Trump's Deadline On 'Dreamers' Reverberates Through Health Industries

KFF Health News, September 18, 2017

DACA's end could have an impact, especially among medical students and home health aides.

This article first appeared September 18, 2017 on Kaiser Health News.

By Carmen Heredia Rodriguez and Ana B. Ibarra

Karla Ornelas said she has "always had the idea of being a doctor, I've never seen myself doing anything else." The third-year pre-medical student at the University of California-Davis said she plans to become a family medicine physician and work in California's Central Valley, where there is a great need for doctors and especially bilingual doctors.

But that dream could be uprooted if the Trump administration goes forward with its plan to end the Deferred Action for Childhood Arrivals (DACA) program, which allows young people brought to the U.S. by their parents without proper documentation to stay and work here. Ornelas, 20, was born in Mexico and came arrived to the U.S. at age 9.

Across the country, Jennifer Rodriguez, 28, faces the same problem. Rodriguez, who works at a psychiatric care facility in Elkhart, Ind., as an administrative assistant, arrived in Goshen, Ind., from Mexico when she was 3, with no recollection of her birthplace and no documents to prove she belonged in the nation she calls home. Now she is worried that she will be able to stay.

"It's hurtful that I consider this my home, yet to other people I am an illegal," she said.

In 2012, President Barack Obama established the DACA policy that gave a group of about 800,000 children and young adults freedom from concerns about being deported and the opportunity to earn a living.

On Sept. 5, Attorney General Jeff Sessions announced that President Donald Trump would cancel Obama's executive order that set up DACA. Explaining the decision, the administration said that it did not believe Obama had the authority to set up the program and that it anticipated lawsuits from states seeking to end the program.

The administration is providing a six-month grace period until these protections end, giving Congress time to pass legislation to address the legal status of these immigrants, known as "Dreamers." Trump and Democratic lawmakers have agreed to work on a plan to extend the DACA program, but there are few details and conservatives have raised concerns.

There are no firm statistics showing how many Dreamers work in the health care sector, but industry leaders suggested that DACA's end could have an impact, especially among medical students and home health aides.

Multiple health care groups denounced the administration's move. A statement released by the Association of American Medical Colleges (AAMC) said its members are "extremely dismayed" by the decision.

"Even with the ‘wind down process' described by the administration, the implications of this action for medical students, medical residents, and researchers with DACA status are serious, and will interfere with their ability to complete their training and contribute meaningfully to the health of the nation," the group wrote.

The American Medical Association (AMA) said the administration's announcement "could have severe consequences for many in the health care workforce, impacting patients and our nation's health care system." It urged Congress to pass a permanent solution.

"The more the administration threatens immigrants and their families and their communities," said Robert Espinoza, vice president of policy at PHI, a long-term care advocacy group, "the more we threaten that workforce supply."

One segment of the health care workforce that could be affected are medical students.

Students and residents may have to cut their training short, the AAMC said, and researchers may have to leave the country before completing their experiments. Foreign-born and international medical graduates also tend to work in underserved areas, said Matthew Shick, director of government relations and regulatory affairs at AAMC. Phasing out DACA could also sever a lifeline connection between doctors and populations in sore need of health care.

Karla Ornelas is a third-year pre-medical student at the University of California-Davis who registered for the DACA program. Her goal is to become a family medicine physician and return to the Central Valley. (Ana B. Ibarra/KHN)

Ornelas, whose family settled in Turlock, Calif., feels that need. For example, she said she accompanied her mother to a doctor's appointment, as she usually does to help translate. Her mother, she said, had questions about lab results, and as her mother asked in Spanish and Ornelas repeated in English, the doctor grew impatient, told them to stop asking questions and walked out of the room.

"My mom wanted to cry, and I was shocked," Ornelas said. "That's when I realized that it wasn't just my mom, it was an entire community that was relying on this doctor for health care."

Sixty-five Dreamers were enrolled in medical schools across the nation during the last academic year, Shick said.

"It sounds like a small number," he said, "but they're treating anywhere between 1,000 and 2,000 patients in their clinical panel."

Those medical students are needed to serve neglected communities as well as to alleviate the shortage of doctors. The AAMC projects a shortage of between 40,800 and 104,900 physicians by 2030. More than 43,000 of the empty slots are for primary care physicians.

Kurt Mosley, vice president of strategic alliances for Merritt Hawkins, a physician recruitment company, said he is unsure if there are any Dreamers practicing medicine given that group's age (recipients were required to be younger than 31 at the time of the executive order).

DACA's end could also have a large impact on the country's ability to care for patients in a culturally sensitive manner, he said. And statistics point to the need — minorities are expected to constitute the majority of the U.S. population by 2044, according to the U.S. Census Bureau. By 2060, Hispanics — who make up the bulk of Dreamers — are expected to account for nearly29 percent of the U.S. population.

"You know we're a nation of diversity, and our workforce should reflect that," Mosley said. "And [dissolving DACA] is a step backwards." Health care already relies on immigrants to fill the ranks. Over a fifth of Dreamers work in the health care or education industries, according to a 2016 survey by groups including the National Immigration Law Center and the Center for American Progress. Moreover, based on a separate 2015 survey by the immigrant advocacy organization United We Dream, nearly 23 percent want to pursue a career in health care.

Another sector of the workforce that heavily relies on foreign-born employees is direct care, which includes nurse aides, home health aides and personal care assistants. According to Espinoza, one-quarter of all employees are immigrants.

As the population ages, those jobs will continue to be in high demand. It's hard to tell whether the vacancies that may be created by immigrants forced out of their jobs could be filled by the remaining population, he said.

"What our sector needs most is care," Espinoza said. "And these kinds of federal decisions impede that — it impedes our ability to provide care."

Rodriguez said she sees that need at her job often. The Latino clients frequently approach her for help, she said, recognizing a friendly face and asking in bits of broken English whether their native Spanish is familiar to her.

Interpreting for clients doesn't fall under her job description, and her boss sometimes tells her to say no when she's overwhelmed.

"But I would never do that to my people," Rodriguez said. She wants to stay in the country and continue her work and life here.

Without DACA, Rodriguez said, she would have trouble caring for her family. She has two daughters and just purchased a home.

She is married to an American citizen, so she has petitioned for residency. However, the application is still being processed, she said, which means she relies on DACA to stay employed and keep her driver's license. Many of her family members also depend on the program for legal protection, and she said she is worried what will happen to them.

Rodriguez identifies herself as a Mexican-American who considers Indiana home.

"This is all we know, and we just want to be productive citizens," she said. "That's all."

FDA Moves To Guard Against Abuse Of 'Orphan Drug' Program

KFF Health News, September 14, 2017

FDA Commissioner Scott Gottlieb said he wants to ensure financial incentives are granted "in a way that’s consistent with the manner Congress intended."

This article first appeared September 13, 2017 on Kaiser Health News.

By Sarah Jane Tribble

The Food and Drug Administration is changing the way it approves medicines known as “orphan drugs” after revelations that drugmakers may be abusing a law intended to help patients with rare diseases.

In a blog post Tuesday, FDA Commissioner Scott Gottlieb said he wants to ensure financial incentives are granted “in a way that’s consistent with the manner Congress intended” when the Orphan Drug Act was passed in 1983. That legislation gave drugmakers a package of incentives, including tax credits, user fee waivers and seven years of market exclusivity if they developed medicines for rare diseases.

A KHN investigation earlier this year, which was published and aired by NPR, found many drugs that now have orphan status aren’t entirely new. Of about 450 drugs that have won orphan approval since 1983, more than 70 were drugs first approved by the FDA for mass-market use. Those include cholesterol blockbuster Crestor, Abilify for psychiatric disorders and rheumatoid arthritis drug Humira, the world’s best-selling drug.

Gottlieb announced plans to close a loophole that allows manufacturers to skip pediatric testing requirements when developing a common-disease drug for orphan use in children. He also signaled that bigger changes are being considered, announcing a public meeting to explore issues raised by scientific advances, such as the increase in precision medicine and biologics.

“We need to make sure our policies take notice of all of these new challenges and opportunities,” he wrote. Gottlieb, through his agency, declined multiple requests for interviews.

Over the years, drugmakers have fueled a boom in orphan drugs, which often carry six-figure price tags. Nearly half of the new drugs approved by the FDA are now for rare diseases — even though many of them also treat and are marketed for common diseases.

Gottlieb became commissioner in May, a few months after three key Republican senators called for a federal investigation into potential abuses of the Orphan Drug Act, and the Government Accountability Office agreed to investigate.

The GAO has yet to begin its investigation, saying it doesn’t expect to start work until late this year, when staff is available. Regardless, in late June, Gottlieb announced what would be the first in a series of updates that shift the way the FDA handles orphan drugs.

Those include:

  • Eliminating a backlog in drug applications for orphan designation or status. Getting a “designation” is a critical first step if a company wants to win orphan incentives once the drug is approved for treatment use. And, much like the rise in approvals, the requests by companies to get drugs designated with orphan status has also skyrocketed. Gottlieb said in June that he wanted to get rid of the backlog; on Tuesday, he said the effort was complete. About half of the 200 applications from drugmakers won orphan status.
  • Mandating that drugmakers prove their medicine is clinically superior before getting the market exclusivity that comes with being an orphan. The agency had lost a lawsuit in which a company said it was owed the exclusivity period regardless of whether its medicine was better. And two more lawsuits had been filed by Eagle Pharmaceuticals and, more recently, another by United Therapeutics. The FDA Reauthorization Act, which passed last month, made it law that a drug has to be clinically superior to get the incentives.
  • Closing the loophole for pediatric orphan drugs by requiring all drugs approved for common adult diseases, like inflammatory bowel disease, undergo pediatric testing when getting approval as a pediatric orphan drug. Pediatric testing is not required for orphan drugs, and last month Congress mandated that orphan drugs for cancer be tested for children. Still, the American Academy of Pediatrics celebrated the proposed change but warned it was only a “first step.” Dr. Bridgette Jones, chair of American Academy of Pediatrics Committee on Drugs, said late Tuesday that orphan drugs are “still mostly exempt from pediatric study requirements … children deserve access to safe, effective medications.”

Dr. Martin Makary, who wrote a critical 2015 paper on orphan approvals, said the changes at the agency indicate that Gottlieb seems “concerned about all the right things.”

“The government does a lot of lip service in general,” Makary said. “This is not lip service.”

The restructuring has been swift in some ways.

Sandra Heibel, a senior consultant at Haffner Associates, a firm that helps companies submit orphan drug applications, noted that the approval process for designations definitely sped up over the summer, and “we are absolutely getting responses from the FDA back in 90 days. That has come through.”

Other changes to the agency, though, will evolve slowly. For example, the orphan drug office has begun reaching across the FDA’s divisions for help in reviewing drugs. In May, the FDA’s orphan reviews began to work with the office of pediatric therapeutics to review pediatric applications — ideally increasing the expertise applied when considering a company’s request for orphan drug use in children.

In an emailed note Tuesday, the agency confirmed that Gottlieb’s orphan modernization plan is part of a larger effort to increase competition and decrease drug prices. One focus is on targeted drugs — especially those that affect rare diseases or diseases for which there is no effective therapy, the agency said.

“Such drugs present some of the biggest opportunities in medicine to treat and cure debilitating and very costly diseases,” the agency stated.

Postcard from Capitol Hill

Senators Shelve Histrionics In Search Of Obamacare Fix

KFF Health News, September 13, 2017

Two much-discussed ideas so far are funding subsidies that help moderate-income consumers pay out-of-pocket costs for health care and giving states more leeway on insurance coverage.

This article first appeared September 12, 2017 on Kaiser Health News.

By Rachel Bluth

After a summer of flame-throwing over the Affordable Care Act’s repeal, Republicans and Democrats are now engaged in a serious collaborative effort to find a legislative solution that would ward off predicted premium rate hikes this year.

Sen. Lamar Alexander, who chairs the Senate Health, Education, Labor and Pensions (HELP) Committee, and his colleagues are up against a tight deadline to craft a bill to steady premiums in the Affordable Care Act’s shaky markets. Insurers must nail down plans late this month for the coming enrollment season.

If that weren’t challenging enough, the Tennessee Republican and the committee’s ranking Democrat, Sen. Patty Murray of Washington, have insisted their bill also be simple, bipartisan and balanced.

Two much-discussed ideas so far are funding subsidies that help moderate-income consumers pay out-of-pocket costs for health care and giving states more leeway on insurance coverage and plans for their residents.

Over three hearings in two weeks, senators solicited ideas and insights from bipartisan panels of governors, state insurance commissioners, government researchers and insurance company executives. Before the hearings, there were informal “coffee sessions” so that non-committee members from both parties could drop by to ask questions.

Noticeably absent: Democratic press conferences griping about the Republicans’ failure to permit hearings or seek input on their plans to repeal and replace the Affordable Care Act, also known as Obamacare. Such public airings were a fixture last summer when a Republican task force chosen by Senate Majority Leader Mitch McConnell drafted a replacement bill that was defeated in late July.

Civility has ruled the HELP committee’s hearings, kept them policy-focused — and mostly as dry as day-old toast. They are nearly incomprehensible to anyone but health policy experts.

On Tuesday, Alexander queried a witness about the nuances of segmenting invisible high-risk pools, and Sen. Sheldon Whitehouse (D-R.I.) asked about two types of reinsurance.

The committee’s members are a cross section of each party’s politics — from Sen. Rand Paul (R-Ky.) on the right to Sen Elizabeth Warren (D-Mass.) and Sen. Bernie Sanders (I-Vt.) on the far left.

But all 23 members get the same time to question witnesses — five minutes each. On occasion, Alexander is lenient with Democrats and Republicans alike, allowing them extra time to get detailed policy answers from witnesses.

There is no talk of death spirals, collapsing markets or sabotage — terms that colored past debates about Obamacare. Instead, HELP senators bat around the nuances of actuarial equivalence, budget neutrality and reinsurance programs.

“So far, we’ve had focused, substantive discussions in our first two hearings — and in our many conversations off the committee — on areas of significant common ground around these goals,” Murray said in her opening statement Tuesday.

This atmosphere is the antithesis of the rancor that hung over the “repeal and replace” debates. Sen. Al Franken (D-Minn.), a former comedian, has even had time to joke with Republicans.

Partisan posturing hasn’t been entirely missing at these hearings, though. Warren used some of her questioning time last week to denounce the Trump administration’s threats to end reimbursements to insurance companies for the “cost-sharing reduction” discounts they provide to enrollees with incomes under 250 percent of the federal poverty level.

Sen. Bill Cassidy (R-La.) used his time to advocate for reducing federal spending on Medicaid.

Uninsured Rate Falls To A Record Low Of 8.8 Percent

KFF Health News, September 13, 2017

The latest figures from the Census Bureau effectively close the book on President Barack Obama’s record on lowering the number of uninsured.

This article first appeared September 12, 2017 on Kaiser Health News.

By Phil Galewitz

Three years after the Affordable Care Act’s coverage expansion took effect, the number of Americans without health insurance fell to 28.1 million in 2016, down from 29 million in 2015, according to a federal report released Tuesday.

The latest numbers from the U.S. Census Bureau showed the nation’s uninsured rate dropped to 8.8 percent. It had been 9.1 percent in 2015.

Both the overall number of uninsured and the percentage are record lows.

The latest figures from the Census Bureau effectively close the book on President Barack Obama’s record on lowering the number of uninsured. He made that a linchpin of his 2008 campaign, and his administration’s effort to overhaul the nation’s health system through the ACA focused on expanding coverage.

When Obama took office in 2009, during the worst economic recession since the Great Depression, more than 50 million Americans were uninsured, or nearly 17 percent of the population.

The number of uninsured has fallen from 42 million in 2013 — before the ACA in 2014 allowed states to expand Medicaid, the federal-state program that provides coverage to low-income people, and provided federal subsidies to help lower- and middle-income Americans buy coverage on the insurance marketplaces. The decline also reflected the improving economy, which has put more Americans in jobs that offer health coverage.

The dramatic drop in the uninsured over the past few years played a major role in the congressional debate over the summer about whether to replace the 2010 health law. Advocates pleaded with the Republican-controlled Congress not to take steps to reverse the gains in coverage.

The Census numbers are considered the gold standard for tracking who has insurance because the survey samples are so large.

The uninsured rate has fallen in all 50 states and the District of Columbia since 2013, although the rate has been lower among the 31 states that expanded Medicaid as part of the health law. The lowest uninsured rate last year was 2.5 percent in Massachusetts and the highest was 16.6 percent in Texas, the Census Bureau said. States that expanded Medicaid had an average uninsured rate of 6.5 percent compared with an 11.7 percent average among states that did not expand, the Census Bureau reported.

More than half of Americans — 55.7 percent — get health insurance through their jobs. But government coverage is becoming more common. Medicaid now covers more than 19 percent of the population and Medicare nearly 17 percent.

Who Pays When Hospital Giants Hire Private Practitioners?

KFF Health News, September 11, 2017

Large doctor practices, many owned by hospitals, exceed federal guidelines for market concentration in more than a fifth of the areas studied by Health Affairs.

This article first appeared September 08, 2017 on Kaiser Health News.

By Jenny Gold

MOUNTAIN VIEW, Calif. — When Dr. Sarah Azad followed her mother into the field of obstetrics eight years ago, she thought she’d be in private practice for the rest of her career. At the time, independent practices abounded in Silicon Valley.

“From the time we were young, my mom’s patients loved her. She was a part of their lives. That’s just always how I’ve seen medical care,” she said.

But over the past decade, she’s watched as doctor after doctor sold their practice and went to work for one of the large hospital systems in town. Today, Azad runs one of the last remaining independent OB-GYN practices in Mountain View.

The number of physician practices employed by hospitals increased by 86 percent from 2012 to 2015, according to a study conducted by Avalere Health for the Physicians Advocacy Institute, a health policy-focused nonprofit.

Perhaps nowhere has the trend been more pronounced than in Northern California.

As large hospital systems like Sutter Health, Stanford Medicine and UCSF Medical Center gobble up doctor practices, they gain market muscle that pushes costs upward. It’s a key reason why Northern California is now the most expensive place in the country to have a baby.

A study published this week in Health Affairs found that large doctor practices, many owned by hospitals, exceed federal guidelines for market concentration in more than a fifth of the areas studied. But the mergers are typically far too small for federal antitrust authorities to notice.

“When you have less competition, prices go up,” said Martin Gaynor, a health care economist at Carnegie Mellon University. “If you’re an insurance company and you don’t reach an agreement with Sutter, then you have a hard time offering an attractive insurance product because it’s so big and pervasive. So you don’t have the same negotiating power, and Sutter can extract higher prices.”

In the San Francisco Bay Area, the reimbursement rate for a vaginal delivery is two to four times higher for physicians who work for large hospital systems than for those who are independent, according to a Kaiser Health News analysis. The news organization examined claims data provided by Amino, a health cost transparency company, plus results from medical cost calculators available from certain employers to help workers comparison shop.

The extra money for physician services goes to the hospital system, and doctors, now on salary, might take home no more than before. Although switching from independent practice spares OB-GYNs the considerable hassles of negotiating with insurers and running an office, doctors say the lion’s share of the benefit goes to hospital systems — not to physicians or patients.

In Northern California, Sutter, Stanford and UCSF all mentioned quality as a reason why their physician prices are higher, and it might seem intuitive that integrating care among disparate physicians leads to better care.

“Sutter Health-affiliated doctor groups consistently rank among California’s highest performers,” Dr. Jeffrey Burnich, senior vice president at Sutter Health Medical and Market Networks, wrote in an email. In the long run, “by improving care quality and efficiency, we reduce costs.”

But in general, research suggests bigger is not necessarily better.

Fewer patients of small physician-owned practices, for example, are admitted to the hospital for preventable conditions than those of large hospital-owned practices, according to a 2014 study published in Health Affairs. A report from the National Academy of Social Insurance showed that the integrated delivery networks of large hospital systems have raised physician costs without evidence of higher quality. And a recent paper, also published in Health Affairs, found that high-price physician practices, which cost at least 36 percent above average, had no better quality than low-cost practices.

“All of the evidence that we see shows that the quality in these larger systems is the same or worse,” said Kristof Stremikis, associate director for policy at the Pacific Business Group on Health, which represents employers that provide health insurance.

A Personal Connection

On a sunny day this spring, Azad walked into her patient’s room wearing a colorful headscarf. Just weeks from her due date, Ruby Lin sat on the end of the exam table holding her belly. The two women greeted each other like old friends.

“Hi! You look great,” Lin told Azad.

“Thanks — I’m not where I hoped I’d be,” Azad replied, rolling her eyes and touching her stomach. The doctor gave birth to her fourth child just months earlier and hadn’t lost the “baby weight” she wanted to yet.

Dr. Sarah Azad examines patient Ruby Lin in Mountain View, Calif. Azad’s mother was also an obstetrician. (Jenny Gold/KHN)

This was Lin’s second baby with Azad as her doctor. “I get very nervous about seeing doctors and especially OB-GYNs, and Dr. Azad is the only one I’m comfortable with,” said Lin.

This sort of well-established, personal relationship is Azad’s favorite part of being a doctor, and she considers it a hallmark of independent practice. At the larger practices owned by hospital systems, she said, patients may be more likely to have the doctor on call deliver their baby rather than the obstetrician whom they’ve grown to know over months.

But Azad says running a medical practice in one of the most expensive parts of the country is getting harder. “Rent goes up 3 percent per year. Water and utilities went up 18 percent last year alone. But seven years later, [the insurers] are still paying me the same amount, despite any efforts to negotiate.”

At first, Azad tried reaching out to the insurance companies directly to ask for higher rates. They refused even to meet with her, she said. Then she hired a consultant to negotiate on her behalf. Nothing worked.

“One insurance contract responded saying, ’You don’t even have 2 percent of market share. Basically drop our contract or not — it doesn’t affect us,’” she said. Another insurer told her they couldn’t raise her rates because they had to pay too much to the larger health systems in town, she said.

Independent doctors in the Bay Area are reimbursed, on average, a median $2,408.45 for a routine vaginal delivery, which includes prenatal and postnatal visits, according to the Kaiser Health News analysis of Amino claims data.

That compares with $5,238.13 for the same bundle of services for Stanford physicians and $8,049.84 for doctors employed by University of California-San Francisco.

Health data company Amino provided KHN with median billing amounts for Bay Area obstetricians. KHN used a Medicare provider database to determine where each doctor worked. In cases where the doctor’s employment status was unclear, a reporter retrieved the information by calling the health system or physician directly. KHN then calculated the average median billing amount for a routine vaginal birth for each health system.

The Amino database did not contain many claims from doctors employed by Sutter, so KHN also reviewed OB-GYN charges on several insurers’ online cost estimators. The review found that obstetricians employed by Sutter Health are reimbursed about three times more for the same service than independent doctors, or about $6,452 for a vaginal delivery.

Many doctors are mystified as to why prices vary so dramatically — independent or not.

Same Office, Same Pay

After nearly a quarter-century in independent practice, OB-GYN Ken Weber sold his practice to Stanford, where he now works. His office is in the same place, across the street from Azad. Both physicians admit patients to the same local hospital.

But insurers now pay about twice as much for his services as before.

He still makes the same amount, he said. Stanford’s health system gets the rest.

“It doesn’t make sense to me from the insurance company’s standpoint, because they’re losing all these doctors to the bigger groups and having to pay more. And if they just had negotiated with us fairly, I think we could come to some middle ground,” Weber said.

Weber said he hung on to his independent practice as long as possible, but he grew increasingly frustrated. “It’s hard to know that you’re doing the same work someone else does at Sutter or Stanford or wherever,” yet insurers are paying more for patients to see the other person, he said.

Nonetheless, there have been some real benefits to selling his practice, he added: He no longer has to worry about dealing with billing or maintaining compliance with the new electronic health record regulations.

For their part, the big Bay Area hospital systems caution against oversimplifying the many factors that go into paying for obstetrical care. A Stanford spokeswoman, Samantha Dorman, said the health system incurred significant costs when it integrated new provider groups. For instance, many were not yet on electronic health records and needed updated equipment. Dorman added that Stanford reduced physician charges a few years ago to be more in line with other practices.

A UCSF spokeswoman said that just looking at physician reimbursement rates was misleading because while the system charges more for physician services, it charges less for other hospital services. Overall, she said, their costs are competitive.

For its part, Sutter suggested it was not accurate or fair to judge physician price discrepancies on online cost calculators. According to Burnich of its Medical and Market Networks service, the rates provided are inconsistent and often out-of-date.

The agreements between hospitals and insurers have “gag clauses” barring either party from divulging rates. The bottom line, for many patients, is that it’s almost impossible to determine either the cost or the value of the various health care providers available to them. This is particularly problematic for patients with high-deductible plans, who may be on the hook for a significant portion of those costs.

Meanwhile, the type of consolidation that Azad has witnessed in Northern California is spreading quickly throughout the country, and it is extremely difficult to reverse.

The most consolidated places like Northern California, Pittsburgh and Boston have become a “poster child of what not to do,” said economist Gaynor of Carnegie Mellon. “We should look at places that have consolidated and think about how to avoid that.”

Kaiser Health News correspondent Sydney Lupkin contributed to this report.

Lawmakers Debate How Much Wiggle Room To Give States In Healthcare

KFF Health News, September 8, 2017

At issue is whether to broaden authority for states by revising or eliminating the “guardrails” intended to protect patients and the federal government.

This article first appeared September 08, 2017 on Kaiser Health News.

By Julie Rovner

One of the few things that Republicans and Democrats broadly agree on is that states should have some flexibility to experiment with different ways to pay for and deliver health care.

But they disagree — strongly — on how much. In fact, Republicans don’t agree with one another on this, and that dissent helped sink efforts this summer to “repeal and replace” the Affordable Care Act. Bridging these divides will help determine the success of a bipartisan effort in the Senate this month to help shore up the individual health insurance market.

“I’ve always said not all the wisdom is going to be in Washington,” said Sen. Ron Wyden (D-Ore.), the ranking Democrat on the powerful Finance Committee. “Progressive and conservative folks are going to say ‘we can do better.’”

The federal health law includes a provision that allows states to alter some of its rules if they can think of a better way to provide health care to their residents. These are known as “Section 1332 waivers,” bookmarking where they are located in the health law.

But the law strictly limits how far states can go with their experiments. It includes what are known as “guardrails.” Those limits, said Nicholas Bagley, a health law professor at the University of Michigan, “are to prevent states from undermining the Affordable Care Act goal to provide people with comprehensive coverage.”

The waivers were designed “so blue states can experiment with blue state solutions, and red states can experiment with red state solutions,” said Bagley. “But to do so and stay within the guardrails is really difficult.” For example, he said, “you can reallocate the money, but you can’t reallocate it to create losers.”

At issue is whether to broaden authority for states by revising or eliminating the “guardrails” intended to protect patients and the federal government.

Wyden, who authored the 1332 language in the ACA, is skeptical. Under the current rules, he said, “states can make changes that make health care better. But they can’t go out and make health care worse.”

It is clear that Republicans in Congress want changes to the provision. The repeal-and-replace bill that passed the House and all those considered in the Senate included some expansion of state authority to waive protections included in the health law. Bagley said the bills “would have essentially given carte blanche to states to come up with ACA alternatives without any regard to the guardrails” other than the one prohibiting additions to the federal deficit.

And Sen. Lamar Alexander (R-Tenn.), chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, who is working on a bipartisan bill, said Wednesday that “Democrats will have to agree to something — more flexibility for states — that some are reluctant to support.”

So is there a compromise between Democrats who want to maintain the protections and Republicans who want states to have a freer hand?

Maybe.

David Anderson of Duke University said one possible source of agreement would be to streamline the federal approval process, starting with the guidance issued by the Obama administration in 2015 that critics said was too restrictive.

Under the rules set by the ACA, states can use waivers to adjust things like the structure of premium assistance to those with low and moderate incomes or the individual and employer requirements to have and offer coverage. But those changes must meet four key standards: States continue to provide equally comprehensive coverage to at least the same number of people, with no higher out-of-pocket costs and without costing the federal government more than it would spend under the provisions of the ACA.

The rules around the waivers also make it hard to accomplish a truly comprehensive overhaul of a state’s health care system, as states can’t use them to reach the place where most of the money funding that system comes from: tax breaks for employer-provided insurance and the federal Medicare program. Workers don’t pay taxes on the value of employer-provided insurance, which is estimated to cost the federal Treasury some $260 billion in income and payroll taxes 2017.

“If you want to reshape your state health insurance market, you’ve got to be able to grab onto the employer market or Medicare, and you can’t” using the waiver procedure, Bagley said.

States also cannot use Section 1332 to change provisions of the Medicaid and Children’s Health Insurance Program, although they can submit simultaneous waivers to each program under separate Medicaid waiver authority in the law.

So far, only two states — Hawaii and Alaska — have won federal approval for 1332 waivers under the health law.

Hawaii has had its own system for providing health coverage based on an employer requirement for coverage since the 1970s. The state’s waiver allows it to use money allocated to help small businesses afford coverage in different ways.

Alaska’s waiver, which was approved this summer, involves a “reinsurance” plan that will help spread the costs of the state’s sickest patients more widely. “By removing high-cost conditions from the risk pool, the benefits of the [reinsurance program] are shared by the entire individual health insurance market,” Lori Wing-Heier, head of the state’s insurance department, told the HELP Committee on Wednesday. In its first year, the program dropped proposed premium increases from 40 percent to “just over 7 percent,” Wing-Heier said.

Minnesota has applied for a waiver similar to Alaska’s, and approval is expected. Earlier this spring, the Department of Health and Human Services specifically invited states to apply for waivers of that type.

Other states, though, are working on proposals that would make more comprehensive changes. Iowa, for example, wants to dramatically redistribute the money available, with bigger subsidies for the middle-class customers and smaller ones for those with lower incomes. The state says that would help draw more customers into the marketplace so that the risk pool is healthier and the premiums for everyone would decrease. It would also eliminate the help lower-income people get to pay their out-of-pocket medical costs, such as deductibles and copayments.

“The Iowa waiver on its face pretty brazenly ignores the guardrails,” said Bagley.

Oklahoma, which is seeking a waiver for its own reinsurance program, is also working on a plan that would make major changes, including encouraging people to purchase insurance with higher deductibles along with a health savings account.

Part of the difficulty with the waivers is the number of hoops states must jump through to win approval, including passing legislation, seeking public comment and holding hearings around the state.

And those are not even the biggest problems, state officials say. “The part that is stifling states right now is the six-month waiting period before they receive final approval,” Alaska’s Wing-Heier told the Senate panel.

Teresa Miller, former Pennsylvania insurance commissioner, agreed at the Senate hearing, saying, “The current process is very cumbersome.”

Anderson of Duke University said one key possibility to add flexibility would be to loosen the requirement that state changes not add to the federal deficit. “Maybe they could allow for deficit neutrality over the course of the waiver rather than year by year,” he said, in which case experiments that cost money to begin with but save over time would be allowed.

Wyden said he is willing to look at any ideas to make the waivers easier to use.

But he added that the popularity of state “reinsurance” waivers that are lowering premiums shows the waiver provision is working as intended. And, he said, if GOP members try again to roll back coverage using the waiver provision “they’re going to have to roll over me, then they’re going to have to persuade people” that it meets the 1332 requirements.

5 Governors Press Congress For Fast Bucks To Secure Obamacare Market In 2018

KFF Health News, September 8, 2017

The Senate has only a handful of legislative days in September before insurers must make final decisions on 2018 coverage. It may be an impossible task if committee’s hearings over the past two days are an indication.

This article first appeared September 07, 2017 on Kaiser Health News.

By Julie Rovner and Rachel Bluth

Sen. Lamar Alexander (R-Tenn.) has a problem — and not much time to solve it.

The chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee wants to turn the page on the divisive health debate of this summer. He’s been working with the panel’s top Democrat, Patty Murray (D-Wash.), to craft a bipartisan bill aimed at shoring up the individual health insurance market.

Alexander has been looking at a proposal that would please Democrats (and insurance companies) by funding contested subsidies that help moderate-income policyholders pay their out-of-pocket health costs. To please Republicans, he has been pushing a plan to give states more flexibility to set up “reinsurance” pools that would help bring down premiums by limiting insurer exposure for the most expensive patients.

And he has to get the job done with only a handful of legislative days in September before insurers must make final decisions on 2018 coverage.

Alexander may have an impossible task ahead of him if his committee’s hearings over the past two days are an indication.

A bipartisan succession of state governors and insurance commissioners told the committee that there is no time for them to get their own reinsurance programs up and running in order to stabilize the market. What would help in the short term, they said, would be for the federal government to step in and do it — temporarily. “For the first year, you’re going to have to have the federal government help on that,” said Gov. Bill Haslam (R-Tenn.).

But a clearly frustrated Alexander said at the end of Thursday’s hearing that he couldn’t pass that kind of bill. “To get a Republican president, House and Senate to vote for just more money isn’t going to happen in the next two or three weeks,” he said.

That, however, did not convince the governors, who said this money was essential in stabilizing the markets.

“One of our great challenges is to get more people participating in the system; a reinsurance pool is one of the best ways to do that,” said Gov. John Hickenlooper, a Democrat from Colorado.

He and Haslam were echoed by Massachusetts Gov. Charlie Baker and Utah Gov. Gary Herbert, both Republicans; and Montana Gov. Steve Bullock, a Democrat.

Reinsurance provides money to insurers for the sickest and highest-cost consumers. Governors testified that reinsurance would lower premiums, thereby bringing young, healthy people into the risk pool and providing stability to the marketplace.

Alexander has been a proponent of states setting up their own reinsurance pools by applying for exemptions from the Affordable Care Act’s rules to innovate in their markets. So-called Section 1332 waivers are permitted as long as they don’t cost the federal government more money or cover fewer people. He asked in his opening remarks if there was a way to reform the clunky 1332 process to allow states to create their own reinsurance pools.

“Whether it’s reinsurance or an invisible high-risk pool or a stabilization fund — we need to think about what the state share of that should be,” Alexander said.

As written, the health law makes it impossible for states to get waivers for reinsurance pools that could be up and running in time for 2018 enrollment. The waivers require state legislation and six-month waiting periods for final federal approval. The ACA created a federal reinsurance program that ran for three years, expiring in 2016.

Bullock said the federal reinsurance pool lowered premiums by 10 to 15 percent in 2014.

Sen. Maggie Hassan (D-N.H.), a former governor of her state, supported using federal dollars to help states set up their reinsurance programs.

“At least some of the seed money should come from the feds, because the feds are going to save money if they put in place a reinsurance program and premiums go down,” Hassan said.

Without reinsurance, the federal government’s costs for premium subsidies will rise as premiums increase.

But Sen. Chris Murphy (D-Conn.) said it was unlikely that a federal reinsurance program would be ready in time to affect 2018 premiums.

"I think we're on a really tight time frame," Murphy said after the hearing. "Whatever enthusiasm exists in the Senate for a federal reinsurance program might not exist in the House."

Every governor in attendance also advocated for the extension of cost-sharing reduction payments to insurers for at least two years. Those payments, estimated at $10 billion for 2018, reimburse insurers for discounts given to low-income consumers. They are being funded on a month-to-month basis by the Trump administration.

Some Republican senators have denounced both cost-sharing payments and reinsurance as “insurance company bailouts,” but both the governors and the insurance commissioners told the committee that funding them is essential to keep insurers participating in the Obamacare marketplaces next year and prevent a spike in premiums.

Two more HELP Committee hearings are set for next week, on Tuesday and Sept. 14 — the first with health care experts and the second with a mixed panel including doctors and patient advocates. Alexander said Thursday that he wants to reach a consensus about stabilizing the individual health market by the end of next week and pass legislation before the end of September. That is when insurers need to submit their 2018 rates to state insurance regulators.

Insurance Commissioners Say Help Offered By Congress Is Not Enough To Save Market

KFF Health News, September 7, 2017

At a Senate hearing, a bipartisan group of state insurance officials agreed that the guarantee for funding cost-sharing payments needs to go for more than a year.

This article first appeared September 06, 2017 on Kaiser Health News.

By Julie Rovner and Rachel Bluth

A key Senate committee Wednesday launched a set of hearings intended to lead to a short-term, bipartisan bill to shore up the troubled individual health insurance market, but a diverse group of state insurance commissioners united around some solutions that were not necessarily on the table.

Sen. Lamar Alexander (R-Tenn.), the chairman of the Health, Education, Labor and Pensions Committee, said at the outset of the hearing he hoped to reach consensus on “a small, bipartisan, stabilization bill” by the end of next week. But the five state officials who testified seemed to have ideas other than those Alexander has touted for the past couple of weeks.

Related: Vital Health Officials You’ve Never Heard Of: Insurance Commissioners In The Hot Seat

Alexander has been floating the notion of guaranteeing insurance companies that they would be reimbursed for at least one more year for the “cost-sharing reduction” discounts they provide to enrollees with incomes under 250 percent of the federal poverty level. Insurers must make those payments under the Affordable Care Act, but the Trump administration has threatened to withhold the money owed insurers.

Commissioners said insurers in their states plan sharp rate hikes next year unless Congress removes that uncertainty by appropriating money to pay the discounts, estimated at $10 billion in 2018.

In exchange for guaranteeing the cost-sharing payments, which Democrats have sought, Alexander suggested Democrats would need to give states more flexibility to seek waivers from the rules of the federal health law to experiment with different ways to provide health insurance coverage. “Democrats will have to agree to something they may be reluctant to support,” he said. “That is called a compromise.”

But the state insurance officials — Democrats and Republicans from Tennessee, Alaska, Washington, Oklahoma and Pennsylvania — agreed that the guarantee for funding cost-sharing payments needs to go for more than a year.

“Insurers right now are already planning for 2019,” said Washington Insurance Commissioner Mike Kreidler, a former Democratic member of Congress. “In order to give them predictability, you would have to give them more certainty in the market” than a one-year extension.

Added Alaska Insurance Commissioner Lori Wing-Heier, “Insurers have to have more than a one-year commitment” to persuade them to stay in the market and not raise premiums high enough to make up for the potentially lost payments from the federal government.

Alexander also pushed his idea to make it easier for states to use the federal health law waivers to create their own “reinsurance” programs that would keep premiums down by paying for the most expensive patients. But the insurance officials suggested they would rather have Congress reinstate a federal reinsurance program that expired this year.

Wing-Heier, whose state is so far the only one to have its own reinsurance plan approved by the federal government, noted that Alaska funded its own program for the first year, “and the states I’ve talked to said they can’t afford to do that.”

“Allowing states to do that is great, but if we could have a federal backstop in the meantime and to help with 2018, I think that’s going to be important,” said Pennsylvania acting Human Services Secretary Teresa Miller. She was formerly the state’s insurance commissioner.

A federal reinsurance program, said Tennessee Insurance Commissioner Julie Mix McPeak, “would help states that don’t have the wherewithal to get their own programs up and running.”

States, agreed Miller, “are not going to be able to fix this completely on our own.”

The state officials concurred that the current process for seeking a federal waiver is too cumbersome and could definitely use streamlining.

“The part that is stifling states is the six-month waiting period before they receive final approval,” Wing-Heier said. “… [Federal officials were] very helpful to us, but it still was a very lengthy process.”

State officials also expressed concerns about the Trump administration’s cutbacks in programs this fall to help people sign up for coverage starting in 2018 and to promote the open enrollment period from Nov. 1 to Dec. 15, which is 45 days shorter than last year’s.

“I worry that these decisions will result in fewer people enrolling and relatively fewer healthy people enrolling, exacerbating the issues that already exist in the risk pool,” Miller said.

Some senators also suggested ideas that have not been on the table.

For example, Sen. Lisa Murkowski (R-Alaska) asked whether individuals in places with few or no insurers might instead be allowed to purchase coverage through the federal employee health plan.

The committee has three more hearings scheduled on the health issue this week and next. On Thursday, senators will hear from a bipartisan panel of governors on what they think would best stabilize the individual insurance market and better control health care costs over the long term. One major concern is rising drug prices — a point that insurance commissioners made Wednesday and which some governors will reinforce, according to their prepared testimony.

How Below-The-Radar Mergers Fuel Healthcare Monopolies

KFF Health News, September 6, 2017

Large doctor practices, many owned by hospitals, exceed federal guidelines for market concentration in more than a fifth of the areas studied, research shows.

This article first appeared September 05, 2017 on Kaiser Health News.

By Jay Hancock

Hospitals have gone on a doctor-buying spree in recent years, in many areas acquiring so many independent practices they’ve created near-monopolies on physicians.

Research published Tuesday throws new light on the trend, showing that large doctor practices, many owned by hospitals, exceed federal guidelines for market concentration in more than a fifth of the areas studied.

But it goes further, helping answer some of health policy’s frequently asked questions: How could this happen? Where are the regulators charged with blocking mergers that have been repeatedly shown to drive up the price of health care?

The answer, in many cases, is that they’re out of the game.

Doctor deals are typically far too small to trigger official notice to federal antitrust authorities or even attract public attention, finds a paper published in the journal Health Affairs.

When it comes to most hospital-doctor mergers, antitrust cops operate blind.

“You have a local hospital system and they’re going in and buying one doctor at a time. It’s onesies and twosies,” said Christopher Ody, a Northwestern University economist and one of the study’s authors. “Occasionally they’re buying a group of five. But it’s this really small scale” that adds up to big results, he said.

The paper, drawing from insurance data in states covering about an eighth of the population, found that 22 percent of markets for primary care doctors, surgeons, cardiologists and other specialties were “highly concentrated” in 2013. That means that, under Federal Trade Commission guidelines, a lack of competitors substantially increased those doctors’ ability to raise prices without losing customers.

The research didn’t sort physician groups by ownership. But other studies show that large, predominant practices are increasingly owned by hospitals, which see control of doctors as a way to both coordinate care and ensure patient referrals and revenue.

According to one study, hospitals owned 26 percent of physician practices in 2015, nearly double the portion from 2012. They employed 38 percent of all physicians in 2015, up from 26 percent three years earlier.

In the study by Ody and colleagues, only 15 percent of the growth by the largest physician groups from 2007 to 2013 came from acquisitions of 11 doctors or more.

About half the growth of the big practices involved acquisitions of 10 or fewer doctors at a time. About a third of the growth came not from mergers but from hiring doctors out of medical school or other sources.

Federal regulations require notification to anti-monopoly authorities only for mergers worth some $80 million or more — far larger than any acquisition involving a handful of doctors.

Very few of the mergers that drove concentration over the market-power red line — or even further — in the studied areas would have surpassed that mark or a second standard that identifies “presumably anti-competitive” combinations.

But the little deals add up. In 2013, 43 percent of the physician markets examined by the researchers were highly or moderately concentrated according to federal guidelines that gauge monopoly power by market share and number of competitors.

(A market with three practices in a particular specialty, each with a third of the business, would be at the lower end of what’s considered highly concentrated. A market with one doctor group doing at least 50 percent of the business would be highly concentrated no matter how many rivals it had.)

Bigger and fewer doctor practices, fueled largely by hospital acquisitions, do drive up prices for patients, employers and taxpayers, several studies confirm.

Part of the increase results from a reimbursement quirk. Medicare and other insurers pay hospital-based doctors more than independent ones. But another part comes from the lock on business held by large practices with few rivals, Ody said.

“It’s a problem,” said Martin Gaynor, a health care economist at Carnegie Mellon University and former head of the FTC’s Bureau of Economics. “All the evidence that we have so far … indicates that these acquisitions tend to drive up prices, and there’s other evidence that seems to indicate it doesn’t do anything in terms of enhancing quality.”

The American Hospital Association, a trade association, declined to comment on the study since officials hadn’t seen it. But the AHA often argues that “hospital deals are different” and that doctor acquisitions keep patients from falling through the cracks between inpatient and outpatient care.

The FTC has moved to block or undo a few sizable doctor mergers, including an orthopedics deal in Pennsylvania and an attempt by an Idaho hospital system to buy a medical practice with dozens of doctors.

But the agency largely lacks the tools to challenge numerous smaller transactions that add up to the same result, said Ody.

An FTC spokeswoman declined to comment on the study’s findings.

Ody urged state attorneys general and insurance commissioners to look more closely at doctor combos. Sometimes state officials can question mergers overlooked by federal authorities. Or they can block anti-competitive practices, such as when hospitals seek to exclude competitor physicians from insurance networks.

Beyond that, “I hope that people notice this [research], and I hope people think creatively about what kinds of solutions might be appropriate for this,” he said. “I don’t know what they are.”

State Insurance Commissioners In Hot Seat In National Health Care Drama

KFF Health News, September 6, 2017

The political debate highlights the role of these administrators who sometimes preside over underfunded offices and whose range of duties usually spans well beyond healthcare.

This article first appeared September 06, 2017 on Kaiser Health News.

By Julie Appleby

With insurance premiums rising and national efforts at health reform in turmoil, a group of 50 state bureaucrats whom many voters probably can’t name have considerable power over consumers’ health plans: state insurance commissioners.

As insurers threaten to exit state markets and voters at town halls complain about unaffordable prices, the state commissioners are central characters in the unfolding drama that is America’s health coverage.

“What’s the worst job to have right now? Insurance commissioner,” said Christopher Koller, a former commissioner from Rhode Island who is president of the Milbank Memorial Fund, a foundation that works to improve health. “They’re trying to keep the market stable.”

Most are wrestling with how to take on this task amid ongoing political rancor over the fate of the Affordable Care Act. Several commissioners are slated to testify Wednesday before the Senate health committee to talk about market stability and how to ensure patients have affordable health care.

The political debate highlights the role of this crew of wonk-ish administrators who sometimes preside over underfunded, understaffed offices and whose range of duties usually spans well beyond health care and its myriad complexities.

In all but one state, the commissioner regulates all types of insurance, and in several he or she might hold other jobs — such as lieutenant governor (Ohio), state auditor (Montana) and fire marshal (Mississippi, North Carolina, Tennessee and Georgia).

Most commissioners have the authority to reject premiums or modify rates they deem excessive. They also have the power of their bully pulpit. Though California Commissioner Dave Jones, for example, lacks the statutory muscle to override insurers’ rate increases, he often uses his position to publicly call out insurers’ premium hikes.

But critics worry that in some states the position is a revolving door with industry, moving them to do less than they could.

“It a double-edged sword,” said Sabrina Corlette, research professor at Georgetown University’s Health Policy Institute. “Knowledge of industry … is very important in the job. [But] … if someone is coming from and going back to industry, it does raise some red flags about where their interests really lie.”

Sometimes a past résumé draws increased public scrutiny of a regulator’s actions on issues under the department’s purview.

Connecticut Insurance Commissioner Katherine Wade, who was a Cigna executive before being named commissioner, was fined $500 in June after the state’s Freedom of Information Commission ruled that she improperly withheld documents related to a proposed merger between Aetna and Humana. She is currently appealing the ruling. The proposed merger was called off in February after a federal court blocked the deal, but not before a state review of Connecticut-based Aetna’s plan drew criticism because of Wade’s past employment.

Eleven commissioners are elected and the remainder are appointed and — as such — face new political pressures in a highly partisan health care debate.

When Julie Mix McPeak, commissioner of Tennessee’s Department of Commerce and Insurance, persuaded Blue Shield to return to areas of the state that it had pulled out of last year, she recalled: “Some critics said I was going out of my way to prop up Obamacare. Others said I wasn’t doing enough because I’m from a red state and that must mean we want Obamacare to fail. But I just want access to coverage.”

Historically, insurance commissioners have stayed out of political battles, said Tim Jost, emeritus professor at the Washington and Lee University School of Law who also serves as a consumer advocate with the National Association of Insurance Commissioners (NAIC). They see “themselves as civil servants more than politicians,” he said.

But, he added, “at least for the moment, it’s more politicized than it has been in the past.”

The individual insurance market, where about 17 million people purchase their own plans because they don’t get it through their jobs, is the focus for much of this drama.

GOP repeal-and-replace talking points have hammered a message that the individual market — including these government exchanges — are imploding. But Democrats counter that though they face difficulties, this is not the case. The insurance commissioners are caught in the middle and have the power to make either narrative come true.

Many had to scramble this summer — negotiating, offering incentives or just downright pleading — to get insurers to stay in their markets.

At one point, there were more than 40 counties nationwide with zero insurers for next year. As of Aug. 24, when insurer CareSource agreed to provide coverage in Ohio’s Paulding County, no more of these so-called “bare counties” remained.

McPeak and other commissioners also say that cost issues need to be tackled, but there’s no bandwidth to take on these thorny issues because they have to deal with the more immediate problems.

“We can’t get to affordability if I don’t have a policy for people to buy,” said McPeak. For next year, “I’m telling consumers there will be problems and they will see rate increases. But at least they have an option.”

These efforts are made more complicated by President Donald Trump’s repeated threats to eliminate subsidies used to lower deductibles for some ACA policyholders, which would raise premiums. Payments are currently being made on a month-to-month basis. It will likely be a topic during the upcoming Senate hearing.

“We would all like to know what the rules are. When there is uncertainty, it’s difficult to make short- or long-term decisions, said Al Redmer, who was appointed Maryland’s insurance commissioner in 2015 by Republican Gov. Larry Hogan.

And the subsidies aren’t the only point of contention, with the partisan divide also reflected among some commissioners.

Trump and Congress are causing uncertainty that is “sabotaging the progress we’ve made,” Washington state Insurance Commissioner Mike Kreidler wrote in June. His state strongly embraced the ACA.

Kreidler, a Democrat who formerly was a member of Congress, was first elected commissioner in 2000.

In contrast, Oklahoma Insurance Commissioner John Doak, whose state opposed the ACA from the start, has made it no secret that he supports repeal of the law, calling it “this disastrous experiment.” Doak, a Republican who was elected to the position in 2010 after working for various insurance companies, blamed ACA regulations for “so many insurers dropping out of exchanges or resorting to double digit premium increases.”

Commissioners’ regulatory powers vary by state, depending on the rules state legislators have put in place for them to enforce.

“Some states have comprehensive protections for consumers … while others have limited protection,” said Claire McAndrew, director of campaign strategy at Families USA.

But if they are so motivated, consumers can always find means to take an activist role.

Past commissioners, for instance, talk of using the regulatory process itself — pushing the boundaries in drafting the rules or using a “slow walk” toward their implementation — to work around these boundaries.

Even so, they face other limits. For instance, staffing levels for their departments are down nearly 6 percent since 2008, according to the most recent NAIC statistics.

That’s a big disadvantage when contrasted with the “strength of insurance industry lobby,” said J. Robert Hunter, a former Texas commissioner and now director of insurance at the Consumer Federation of America.

And some fail to counter industry influence in legislatures and even inside their own offices, he added.

He recalls that when he took up his post in Texas, he met with lawmakers in the Statehouse, some of whom were “unabashed” in their support of the insurance industry, warning “we’ll hurt your budget” if he went too hard on industry.

He didn’t play ball.

“If insurers are always happy, something is wrong,” said Hunter. “Insurance commissioners’ jobs are to hold them to account.”

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