Republicans are fond of saying that everyone in America has access to health care, because anyone can go to an emergency room and receive treatment. “There is a misnomer out there, I think, there’s a misconception, that somehow or another… uninsured means that you have no health care,” Gov. Rick Perry (R-TX) has said. “That’s not correct. Everyone in this country has access to health care.” This argument was most commonly deployed during the health reform debate, as conservatives tried to downplay the extent of the crisis by suggesting that everyone who needs care has access to it.

This line of argumentation has always struck me as a weak notch to hang your hat on, and now a new study suggests that it’s also deadly. A new review of intensive care units or ICUs in Pennsylvania finds that patients without insurance “were 21 percent more likely to die than insured patients“:

“Our findings suggest that ICU patients without insurance have a higher risk of death and receive less intense treatment in the ICU,” Dr. Sarah Lyon of the University of Pennsylvania, who led the study, said in a statement.

“Expanding and standardizing health care coverage through health care reform may improve outcomes in critically ill patients,” she added….”We still do not understand all the reasons for differences in survival between the insured and uninsured,” Lyon said.

“Critically ill patients without insurance may arrive to the hospital in more advanced stages of illness, perhaps in ways we could not control for in our study. Patients without insurance may also have different preferences for intensity of care at the end of life, and may not wish to be kept alive on life support as long as patients with insurance.” But there could be another reason, she said.

“Another, more concerning explanation is that physicians and hospitals treat patients without insurance differently than those with insurance. More work is needed before we can say with certainty that treatment biases caused these results.”

The analysis also found that patients with Medicaid had a 3% greater risk of death than patients with private insurance, suggesting that more needs to be done to improve access to doctors and improve quality standards.

The report also builds on an existing studies which found that thousands of Americans die every year because the lack health insurance coverage. “In September, Harvard Medical School researchers reported that nearly 45,000 people die in the United States each year because they lack health insurance.”

Friday marked the end of the open comment period for rules relating to the new medical-loss ratio (MLR) requirements and rate review standards in the new health care law. As expected, America’s Health Insurance Plans (AHIP) asked for fairly broad provisions that would allow the insurance industry to both reclassify administrative spending as medical spending and increase premiums with only limited regulatory oversight.

The new health care law allows insurers to classify certain practices as “activities that improve health care quality” and count those expenses as medical costs. Following the lead of insurers like WellPoint, AHIP recommends reclassifying certain provisions that were previously excluded from medical expenses (or considered administrative in nature) as “activities that improve health care quality”, thus inflating insurers’ medical loss ratio percentage without improving efficiency. “This definition should recognize the full range of health plan activities — both directly and indirectly related to patient care — that have the primary purpose of improving patient outcomes,” AHIP argues, before providing a long list of services like “nurse call lines,” “quality research and reporting programs,” and “consumer education programs.” [Read their full letter HERE]

But before insurers are allowed to reclassify any expenditures as “activities that improve health care quality,” they must “provide credible scientific evidence that the function improves the health quality of individual policyholders.” As Consumer Watchdog notes in their recommendation to HHS, “Any program or function added under the new ‘health quality’ definition must be stringently monitored by the states and the Department of Health and Human Services to protect against future abuses.” Interestingly, the Federation of American Hospitals goes even further in its recommendations, specifically stating that “the inclusion of a separate category specific to activities that improve health care quality is not as common, and requires a close focus by federal regulators to avoid becoming a “catch-all” into which a wide variety of expenses not directly related to patient care and clinical service quality may arbitrarily be placed.” The FAH warns regulators against agreeing to brand services like disease management and health education as “activities that improve health quality” [Read their full letter HERE]:

There are broad categories of costs that may appear to be related to quality improvement, when in actuality the various types of costs within the broad categories need to be closely scrutinized to reach a proper classification. It is not sufficient or appropriate to allow for one type of classification for all types of costs within the broad categories. For example, most activities related to disease management and health/wellness promotion programs are not directly related to quality improvement for particular patients and should be excluded. Also, generalized programs of health education for the population at large, which are often used as much for promotion of the health plan as to be generally informative on health status, should be excluded.

AHIP also adopted a rather lax approach towards the premium rate review provisions in the law, which require the Secretary to work with the states to establish an annual review of “unreasonable rate increases,” monitor premium increase, and to award grants to sates to carry out their rate review process. The provision is one of the only mechanisms preventing insurers from dramatically increasing rates before the exchanges become operational in 2014. Unfortunately, the AHIP letter recommends no set standards by which regulators can deem rates unreasonable, noting only that rate review should “continue to occur at the state level” — this will allow insurers to take advantage of states that don’t’ have adequate rate review protections — and that “the annual review of ‘unreasonable increases’ in premiums should be tried to principles of actuarial standards and solvency and should be applied consistently across states.” (The letter also lists a variety of factors that should be considered before a rate increase is deemed ‘unreasonable’).

Conversely, Consumer Watchdog recommends establishing several definite criteria by which an insurance regulator can brand a rate hike as unreasonable:

- The proposed premium increase is greater than 150 percent of the rate of “medical care” inflation as calculated by the Bureau of Labor Statistics (BLS).

- The proposed premium increase is greater than 10 percent, or will result in an increase of more than 10 percent in one year.

- If the insurer failed to meet the medical loss ratio (MLR) requirement of section 2718 in the year prior to the proposed rate increase, or if the proposed rate increase is likely to result in a loss ratio below the 80 percent or 85 percent MLR requirements.

- The premium includes provision for excessive administrative expenses or profit.

- The premium includes provision for unreasonable or wasteful administrative expenses.

- The benefits provided under the policy are unreasonable in relation to the premium charged.

- The premium is unreasonable in relation to the deductible or out-of-pocket charges including but not limited to co-pays and coinsurance costs required of the policyholder when accessing medical care.

- The insurance company failed to adequately negotiate provider reimbursement rates.

- A premium increase should not be considered reasonable simply because the increase is necessary to avoid a future financial loss on the insurer’s block of business. Such a standard would allow an insurer to avoid scrutiny even if the rate increase was made necessary due to poor business practices by the insurer.

Insurers are required to report their medical loss ratio in 2010, but won’t offer rebates until January 1, 2011. Later this year, states will also have to establish a process for reviewing increases in health plan premiums and require plans to justify increases.

On Monday, administration officials eager to build support for the new health care law held a conference call outlining how small businesses can apply for the new tax credits. The Internal Revenue Service also “issued a series of rules clarifying eligibility for the credit, which is available to businesses with fewer than 25 employees and paying an average salary of less than $50,000 a year. The value of the credit phases out as the number of workers and their salaries rise, with the full 35 percent credit available only to businesses with fewer than 10 full-time workers paying an average salary of less than $25,000.” From the guidance:

In particular, an employer that receives such a state tax credit or subsidy will also receive the full federal credit based on its entire contribution so long as the federal credit does not exceed the employer’s net contribution…. The guidance clarifies that small businesses can receive the credit not only for traditional health insurance coverage but also for add-on dental, vision, and other limited-scope coverage. The employer must meet the requirements for limited-scope coverage that are similar to those that apply for single coverage: the employer must offer to pay at least 50% of the premium…. The new guidance allows employers to choose among 3 different methods of determining hours to minimize their bookkeeping duties while receiving the maximum tax credit for which they are eligible. Employers can look at actual hours of service, or can use simple rules of convenience to estimate hours based on total days or weeks of service.

Despite the benefits, the National Federation of Independent Businesses (NFIB), the nation’s largest small business lobby, announced last week that it is joining a lawsuit challenging the constitutionality of health care reform:

NFIB joined this lawsuit to further its mission to protect the rights of small business owners to own, operate, and grow their business…The federal government has really simply gone too far with this law. The individual and employer mandates in the law, the onslaught of new taxes, the paper requirements and the new rules are dramatically going to increase the cost of doing business…Small businesses deserve better than the health care law that was rushed through the legislative process, ignores the constitution, and ultimately will destroy jobs and could force some small business owners to close their doors.

If the rhetoric sounds like recycled GOP soundbite, that’s because it is. In fact, the federation and its leaders have long-standing ties with Republican party, leading the Washington Post and the Washington Times to describe the group as “a bastion of Republicanism.” According to CQ MoneyLine, “Since 1980, the NFIB has donated $9,004,517 in campaign contributions, 91.6% of which went to Republican candidates” and many leaders have ties tot he Republican party.

The group my have legitimate problems with the law, despite its conservative leanings, but joining a frivolous lawsuit certainly won’t help address their concerns. For one, the rhetoric is completely overblown. The group has to know that the law does not include an employer mandate — only a free rider requirement for large employers — or taxes that would “force some small businesses owners to close their doors.” Aside from the tax credits, the law provides a whole host of benefits: businesses will be able to pool risk through SHOP exchanges (a long time NFIB goal), receive grants for wellness programs, and expect insurers to spend 85% of their premium dollars on claims.

Sure more can be done to improve the bill, but by aligning itself with the Congressional Republican election efforts rather than try and shape the law through the regulatory process, the federation betrays itself as a purely political operation. Had it chosen quiet advocacy, the group could have actually addressed some of its concerns about increased paperwork and the like. By supporting the lawsuits, they’re undermining the success of their future lobbying efforts and invalidating the legitimacy of the federation. In fact, some business groups are already distancing themselves from NFIB’s theatrics.