This year, brain injury awareness day on Capitol Hill will be held on Wednesday, March 21, 2012. As in years past, there will be an awareness fair, briefing and reception. The full schedule for the day is as follows:

10:00 AM – 1:00 PM - Brain Injury Awareness Fair, First Floor Foyer of the Rayburn House Office Building

2:30 PM – 4:00 PM - Congressional Briefing, Location to Be Announced

5:30 PM – 7:30 PM - Reception Celebrating Brain Injury Awareness Month, Location to Be Announced

BIAA is committed to helping the Congressional Brain Injury Task Force plan a successful event. Stay tuned for more details including a list of speakers for the briefing.

This week, BIAA submitted comments to the Department of Health and Human Services (HHS) on the essential health benefits bulletin.

BIAA also submitted comments on the report Multidisciplinary Postacute Rehabilitation for Moderate to Severe Traumatic Brain Injury prepared for the Agency on Healthcare Research and Quality (AHRQ).

A copy of BIAA’s comments on both documents can be located on the BIAA website under the Government Affairs section. Click on Legislative Priorities and the comments are listed under Health Care Reform.

On Friday, January 13, 2012, BIAA’s government affairs director along with NASHIA’s lobbyist met with staff representing the National Disability Rights Network to discuss TBI Act reauthorization in 2012. BIAA will continue to work closely with other stakeholders as the reauthorization of the TBI Act moves forward.

AHRQ Reports Open for Public Comment

The Effective Health Care Program, Agency for Healthcare Research and Quality (AHRQ) made available to the public two draft reports that are available for comment. This review is part of a new series of reports on Closing the Quality Gap: Revisiting the State of the Science (hereafter, CQG series).

The report, Multidisciplinary Postacute Rehabilitation for Moderate to Severe Traumatic Brain Injury, is available for public comment until February 9, 2012.

The report, Closing the Quality Gap Series: QI Measurement of Outcomes for People with Disabilities, is available for public comment until February 6, 2012.

Essential Benefits Package

On October 7, 2011, the Institute of Medicine (IOM) issued Essential Health Benefits: Balancing Coverage and Costs , a consensus report commissioned by the U.S. Department of Health and Human Services (HHS) for establishing the criteria and methods to define and update the essential health benefits package that will be included in most private health plans offered to individuals and small groups beginning in 2014 as required by the Patient Protection and Affordable Care Act (ACA).

The Brain Injury Association of America (BIAA) will undertake an in-depth analysis of the 300-page report, but our initial review, which is generally positive, indicates the report:

• Includes the Congressional floor statement of Rep. Bill Pascrell, Jr., calling for a broadly based interpretation for the category of rehabilitative and habilitative services and devices, including “items and services used to restore functional capacity, minimize limitations on physical and cognitive functions, and maintain or prevent deterioration of functioning,” one of the few examples of policymaker intent in enacting the ACA.

• Distinguishes between habilitative services, which are designed to help a person first attain a particular function, from rehabilitation services, which are designed to restore function after illness or injury.

• Discusses the definition of medical necessity and recommends that rather than a universal definition, the HHS Secretary provide guidance to states and health plans in which it is emphasized that the treatment be (1) clinically appropriate for the individual patient, (2) based on the best scientific evidence, taking into account the available hierarchy of medical evidence and (3) likely to produce incremental health benefits relative to the next best alternative that justify any added cost, which in some cases may be no treatment at all, but also adding that “Inflexibility in the application of medical necessity, clinical policies, medical management, and limits without consideration of the circumstances of an individual case is undesirable and potentially discriminatory.”

• Gives a recommendation to establish a National Benefits Advisory Council to advise the HHS Secretary on updating the essential benefits through evaluation of the nature of appeals to understand if more specific guidance is required on a particular benefit or service.

Heath care reform has been a centerpiece of BIAA’s public policy efforts for more than two years, with staff and volunteers advocating on a daily basis for inclusion of rehabilitation in the authorizing legislation, conducting meetings and submitting testimony and written comments on numerous regulation proposed under the law, and representing the interests of individuals with brain injury in important forums, including to the National Association of Insurance Commissioners. These efforts have been guided, in part, by technical expertise of veteran lobbyists, Peter Thomas and Bobby Silverstein of Pyles, Powers, Sutter and Verville PC, whose engagement was financially supported by BIAA’s Business & Professional Council.

Please visit the Legislative Prioritiessection of BIAA’s website to links to key documents related to these efforts.

State Insurance Exchanges

On September 26, 2011, BIAA staff acting in the capacity as a consumer representative to the National Association of Insurance Commissioners (NAIC), submitted extensive comments to Health and Human Services Secretary Kathleen Sebelius concerning proposed rules relating to the establishment of state insurance exchanges under the Patient Protection and Affordable Care Act.

In summary, the comments address the operation of a federal exchange in states that opt out; requirements for state exchange governing boards; initial, open and special enrollment periods for exchanges; transparency in coverage; consumer assistance tools and programs; the roles of agents, brokers and navigators within the exchange; and marketing practices of qualified health plans.

On September 30, 2011, BIAA, NASHIA, and NDRN met with both the offices of Congressman Bill Pascrell, Jr., Co-chair of the Congressional Brain Injury Task Force, and Senator Tom Harkin, Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee to discuss TBI Act reauthorization in 2012. Both offices were receptive to entertaining changes in the legislation next year.

TBI Act stakeholders will continue to lay the legislative groundwork for reauthorization of the TBI Act in 2012. Check back in future editions of Policy Corner for updates on our progress.

As many of you know, BIAA was out front on the Concussion Treatment and Care Tools (ConTACT) Act, introduced in 2009 by Rep. Bill Pascrell, Jr., co-chair of the Congressional Brain Injury Task Force. Although the legislation wasn’t enacted, it was the only federal concussion bill to get any traction, despite the public relations muscle behind other proposals.

BIAA’s early support positioned us to help broker a deal between the House, Senate and CDC to carry forward provisions of the bill through CDC’s annual TBI Act budget. BIAA also ensured that the bill language included recommended collaboration between state brain injury associations and the state government agencies responsible for implementing many of the deliverables.

On September 27, 2011, Rep. Pascrell and Sen. Menendez (Senate champion for the measure) announced that CDC will begin to implement a major component of the ConTACT Act by forming an expert panel to define the need, scope, and expectations of federal concussion guidelines for student athletes. The guidelines that CDC develops will take into consideration advice from experts across the country and support the efforts of the current nationwide state brain injury concussion law initiative.

The CDC has notified the lawmakers that it will convene the expert panel during the next year. The resulting pediatric MTBI (mild traumatic brain injury) guidelines and recommendations are expected to be finalized by the fall of 2013. BIAA is currently working with legislative staff and CDC to address other key components of the ConTACT Act including grants to states for implementation of these federal guidelines and return to play regulations as specified in each state’s sports and concussion law, if applicable.

Due to last week’s debt ceiling debates, the Labor/HHS Appropriations Subcommittee consideration of FY12 spending, including consideration of funding for programs such as the TBI Act and the TBI Model Systems have been postponed until after the August recess. BIAA will monitor the Committee schedule and alert grassroots advocates when Congressional communication is needed.

On August 2, 2011, the President signed a bill into law with authorizes a $900 billion increase in the debt limit that would allow the government to cover its liabilities through 2011. The bill would also cap total discretionary spending over the next ten years. If appropriations in the next ten years are equal to the caps in discretionary spending and the maximum amount of funding is provided for the program integrity initiatives, the Congressional Budget Office estimates the caps would decrease budget deficits by $917 billion between 2012 and 2021. In Fiscal Years 2012 and 2013, specifically, the Act would impose caps of $1.043 trillion and $1.047 trillion, about $7 billion and $3 billion, respectively, below current levels. For 2012 and 2013, separate caps for security and non-security budgetary authority would be in effect; from 2014 on, only one cap would apply to total discretionary funding.

The second stage would involve a joint congressional committee, made up equally of Republicans and Democrats, which would recommend changes in law to reduce the deficit by $1.5 trillion (through entitlement reform and/or tax revenues). If that bipartisan committee agrees to a proposal worth $1.5 trillion, and Congress approves it, then the plan would raise the debt ceiling by $1.5 trillion. If Congress passes a bill that enacts savings between $1.2 and $1.5 trillion, the debt ceiling would match the final number. If Congress fails to enact a bill, the debt limit would be raised by $1.2 trillion.

If the committee fails to reach a compromise that would decrease the federal deficit by at least $1.2 trillion by January 15, 2012, or Congress fails to enact it, the Act includes a budget enforcement mechanism (known as “sequestration”) that will implement automatic spending cuts to both discretionary and direct spending over 2013 through 2021. Half of those cuts would come from defense spending and the other half from nondefense programs. The amount cut would be based on the difference between the savings reached by the joint committee and $1.2 trillion in the debt limit increase. The reductions in direct spending would be cut by a uniform percentage, with the exception of Medicare; cuts to Medicare would be limited to 2% of the program’s cost and would come from payments to providers and insurance plans, not benefits or beneficiary cost sharing. Social Security, Medicaid and other specified entitlements would be exempt from sequester.

The Act also includes increases in discretionary spending for two program integrity initiatives that could ultimately reduce overpayments for Disability Insurance and Supplemental Security Income programs, as well as Medicare, Medicaid and the Children’s Health Insurance Program. In addition, the Act would require both the House and Senate to vote on a balanced budget constitutional amendment before the end of the year.

BIAA will continue to monitor the situation closely and alert grassroots advocates if funding for any important programs that serve people with brain injury are threatened.

On July 11, 2011, BIAA and NASHIA met with representatives from HRSA to follow up on the development of a Federal TBI Program long-range plan. After completion of a June interagency meeting called by HRSA including agencies that administer TBI programs such as DOD, VA, HHS, Department of Education and more, HRSA reported that important work was completed to coordinate efforts and stamp out program duplication.

In the coming weeks, HRSA plans to work with BIAA and NASHIA to coordinate a second meeting including brain injury survivors, BIA state affiliates, caregivers and family members to move further in laying out the Federal TBI Program’s long-range plan. HRSA is also committed to working with stakeholders to ensure positive changes for both the agency and the brain injury community in the 2012 TBI Act reauthorization.

On August 1, 2011, HHS completed and released their external appeals determinations for states, as part of the process to implement new protections under the Patient Protection and Affordable Care Act.

As you may remember, on July 23, 2010, HHS published an interim final rule regarding standards for internal claims and appeals and external review processes for group health insurance plans and health insurance issuers offering coverage in the group and individual markets. This rule works to give people in most plans better information about what their rights are and why their claims were denied or coverage rescinded or taken away. When the interim rule was released last year, BIAA submitted comments to HHS that can be found here.

According to what HHS released on 8.1.11, under the determination process, a state:

• May meet the “strict standards” included in the July 2010 rules, which set forth 16 minimum consumer protections based on the Uniform Health Carrier External Review Model Act written by the National Association of Insurance Commissioners (NAIC)*;
• May operate an external review process under similar standards to those outlined in the July 2010 interim final rule.  These similar standards apply until January 1, 2014. or;
• May have neither implemented the strict standards nor the similar standards. In this case, issuers offering non-grandfathered plans and policies in the State will choose an HHS-administered process or contract with accredited independent review organizations to review external appeals on their behalf.

Please see the official document for more information and for a chart of where states fall in the process. 18 states will need to choose an HHS-administered process or contract with accredited independent review organizations. States can request reconsideration – final determinations will be made by October 1 for those states.

BIAA will continue to closely monitor PPACA regulations as they are released by HHS and alert grassroots advocates if any action is needed.

* Susan Connors, president and CEO of the Brain Injury Association of America (BIAA), was appointed by the National Association of Insurance Commissioners (NAIC) as a consumer liaison representative for 2011. In this capacity, Ms. Connors represents the needs of individuals with brain injury to state insurance commissioners at three onsite meetings and collaborate with representatives from similar organizations, such as American Heart Association, MS Society and Consumers Union, on federal advocacy issues.