By John Reichard, CQ HealthBeat Editor

October 30, 2013 -- Republicans have pursued one line of attack after another on the health law since its 2010 passage without much success—until now.

The current wave of cancelation notices going out to policyholders in the individual market has led to complaints from around the country that people are being forced to pay higher premiums to enroll in new plans they don't want.

News reports increasingly echo the Republican charge that this shows President Barack Obama lied to the public when he said that under the health law, Americans can choose to keep their current coverage.

But Democrats at a recent House Energy and Commerce Committee hearing pushed back hard at Republican efforts to use the issue to weaken public support for the health law (PL 111-148, PL 111-152) and force a delay in its 2014 requirement that people carry health insurance or pay a penalty.

Health and Human Services Secretary Kathleen Sebelius highlighted deep flaws in the individual market in her testimony at the hearing. She said the health law would correct them. Committee Democrats agreed with her and attempted to blunt the attacks by putting Republicans in the position of defending the individual market.

It's a tactic that could work. But Democrats won't be able to get around the fact that next year, a significant number of Americans—though fewer than some might suggest—are going to have to pay much more for their health benefits and that people will blame it on the health law.

Although it appears their discontent won't be enough to change the law in coming months, it could have an eventual impact on the overhaul by shaping the way people vote in the 2014 elections, though whether it will give Republicans a big leg up with voters is uncertain.

Estimates, Anniversary Dates Vary

How many Americans are affected?

Some estimates put the number as high as 19 million. But the Kaiser Family Foundation estimate is closer to 10 million. Some of those people have begun getting notices that their current coverage will end on Dec. 31 because it doesn't comply with the health law's essential health benefits standard, which takes effect in 2014.

The Health Insurance Portability and Accountability Act of 1996 (PL 104-191) requires an insurer that intends to terminate a policy and that plans to continue in the individual market to give policy holders 90 days notice. That means people whose annual coverage expires Jan. 1 and it doesn't comply with overhaul's requirements are now getting notices that their current policy won't be renewed.

But Karen Pollitz, an individual market analyst with the Kaiser Family Foundation, says "the anniversary dates are all over the place" in the individual market. That means not everyone in that market must find a new plan by Jan. 1.

Florida Blue Cross Blue Shield, which says it's ending the current policies for 300,000 customers because the coverage doesn't meet the 2014 health law standards, says it's only notifying 40,000 of its enrollees that they must find new coverage by Jan. 1 because that's the number of policies that are expiring then.

Other factors also will stagger the impact of the health law on people covered in the individual market. As an "educated guess," Pollitz says maybe one-third of the people in the market have grandfathered plans, meaning they haven't changed sufficiently since the March 2010 passage of the health law to require them to be cancelled. So those enrollees can keep their current coverage if they want.

Also, some people will automatically be enrolled in a new plan, Centers for Medicare and Medicaid Services spokeswoman Julie Bataile said in a press briefing last week. That would prevent a break in coverage Jan. 1 if they don't enroll in a new plan by then. But they'd have to be willing to pay the new premium charge.

It's unclear how many policy holders would be automatically enrolled in a new plan. Plans are not required to do auto enrollment, Pollitz said. The Florida Blue Cross Blue Shield plan and the Alabama Blue Cross Blue Shield plan does do auto enrollment, she noted.

Pollitz says some of the people in the individual market will find cheaper coverage in the health law exchanges. And about half of the people in the individual market will qualify for subsidies to help offset coverage costs, which means many of them also would pay lower premiums. But in many other cases people will have to pay more.

Some insurers "are giving people a one-time opportunity to renew," Pollitz said. They're saying that whatever their anniversary date would otherwise be, "I'll let you renew one more time in December of 2013 and that way you can keep your old policy all the way" through 2014 and get rid of it in 2015.

Meanwhile, Democrats at last week's hearing sought to take the sting out of the Republican attacks by noting that sharp premium increases and frequent changes in the provisions of individual policies have been a hallmark of the individual market long before the health law passed.

"It was unprotected, unregulated, and people were really on their own," Sebelius said of the individual market prior to the health law. "This market has always been the Wild West." Under the overhaul "they have choices they never had before."

It was also a market where people could see their policies canceled if they got sick and in which contracts typically lasted only 12 months and then could be terminated.

And in general, it hasn't been a source of long term coverage, Sebelius said. One third of policyholders in the individual market leave it in less than six months and one half stay in a year or less, she added.

Now women can't be charged more than men, people can't be denied coverage for preexisting medical conditions, their coverage can't be taken away and it will offer comprehensive benefits, she said.

"The worst abuses of the insurance industry will be halted," declared Rep. Henry A. Waxman, D-Calif. Never again will people's premiums rise just because they get sick, he said.

Democrats also said that health plans aren't losing their grandfathered status because of the health law, but because insurers make changes in their plans each year. In other words, people can't keep their current coverage not because of the health law but because of actions by their insurers.

Joel Ario, who handled exchange development early in the Obama administration, said in an unprompted email message during the hearing that "As a former [Pennsylvania] Insurance Commissioner, I know that there is nothing in the ACA requiring insurers to cancel policies that were in place when the law passed." Ario added that "those who are upset about policy cancellations should focus on their insurer not the ACA."

But Rep. Marsha Blackburn, a Republican from Tennessee, reminded Sebelius "some people like to drive a Ford, not a Ferrari ... You are taking away their choice."

And Republican after Republican said they've been getting calls from constituents who are facing sharp hikes for insurance because their current policies are ending. They can't find policies that don't charge more, a number of Republicans said. They asked Sebelius what they should tell those constituents.

One lawmaker asked what he should tell a constituent named Sean who faces sharply higher premiums because of a cancellation notice.
Sebelius said Sean should go shopping on the marketplace. But not all of the "Seans" will find comparably priced coverage there and anger over cancellation notices isn't likely to fade away any time soon. And with the ongoing problems with the federal exchange, it's unclear how many of those affected will be able to find new insurance by Jan. 1 to avoid a break in coverage.

By Emily Ethridge, CQ Roll Call

October 30, 2013 -- Health and Human Services (HHS) Secretary Kathleen Sebelius apologized last week for the extensive problems that have marked the rollout of the federal health exchange website and said she accepted responsibility. But House Republicans, not fully satisfied with all her answers, said they would bring her back to testify.

Following a contentious three-hour hearing, House Energy and Commerce Committee Chairman Fred Upton, R-Mich., said that Sebelius had committed to testifying before the committee again during the first week of December. Although Upton said he had further questions for Sebelius, he demurred when asked whether she should be told to resign—unlike many other Republicans who have called for the secretary to step down.

Republicans, during the highly anticipated session, pushed Sebelius for answers about incomplete security for the site, delayed website functions and the numbers of Americans who have enrolled. They pressed her about whether President Barack Obama broke his word when he told Americans that if they like their health coverage, they can keep it. And Sebelius was confronted with a screenshot of healthcare.gov displaying an error message.

Yet the House hearing was less fiery than many had expected, with Sebelius staying mostly calm as she provided answers to several lines of questioning that Republicans have been pursuing for weeks.

There were, however, some touchy points, including the questions over the security testing of the federal health exchange website. Upton said the committee would send a letter requesting information by the end of the week.

Mike Rogers, R-Mich., grilled Sebelius on the risks of adding new code to the health care website without doing end-to-end testing to ensure there weren't any vulnerabilities throughout the system. He read from a Sept. 27 memo to Centers for Medicare and Medicaid Services Administrator Marilyn Tavenner that said the security control assessment was only partly completed.

"You have exposed millions of Americans because you all, according to your memo, believed it was an acceptable risk," said Rogers. "This is a completely unacceptable level of security."

Sebelius noted that the system is continually being tested, and that simultaneous testing is going on while the new code is loaded.

After the hearing, Rogers told reporters that "very low level attempts at hacking" have been successful in getting users' passwords. "The responsible thing to do is to shut this site down and do a complete security test," he said.

Sebelius will testify next before the Senate Finance Committee Nov. 6. By the December Energy and Commerce hearing, lawmakers are expected to have detailed figures on how many people have enrolled in the law's (PL 111-148, PL 111-152) exchanges. "Given our flawed launch of healthcare.gov, it will be a very small number," Sebelius predicted. She also said that even before the launch, officials predicted there would be a small number of initial enrollees.

During the hearing, Sebelius said she is the person ultimately responsible for the flawed rollout and apologized for its problems. The website, meant to help people enroll in the law's insurance exchanges, has been plagued with technical problems.

"Let me say directly to those Americans: You deserve better. I apologize. I'm accountable to you for fixing these problems, and I'm committing to earning your confidence back by fixing the site," said Sebelius. "We are working day and night and will continue until it's fixed."

She testified that senior officials in charge of the site never advised her to delay the Oct. 1 launch date for the websites, and the contractors never recommended delay either.

Although she accepted ultimate responsibility, Sebelius noted that some rollout decisions were made by other members of her team. She told Tennessee Republican Marsha Blackburn that Michelle Snyder, the chief operating officer for the Centers for Medicare and Medicaid Services (CMS), was in charge of overseeing the website program.

"Michelle Snyder is the one responsible for this debacle," said Blackburn, to boos from committee Democrats.

Sebelius disagreed, saying, "Hold me accountable for the debacle. I'm responsible."

In addition, she said that Tavenner, who testified Oct. 29 to another House committee, made the decision to turn off the website's "anonymous shopper" feature, the delay of which has been blamed for many of the initial problems. Users at first were required to fill out an application before they could view plan options.

"I wasn't aware of that particular decision that was made by the CMS team," said Sebelius. "I was aware that we were paring back some features to not put additional risk on the website, which is ironic at this point."

She said that Tavenner also decided to delay other parts of the website before the Oct. 1 start date for open enrollment, such as the online enrollment for the small business exchange and the Spanish-language website. Tavenner has said those parts would be functional by the end of November—the administration's goal for having most of the website running smoothly.

"We were anxious to get the website up and running and functional, which we clearly have failed to do to date, although I would suggest the website has never crashed," Sebelius said. "It is functional, but at a very slow speed and very low reliability, and has continued to function."

Committee Republicans, however, pointed out that the website was down when the hearing began and when it ended, posting screenshots of the error message to make the argument that it had crashed.

"You told us several hours ago when the hearing started, that the website was down. If you look at the screen several hours later, healthcare.gov is still down," Washington Republican Cathy McMorris Rodgers said to Sebelius. "You promised the system would be ready on October 1st. You're clearly wrong."

The website was unable to process individuals' applications all day on last Wednesday. People who hit a button to "apply online" were met with the news that they could go no further. "We are experiencing technical difficulties and hope to have them resolved soon," said a message on a gray screen that was still up in the late afternoon. "Please try again later."

The problems with the application process stemmed from an issue that first appeared over the weekend. The data center run by Verizon Terremark experienced a connectivity problem. Over the weekend, the federal hub was unable to transmit data from federal agencies such as the Internal Revenue Service to any of the state or federal marketplaces.

That glitch was fixed early last week, but a similar problem re-emerged later that same week. Centers for Medicare and Medicaid Services (CMS) spokeswoman Julie Bataille told reporters on a call that part of the problem had been fixed, so that the hub could transmit data, albeit slower than usual. That meant that websites for state-based marketplaces in areas that run their own exchanges could process applications - but not on the federal exchange.

Because of the ongoing problems, several Democrats have recommended extending the law's open enrollment period, which lasts through March 2014. Iowa Democrat Bruce Braley asked Sebelius if she would be willing to consider an extension, but Sebelius seemed to answer no, noting that the open enrollment period "is extraordinarily long" and that people can enroll via other methods besides the website.

In addition, Sebelius refused some lawmakers' requests to provide figures on enrollment so far. Those figures will come out in mid-November, she said.

"We do not have any reliable data on enrollment, which is why we haven't given it to date," she said. She said that insurance companies also don't have reliable numbers. "The system isn't functioning, which is why we're not getting reliable data," she added.

Along with questioning the website, Republicans also focused on another topic: constituents who are having their individual insurance policies cancelled. Several Republicans questioned whether Obama was breaking his word when he said people who liked their coverage could keep it.

Sebelius resisted criticism that Obama had not kept his promise. She explained that under the law, consumers who still have plans that were in effect before the law was passed can keep those plans, as they would be grandfathered in.

However, non-grandfathered plans are subject to the law's minimum benefit requirements and consumer protections, and insurance companies that change their plans in a significant way would have their plans subject to those requirements as well.

"Insurance companies cancel individual policies year in and year out," Sebelius said. She noted that there about 12 million individuals in the individual market, many of whom have grandfathered plans or plans that meet the law's requirements.

Democrats also defended the law, pointing out that all people will be able to receive coverage under it, and that coverage will be more comprehensive and include new consumer protections and minimum essential benefits.

In addition, Sebelius answered GOP lawmakers' questions about how much the website cost. She said HHS has spent about $118 million on the website itself and about $56 million on other IT to support the site.

She also said that contractor CGI has a contract for $197 million, which is to last through March 2014, and about $104 million has been expended of that amount. She said that the administration is negotiating how much QSSI, which has been tasked with being the systems' integrator, will receive for its new role.

When asked by California Democrat Anna G. Eshoo if contractors could be penalized for failing to do their work, Sebelius said, "There isn't a built-in penalty but I can tell you that paying for work that isn't complete is not something that we will do."

Meanwhile, House Republicans also had an opportunity to be briefed by Michael Hash, director of HHS' Office of Health Reform, on the implementation of the health care law. But not many attended the meeting.

John Fleming of Louisiana estimated that there were about 20 lawmakers in the room and that Hash spoke for about 10 minutes before answering questions. The inquiries were similar to those that came up at the morning hearing with Sebelius, Fleming said, and there wasn't really any new information covered.

Diane Black of Tennessee agreed. "I didn't learn much more than what I already know," she said.

Michael C. Burgess of Texas said that other meetings were going on when asked about the low attendance and also said he found the briefing useful.

"I think the agency would do itself a lot of good if it would come prepared to answer these kinds of questions in a more informal session, rather than making us go through the drama of a congressional hearing," Burgess said.

By Emily Ethridge, CQ Roll Call

October 31, 2013 -- The Senate Finance Committee and House Ways and Means Committee are releasing a joint draft framework to replace how Medicare pays physicians, hoping to create momentum for fixing a perennial issue this year.

Lawmakers hope the bicameral, bipartisan framework will prompt Congress to act and provide a less expensive alternative to a measure (HR 2810) the House Energy and Commerce Committee approved unanimously in July. An outline of the proposal was explained to reporters in a background briefing last week.

This year, lawmakers of both parties have committed to completely repealing Medicare's current payment formula, known as the Sustainable Growth Rate (SGR). The formula regularly calls for reductions in Medicare physician payments, which Congress has ignored through a series of short-term fixes. If Congress does not act this year, physicians will see their payment rates cut by about 24 percent on Jan. 1, 2014.

Committee aides said the draft proposal builds off the framework of the Energy and Commerce bill, which the Congressional Budget Office (CBO) found would cost $175.5 billion over 10 years. It is likely the new proposal would have a lower score, because it would freeze physician payments for 10 years, while the Energy and Commerce bill included small annual updates.

The CBO has found that repealing the SGR for 10 years would cost $139.1 billion—significantly lower than estimates in previous years, giving lawmakers urgency to act quickly.

Aides said that the draft framework shares many of the same goals as the House bill—repealing the SGR, moving to a system that rewards value over volume, and encouraging physicians to participate in alternative payment models.

Comments on the draft outline are due by Nov. 12, aides said, which is when the House will be back in session. The aides said lawmakers hoped to receive feedback from doctors and to eventually move a bill through the regular legislative process.

Initial reaction to the proposal from lawmakers and provider groups was positive. House Energy and Commerce Committee Chairman Fred Upton, R-Mich., and ranking Democrat Henry A. Waxman of California, issued a joint statement calling the announcement "good news."

"We look forward to working with our colleagues to enact a permanent solution that protects beneficiaries, moves Medicare to paying for value not volume, and incentivizes new models of care in Medicare this year," the lawmakers said.

Ardis Hoeven, president of the American Medical Association, said the proposal was "an encouraging development" and "a pivotal step" to stabilizing Medicare.

"AMA is currently analyzing the recently released summary, and looks forward to continuing the constructive, bipartisan dialogue that has characterized this process as preparations are made for moving legislation forward," Hoeven said in a statement.

The American College of Radiology and the Medical Imaging and Technology Alliance both released statements cheering a provision in the framework that would deny payment to imaging providers who do not consult appropriateness criteria for advanced imaging services.
Under the discussion draft outline, physicians could either stay in Medicare's traditional fee-for-service system or move to alternative payment models.

Providers who stayed in fee-for-service would have their payment rates frozen for 10 years, although they would be able to get incentive payments for participation in a comprehensive, value-based quality program.

That program would consolidate Medicare's three existing quality programs into a single, budget-neutral program that would give higher payments to providers who give high-quality, high-value care. Aides said the performance period for that program would likely begin in 2015, with incentive payments starting in 2017.

The 10-year freeze on payment rates should help keep the framework's cost down, one aide said, adding that a 1 percent annual increase could cost about $180 billion over 10 years. The House Energy and Commerce bill would give physicians automatic payment updates of 0.5 percent over five years, which the CBO said would cost $63.5 billion.

The framework also would create new payment codes for services given to patients with complex chronic care needs, set a target for correcting misvalued services in the physician fee schedule, and introduce physician-developed guidelines to reduce inappropriate care.

Under the framework, physicians who receive a significant portion of their revenue from alternative payment models in which they assumed some financial risk would also be eligible for bonus payments. The alternative payment models could include patient-centered medical homes, accountable care organizations, and bundled payment models.

In 2016 and 2017, providers would need to receive at least 25 percent of their Medicare revenue through the alternative payment model to receive a 5 percent bonus. That threshold would increase over time.

In addition, those physicians would be exempt from having their performance judged under the value-based quality program.

The framework also would expand data available for quality improvement activities and the information on quality, utilization, and transparency on the Physician Compare site for Medicare beneficiaries.

West Virginia Democrat Jay Rockefeller, chairman of the Finance panel's Health Care Subcommittee, proposed as an offset his legislation (S 740) that would require drug companies to provide rebates to the federal government on drugs used by beneficiaries eligible for both Medicare and Medicaid. The CBO found that measure would save $141.2 billion over 10 years.

By CQ Staff

November 1, 2013 -- The problems with healthcare.gov don't seem to have affected people's overall attitudes toward the health care law. The American public remains divided, with 44 percent having an unfavorable view of the overhaul and 38 percent a favorable opinion, according to the Kaiser Family Foundation's October monthly tracking poll.

The telephone survey was taken between Oct. 17 and Oct 23, well after the Oct. 1 launch of the federal health care law marketplace proved to be laden with technical issues.

The October ratings on the law are roughly the same as the nonpartisan foundation's September tracking poll. "Even with this slight negative tilt overall, a larger share of the public would like to see Congress expand the law or keep it as is (47 percent) than repeal it (37 percent), and a solid majority (60 percent) say they oppose cutting off funding as a way to stop the law from being implemented, similar to last month," Kaiser officials said in a news release.

Other findings:

• Fifty-five percent said they have enough information to understand the law's impact on their family, up from 47 percent in September.
• Ads providing information about signing up seem to have caught up to the partisan messages. For the first time in Kaiser's tracking polls, the share of respondents who said they saw ads providing information about how to get coverage (36 percent) is about the same as the those who said they saw ads for or against the law (38 percent for each).
• Nearly half the public (48 percent) say the federal government has done a "poor" job implementing the law and another third (32 percent) rate its performance as "only fair".

The survey has a margin of error of plus or minus 3 percentage points.

By John Reichard, CQ HealthBeat Editor

October 28, 2013 -- The money the health law will pump into comparative effectiveness research in 2014 will double the budget of the Patient Centered Outcomes Research Institute to $650 million, dramatically increasing the group's investigations into how to improve the outcomes of medical treatment.

Some of the money will focus on product-to-product comparisons, according to a new analysis by the California Healthcare Institute. But most of it won't, instead paying for studies on how to improve teamwork among doctors, for example, or the ways in which doctors communicate with patients about potential treatments. Insiders refer to such approaches as "systems interventions."

That differs from the original vision many promoters of comparative effectiveness research had for the field—one in which studies would be focused predominantly on investigating which drug, device or other treatment worked best for a particular condition. The two fields—treatment comparisons and system interventions—can work hand in hand, however.

The full funding of PCORI in 2014 is a development most observers haven't noticed when they discuss the big changes coming next year under the health law (PL 111-148, PL 111-152). But it's an important one, analysts say.

"Very few people actually realize what a sea change this is," David L. Gollaher, president of the California Healthcare Institute, said in an interview. The institute describes itself as "the voice of the California biomedical community in Sacramento and Washington, D.C." Its members include biotech, device and diagnostics companies as well as universities.

The findings of the institute's study are the subject of a roundtable discussion to be held this week at the National Press Club. The event is jointly sponsored by the California Healthcare Institute and NEHI, formerly known as the New England Healthcare Institute, a health policy research organization.

The importance of the field to insurers, product manufacturers, and health services researchers is clear from the lineup of speakers at the roundtable, including John Castellani, president of the Pharmaceutical Research and Manufacturers of America. Other speakers include representatives from the insurers Kaiser Permanente and WellPoint; the device maker Medtronic; AcademyHealth, which represents researchers; and the Agency for Healthcare Research and Quality.

PCORI's budget will increase from $320 million in 2013 to $650 million next year because of a surcharge on Medicare premiums and premiums charged by commercial insurers under the health law, the study says. Because of the surcharge, PCORI's budget will remain at that high level and grow incrementally in the years after 2014, Gollaher noted.

"This is an enormous increase in funding in an area that up until 2009 received very little federal funding," he said. The funding jumped that year because of appropriations under the economic stimulus law (PL 111-5). It's increasing so much because of the surcharge. Between 2010 and 2019 PCORI will have between $4.5 billion and $6 billion to spend on comparative effectiveness research, according to the institute's analysis.

PCORI is "going go to be by far the most well funded health technology assessment organization in the world, way beyond what's happening in the U.K., or Germany or France or anywhere else," said Gollaher.

PCORI's research will increasingly shift toward a product focus but Gollaher notes that drug and device makers were successful in reshaping its early agenda away from heavily emphasizing technology assessment. "There was a lot of pushback," he said.

Industry interests "were concerned that a lot of the money would go immediately to health technology assessment, meaning you would look at one device versus another, or drug versus drug comparisons. There was concern that the science wasn't really well characterized or advanced in those areas to produce good analyses.

"What we're seeing is that, in fact, a lot of the money going into PCORI at this point is focused on the patient centered part of it," Gollaher said. "In other words, grants that are going to programs within universities and health systems and so forth to enhance communications between doctors and patients, to get patients more involved in clinical decision-making, things we would describe as health systems interventions.

"Overall PCORI is devoting about two-thirds of its budget to health systems interventions," Gollaher added. About 35 percent goes to study medical interventions. The Agency for Healthcare Research and Quality will spend 91 percent of the about $100 million it will spend in 2014 on comparative effectiveness research looking at medical interventions.

Gollaher defends that makeup of the PCORI portfolio.

"Just imagine that you have some really convincing data about a specific technology or about two drugs against each other," he says. "How do you communicate that information and disseminate it among doctors and clinics? And if it works against something that doctors have been doing, or that patients expect, how do you communicate that to patients in ways that will make that convincing and appealing to them? These are all big deals. There are tons of things that are done or not done in medicine that we know are best practices and aren't followed."

The systems emphasis is "all to the good in laying a groundwork," Gollaher says. As the field moves toward showing the value of certain products or treatments over others, there will be a way to communicate that "within the medical framework for doctors and patients in which there will be more uptake and it will be more relevant."

To the extent PCORI avoids product to product comparisons, it means fewer studies that would have a bottom line impact on drug and device makers. That helps PCORI avoid controversy. But it comes at a cost to consumers who are eager to find out what among various treatment approaches works best for a particular condition.

That isn't to say PCORI isn't funding a considerable body of research comparing treatment options, however. Along with AHRQ, it's committing up to $20 million for research to evaluate the effectiveness of different treatment strategies for uterine fibroids and to better understand patient preference in informing treatment decisions.

Other examples include PCORI-funded studies comparing: three different surgical approaches for degenerative cervical spine disease; drugs to treat strokes; lumbar spine treatments for back pain; different antibiotics to treat respiratory tract infections in children; drugs to treat epilepsy; and medications to treat inflammatory bowel disease.

• CE Infographic Current Studies 
• CE Infographic Future Studies

By Dena Bunis, CQ HealthBeat Managing Editor

October 29, 2013 -- Immigration and Customs Enforcement (ICE) officials will not be knocking at the doors of illegal immigrants who have applied for health coverage in the new health law marketplaces for people in their household who are legal residents or citizens of the United States.

The Department of Homeland Security (DHS) explained that reality in a memorandum it issued this past week.

The memo said that when it comes to information people provide to the federal government for purposes of getting household members signed up for coverage under the health law, "ICE does not use information about such individuals or members of their household that is obtained for purposes of determining eligibility for such coverage as the basis for pursuing a civil immigration enforcement action against such individuals or members of their household, whether that information is provided by a federal agency to the Department of Homeland Security for purposes of verifying immigration status information or whether the information is provided to ICE by another source."

Coverage under the health law (PL 111-148, PL 111-152) is only available to legal permanent residents and U.S. citizens. But a 2010 Census Bureau report noted that about 9 million people lived in so-called mixed status homes, where some people in the household were citizens or legal residents and some were not. The Pew Research Center also estimates that 4.5 million U.S.-born children have parents who are not living here legally.

Those parents who may want to get health insurance for their citizen children through the exchanges will be required to provide information to the new marketplaces about their income and immigration status so the government can determine whether their children—or other legal household members—qualify for Medicaid, the Children's Health Insurance Program or a federal subsidy for a marketplace plan.  At a recent public event for D.C. residents about the district's marketplace, the question came up about whether an illegal immigrant would be exposed if he or she tried to sign up a family member.

The way DHS is treating the requirement that people provide health law implementers with their immigration status is much the same as when census takers went out into the field in 2000 and 2010. Federal officials were keenly interested in learning how many undocumented immigrants were living in the U.S. and immigration officials made it clear that if people put their illegal status on a census form, that would not trigger an ICE investigation.

• DHS Memorandum