Sb 106 - Patients First Act

• Jurisdiction: Georgia,United States
• Citation: Vol. 36 No. 1
• Publication year: 2019
• topic: Insurance Law,Federal,Health Law,Public Sector Law,Social Security

SB 106 - Patients First Act

Jasmine Nicole Becerra

Georgia State University College of Law, jbecerra3@student.gsu.edu

Leanne E. Livingston

Georgia State University College of Law, leanne.livingston@gmail.com

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SOCIAL SERVICES

Public Assistance: Amend Article 7 of Chapter 4 of Title 49 and Title 33 of the Official Code of Georgia Annotated, Relating to Medical Assistance and Insurance, Respectively, so as to Authorize the Department of Community Health to Submit a Section 1115 Waiver Request to the United States Department of Health and Human Services Centers for Medicare and Medicaid Services; Authorize the Governor to Submit a Section 1332 Innovation Waiver Proposal to the United States Secretaries of Health and Human Services and the Treasury; Provide for Implementation of Approved Section 1332 Waivers; Provide for Expiration of Authority; Provide for Legislative Findings; Provide for Related Matters; Provide for a Short Title; Provide for an Effective Date; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 49-4-142.3 (new); 33-1-26 (amended)

Bill Number: SB 106

Act Number: 4

Georgia Laws: 2019 Ga. Laws 2

Summary: The Patients First Act amends both Title 49 and Title 33 of the Official Code of Georgia Annotated, which allows the state to apply for two federal waivers. One being the Section 1115 waiver to the Social Security Act. The second being the Section 1332 waiver to the Affordable Care Act. Section 1115 waivers apply to Medicaid and may be sought to include a maximum income threshold up to 100% of the Federal Poverty Level. The Section 1332 innovation waiver applies to insurance coverage generally.

Effective Date: March 27, 2019

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History

The Social Security Act (SSA) and the Patient Protection and Affordable Care Act (ACA) are the authorizing documents for the Section 1115 and Section 1332 waivers that this legislation allows.¹ President Barack Obama signed the ACA on March 23, 2010.² The Patients First Act (the Act) focuses on fundamentally changing the health insurance industry by affecting regulation of insurance coverage and access.³ Specifically, the ACA gives states the option to implement programs to establish health insurance exchanges and to expand Medicaid coverage.⁴ The requirements imposed by the ACA include: qualified health benefits plans, health insurance exchanges, reduced cost sharing in qualified health benefits plans, premium subsidies, employer mandates, and individual mandates.⁵ Notably, the ACA provides a federal funding match to states that expand Medicaid to up to 138% of the Federal Poverty Level (FPL).⁶ Section 1115 waivers are not a requirement, but an alternative to traditional expansion.⁷

The Medicaid program exists to provide health coverage to children under nineteen years of age, pregnant women, families with dependent children, the elderly, and the disabled.⁸ In Georgia, this

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program is funded by both the state and federal government and the Georgia Department of Community Health.⁹ The Georgia Department of Human Services processes applications to determine Medicaid eligibility.¹⁰

Section 1115 of the SSA allows the Secretary of Health and Human Services to approve "experimental, pilot, or demonstration projects" likely to promote objectives of the Medicaid program.¹¹ The SSA boasts a longer history than the ACA. President Franklin D. Roosevelt signed the SSA into law on August 14, 1935.¹² The SSA provides for national needs through unemployment insurance, old-age assistance, aid to dependent children, and grants to the states to provide medical care—to name a few.¹³ Because each state's population differs, the waivers allow states to more adequately tailor state-specific policy approaches to serve their Medicaid populations.¹⁴

Section 1332 of the ACA allows states to apply for "State Innovation Waivers."¹⁵ States can petition to pursue innovative strategies to provide access to health insurance for citizens that may not fall specifically within what the ACA requires.¹⁶ The plans must, however, offer coverage equivalent to what is offered on the federal exchange, cover just as many residents, and not increase the federal deficit.¹⁷ If such petition is granted, the strict requirements of the ACA are waived and the state still retains the basic protections and benefits of the ACA.¹⁸

In 2018, the Trump administration announced significant changes to the Section 1115 and Section 1332 waiver programs.¹⁹ The

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Centers for Medicare and Medicaid Services (CMS) announced a new policy on January 11, 2018, concerning Section 1115 waivers.²⁰ Though still subject to the full federal review process, state efforts to incentivize participation in work or other community engagement as a requirement to obtain Medicaid eligibility or coverage for certain beneficiaries will be supported by the CMS.²¹ Thus, this new policy expands the SSA's "demonstration" projects to those plans that require work or community involvement for specific beneficiaries as long as such plans promote health and wellness.²²

On October 22, 2018, CMS and the United States Department of the Treasury issued new guidance on Section 1332 ACA waivers.²³ Before the new guidance, the waivers allowed for deviation from the ACA's strict requirements on states. However, the Trump administration's new guidance expands the flexibility of a Section 1332 waiver significantly.²⁴ This new flexibility includes:

Allow[ing] states to provide consumers with plan options that best meet their needs, while, at the same time, ensuring people, including those with pre-existing conditions, retain access to the same level of coverage available today without the waiver; [c]ontinu[ing] to require that a comparable number of people have coverage, but expands

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the definition of coverage to include more types of coverage, such as short-term plans; [p]rovid[ing] greater flexibility for states to consider improvements in comprehensiveness and affordability for state residents as a whole versus the prior focus on specific populations; [s]upport[ing] increased variation and flexibility for states that may want to leverage components of the Federal Exchange platform to implement new models; and [p]rovid[ing] flexibility for states to meet the state legislative authority requirement. The guidance clarifies that in certain circumstances, existing state legislation that provides statutory authority to enforce ACA provisions and the state plan, combined with a duly-enacted state regulation or executive order, may satisfy the requirement that the state enact a law.²⁵

The Trump administration hopes this newfound flexibility will decrease premium costs and increase access to a variety of choices in the health insurance market.²⁶

Georgians approached then-Secretary of State Brian P. Kemp (R) while he was on the campaign trail for Georgia governor, expressing their concerns over the skyrocketing cost of their health insurance premiums.²⁷ Upon his election as Georgia's Governor, Kemp decided it was time to put together options for healthcare specific to Georgia's citizens.²⁸ Because the President's administration had recently given new guidance to incentivize using Section 1115 and Section 1332 waivers, Governor Kemp decided pursuing waivers was

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the best course of action.²⁹ On February 13, 2019, the Governor's administration announced the creation and support of legislation entitled the "Patients First Act."³⁰

Bill Tracking of SB 106

Consideration and Passage by the Senate

Senator Blake Tillery (R-19th) sponsored Senate Bill (SB) 106, the "Patients First Act" in the Senate.³¹ The Senate read the bill for the first time on February 14, 2019, and committed the bill to the Health and Human Services Committee.³² On February 20, 2019, the Senate Health and Human Services Committee favorably reported the bill as introduced.³³ Although the bill was favorably supported, many voiced their concerns about the bill's expansion of the FPL threshold to only 100% and not 138%.³⁴ The Senate read the bill for a second time on February 21, 2019.³⁵ On February 26, 2019, the Senate voted to engross the bill by a vote of 35 to 20.³⁶ By voting for engrossment, the Senate blocked any attempt to amend the bill on the Senate floor before the final vote. On the same day, the Senate read the bill a third time, after engrossment.³⁷ The Senate passed the bill as introduced on February 26, 2019, by a vote of 32 to 20.³⁸

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Consideration and Passage by the House

Representative Jodi Lott (R-122nd) sponsored SB 106 in the House.³⁹ The House read the bill for the first time on February 27, 2019, and committed the bill to the Special Committee on Access to Quality Healthcare.⁴⁰ On February 28, 2019, the House read the bill for a second time.⁴¹ The House Special Committee on Access to Quality Healthcare favorably reported the bill as introduced on March 21, 2019.⁴² Again, with its favorable passage, many supporters continued to voice concerns about the FPL threshold of 100% as opposed to 138%.⁴³ One speaker argued that limiting income at 100% FPL could leave the state paying more, and takes the risk of only gaining 67% federal government funding compared to a 90% match in federal funds if stretched to 138% FPL.⁴⁴ On March 25, 2019, the House read the bill for the third time.⁴⁵ The House passed the bill as introduced on March 25, 2019, by a vote of 104 to 67.⁴⁶ The Senate sent the bill to Governor Kemp on March 26, 2019.⁴⁷ The Governor signed the bill into law on March 27, 2019, and the Act became effective on March 27, 2019.⁴⁸

The Act

The Act amends Article 7 of Chapter 4 of Title 49 (Social Services) and Chapter 1 of Title 33 (Insurance) of the Official Code of Georgia Annotated.⁴⁹ Both Titles are amended by adding language authorizing the Department of Community Health to submit a Section 1115 waiver request and authorizing the Governor to submit

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a Section 1332 waiver proposal.⁵⁰...