A California law allowing nursing homes to make medical decisions on behalf of certain mentally incompetent residents is unconstitutional, a state court ruled this week.

The law, which has been in effect more than 20 years, gave nursing homes authority to decide residents’ medical treatment if a doctor determined they were unable to do so and they had no one to represent them.

Alameda County Superior Court Judge Evelio M. Grillo wrote in the June 24 decision that the law violates patients’ due process rights because it doesn’t require nursing homes to notify patients they have been deemed incapacitated or to give them the chance to object.

Grillo acknowledged the decision is likely to “create problems” in how nursing home operate but wrote that patients’ rights are more compelling.

“The stakes are simply too high to hold otherwise,” the judge wrote. Any error could deprive patients of their rights to make medical decisions that “may result in significant consequences, including death.”

The fact that nursing homes are making end-of-life decisions without patient input is a big concern, according to the ruling. The decision cited one nursing home resident who was found to be mentally incapacitated and who had no representative. The facility staff made a decision to take him off life-sustaining treatment and he passed away in 2013.

The ruling came after the California Advocates for Nursing Home Reform, an advocacy group, filed a lawsuit in 2013 against the state Department of Public Health. The suit alleged that nursing homes used the law to administer anti-psychotic drugs, place residents in physical restraints and deny patients life-sustaining treatment.

Tony Chicotel, a staff attorney for the group, said the ruling will dramatically impact the lives of the most vulnerable nursing home residents.

“What [nursing homes] used to do was routinely make decisions big and small for their residents without really any regard to due process,” Chicotel said. “Now the residents are finally going to have their rights acknowledged and honored.”

Even patients who are compromised should still have a say in their medical care, he added.

“They have been ignored,” he said. “Unrepresented residents and the way they are treated in nursing homes has never been a priority of the Department of Public Health.”

The department is reviewing the decision, a spokesman said. Department officials declined to comment further or say whether they planned to appeal.

The law was enacted in 1992 because nursing facilities needed a way to give medical treatment to their incapacitated residents without having to wait up to six months for state approval, according to the ruling.

But the decision could make it challenging for nursing homes to provide routine medical care or to offer hospice care to residents who lack the mental capacity to make their own decisions and have no designated representatives, said Mark Reagan, an attorney representing the trade group, California Association of Health Facilities, which is not part of the lawsuit.

“If the person objects, then what?” Reagan said. “That can put patients and facilities in a difficult place.”

And seeking court approval to provide anti-psychotic medication to residents who truly need it would be costly and time-consuming for nursing facilities, he said. “How do you keep that person safe and how do you keep the other residents of the skilled nursing facility safe?” he said.

Reagan believes the ruling could have an unanticipated outcome: Patients without decision-makers could have a hard time finding a nursing facility willing to take them.

“If this decision makes it more difficult to supply necessary care at the bedside, this population is going to be less served,” he said.

The judge, however, wrote that informing patients and allowing them to object is not likely to result in any significant burdens on nursing homes.

agorman@kff.org

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

If the physician networks for plans sold on the health law’s online insurance exchanges were T-shirts, more than 40 percent would be size X-small or small. That’s the takeaway from a new study that analyzed nearly 400 physician networks in silver-level plans sold around the country  in 2014.

The study labeled 11 percent of plans “extra small” because they covered fewer than 10 percent of physicians in a plan’s region. Another 30 percent were “small,” meaning they covered between 10 and 25 percent of physicians. Just 11 percent of plans were classified as “extra large” because they covered at least 60 percent of physicians in the area.

As consumers shop for coverage on the exchanges, knowing the trade-off between premium price and network size could be important to some, says Kathy Hempstead, director of the coverage team at the Robert Wood Johnson Foundation, which funded the study.

“People don’t have a good way to understand what they’re buying,” Hempstead says. “I think we need to frontload more consumer information, and what your network is like is important.”

Plan type isn’t a good indicator of network size, according to the study by researchers at the University of Pennsylvania’s Leonard David Institute of Health Economics. Eighty percent of the plans offered on the marketplaces were either preferred provider organizations or health maintenance organizations. Yet even though HMOs typically don’t cover any out-of-network providers, more than half of HMO physician networks were either small or very small. By contrast, only a quarter of PPOs, which typically cover providers who are outside the plan’s network, had physician networks that were classified as either small or very small.

Under the health law, health plans have to “maintain a network that is sufficient in number and types of providers … to assure that all services will be accessible to enrollees without unreasonable delay.”

Previously, the consulting firm McKinsey & Co. analyzed narrow networks based on the proportion of hospitals that participated in a plan’s service area. This is the first study to examine physician participation in exchange plan networks, Hempstead says.

“If you’re going to be in a direct-to-consumer market you have to be ready for these issues,” she says.

Please contact Kaiser Health News to send comments or ideas for future topics for the Insuring Your Health column.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

In its first five years, the Affordable Care Act has survived technical meltdowns, a presidential election, two Supreme Court challenges — including one resolved Thursday — and dozens of repeal efforts in Congress. But its long-term future still isn’t ensured. Here are five of the biggest hurdles left for the law:

Medicaid Expansion. About 4 million more Americans would gain coverage if all states expand the state-federal Medicaid programs to cover people with incomes at or slightly above the poverty line. Twenty-one states with Republican governors or GOP-controlled legislatures, including Texas and Florida, have balked, citing ideological objections, their own budget pressures, as well as skepticism about Washington’s long-term commitment to pay for most of the costs.

Anemic Enrollment. Eighteen million Americans who are eligible to buy insurance in federal and state marketplaces haven’t purchased it. Those marketplaces have had particular trouble enrolling Hispanics, young adults and people who object to being told to buy insurance.  Federal funding used by state marketplaces to enroll people and advertise is drying up. Many state marketplaces haven’t figured out how to be self-sustaining. Vermont, Hawaii, Colorado and Rhode Island are among those states searching for more money. The penalty for going without coverage rises next year to $695 per adult or 2.5 percent of family income—whichever is larger.

Market Stability. Nationally, premiums haven’t gone up too much on average in the first two years of the marketplaces, but that could change. The federal government has been protecting insurers from unexpectedly high medical bills, but that cushion disappears after next year. At the same time, insurers finally have enough experience with their initial customers to figure out if their premiums are sufficient to cover medical costs. If they’re not, expect increases.

Affordability. People who get their insurance through their employer have mostly been spared jolts from the health law. But the federal government begins taxing expensive health plans in 2018. The “Cadillac tax,” created by the health law, will pressure employers to offer skimpier health coverage or pass the taxes’ cost on to their employees. Also, individuals buying their insurance on the health law marketplaces continue to risk large out-of-pocket costs if they need lots of care. Their maximum financial obligations for next year are $6,850 for individuals and $13,700 for families. Those who choose to go out of their insurance network may have no ceiling on how much they may have to pay.

Political Resistance. Thursday’s ruling did little to diminish the GOP’s zeal to repeal the health law. Republicans on both sides of the Capitol pledged to continue their efforts to kill the ACA. A lawsuit filed by House Republicans last year alleges the president overstepped his authority when implementing the health law. The topic remains grist for the 2016 presidential campaign, with several Republican presidential candidates – including Sen. Lindsey Graham, R-S.C., and former Florida Gov. Jeb Bush — reiterating their desire to repeal the law. If the Republicans capture both the White House and Congress in 2016, all bets are off over whether the law survives intact.

Kaiser Health News writers Julie Appleby, Mary Agnes Carey, Phil Galewitz and Jordan Rau contributed to this report.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

The Supreme Court Thursday upheld a key part of the 2010 health law – tax subsidies for people who buy health insurance on marketplaces run by the federal government. KHN’s Mary Agnes Carey discusses the decision with Stuart Taylor Jr., of the Brookings Institution, and KHN’s Julie Appleby.

MARY AGNES CAREY, KAISER HEALTH NEWS: Welcome to Kaiser Health News, I’m Mary Agnes Carey. By a vote of 6-3, the Supreme Court today upheld the health law subsidies that helped millions of Americans purchase health insurance. With me now to discuss the decision is legal analyst Stuart Taylor of the Brookings Institution, and Kaiser Health News Senior Correspondent Julie Appleby. Thanks to both of you for being here.

STUART TAYLOR JR., THE BROOKINGS INSTITUTION: Nice to be with you.

JULIE APPLEBY, KAISER HEALTH NEWS:  Good to be here.

MARY AGNES CAREY: Stuart, I want to start with you. I want to talk about ]what Chief] Justice Roberts wrote for the majority.  Why did he uphold the administration on this subsidy issue?

STUART TAYLOR JR.: The chief justice began by acknowledging that a few poorly words in this 2,700-page law, if they were interpreted literally, would cripple the Affordable Care Act in 34 states for complicated reason. So he said, but we don’t have to interpret these words literally, we shouldn’t interpret them literally, because when you read them in the structure of lots of interlocking provisions of this statute, in that context and in the overall structure, they become ambiguous. And then you look to what was Congress trying to accomplish here? They were trying to improve insurance markets all over the country. We shouldn’t interpret this law, unless we really have to, in terms of language, as having to destroy health insurance markets.

Because he explained that it would destroy health insurance markets if the Obama interpretation were rejected. First, it would mean there would be no premium subsidies for millions and millions of people in those 34 states. Then, many of them wouldn’t be able to apply for insurance. They wouldn’t buy insurance; others would no longer have to buy the insurance for complicated reasons, and there would be what he called the “death spiral.” With premiums soaring because only sick people are getting insured, he says, Congress certainly didn’t mean that to happen. And that heavily influenced his interpretation.

MARY AGNES CAREY: Justice Scalia wrote the dissent. He was equally as spirited in a completely different reading.

STUART TAYLOR JR.:  Yes, I’m just looking at some of his adjectives, he’s always fun for adjectives. Absurd, feeble, indefensible and my favorite was a noun interpreted “jiggery pokery.”

MARY AGNES CAREY: Yeah, I like that one.

STUART TAYLOR JR.: Those were the ways he characterized the Roberts’ opinion and he went on in his usual eloquent hyperbolic dyspeptic way for 21 pages to trash the majority opinion. And Roberts responded, as is customary in majority opinions, in a much more measured fashion in a few little footnotes saying well Justice Scalia says X or the defense says Y, but we disagree, here’s why.

MARY AGNES CAREY: So in the dissent, the words “established by the state” were interpreted much more literally as an exchange established by the State. That’s how I read that as well.

STUART TAYLOR JR.: Exactly and that’s what was forecast and that’s the whole argument in the case. Does the fact that they said subsidies are available in exchanges, marketplaces established by the state as opposed to those established by the federal government, are people in those ineligible unless they are established by the State,

Does that mean you can’t get a subsidy? And the dissent basically said, “It means what it says, it says what it means.”  And the majority said, “Ah, not so fast.” Sometimes, things don’t say exactly what they seem to say when you read them in their larger context.

MARY AGNES CAREY:  Going back to the majority opinion for a minute, is it written in a way that a future Internal Revenue Service couldn’t come in and say then subsidies aren’t available in the federally run exchanges.

STUART TAYLOR JR.: No, Chief Justice Roberts ruled that out, basically. The question was debated at oral argument. In fact, Roberts asked, if we’re deferring to the interpretation of the IRS, does that mean a new IRS could come along and say we’re changing it? And he mooted that question in the decision by saying, we’re not deferring to the interpretation of the IRS. We’re agreeing with the interpretation of the IRS, but it’s our interpretation and the IRS can’t change it.

MARY AGNES CAREY:  And Julie, let’s talk a little bit about the administration, the Democrats.  They must be just elated over this. What’s been the reaction?

JULIE APPLEBY:  You know, a little while ago, the president came out of the White House and gave a short speech. And basically, he said that after more than 50 attempts to repeal this, after a presidential election, after a couple of Supreme Court challenges, he said the ACA is here to stay.

So he made that very clear: The ACA is here to stay.  He went on to say the Supreme Court upheld a very critical part of this law — the subsidies that more than 6.8 million people are currently receiving. But I think in a nod to some of the discussion about repeal, he also mentioned the broader context here — that this law affects a lot of Americans. And he mentioned a few things. He mentioned being able to keep your kids on your plan until they’re age 26, and he mentioned the fact that insurers can no longer reject people who have medical conditions. So he tried to show that this is a broad-reaching law. He did come out and say that he wants to work with the Republicans and the Democrats. He acknowledged there’s more that needs to be done, and he said he would work with them.  He called out some of the states that haven’t yet expanded Medicaid. There are about 20 states who haven’t expanded eligibility for the Medicaid program and he said he would be working with the governors and legislatures there to try to encourage them to do that.

MARY AGNES CAREY:  How about Republicans? What have they been saying today?

JULIE APPLEBY: You know, the Republicans in their official statements are coming out and saying that they’re not happy with this decision, but I do think many of them are breathing a sigh of relief because if the subsidies had gone away they would be in a position where lots of Americans would be losing these tax credits to help them purchase insurance. And they had not coalesced around a plan to fix that or to deal with that. So, I think in many cases they are a little relieved, but at the same time they are continuing to talk about how this is not a good law and it’s fundamentally broken.

MARY AGNES CAREY:  And so it sounds like their efforts to repeal will continue. How does this shape the 2016 presidential election, this decision today? What’s going to be the impact?

JULIE APPLEBY: You know that’s going to be very interesting. I think that Hillary Clinton will certainly make it a big part of her campaign to keep this law in place and say that the Democrats would support that. I think the Republicans are in a little bit more of a difficult situation because repealing is going to mean that you might be taking some things away from millions of Americans who already have it. So that’s a little bit more difficult of a message, but that will probably still be out there. I think this still will be a discussion in the election, but I think there are other issues that may be larger — like the economy.

MARY AGNES CAREY:  Stuart, can you take us through … are there other pending legal challenges to the Affordable Care Act?

STUART TAYLOR JR.: There are at least two, but only one of them, I think, is very serious in terms of any possibility of having much impact on the Act. That’s in a lawsuit brought by the House of Representatives as a body — which is highly unusual — against the administration. The first question is do they have legal standing — can the House of Representatives bring a lawsuit, which is an open question. But the claim they are making is not silly. The claim they are making is that hundreds of millions — hundreds of billions of these subsidies over the next 10 years were not appropriated by Congress; that the administration asked Congress to appropriate this money on a year-by-year basis, and Congress refused. And the Constitution says money can’t be spent by the government unless it’s appropriated by Congress. So that gives the administration a problem. The lawsuit’s being taken seriously by federal District Judge Rosemary Collyer, who sits here in the District of Columbia. But, it’s got a long way to go, and even if it’s successful, which I would bet against, it’s not going to cripple the Obamacare law the way a decision going against the president today would have crippled it.

MARY AGNES CAREY: All right, we’ll leave it there. Thank you so much, Stuart Taylor and Julie Appleby.

JULIE APPLEBY: Thank you.

STUART TAYLOR JR.: Thank you.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

Whether echoing through the halls of Congress or bubbling up from health policy think tanks, reaction to the Supreme Court’s decision came quickly Thursday. Here’s a sample:

“I think it’s important to note that Republicans that worked on this legislation, they admitted that the legislation’s drafters never planned on withholding subsidies. I think the public has had it with Republicans taking away subsidies. Enough is enough. Let’s move on.” — Senate Democratic Leader Harry Reid, D-Nev.

“Clever judges can find ambiguities that others aren’t able to find. … We’re going to have to repeal Obamacare and replace it with something better.” — Sen. Orrin Hatch, R-Utah

“We’re going to continue our efforts to put the American people back in charge of their health care, and not the federal government.” — House Speaker John Boehner, R-Ohio

“It would be nice if we could get beyond the unfortunate commentary that has gone on for too long that, somehow, providing affordable health insurance for Americans is going to be the end of our country.” — Sen. Debbie Stabenow, D-Mich.

“For too long, the debate over health care has placed politics over the best interests of patients. No matter the court’s ruling, it’s time for Democrats and Republicans to deliver what the president promised but ultimately failed to do.” — Sen. Mike Enzi, R-Wyo.

“Full repeal probably isn’t in the cards, but the public is still not happy with large portions of the law, and you’re still going to see efforts to make changes.” — Michael Tanner, senior fellow, Cato Institute

“The ACA is already deeply entrenched and will be more so in 18 months when the opportunity for legislative action will occur. You won’t see any opportunity for legislation until 2017, and at that point more than 30 million people will be receiving coverage in one way or another under the ACA. And hospitals, drug companies, device manufacturers will all have new customers under the ACA, and it will be politically risky to roll it back to any significant degree.” — Henry J. Aaron, senior fellow, Brookings Institution

“You’re going to see now a doubling down in Congress and in the states that, really, the law needs to go. This case doesn’t stop the train from derailing. It’s still going to face obstacles and another dead-end moving forward.” — Nina Owcharenko, director of the Center for Health Policy at the Heritage Foundation

“With this decision, the law has bought itself another couple years to become further entrenched and enroll more people, so that if a Republican president is ever elected, it will be much harder to undo. With each passing year, attitudes about the law will have shifted.” — Topher Spiro, vice president for health policy, Center for American Progress

“I just hope that with this threat going away, and the fact that it is clear the law not going away, that we can see the other states move forward on Medicaid. As we celebrate, that’s the other thing we have to work on.” — Judy Solomon, vice president for health policy, Center on Budget and Policy Priorities

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

The Supreme Court’s decision to uphold a key part of President Barack Obama’s health law did more than preserve subsidies for millions of Americans. For the second time in three years, it helped cement his legacy.

“After multiple challenges to this law before the Supreme Court, the Affordable Care Act is here to stay,” Obama said in the White House Rose Garden, standing before a phalanx of news media and aides. “Today is a victory for hardworking Americans all across this country, whose lives will continue to become more secure in a changing economy because of this law.”

In 2012, the health law survived a constitutional challenge and later that year became a major issue in the president’s re-election campaign. The Republican-controlled House has voted more than 50 times to repeal the law.

In his 10-minute talk, Obama reminded Americans that the law is working and stressed that it has helped slow rising health costs to their lowest rate in 50 years.

“The point is, this is not an abstract thing anymore,” he said.  “This is not a set of political talking points.  This is reality.  We can see how it is working.  This law is working exactly as it’s supposed to.  In many ways, this law is working better than we expected it to.”

The president said he would become more active in working to persuade Republican governors and state legislators to expand Medicaid under the law. The Supreme Court in 2012 made Medicaid expansion optional for states. Twenty-one states, including Florida and Texas, have yet to adopt it. “We still have states out there that for political reasons are not covering millions of people,” Obama said.

Republicans have shown no willingness to drop their opposition to the law, which has helped reduce the uninsured rate in many states by half since 2014.

Senate Majority Leader Mitch McConnell, R-Ky., said in a statement the law continues to be bad for America. “Today’s ruling won’t change Obamacare’s multitude of broken promises, including the one that resulted in millions of Americans losing the coverage they had and wanted to keep,” he said.

Sen. John Barrasso, R-Wyo., was even more blunt: “We are going to continue to work to repeal and replace this health care law,” he said on the House floor.

Obama said he knew the law is still misunderstood and even people who enjoy its benefits don’t realize their connection to it. He noted when people gain either subsidized coverage or Medicaid, they don’t get an “Obamacare card.”

“This has never been a government takeover of health care,” Obama said, responding to a common GOP sound bite.

Obama compared the impact on Americans to the passage of Social Security in the 1930s and of the creation of Medicare and Medicaid in the 1960s. He said the health law made sure all Americans have access to health care insurance regardless of where they live or their health condition. “This generation of Americans chose to finish the job….This was a good day for America.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

Despite having survived a challenge in the U.S. Supreme Court, the federal government’s health insurance markets face weighty struggles as they try to keep prices under control, entice more consumers and encourage quality medical care.

The government’s insurance markets – as well as more than a dozen run by states — have been operating for less than two years and are about to lose their training wheels. Start-up funds that have helped stabilize prices and partially pay for administration of the marketplaces are ending, feeding fears that premiums may rise after next year at a steeper rate.

There are still 18 million uninsured people who are eligible for coverage but have not purchased insurance. Without broader participation, insurers may be pressed to raise rates as they get a more complete picture of how much medical care their current customers are using.

“It has proven to be harder to get people to sign up for exchanges and keep them than experts expected,” said Caroline Pearson, an executive at Avalere Health, a Washington consulting firm. “Hispanics, young people and men are still lagging in enrollment and it still seems like the exchanges have not figured out how to reach them.”

Insurers in a handful of states have proposed increasing premiums for the cheapest “silver” plans by an average of 4.5 percent next year, according to an analysis by Avalere. That was slightly higher than last year’s 4 percent increase for the cheapest silver plans in all states, Pearson said. Consumers who want to stick with their current plans may see larger increases, as insurers are trying to enact double-digit price increases for some policies.

Burden For Consumers 

More than 10 million people buy insurance through the online marketplaces set up by the Affordable Care Act, or ACA. About six of every seven of those people are getting financial assistance from the federal government. Even with that help, health care costs can be substantial, with premiums for some reaching nearly a tenth of their gross incomes.

For instance, families of three earning $73,000 have to pay nearly $7,000 on premiums despite also receiving subsidies They still face deductibles, which this year averaged around $2,500 for the most common types of insurance plans, known as silver tiers. If a family required extensive medical care and reached the maximum they would be held responsible for—$13,200 this year—their total health care-related bills, including premiums, would exceed $20,000, or 28 percent of their gross incomes.

“Even some of those who are eligible for financial assistance are still finding the coverage not to be affordable for them,” said Linda Blumberg, a senior fellow at the Urban Institute, Washington think tank.

With the end of start-up funds from the federal government, exchanges need to support their continuing responsibilities, which include running the call centers that offer consumer assistance, operating the exchange websites where people choose plans and marketing their efforts to encourage the uninsured to sign up. Most exchanges, including the federal healthcare.gov site, are funded through an assessment on each plan that is sold, although some receive support from state budgets. Revenue has been volatile, and some marketplaces have been caught short when lower enrollment or smaller premiums led to smaller fees.  Some states are considering handing their marketplaces over to healthcare.gov.

“We don’t have a clear sense of how much it costs to maintain these programs,” said Kevin Lucia, project director at Georgetown University’s Health Policy Institute.

If premiums rise, the bill for federal taxpayers who fund the subsidies will increase as well. The government has been giving insurers some breathing room by limiting their losses and taking over the costs of the most expensive cases, but that financial assistance ends in 2017. “As it’s fading out, it’s putting upward pressure on premiums,” said Evan Saltzman, an analyst at the RAND Corp.

James Capretta, a former George W. Bush administration budget official now at the American Enterprise Institute, said it will take several years of exchange experience for insurers to know  how much medical care their customers use —and if it matches what they expected.

“The biggest open issue is what the risk profile turns out to be,” Capretta said. “We’ll know more about that in 2016 and we’ll know even more about that in 2018.”

Star Ratings Coming 

While the exchange websites have mostly surmounted their early technical problems, they still lack key pieces of information about the quality of the various plans, which the health law required. The federal Department of Health and Human Services plans to require exchanges to display quality ratings for each plan, which will be represented by a five-star scale, in time for people buying their coverage for 2017.

To devise these ratings, the department this year is testing a satisfaction survey for consumers, asking people to rate on scales of 0 to 10 their health plan, personal doctor, specialists, ease of getting care and other aspects of their experience. The agency is also preparing to collect a few dozen measures of clinical quality. Many are rudimentary, such as whether children had a preventive care visit and whether adults received flu shots.

Government quality rating efforts elsewhere have shown how challenging it is to fairly differentiate between providers. A current effort to evaluate the medical care provided by large medical groups rated 85 percent of them as average. The government has been more discerning about private Medicare Advantage insurance plans, though regulators have been refining those scores since stars were first awarded in 2008. A third of plans were given four or more stars this year, and 4 percent earned 2 ½ stars or fewer.

“This has always been the big question about the ACA,” said Lanhee Chen, a researcher at the Hoover Institution. “Are people going to be able to make educated choices?”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.