Questions about HHS transparency impede health reform progress

You might think that after the Supreme Court rejected a series of Affordable Care Act challenges and a presidential veto nixed Congress' repeal attempt, ACA opponents might take a break to lick their wounds and regroup.

You'd be wrong. Their tactics have simply shifted to be less grandiose--think less "get rid of it" and more "chip away at it." What's interesting is that ACA opponents and proponents alike have succeeded at actually tweaking or delaying some less-popular parts of the law, including the small-group market expansion and the Cadillac tax.

But from that shift to small-ball has also come a more aggressive breed of ACA-related activity in Washington. Congress members are increasingly investigating how taxpayer money was spent on the law, especially for programs such as the state exchanges that went belly-up. To Council for Affordable Health Coverage President Joel White, however, this is less of a new development than an ongoing saga that the public is just now starting to notice.

"Actually this has been more of a slow boil more than a sudden outbreak of activity," White (left) told me in a recent interview. Lawmakers have been sending letters, asking questions in hearings and having private meetings with the Obama administration for months about the ACA exchange operations, he says, but it's now coming to light "partly as a reflection of the frustration that members of Congress are feeling by what they see as non-answers and un-responsiveness from the administration."

That "frustration" has led a few House committee leaders to subpoena the Internal Revenue Service and the U.S. Treasury about cost-sharing reduction payments to insurance companies and threaten to subpoena Department of Health and Human Services (HHS) Secretary Sylvia Mathews Burwell over the ACA's Basic Health Program. In the case of the former, the administration argues that the ACA payments in question are the subject of a lawsuit filed by House Republicans against the White House, so turning over the documents could compromise the litigation, according to The Hill.

GOP lawmakers have also asked the Government Accountability Office to examine the federal government's role in assisting some state exchanges' transition from using their own IT systems to using the platform, FierceHealthPayer has reported. In a December hearing about oversight of the state exchanges, Centers for Medicare & Medicaid Services Acting Administrator Andy Slavitt said CMS has already recouped more than $200 million in federal funding from states' original grant awards to set up their exchanges, adding that no new money to fix IT problems was given or will be given to any state that ran into difficulties.

But to White and Congress members he's spoken to, those assurances aren't enough.

"I think it's great that Andy has stepped up and said that's happening, but I think the assurance needs to be in the details and specific disclosure to the members," he said. "The problem is, the members are asking about it, they're wanting details about the billions of dollars that have been spent on this program, and they're not getting any transparency."

White says he's not sure why the Obama administration has shown reluctance to "come clean" on issues with the exchanges, but he shares in some lawmakers' frustration about failing to get the answers they've asked for. "This shouldn't be like getting state secrets out of Cuba," he says.

White's solution is to support a bill from Rep. Rick Allen (R-Georgia), which would require states to submit records of expenses to Congress as well as HHS about how they've spend federal funds on their exchanges, and mandate that all unused funds to be returned to the Treasury and any property purchased be returned to the General Services Administration.

Through the Council for Affordable Health Coverage, White also has been advocating for what he calls "next-generation" ACA exchanges, which farm out functions like plan selection to the private sector while maintaining government control over functions such as eligibility determination and paying subsidies to health plans.

White's goal is to get a bipartisan bill creating such a system introduced this year, though he acknowledges that such a move would largely just be to set the table for 2017. In an election year, Republicans don't want to be seen trying to make law better, he notes, and Democrats don't want to admit they've spent a lot of money on exchanges with little to show for it.

That, by the way, perfectly sums up why it's so difficult to work constructively on a law that's not only here to stay, but has made impressive gains in improving healthcare access and affordability. With just a few exceptions, neither side can ever really evolve past partisan bickering about it.

With regard to the current discord over exchange oversight, it's understandable HHS is reluctant to play ball with Republicans considering their history of absurd rhetoric relating to the ACA. I've also seen too many hearings about legitimate healthcare policy issues devolve into off-topic, partisan grandstanding--from both Republicans and Democrats--to absolve either party of blame.

But the best response to criticism is often transparency. So even if it just looks like the Obama administration is not being forthcoming with concerned Congress members, that's the last thing a controversial law like the ACA needs in the battle to win over the American public. - Leslie @HealthPayer