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From Health Law Daily, October 4, 2013

PPACA implementation proceeds while most other federal health policy actions remain stalled

By Paul Clark

The partial government shutdown entered its fourth day with no movement toward settlement in Congress and a diminishing amount of health care policy decisions and guidance being released by federal agencies and the federal courts.

The House of Representatives approved individual pieces of legislation on October 3 to provide funding for several branches of the government affected by the shutdown, but President Obama said he would veto any of the bills that reached his desk. In a statement, Obama said, “The Administration strongly opposes House passage of piecemeal fiscal year 2014 appropriations legislation that restores only very limited activities. Consideration of appropriations bills in this fashion is not a serious or responsible way to run the United States Government.”

At least one bipartisan effort to end the standoff over government funding centers around repealing a tax provision in PPACA. Reps. Ron Kind (D-Wis., and Charles Dent (R-Pa.), sent a letter to House speaker John Boehner (R-Oho) and House Minority Leader Nancy Pelosi (D-Calif.) suggesting to end the stalemate with a six-month extension of the federal budget at an annualized rate of $986 billion.

The lawmakers also suggested that the PPACA’s $30 billion medical device tax be repealed, and the missing revenue be replaced by extending a pension stabilization provision included in a transportation authorization bill that passed the Senate in June 2012. “It is time that we break this impasse. We are ready to work together to move forward on these important issues,” the bipartisan letter reads.

CRS report. The Congressional Research Service (CRS) noted that most implementation activities relating to the Patient Protection and Affordable Care Act (PPCA) (P.L. 111-148) will continue during the partial government shutdown either because “agencies in the federal government will be able to rely on sources of funding other than annual discretionary appropriations to support implementation activities” or because a particular agency’s implementation activities may be considered “excepted” and thus not subject to stoppage. Sec. 1005 of the Health Care and Education Reconciliation Act of 2010 (P.L. 111-152) instituted a “Health Insurance Reform Implementation Fund of $1 billion; both CMS and the IRS have used these mandatory funds to cover the costs associated with PPACA’s implementation, and the fund was exhausted at the end of fiscal year 2012.

The Obama administration requested additional funding for PPACA implementation for FYs 2013 and 2014; Congress never appropriated the funds for 2013 and has not approved appropriations for FY 2014, so HHS and other agencies have relied on alternative funding streams.

The CRS report also noted that “a lapse in funding does not automatically result in the suspension of applicable laws, including the filing and payment deadlines applicable to taxes created by [PPACA].” Further, PPACA imposed restrictions on health insurance companies, like prohibiting preexisting condition exclusions and requiring coverage of certain preventive services without cost-sharing, which could be still be enforced by state entities or via civil lawsuits.

Other government inactivity. Various federal courts issued statements that most normal court activity was still continuing under current appropriations, which would be sufficient to operate for about two weeks.

The Centers for Disease Control and Prevention furloughed about 9,000 employees and is not updating its weekly influenza surveillance report. The gap in information is being filled, in part, by athenahealth, which provides electronic health record and practice management services for physicians. Its flu tracking service shows no indications of an early flu season.

Published reports noted that the National Institutes for Health had received permission to bring back some furloughed workers so it could reopen its website where patients could register for clinical trials

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