AFFORDABLE CARE ACT AND PRIVATE HEALTH INSURANCE

Revisit the No Surprises Act on surprise medical billing. The No Surprises Act37 protected consumers against balance bills, but it also established a deeply flawed system for resolving payment disputes between insurers and providers. This government-mandated dispute resolution process has sown confusion among arbiters and regulators as judges have sought to ascertain its meaning. The No Surprises Act should scrap the dispute resolution process in favor of a truth-in-advertising approach that will protect consumers and free doctors, insurers, and arbiters from confused and conflicting standards for resolving disputes that the disputing parties can best resolve themselves.38

Facilitate the development of shared savings and reference pricing plan options. Under traditional insurance, patients who choose lower- cost care do not benefit financially from that choice. Barriers to rewarding patients for cost-saving decisions should be removed. CMS should ensure that shared savings and reference pricing models that reward consumers are permitted.

Separate the subsidized ACA exchange market from the non-subsidized insurance market. The Affordable Care Act has made insurance more expensive and less competitive, and the ACA subsidy scheme simply masks these impacts. To make health insurance coverage more affordable for those who are without government subsidies, CMS should develop a plan to separate the non-subsidized insurance market

Remove barriers to direct primary care. Direct primary care (DPC) is an innovative health care delivery model in which doctors contract directly with patients for their care on a subscription basis regardless of how or where the care is provided. The DPC model is improving patient access, driving higher quality and lower cost, and strengthening the doctor– patient relationship. DPC has faced many challenges from government policymakers, including overly exuberant attempts at regulation and misclassification. Changes should clarify that DPC’s fixed fee for care does not constitute insurance in the context of health savings accounts.36 from the subsidized market, giving the non-subsidized market regulatory relief from the costly ACA regulatory mandates.39

Strengthen hospital price transparency. In 2020, CMS completed its rule to require hospitals to post the prices of common hospital procedures.40 Future updates of these rules should focus on including quality measures. Combined with the shared savings models and other consumer tools, these efforts could deliver considerable savings for consumers.41 Center for Consumer Information and Insurance Oversight (CCIIO). CMS also plays an outsized role in overseeing the Obamacare exchanges, includ- ing managing Healthcare.gov, through the Center for Consumer Information and Insurance Oversight (CCIIO). While Obamacare limits plan options, CCIIO has been overly prescriptive in dictating what benefits and types of health plans may participate in the exchanges, thereby actually stifling market innovation and driv- ing up costs.

Congress should build on the Trump Administration’s efforts to expand choices for small businesses and workers, both in and out of the exchanges, by codifying an expansion of association health plans, short-term health plans, and health reim- bursement arrangements (including individual coverage HRAs). CCIIO should also work with the Treasury Department and the Office of Management and Budget (OMB) to give consumers more flexibility with their health care dollars through expanded access to health savings accounts.

EMERGENCY PREPAREDNESS

Expand the scope of practice of low-complexity and moderate- complexity clinical laboratories. During the COVID-19 pandemic, allowing laboratories greater regulatory flexibility regarding CLIA requirements increased access to testing. However, the need for regulatory flexibility is not limited to emergency situations. Ongoing innovations in medical care will continue to drive demand for clinical testing and new tests. One way that increasing demand for other medical services has been accommodated is by revising restrictions on scope of practice to enable providers to practice at the so-called top of their license. CMS should similarly revise CLIA rules regarding scope of practice for clinical laboratories and testing personnel.42

Create CLIA-certification-equivalent pathways for non-clinical laboratories and researchers. The COVID-19 pandemic revealed that the U.S. needs to leverage the expertise of non-clinical laboratories and researchers in order to bolster clinical testing capacity. To accomplish this,

CMS should create pathways for granting non-clinical laboratories and their testing personnel CLIA certification equivalency. Non-clinical researchers already demonstrate their technical expertise through online training and certification programs. CMS should build on that existing framework so that those laboratories and personnel can similarly demonstrate their clinical testing capabilities.43

LIFE, CONSCIENCE, AND BODILY INTEGRITY

Two of the first actions of a pro-life Administration should be for HHS to withdraw the Medicaid guidance (and any Section 1115 waivers issued thereunder) and for DOJ OLC to withdraw and disavow its interpretation of the Hyde Amendment.

Prohibit Planned Parenthood from receiving Medicaid funds. During the 2020–2021 reporting period, Planned Parenthood performed more than 383,000 abortions.46 The national organization reported more than $133 million in excess revenue47 and more than $2.1 billion in net assets.48 During this same year, Planned Parenthood reports that its affiliates received more than $633 million in government funding and more than $579 million in private contributions.49 Planned Parenthood affiliates face accusations of waste, abuse and potential fraud with taxpayer dollars, failure to report the sexual abuse of minor girls, and allegations of profiting from the sale of organs from aborted babies.

Policymakers should end taxpayer funding of Planned Parenthood and all other abortion providers and redirect funding to health centers that provide real health care for women. The bulk of federal funding for Planned

Prohibit abortion travel funding. Providing funding for abortions increases the number of abortions and violates the conscience and religious freedom rights of Americans who object to subsidizing the taking of life. The Hyde Amendment44 has long prohibited the use of HHS funds for elective abortions, but an August 2022 Biden executive order45 pressed the HHS Secretary to use his authority under Section 1115 demonstrations to waive certain provisions of the law in order to use taxpayer funds to achieve the Administration’s goal of helping women to travel out of state to obtain abortions. Moreover, the Department of Justice Office of Legal Counsel (DOJ OLC) issued a politicized legal opinion declaring, for the first time in the history of Hyde, that this action did not violate the Hyde Amendment and that Hyde applies only to the performance of the abortion itself in violation of the plainly broad language that Congress used. Parenthood comes through the Medicaid program. HHS should take two actions to limit this funding:

1. Issue guidance reemphasizing that states are free to defund Planned Parenthood in their state Medicaid plans.

2. Propose rulemaking to interpret the Medicaid statute to disqualify providers of elective abortion from the Medicaid program. Congress should pass the Protecting Life and Taxpayers Act,50 which would accomplish the goal of defunding abortion providers such as Planned Parenthood.

CMS should resolve pending Section 1115 waivers from Idaho, South Carolina, and Tennessee, which, like Texas in January 2022, are seeking both to prohibit abortion providers from participating in state-run Medicaid programs and to work with other states to do the same. Abortion is not health care, and states should be free to devise and implement programs that prioritize qualified providers that are not entangled with the abortion industry.

Withdraw Medicaid funds for states that require abortion insurance or that discriminate in violation of the Weldon Amendment. The Weldon Amendment51 declares that no HHS funding may go to a state or local government that discriminates against pro-life health entities or insurers. In blatant violation of this law, seven states require abortion coverage in private health insurance plans, and HHS continues to fund those states. HHS under President Trump disallowed $200 million in Medicaid funding from California because of the state’s flouting of the law, but the Biden Administration restored it.

HHS/CMS should withdraw appropriated funding, up to and including 10 percent of Medicaid funds, from states that require abortion insurance coverage. DOJ should commit to litigating the defense of those funding decisions promptly to the Supreme Court in order to maximize HHS’s ability to withdraw funds from entities that violate the Weldon Amendment. Additionally, California has announced that it will discriminate against pharmacies that do not carry chemical abortion drugs outside of California. California’s discrimination takes the form of cutting state contracts with such pharmacies and clearly violates the Weldon Amendment. The violation should likewise face the penalties discussed above.

Rewrite the ACA abortion separate payment regulation. Section 1303 of Obamacare requires that insurers collect a separate payment for certain abortion coverage in qualified health plans that are approved to be sold on exchanges and that they keep those separate payments in separate accounts that are used only to pay for elective abortion services. Neither the letter nor the spirit of the law was enforced under President Obama, and a Trump- era regulation sought to correct this problem. The Biden HHS rescinded this regulation to allow insurance companies once again—contrary to the law—to collect combined payments for what are clearly required to be separate payments for elective abortion coverage. “Separate” does not mean “together.”

HHS should reinstate a Trump Administration regulation and enforce what the plain text of Section 1303 requires. That regulation should be further improved by requiring CMS to ensure that consumers pay truly separate charges for abortion coverage.

Reverse distorted pro-abortion “interpretations” added to the Emergency Medical Treatment and Active Labor Act. The Emergency Medical Treatment and Active Labor Act (EMTALA)52 prohibits hospitals that receive Medicare funds from “dumping” emergency patients who cannot pay by sending them to other hospitals. It also mandates that hospitals stabilize pregnant women and explicitly protects unborn children. Hospitals or physicians found to be in violation of the statute could lose all of their federal health funding—Medicare, Medicaid, CHIP, and other funds—and face civil penalties of up to nearly $120,000.

In July 2022, HHS/CMS released guidance mandating that EMTALA- covered hospitals and the physicians who work there must perform abortions, to include completing chemical abortions even when the child might still be alive. The guidance also declared that EMTALA would protect physicians and hospitals that perform abortions in violation of state law if they deem those abortions necessary to stabilize the women’s health. This novel interpretation of EMTALA is baseless. EMTALA requires

Audit Hyde Amendment compliance. HHS should undertake a full audit to determine compliance or noncompliance with the Hyde amendment and similar funding restrictions in HHS programs. This audit should include a full review of the Biden Administration’s post-Dobbs executive actions to promote abortion. It should also encompass a review of Medicaid managed care plans in pro-abortion states.

no abortions, preempts no pro-life state laws, and explicitly requires stabilization of the unborn child.

HHS should rescind the guidance and end CMS and state agency investigations into cases of alleged refusals to perform abortions. DOJ should agree to eliminate existing injunctions against pro-life states, withdraw its enforcement lawsuits, and in lawsuits against CMS on the guidance agree to injunctions against CMS and withdraw appeals of injunctions.

Reissue a stronger transgender national coverage determination. CMS should repromulgate its 2016 decision that CMS could not issue a National Coverage Determination (NCD) regarding “gender reassignment surgery” for Medicare beneficiaries. In doing so, CMS should acknowledge the growing body of evidence that such interventions are dangerous and acknowledge that there is insufficient scientific evidence to support such coverage in state plans.

Enforce EMTALA. The undeniable reality of abortion is that it does do not always result in a dead baby, and these born-alive babies are left to die. HHS should use EMTALA and Section 504 of the Rehabilitation Act,53 which prohibits disability discrimination, to investigate instances of infants born alive and left untreated in covered hospitals. CMS, OCR, and OIG should be required to follow through on these investigations with specific enforcement actions.

HHS should revive a Trump Administration proposed regulation, “Special Responsibilities of Medicare Hospitals in Emergency Cases and Discrimination on the Basis of Disability in Critical Health and Human Service Programs or Activities,”54 to achieve this end. In addition, Congress should pass the Born-Alive Abortion Survivors Protection Act55 to require that proper medical care be given to infants who survive an abortion and to establish criminal consequences for practitioners who fail to provide such care.

Permanently codify both the Hyde family of amendments and the protections provided by the Weldon Amendment. Congress can accomplish this through legislation such as the No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act56 (Hyde) and the Conscience Protection Act57 (Weldon).

Announce nonenforcement of the Biden Administration’s COVID-19 vaccination mandate on Medicaid and Medicare hospitals. Revoke corresponding guidance and regulations. Refrain from imposing general COVID-19 mask mandates on health care facilities or personnel.

Radical Redefinition of Sex. On August 4, 2022, HHS published a proposed rule entitled “Nondiscrimination in Health Programs and Activities.”58 This rule addresses nondiscrimination provisions of the Affordable Care Act, known as Section 1557, which is enforced by the Office for Civil Rights and the Centers for Medicare and Medicaid Services. Section 1557 prohibits discrimination on the basis of race, color, national origin, age, disability, and sex in covered health programs or activities.

Under the proposed rule, sex is redefined: “Discrimination on the basis of sex includes, but is not limited to, discrimination on the basis of sex stereotypes; sex characteristics, including intersex traits; pregnancy or related conditions; sexual orientation; and gender identity.”59 In other words, the department proposes to interpret Section 1557 as if it created special privileges for new classes of people, defined in ways that are highly ideological and unscientific.

The redefinition of sex to cover gender identity and sexual orientation and pregnancy to cover abortion should be reversed in all HHS and CMS programs as was done under the Trump Administration. This includes the Children’s Health Insurance Program (CHIP). Low-income families who rely on CHIP should not be coerced, pressured, or otherwise encouraged to embrace this ideologically moti- vated sexualization of their children.

However, while the Biden Administration’s Section 1557 regulation should be altered and corrected, the lactation room requirements added in the regulation should either be consistently included in any upcoming Section 1557 rulemaking or be proposed in a new individual rule.

COVID-19 Vaccination and Mask Requirements. Health care workers were praised for their self-sacrifice in caring for sick patients at the beginning of the COVID-19 pandemic, but then they were fired if they objected to receiving COVID- 19 vaccines with or without complying with onerous masking requirements and regardless of whether they already had the virus and had gained natural immunity. With the disease being endemic and constantly mutating, vaccines and univer- sal masking in health care facilities do not have appreciable benefits in reducing COVID-19 transmission throughout the community. Moreover, more recent COVID strains pose fewer health risks than the earlier strains, and the pandemic has been declared to be at an end. CMS should:

Pay damages to all medical professionals who were dismissed directly because of the CMS vaccine mandate.