Belated TGIF

On Thursday, the Internal Revenue Service published final rules on the Patient Centered Outcomes Research Institute fee. The Affordable Care Act requires health plans - both fully insured and self-funded, including FEHB plans -- to fund this Institute with a fee that starts out in plan years that end on or after October 1,, 2012, with a $1 per covered bellybutton fee. The fee paid in the second year will be $2 per covered bellybutton. The fee obligation ends in 2019.

The FEHBlog finds it odd that Congress did not require health car providers to share the burden of funding the PCORI.  But it's an odd law. (N.B. the total federal government subsidies to the medical community for electronic medical records nears $9 billion. Modern Healthcare reports that the government has created a website that allows you to track the expansion of electronic health records. Forbes provides an update on the government's rising concern about fraud and data breaches associated with these new devices.

Yesterday afternoon, the Supreme Court decided to consider the constitutionality of the Defense of Marriage Act ("DOMA"). The Court selected for review a U.S. Court of Appeals for the Second Circuit holding that DOMA is unconstitutional in the context of the federal estate tax which provides preferential treatment to spouses. The plaintiff in that case was a woman who was legally married to another woman under New York State law but was unable to take advantage of the estate tax's spousal exemption due to DOMA. Just writing this sentence confirms the FEHBlog's view that the Court will strike down DOMA as a violation of federalism principles enshrined in the Constitution. However, the Court also asked the parties to brief two preliminary questions

Whether the Executive Branch'’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

Thus it's conceivable that the Supreme Court could punt on the issue. The Supreme Court also took another same sex marriage case. That case arose in California. The California Supreme Court held that same sex couples have the right to be married under California's state constitution. Subsequently, California's votes passed Proposition 8 which trumped that decision. A same sex couple who was married in California during the interim period of legality sued the State. The U.S. Court of Appeals for the Ninth Circuit ruled that Proposition 8 violated the 14th Amendment to the U.S. Constitution by depriving a minority, which has suffered discrimination, of established rights. The Court also asked the parties to brief the question of whether the parties who brought the suit, California residents who voted  for Proposition 8 -- have standing.

The Court is expected to hear arguments in these cases in March 2013 and decided them by the end of June 23. More information is available on the Scotusblog

Because the FEHBlog tries to cover all things FEHBP related, he points out that Joe Davidson from the Washington Post wrote a column this week headlined "Lack of Autism Coverage [in the FEHBP] leaves many parents upset."  Mr. Davidson quotes the AFGE President who demands that OPM mandate rather than permit coverage of applied behavioral analysis therapy for children diagnosed with autism.

OPM's Director John Berry is quoted in the article as explaining that FEHBP plans cover speech, occupational, and physical therapy, mental health treatment, and prescription drugs for children with autism. OPM opened the door to ABA coverage in order to allow the provider base to grow.

There is no doubt that the if you build it they will come principle applies to expansion of health care coverage. Walter Pincus also explains in the Post that

In 1992, Sen. Tom Harkin (D-Iowa) introduced a $25 million amendment to have the Pentagon conduct breast cancer research. Twenty years later, it has become a more than $200 million-a-year program covering research on dozens of diseases.