy Jost : I think that the delay of the mandate probably isn’t going to have a
huge effect. I think something like 95 % of businesses with 50 or more employees
cover their e mployees with health insurance. The y are -- I think is little evidence,
that there’s going to be a mass exodus of larger employers from the health insurance
market. With respect to a small groups I don’t know, small groups are not require d
to offer health insurance. There are premium tax credits for very small groups with
low wage workers that statute does require small groups to cover the essential
health benefit . So I think some small group s are going to see their cost go up and so
the question is should I continue to offer coverage that is you know pretty pricey for
my employees or should I drop it. Maybe pay them a little more and then they can
get coverage with premium tax, credits in the exchange, so I don’t know where small
busines s is going to end up on this. I would expect that as the case now small
businesses who find it in their interest of a business reasons for retention and
recruitment reasons to offer health insurance will continue to do so and those who
have employees, who would do better in the exchange may drop it. I think that was
the projection of the CBO to begin with.

Mark Masselli: We’ve been speaking with Timothy Jost, Law Professor and Health
Industry Expert at Washington and Lee University in Virginia, you can find out more
about his work by going to law.wlu.edu . Tim thanks so much for joining us in the
conversation.
Timothy Jost: My pleasure, good to talk to both of you.
Mark Masselli: At Conversations on Health Care, we want our audience to be truly in
the know when it comes to the facts about health care reform and policy; Lori Robertson is an award - winning journalist and Managing Editor of FactCheck.org a
nonpartisan, nonprofit consumer advocate for voters that aim to reduce the level of deception in US politics. Lori, what have you got for us this week?

Lori Robertson: Well, we recently looked at a claim from Kentucky senator Rand
Paul, who said the Medicaid expansion and the Affordable Care Act may bankrupt
rura l hospitals in the state. But Kentucky health care leaders say the hospital stands
a benefit because the expense would extend insurance to those who otherwise
wouldn’t be able to pay their hospital bills. Senator Paul has introduced legislation to
repeal the Medicaid expansion. He said the state hospitals could be overwhelmed
with new Medicaid patients and may go bankrupt but state health care officials have
supported the expansion partly because it would financially help the hospitals. In
addition to e xtending Medicaid to those earning up to a 138% of the federal poverty
level, the Affordable Care Act also slowly reduces federal funding for
uncompensated care that goes to hospitals. The uncompensated care payments will
be cut by 18.1 billion dollars ov er seven years nationwide to help pay for the
medicate expansion.

In Kentucky, the states estimates the Medicaid expansion would cover an additional
30 8,000 state residen ce . A past president of the Kentucky Hospital Association said
the not extending med icate would financially hurt hospitals and that the hospitals
supported the expansion. The state cabinet for health and family services issued a
report recommending expansion saying, our hospital will suffer without it. And that’s
my f act c heck for this week. I am Lori Robertson, Managing Editor of
FactCheck.org.

Margaret Flinter: FactCheck.org is committed to factual accuracy from the country's
major political players and is a project of the Annenberg Public Policy Center at the
Universi ty of Pennsylvania. If you have a fact, that you ’d like checked, email us at
c h c radio.com, we will have FactCheck.org's Lori Robertson check it out for you here
on Conversations on Health Care.
Mark Masselli: Each week Conversations highlights a bright i dea about how to make
wellness a part of our communities and everyday lives. Much emphasis is been paid
of late to the dangerous of distracted driving, a number of states have enacted laws
banning texting and driving, which has led to a number of traffic deaths across the
country. But what about distracted w alking, a recent in - depth study conducted by
safekids.org show it some pretty startling s tatistics. Older teens now account for
over half of all pedestrian deat h s of children and what if the main c ulprits distracted
working?
Kate Carr: We collected data from over 3400 observations of middle sc hoolers and
high schoolers , while they were walking in a school zone and crossing the street.
We saw that 1 in 5 high s chools students were distracted by using their mobile
device, they were either texting, using headphones or talking on their cell phone.
Mark Masselli: Kate Carr is president and CEO of safekids.org

, whose mission is to
find the best ways to keep kids safe. She decided there needed to be a campaign to promote better awareness to reduce the trend and they created a moment of silence.

Kate Carr: This campaign is a reminder to especially teens; the re are 50% of the
fatalities in kids under the age of 19. Put that device down, create a moment of
silence, and pick your headphones or your ear bud s out.

Mark Masselli: She’s urging parents and pedestrians alike to access their site,
safekids.org for mo re details about a moment of silence campaign and bring that
message home to kids. A simple slogan based campaign to raise awareness about the dangers of distracted walking that has potential to save the lives of child pedestrians a nd adults for that matter, now that’s a bright idea.

Margaret Flinter: This is Conversations on Health Care. I am Margaret Flinter.
Mark Masselli: And I am Mark Masselli. Peace and health.
Conversations on Health Care, broadcast from the campus of WESU at Wesleyan University, streaming live at ww.w esufm.org and brought to you by the Community
Health Center.