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Katie Keith

On November 14, 2019, a three-judge panel of the Court of Appeals for the District of Columbia Circuit (D.C. Circuit)—Judges David S. Tatel, Gregory G. Katsas, and Karen LeCraft Henderson—heard oral argument in a dispute over the validity of a regulation to expand access to association health plans (AHPs). Twelve Democratic attorneys general—led by New York and Massachusetts—challenged the rule as unlawful, and a federal district court judge in the District of Columbia set aside major parts of the rule in March 2019.

The Trump administration appealed the lower court’s decision to the D.C. Circuit, which granted the government’s request for expedited appeal. Briefing was completed in August 2019, and the three-judge panel held a 45-minute hearing on November 14.

During oral argument, the federal government and the states reiterated their respective positions. The government argued that the final rule was within its authority to interpret the Employee Retirement Income Security Act (ERISA) and that the court should defer to its reasonable interpretation. The states argued that the Department’s interpretation was unreasonable under ERISA and violates provisions in the Affordable Care Act (ACA) related to the definition of individual, small group, and large group coverage. The panel seemed particularly interested in the intersection between ERISA and the ACA under the final rule, which agency is tasked with interpreting each statute, and the Department of Labor’s rationale for adopting the rule in the first place.

From here, the D.C. Circuit could reverse or affirm the lower court’s decision. Reversal would mean that invalidated portions of the final rule would be reinstated, and AHPs formed under the rule could resume marketing and enrollment of new members. If the D.C. Circuit affirms the lower court’s decision, much of the final rule would remain invalidated. In either instance, the losing party could ask for en banc review by a full panel of judges on the D.C. Circuit or ask the Supreme Court to hear their appeal.

Given the discussion in oral argument, the D.C. Circuit may narrowly conclude that the Department of Labor’s AHP rule is a reasonable interpretation under ERISA while taking a wait-and-see approach with respect to how HHS will respond in light of the new rule. If HHS ultimately interprets the ACA’s definition of small and large group employers in a manner that is consistent with the new AHP rule (as is expected), there may very well be another round of legal challenges.

Brief Background

Following repeated efforts to repeal major parts of the ACA in Congress in 2017, President Trump issued an executive order in October 2017 that directed federal agencies to expand access to AHPs, short-term plans, and health reimbursement arrangements. The executive order directed the Department of Labor to reconsider its definition of “employer” under ERISA and identify ways to promote AHP formation based on common geography or industry.

Pursuant to the executive order, the Department of Labor issued a new proposed rule in January 2018 and a final rule in June 2018. The final rule did nothing to disturb the regulation of AHPs formed under the agency’s prior interpretations; these “pathway one” AHPs already exist and could continue to exist under the final rule. However, the final rule allowed for new “pathway two” AHPs and made it much easier for an association to be considered a single multi-employer plan under ERISA. As a single multi-employer plan under ERISA, AHPs do not have to comply with many of the ACA’s most significant consumer protections, such as the law’s rating rules and the essential health benefits.

For pathway two AHPs, the DOL relaxed a long-standing “commonality of interest” requirement that associations must exist for a reason other than offering health insurance and, for the first time, allowed working owners to enroll in AHP coverage. The rule also included nondiscrimination protections that prohibit associations from conditioning membership based on a health factor (although not on other factors such as gender, age, geography, and industry).

Prior to the new rule, AHPs were marketed largely under existing ACA rules. Federal regulators adopted a “look through” doctrine that looked at whether the participating individual or employer is obtaining individual, small group, or large group coverage. This means that individual or small group coverage obtained through an association was regulated under the same standards that applied to the individual market or the small group market, respectively. This includes many of the ACA’s most significant consumer protections, such as coverage of preexisting conditions, rating rules, and the essential health benefits package.

More background on the regulation of AHPs, the history of the rule, and comments on the proposed rule are available here.

The District Court

Citing concerns that the rule increases the risk of fraud and harm to consumers and requires states to devote significant resources to preventing that risk, a coalition of 12 Democratic attorneys general challenged the final rule in July 2018. The attorneys general argued that rule is inconsistent with the text and purpose of ERISA and that the goal of the final rule is to undermine the ACA (which the Department of Labor was pursuing by changing long-standing interpretations of ERISA).

In March 2019, Judge John D. Bates of the District of Columbia agreed with the plaintiffs and set aside major provisions of the rule for being inconsistent with ERISA. Judge Bates agreed that the Department had the authority to interpret “employer” under ERISA, but this interpretation was not reasonable given the text and purpose of the law, which is to regulate benefit plans that arise from employment relationships. While some associations can qualify as employers under ERISA, they can do so only if the group or association of employers acts in the interest of employer members.

The Department can interpret what it means for associations to act “in the interest of” employer members for purposes of an AHP, but it cannot go so far as to ignore the statute’s restrictions or long-standing caselaw and prior precedent. Judge Bates concluded that the rule was “clearly an end-run around the ACA” and set aside the rule’s provisions related to working owners and commonality of interest. The rule was then remanded back to the Department of Labor.

Following the ruling, the Department of Labor issued guidance to confirm that state insurance departments continue to have the authority to oversee AHPs and that claims must be paid. This was followed by more guidance in late April when the Department of Labor, in conjunction with the Department of Health and Human Services (HHS) announced a new enforcement stance for AHPs under the new rule. Under this guidance, the DOL and HHS will not take enforcement action for violations that occurred before Judge Bates’ decision so long as the entity made those decisions in good faith reliance on the validity of the AHP rule. The guidance also indicated that HHS would apply the “look through” doctrine noted above when it became time for these plans to be renewed. 

Additional guidance was issued in May to confirm that “pathway one” AHPs are not affected by the court’s ruling and can continue to operate and to reaffirm that pathway two AHPs could not market to or enroll new employer members (whether small employers or working owners). HHS intended to adopt the same approach, and the Department of Labor encouraged states to consider a similar non-enforcement policy.

On Appeal

The Trump administration appealed Judge Bates’ ruling without asking for a stay and later asked for an expedited appeal since some consumers already enrolled in new AHPs under the final rule. This request was granted, and briefing was completed in August.

Amicus briefs were filed in support of the AHP rule by state insurance regulators from Montana and Oklahoma; the Restaurant Law Center; 16 Republican state attorneys general or governors; the U.S. Chamber of Commerce and other business organizations; the National Association of Realtors and state realtor associations; and the Coalition to Protect and Promote AHPs. Amicus briefs were filed in support of the states by former Department of Labor officials; former state insurance commissioners and regulators (including eight former presidents of the National Association of Insurance Commissioners); a coalition of medical professionals led by the American Medical Association; members of Congress; a coalition of consumer advocates led by Families USA; the Small Business Majority; and 36 health policy scholars.

Oral Argument

As noted above, the panel was quite interested in the intersection between ERISA and the ACA under the final rule, which agency is tasked with interpreting each statute, and the Department of Labor’s rationale for adopting the rule in the first place. Judge Tatel asked most of the questions, followed by Judge Katsas. To my knowledge, Judge Henderson asked no questions. Surprisingly, the rule’s provisions on “working owners” were not discussed at all even though that new requirement had been a major component of Judge Bates’ decision to strike down the rule. These provisions may have been overlooked in light of the focus on small employers.

In the Interest of Employers

Many of the panel’s questions centered on what it means for an association to act in the interest of its employer members. Questions touched on whether the rule would adequately prohibit and distinguish AHPs from commercial insurers and whether the Department could reasonably adopt a less stringent standard relative to its prior requirements.

The government asserted that its interpretations exceeded what is required under ERISA. It suggested that the rule’s “control” test would be sufficient to satisfy the statutory requirement that an association act in the interest of employer members. (Under the “control” test, the functions and activities of a group or association must be controlled by its members who must control the health plan, in both form and substance, and the association must have a governing body, by-laws, and maintain other legal formalities.) The control test, the government argued, was enough to address concerns about fraudulent associations.

The government characterized other provisions in the rule (including dramatically relaxed standards on whether the association had a substantial business purpose and a commonality of interest among members) as non-essential. These provisions—along with a new nondiscrimination requirement—were referred to as “nice to have” and “icing on the cake.” These requirements help the government distinguish between a commercial venture and an employer-driven venture, but they are not essential. One judge referred to the government’s position as a “belt and suspenders” approach to help screen out problematic commercial insurance arrangements.

The government also argued that the Department was not forestalled from adopting a less stringent interpretation simply because the agency had adopted a more robust interpretation in the past. Requiring the Department to maintain more stringent prior standards for commonality and business purpose requirements was, the government argued, a “fundamental error” of Judge Bates’ opinion.

The attorney for New York emphasized that the ACA not only incorporates ERISA’s definition of “employer.” It also imports ERISA’s definition of “employee” while ignoring Supreme Court precedent and the Department’s own guidance that conclude that “employee” means a direct common law employee of an individual employer. New York argues that this definition prevents the employees of an association’s employer members from being transformed into employees of the association for purposes of determining group size under the ACA. New York described this assumed aggregation principle as a “fatal flaw” to the AHP rule.

Goal and Purpose of the Rule

Where the panel seemed to take more issue with the government’s argument was with the goal and purpose of the rule. This is because even if the Department’s interpretation of “employer” is reasonable, the government still needs a rational explanation for why it adopted the rule.

The Department’s primary rationale for the rule was to make it possible for individuals and small employers to band together in associations to qualify for large group market coverage, thereby avoiding many of the ACA’s individual and small group market protections. Judge Tatel questioned whether the rule was arbitrary and capricious because the Department cannot accomplish its goal under the ACA’s definition of large employer. (Under the ACA, a large employer is generally an employer that employed an average of at least 51 full-time employees in the prior year.) Because an association does not employ employees, Judge Tatel noted, how can its small employer members band together to qualify as a large employer under the ACA?

The government responded that allowing small employers to escape the ACA’s small group market requirements was only one of the rule’s purposes. The government pointed to the benefit of enhanced bargaining power and the ability to “tailor” coverage to each employer’s needs. At least one judge pushed back on this rationale, asserting that each of the cited benefits are related to allowing small employers to participate in the large group market.

The states, on the other hand, argued that the Department is “trying to drive a truck through a very small hole” to rework the ACA. In doing so, the agency attempts to dramatically alter a definition of a much older statute for the singular purpose of allowing small employers to escape ACA regulations. The Department also gave no justifications for the rule based on ERISA; its justifications were entirely based on the ACA.

ERISA Versus The ACA

The government further sidestepped the question about its rationale by noting that HHS, not the Department of Labor, is responsible for interpreting the ACA. As such, the government takes the position that “nothing in the Department of Labor’s rule affects how AHPs, whether created under the old guidance or the new rule, are treated.” HHS has had its own prior interpretations of federal law which are not limited to the definitions under ERISA and have not been challenged. This, the government suggests, means that HHS could adopt its own interpretation of definitions under the ACA and Public Health Service Act that are separate from the Department of Labor.

Given this, the government further argues that HHS’s interpretation is not before the court at this time. The government asks the court to rule only on whether the Department of Labor’s definition of “employer” under ERISA is reasonable while leaving the question of how an “employee” is counted under the ACA for another day. That issue would only be before the court if HHS later adopts a similar interpretation.  

The states took issue with this, asserting that this issue is very much before the court now. The attorney for New York pointed to the preamble to the final rule which clearly outlines HHS’s approach. The preamble states that the final AHP rule was “developed in consultation with” HHS and other agencies and that “the final rule will apply solely for purposes of Title I of ERISA and for determining whether health insurance coverage of the AHP is regulated by Public Health Service Act (PHS Act) provisions that apply to the individual, small group, or large group market.”

Judge Katsus pressed New York on this point, noting that this interpretation is not reflected in the regulatory text. While such information might be relevant to whether the rule is arbitrary and capricious, he suggested, an interpretation in the preamble is not before the court and has no bearing on what the rule means. In response, New York argued that the rule’s incorrect interpretative assumption is so central to its future application that it should not be ignored simply because it is only in the preamble rather than the regulatory text. This interpretation, New York argues, is “a necessary part of the reasoning of the rule.” Ignoring it would be part of the “cross-your-fingers-and-hope-it-goes-away school of statutory interpretation” articulated by Judge Henderson in a prior D.C. Circuit decision on a Medicare regulation.

Here, New York emphasizes that the rule redefines “employer” only for the narrow purpose of aggregating small group employers to be treated as large employers for some purposes under the ACA (such as being exempt from covering the ACA’s essential health benefits package) but not others (such as having to comply with the employer mandate). Judge Tatel suggested that the Department of Labor does not have the authority to interpret various ACA provisions so the court should not grant any deference to those interpretations anyway.

Noting that a major purpose of the rule is to allow small employers to band together to escape regulatory burdens of the small group market, Judge Tatel pressed the government on whether the rule’s new interpretations of ERISA would still be desirable if HHS did not adopt a similar position. Put another way, if HHS maintains its “look through” doctrine even if the AHP rule is upheld, would the Department of Labor still want this rule in place under ERISA? The government suggested the answer to that question is yes but acknowledged that it would be challenging for an association to offer coverage to sole proprietors, small employers, and large employers because each market would have separate rules.

The states were pressed on a similar question. Near the end of the hearing, Judge Tatel asked if the states were concerned about the Department’s interpretation of ERISA beyond its impact on the ACA markets. New York responded that the Department unreasonably interpreted ERISA to undermine the ACA. The attorney further noted that “we are here because they are attempting to change the way the Affordable Care Act works.”

Source: Health Affairs

Aaron Yelowitz

In a hearing before the House Energy and Commerce Committee on October 23, 2019, Seema Verma, the administrator of the Centers for Medicare and Medicaid Services, testified that new data show significant problems with Medicaid eligibility. This is not surprising; in a National Bureau of Economic Research (NBER) working paper issued in August, my academic colleagues and I used microdata from the Census Bureau’s American Community Survey (ACS) from 2012 to 2017 to examine eligibility of the Affordable Care Act’s (ACA) expansion of Medicaid. We found evidence of substantial improper Medicaid enrollment following the expansion.

Recent postings by Tricia Brooks and by Judith Solomon and Matt Broaddus have criticized both these findings and a recent Wall Street Journal op-ed I co-authored with Brian Blase, who until recently served the White House National Economic Council. As I explain below, much of the criticism is incorrect and was preemptively addressed in the paper. Moreover, numerous other pieces of evidence indicate there is a serious problem of ineligible enrollment in the ACA’s Medicaid expansion programs.

NBER Working Paper Findings

In the aforementioned article, my colleagues and I compared nine states that had not expanded Medicaid coverage to the childless, working-age population at all prior to 2014 and that adopted the expansion in 2014, to 12 non-expansion states. We found that nine expansion states had significantly higher Medicaid coverage rates after implementation compared to 12 non-expansion states. Most noteworthy, we found significant increases in enrollment among those whose incomes potentially render them ineligible.

The income cutoff for the Medicaid expansion is 138 percent of the federal poverty level, roughly $36,000 for a family of four in 2019. There are some reasons why adults with incomes above this threshold could qualify for Medicaid (see explanation below), but people with incomes above 138 percent of poverty are generally not included.

We found that when states expanded Medicaid, enrollment by working-age adults with incomes above 138 percent of poverty rose 3.0 percentage points (from 2.7 percent to 5.7 percent, an increase of 111 percent of the base rate). We view this as potentially improper enrollment. Potentially improper enrollment increased over time, to more than twice as much in 2017 (3.7 percentage points) as in 2014 (1.5 percentage points).

Given that approximately 17.4 million working-age adults had incomes exceeding the Medicaid threshold in these states, even seemingly modest numbers such as these could translate into many improperly enrolled individuals. For example, if 3 percent of all people with income above 138 percent of poverty improperly enrolled in Medicaid, that translates into more than 500,000 people in just those nine expansion states.

This analysis has limitations, which we acknowledged and addressed. Several critics mischaracterized the analysis and results in an apparent attempt to downplay the potential problem of improper enrollment. I address those here and cite numerous government audits on improper Medicaid expansion enrollment. My coauthors and I also conducted additional robustness checks in response to the criticism, and the conclusion is the same—there are sizable numbers of ineligible Medicaid expansion enrollees.

Income Volatility

One reason that someone who appears income ineligible might be Medicaid eligible is income volatility. Someone with low income in the month they apply would likely have been properly enrolled at application if it turns out his or her annual income exceeds 138 percent of poverty.

To address this, we also conducted the analysis for individuals with annual incomes exceeding 250 percent of poverty (approximately $65,000 for a family of four). Far fewer people who have income above 250 percent of poverty for the year will have income in any month that would lead them to qualify for Medicaid.

Our substantive conclusions scarcely changed in response to this analysis. In expansion states, Medicaid coverage increased among this group from 1.4 percent to 3.1 percent—by 1.7 percentage points or 121 percent of the base rate. Potentially improper enrollment is much higher in 2017 than 2014. This increase in Medicaid coverage well above the eligibility thresholds suggests serious eligibility problems.

For ACS respondents with incomes at or above 250 percent of poverty, there was sizeable growth in Medicaid enrollment in expansion states relative to non-expansion states (Exhibit 1).

Exhibit 1: Average annual Medicaid enrollment among adults ages 19–64 with incomes above 250 percent of federal poverty level 

Yet, the critics ignore this evidence. In their argument, they cite a Health Affairs study on income volatility that restricted its sample to individuals below 200 percent of poverty and states: “Most people with incomes of 200–400 percent of poverty receive insurance through their employers and are unlikely to participate in Medicaid or exchange plans in large numbers; therefore, they were not included in the sample.”

Since this paper acknowledges that people above 200 percent of poverty would likely not be participating in Medicaid at any time during the year, we used a more conservative robustness check by examining individuals with incomes exceeding 250 percent of poverty.

After the criticism, however, we conducted further checks. We created a subsample of respondents with income above 250 percent of poverty who report working both full year (50 or more weeks) and full time (40 or more hours per week). Income volatility should be less important for full-time, full-year workers, who are also more affluent than the full sample of respondents with incomes above 250 percent of poverty. Prior to the expansion, Medicaid coverage was 0.4 percent for full-time, full-year  workers (compared with 1.4 percent for respondents above 250 percent of poverty), and the percentage with employer-sponsored health insurance was 77.6 percent (compared to 69.9 percent for respondents above 250 percent of poverty). The impact of the Medicaid expansion on coverage remains highly significant. The expansion raised Medicaid coverage for full-time, full-year workers with income above 250 percent of poverty by 0.8 percentage points (200 percent above the base rate). The results once again show much larger increases in potentially improper Medicaid enrollment in 2017 (1.0 percentage points) relative to 2014 (0.4 percentage points).

American Community Survey Data Issues

The critics raise some other issues with ACS data quality and our empirical judgements. Brooks notes that Medicaid coverage is not “based on actual administrative enrollment data” and is relying on “unadjusted self-reported survey data as a proxy for actual Medicaid income eligibility and enrollment.” Solomon and Broaddus note “a meaningful share of respondents appear to misreport their source of insurance coverage, as significant differences between survey-based estimates and administrative data show.” These comments are correct, but they ignore that public health insurance coverage tends to be underreported in such surveys.

The Department of Treasury’s Office of Tax Analysis compared health insurance sources from the Internal Revenue Service tax form 1095 to measures from various surveys. For individuals younger than age 65, administrative tax data revealed 75.6 million covered life years from all public insurance sources, while the point of interview measure in the ACS revealed 66.6 million individuals. Another study in Health Services Research found that “starting in 2014, there was a large undercount in expansion states that was absent in non-expansion states,” leading to “downwardly biased estimates of expansion on means-tested coverage in the ACS relative to administrative records.” The undercount exceeded 10 percent in expansion states for every year between 2014 and 2016, with ACS data missing approximately 3.9 million Medicaid enrollees. In contrast, non-expansion states had Medicaid enrollment counts far closer to administrative sources. Taken together, these findings almost certainly mean our results understate the magnitude of improper enrollment in expansion states.

Another issue raised by the critics is the complexity of household size for calculating Medicaid eligibility. Brooks notes: “The ACS household requests information for everyone in the household, including non-married partners, in-laws, roommates, and other individuals who should not be counted in determining the household size or income for Medicaid.” In response, we examined the results by restricting the sample to nuclear families, in which all individuals in the household are a household head or couple and their children. Once again, we found significant effects of the expansion on potentially improper enrollment. Overall, the expansions lead to a 2.2-percentage-point increase in Medicaid coverage for nuclear families with incomes at or above 138 percent of poverty (from a baseline rate of 1.8 percent), and 1.2-percentage-point increase for those at or above 250 percent of poverty (from a baseline rate of 0.8 percent).

Other Pathways To Medicaid

Our principal findings do not change when we exclude working-age adults who may have alternative pathways to qualify for Medicaid. In particular, we exclude survey respondents with the other lawful pathways to qualify for Medicaid—those who reported having a baby in the previous year; reported disability; or reported income from public assistance, Supplemental Security Income, or Social Security. The impact of the ACA’s Medicaid expansions on improper enrollment scarcely changes. Medicaid enrollment among this group increases by 2.7 percentage points after implementation of the expansion, compared to 3.0 percentage points for the overall population. In fact, as a percentage of the base rate (now 1.4 percent rather than 2.7 percent), the effect is now considerably larger (193 percent compared to 111 percent).

Brooks mischaracterizes this finding, asserting that “while the sensitivity analysis appears to substantially change their results, the authors still focus on the unadjusted numbers.” On the contrary, the results from the sensitivity analysis that exclude adults who may have alternative pathways support rather than undercut the main findings.

Audit Studies

Our critics argue ineligible enrollment is not a significant issue because states have procedures for verifying eligibility. Brooks states, “All income must be verified through trusted electronic sources when possible, or through documentation provided by the enrollees.” Solomon and Broaddus write, “Medicaid Programs Have Stringent Verification Procedures.” Of course, such assertions are merely statements of what government is supposed to be doing. Second, several government audits corroborate our findings, showing that existing verification procedures are inadequate and that there are sizeable numbers of ineligible expansion enrollees.

As of September 2019, the Office of Inspector General (OIG) at the Department of Health and Human Services has published results from a series of audits covering part of the 2014–15 period in four states (California, Colorado, Kentucky, and New York) for beneficiaries enrolled in the expansion. The OIG has also released reports on similar determinations for non-newly eligible adults in California, Kentucky, and New York. All the reports show that there are serious problems with eligibility-verification systems, and policy experts are naïve to take it on faith that they are working.

Consistent errors include neglecting to verify income eligibility properly, misclassifying individuals into incorrect category classifications, failing to properly verify citizenship, and other issues. Some of these enrollment errors lead to incorrect and often higher federal reimbursement for individuals who would qualify for Medicaid under a category other than “new adults,” while others lead to complete ineligibility for Medicaid. As examples:

• California’s “eligibility determination systems lacked functionality or eligibility caseworkers made errors…the State agency did not properly input application information and verify income or lawful presence.” The OIG estimated more than 366,000 ineligible and 79,000 potentially ineligible beneficiaries.
• In Colorado, “contrary to the provisions of its own verification plan, [the state] relied on self-attestations rather than income verifications.” In addition, “lags in both the eligibility system and the State agency’s reasonable compatibility process…delayed disenrollment.” The OIG estimated more than 85,000 ineligible and 13,000 potentially ineligible beneficiaries.
• In New York, the OIG estimated more than 47,000 ineligible beneficiaries. The OIG points to an example in which one beneficiary was enrolled after attesting to an income of approximately $35,000 with a household size of one, despite the income threshold being $16,105 for a household size of one.
• Kentucky “did not always meet Federal and State requirements when making eligibility determinations because of human and system errors.” The OIG estimated nearly 35,000 potentially ineligible beneficiaries.

A state-level audit in Louisiana noted serious deficiencies in the eligibility process as well. Unfortunately, imprecise language in the Louisiana audit led many media outlets to report that the state had performed a random sample of 100 Medicaid expansion enrollees and found 82 of them were ineligible. It was actually a targeted audit. Regrettably, the imprecise language was reflected in the Wall Street Journal op-ed.

Conclusion

The critics of our NBER working paper and Wall Street Journal op-ed did not raise any substantive issues that we did not already acknowledge and address in the paper. The evidence—whether broad survey data from the Census Bureau’s ACS or highly detailed audits from the OIG—suggests serious problems with program integrity related to the ACA’s Medicaid expansion. Based on Verma’s recent testimony, it appears we will soon have more information about the extent of the issue.

Source: Health Affairs

• John Auerbach, Joanne Lynn

Just a few generations ago, a much smaller percentage of the US population lived into advanced old age and even fewer lived long with serious disabilities and illnesses. Those who lived with serious disabilities in their advanced years usually lived with multigenerational families providing support. Now, most Americans will live beyond age 65, and most will do well for a time and then live for some years with declining capabilities. The number of older adults living with frailty and disability will nearly double between 2012 and 2035. Eventually, 70 percent will become dependent upon others for daily tasks for an average of about two years. Additionally, 46 percent of women older than age 75 live alone, with no live-in help. At this critical moment, public health perspectives can help to describe this substantial threat as it is arising and to propose and implement strategies to prevent or mitigate the suffering. Improvement activities need population-based data, public-spirited consideration of options and priorities, and commitment to the public’s well-being.

To be sure, most Americans will be in good health and able to live independently without assistance as they pass their 65th birthday. The prevention-oriented initiatives of the public health sector—including those that target tobacco use and promote healthful food consumption and routine physical activity—will continue to help prolong their well-being.

But most older adults will eventually have substantial health challenges and progressive disabilities that will require assistance and adapted environments. Yet, the US has done astonishingly little to prepare for older adults’ needs in their last years of life. A recent simulation showed that, by 2029, most middle-class people who are age 65 and older will be unable to afford the housing and health care they need. In many states, the large number of people who rely on Social Security income will make too much money to be eligible for Medicaid but too little to pay for such essentials as housing, food, and personal care. Already, wait times for senior home-delivered food service are often more than six months; and wait times for affordable housing often go beyond the expected lifespan for disabled older adults. 

The Important Roles Of Public Health 

The well-being of older adults with significant disabilities and frailty depends less upon the existing public health programs that focus on changing individual behaviors and more upon improving the conditions within the community—housing stock, personal care workforce, flexibility of employers regarding caregiving, transportation arrangements, availability of senior food delivery, and so on. Those in the health care sector are increasingly screening patients for the social determinants of health. But once identified, people needing help face remarkable gaps in meeting these identified needs. No physician can prescribe food delivery when the community has a long waiting list, nor housing when none is available.

This is, in part, where the public health sector comes in. Public health officials can use their respected positions, as well as their experience in addressing a wide range of health issues, to shape the conditions in communities to be more routinely supportive to older adults. Specifically, public health practitioners and the Centers for Disease Control and Prevention could take these actions:

1. Provide data that reflect the experiences of frail and disabled elders and their families. Public health departments routinely track the demographic, socioeconomic, and health-related characteristics of residents of the communities they serve. However, they have rarely focused attention on the experiences of older adult populations and their caregivers. National surveys are too thin to apply to localities, medical records are both inaccessible and inadequate in characterizing disabilities, and no other data sources are generally available. Without such information, policy makers are in the dark about many of the needs of this population.
2. Review and adapt public health work underway. Public health departments manage scores of programs including those designed to prevent infectious and chronic disease and assist in emergency preparedness. However, many of these programs have not been adapted to address the specific needs of older adults. For example, special steps are needed to ensure the safety of frail, older adults when a weather-related emergency occurs.
3. Convene service providers, data holders, stakeholders, and older adults to review community performance in eldercare, set priorities, and monitor efforts to improve deficiencies. Public health officials are often trusted, independent voices with the ability to unite people from diverse sectors to better understand and solve identified problems facing older adults.
4. Drive public and policy maker attention to the urgent call for planning for this demographic change, including highlighting improved societal arrangements for encouraging private savings and for expanded access to public benefits and programs, all of which require years of lead time. At present, for example, many cities have wait times lasting more than six months for senior home-delivered food service. For accessible and affordable housing, the wait times can be a few years long or more. Most retirees do not have income or assets sufficient to support them in retirement, even before developing substantial costs for supportive care. Public health officials should be able to identify and promote evidence-based policies that can be scaled and spread to improve health with sensitivity to controlling costs.

Public health perspectives and tools are designed for these tasks, but rarely are they used to address the needs of this segment of the older adult population. 

Mobilizing The Public Health Response

Florida has modeled one encouraging way to bring public health tools to bear on aging. That state has started an “Age-Friendly Public Health” pilot, with the Florida Health Department in the lead and 37 county health departments participating. Participating counties represent 65 percent of both the state’s population and its age 65-and-older population. The county public health departments are producing county-specific data reports, adapting their emergency preparedness plans, linking with elder services organizations in their areas, and working toward better policies and programs to meet the needs of older adults. Drawing on experiences from the Florida model and others, the Trust for America’s Health and The John A. Hartford Foundation jointly developed a “Framework for an Age-Friendly Public Health System.” 

However, public health initiatives and the use of public health expertise to meet the challenges has been quite limited. The Centers for Disease Control and Prevention does not yet have a unit or funding to support healthy aging and adequate supportive services during declining health. Some local public health agencies have developed limited falls prevention and immunization outreach programs, although usually with little sustained funding or staffing. The governors of California, Massachusetts, Florida, and New York have pledged that their states will become more “age friendly,” although the meaning of that phrase varies from state to state. 

Every month that goes by without the mobilization of the public health community increases the likelihood of preventable suffering and deaths from inadequate attention to eldercare in public health emergency planning, inability to tolerate heat or cold in poor housing, lack of adequate food, obstacles to mobility, substance misuse, social isolation, and unsafe living conditions. 

The Urgency Of Acting Now

The situation for frail elders, families, and governments will be dire within a dozen years if leadership and resources do not shift to meet population needs. The US will have so many older adults unable to find housing and buy food, even before they encounter serious disabilities. Families and governments will confront economic realities that will demand the balancing of the prevention of suffering on the one hand with the aversion against increasing taxation on the other. Having the opportunity to live into old age should be a source of great joy. Older adults should not have to envision being hungry, homeless, and alone.

Planning now can avert the suffering and much of the adverse effects upon ensuing generations. The mission of public health organizations and personnel is to improve the health and safety of our nation. They have the skills, tools, and expertise to shape the planning and changes needed. The lead time on implementing better financing, services, and environment is substantial, so the time for action is now.

Source: Health Affairs