Healthcare 2022: Pandemic Politics

Health care has been one of the industries most impacted by the pandemic over the last 22 months, and the new year is not likely to see a slowing of the challenges and opportunities it faces. In this issue, we lay out a number of the questions and issues we think will be top of mind for lawmakers, regulators, and health officials around the nation in 2022.

Pandemic Politics

Nobody knows for certain how the COVID-19 virus will play out in 2022, but we do know this: the endless political battles over how best to contain it will likely go on across every statehouse, in Congress, in every school district, and local government office. The battles over vaccine and mask mandates are in fact too numerous to go into here, but suffice to say that as long as the country remains as polarized as it is right now those debates will go on and continue to impact every other health care issue that follows below.

Will More States Make Telehealth Changes Permanent?

COVID-19 has done something legions of advocates had not previously been able to do in years of trying – dramatically expand access to telehealth services. With the pandemic raging and health care workers stretched to the limit, all 50 states, the District of Columbia, and Puerto Rico enacted emergency laws allowing far greater use of telehealth services, including for Medicare and Medicaid patients.

The impact was immediate. According to research by the American Medical Association, video-based doctor visits jumped from 14.3 percent in 2018 to 70.3 percent in 2020, while 67 percent connected with patients via phone.

According to the National Conference of State Legislatures (NCSL), at least 37 state legislatures have since made at least some of those changes permanent. Others, notably California, Idaho, and Ohio did so via either state agency policy or by gubernatorial executive order. Still others have not made any permanent changes to their existing telehealth policies.

NCSL Health Program Director Kate Blackman says we are likely to see ongoing attention to this issue next year.

“All states allowed greater flexibility around access to health care via telehealth during the pandemic, a lot of which was temporary,” she says. “What we’ve seen in 2021 and what we anticipate in 2022 is for state lawmakers to consider what of the greater flexibilities to make permanent.” 

There are many factors to consider in expanding telehealth access: patient privacy, payment parity between in-office and remote visits, Medicaid and private insurance, ensuring quality of care and how to best incorporate behavioral and substance abuse disorder treatment.

The discussion of mental health and substance abuse could be particularly critical, as the Centers for Disease Control announced in November that drug overdoses had topped 100,000 in a single 12-month period for the first time.

“Mental health has been an increasing concern for state lawmakers over the last several years, and I think the pandemic has really heightened that concern,” Blackman says.

States Must Balance New Federal Surprise Billing Rules

State lawmakers have been chipping away at so-called “surprise billing” – when an out-of-network health care provider bills a patient for services not covered by the patient’s health insurance - for years. To date, at least 33 states now have laws that at least partially regulate this practice, also known as surprise billing.

But the scope of those protections can vary widely, with only 18 state laws providing comprehensive protection. To address that, Congress adopted the No Surprises Act in December 2020, a measure that makes it illegal for providers to bill patients for more than the in-network cost-sharing price if the patient did not choose or know that the service would come from an out-of-network provider.

The law, which goes into effect in January, will be the primary protection in states with no balance billing law currently on the books, as well as in those without comprehensive protection. State law will apply in the 18 states with comprehensive protection, as long as it does not prevent the application of federal law.

This is where it could get tricky. The federal government has already issued two interim sets of rules, with the final regulations set for release next year.

In the meantime, state health and insurance regulators will be tasked with interpreting both state and federal statutes to determine which law applies in what cases. To date, only Washington has issued its own guidance, but expect most if not all of the rest of the states with their own surprising billing laws to follow suit in the early part of 2022.

Feds Aid States in Push for Health Equity

States have been facing increasing scrutiny over longstanding disparities in health access and outcomes between various cultural and demographic populations. As NCSL reports, states in recent years have adopted a number of measures intended to close those gaps.

Those efforts include changing how health outcomes are reported to better track these disparities, declaring racism to be a public health crisis and forming state commissions to study and address these disparities.

Even so, the pandemic has significantly exacerbated health disparities for many populations, particularly for people of color, who have borne a much larger percentage of infections and deaths than White populations.

With that in mind, health legislation in the coming year is likely to pay more attention than ever to health equity and specifically to health outcomes.

The federal government has also allocated $1.5 billion in federal coronavirus relief dollars for the National Health Service Corps, Nurse Corps and Substance Use Disorder Treatment and Recovery programs, federal programs that aim to ease the health care worker shortage in underserved areas by offering scholarships and loans to students and workers who commit to working in those communities. This is in addition to $785 million in funding for federal programs aimed at improving diversity in the public health workforce and supporting people with disabilities.

Rural health care providers will also see a major boost, as the federal government has started to distribute $7.5 billion in funding allocated for that cause in the American Rescue Plan.

Closing the Coverage Gap

Federal action could also have a major impact on states should Congressional lawmakers ultimately endorse President Joe Biden’s Build Back Better Act.

As of now, 12 states have not expanded Medicaid coverage as allowed under the Affordable Care Act (ACA), leaving approximately 2.2 million residents who would otherwise be eligible for federal subsidies to help them obtain health insurance out in the cold. Under Biden’s proposal, those residents would be made eligible for those subsidies from January 1, 2022 to December 31, 2025.

But as the Kaiser Family Foundation notes, a permanent solution is likely to fall onto the states, specifically in the form of expanding their Medicaid systems to come into compliance with the ACA.

Under the ACA, the federal government pays 90 percent of the costs of each state’s Medicaid expansion. To incentivize the dozen holdout states to come on board, the American Rescue Plan Act Biden signed into law last March offers those dozen states an additional 5 percent in cost coverage for two years. Expansion proposals were introduced in at least 10 of those states, but to date, none has gone far. Even so, it is likely there will be renewed efforts in most if not all of those states in the coming year.

Will More States Cap Insulin Prices?

To date, at least 20 states impose some limit on the price of insulin, according to the American Diabetes Association. Proposals to do so have been introduced in dozens more. The version of President Biden’s Build Back Better plan that has passed the U.S. House of Representatives would cap insulin prices at no more than $35 per month, but that proposal’s chances in the Senate remain unclear. If the bill fails, expect more states, perhaps many more, to continue passing their own limits in 2022. 

These are of course not the only issues that could confront lawmakers in 2022. There are still efforts being made at universal coverage in some states, including California, Maine and Massachusetts, and getting a handle on runaway drug prices is a constant issue for all lawmakers.

One major measure to keep an eye on will play out in California, which will bring implementation of a bold plan to allow the state to negotiate drug pricing for all 13 million Medicaid recipients, essentially using the state’s massive buying power as leverage to obtain bigger price discounts from pharmaceutical companies. The plan goes into effect on Jan 1, 2022.

-- By RICH EHISEN

States Lead the Way on Balance Billing Protections

At least 33 states have laws to regulate so-called “surprise billing” - when an out-of-network health care provider bills a patient for services not covered by the patient’s health insurance. But not all such laws are the same. According to the Center on Health Insurance Reforms at Georgetown University, 18 of those 33 states have comprehensive laws, while the remaining 15 take a more limited approach.