Senate Votes Against Repeal: Out of the Woods but for How Long?

Last Wednesday, the Senate voted 47-51 against the “Repealing the Job-Killing Health Care Law Act.”  50  Democrats and one Independent voted against the Act while all 47 Republicans voted in favor of it (click here to view results).  No surprises there… but where do we go from here?

The Washington Post and the New York Times report that pro-repeal Senators and activists remain energetic and optimistic.  Senator John Cornyn (R-Texas) observes “[t]hese are the first steps in a long road that will culminate in 2012.”  Marilyn Shachter, a tea party activist, predicts a repeal “definitely will happen. It may take until 2012, or after 2012, when we get rid of Mr. Obama and a lot of these borderline senators that are up for reelection are replaced.”  Keith Hennessey, former Assistant to the President for Economic Policy and Director of the National Economic Council, outlines a two-year “path to repeal” the Patient Protection and Affordable Care Act (PPACA):

• Keep up the pressure in 2011 and 2012:
  • maintain and strengthen Republican unity toward full repeal;
  • repeatedly attack the bill legislatively on all fronts, knowing that most votes will pass the House and fail in the Senate;
  • continue legal pressure through the courts; and
  • tee up repeal as a key partisan difference in the 2012 Presidential and Congressional elections;
• In 2012 win the White House, hold the House majority, and pick up a net 3 Republican Senate seats to retake the majority there; and
• In 2013, use reconciliation to repeal ObamaCare, requiring only a simple majority in the Senate.

ABC News notes that the latest repeal attempt “was just one of three ways the Republicans are trying to kill the health care law.”  The second way involves the constitutional challenges filed in the courts.  The third way involves Senator Lindsey Graham (R-SC) and Senator John Barrasso’s (R-WY) proposed legislation allowing states to opt out of certain PPACA provisions, such as the individual mandate.

I would add a fourth way: good ol’ public relations (see my previous post on renaming/rebranding PPACA).  For instance, last Thursday Alaska Governor Sean Parnell announced that he had asked the state attorney general whether implementing and enforcing PPACA would violate his oath of office.  The Governor described himself as being “caught between a federal government that says, ‘You must pursue this, you must pursue this,’ and I have the duty to uphold the rule of law.”  There’s some solid, dramatic PR right there.

Be that as it may, the Senate has spoken.  The lower courts have spoken.  Senators Graham and Barrasso have spoken.  Governor Parnell has spoken.  Members of this blog have spoken.  Must we wait until Mr. Hennessey’s two year “path to repeal” has been successfully implemented or foiled before the Supreme Court chimes in?

An Update on the So-Called Young Invincibles: What Health Care Reform Does for Them

Last year I wrote about why the misconceptions about my generation, dubbed “young invincibles” by many, have perpetuated a belief that young people do not care about health insurance.  Thankfully, the health care reform legislators realized that we too, with our superpowers and all, prefer to be healthy and insured.

The most immediate benefit that dependent young people will see under the Patient Protection and Affordable Care Act is the ability to stay on their parents’ insurance until the age of 26; this will take effect in six months. For recent college graduates, and many who have chosen not to pursue a college education, this brings a sigh of relief. The bill also loosens the requirements for who qualifies as a dependent. Even for those who will be approaching 26 soon after the bill passes, the new age limit will afford some time to get coverage through a job with benefits. Marriage status may not necessarily restrict whether or not a child can stay on their parents insurance, as noted by young uninsured expert Sara Collins. Employed children may also qualify for the dependency status as long as they do not have the option of health insurance through their employer. The new bill also applies to all health plans, whether fully insured or self-funded, which was not the case under most state health care extensions to young people.

For those young people that will be 26 before this September, there are other options. The organization that helped esure representation of young people throughout the health care debate, aptly named Young Invincibles, provides a timeline of the other health reform bill measures that will offer help to the young uninsured. It also shows  when these provisions will take effect.

One of the main benefits to consider is that by 2014, more young people will qualify for Medicaid. This will help insure about 9 million young people. Young Invincibles co-founder Ari Matusiak finds that young people will be some of the greatest beneficiaries of the health care reform bill because the young population is currently the poorest of the age demographic groups and because the bill aims to make health care more affordable for those least able to afford it.

One of the other benefits young people will be afforded comes in the form of  tax credits to purchase insurance from the individual market. These are available to those individuals who earn less than $43,320. While the individual market is not the friendliest place to be, new reform measures will ensure that health care prices will not be based on pre-existing conditions and limits the ratio of premiums based upon age (down to 3:1).  The pre-existing condition restriction certainly helps those young people who have chronic conditions (about 15% of us.) Though the age rating restriction benefits older people more than young people, Ari Matusiak rightfully points out that young people are not going to be young forever and can appreciate the idea that we will have security of being able to get insurance without being discriminated against in the future.

Scare tactics are rearing their ugly head again, as many say that the new benefits offered to young people are just increased burdens. Yes, young people will be required to purchase insurance under the new reform bill or they will be subject to a penalty.  The fine will be $95 in 2014 and will gradually increase each year (until 2016, when it tops out at $695 or 2.5% of an individual’s annual income). Given this minimal penalty at the outset, many assume that young people will opt out of purchasing insurance and just pay the fine instead. These are the same people that think young people don’t care about feeling secure with health insurance.  Well, to put this succinctly, we do care. Some may, out of economic desperation, eschew coverage, but so many of us have relatives and friends who have had catastrophic health issues that have left them in debt (or further in debt), that the choice is not likely to be made lightly. We have had our own health issues.  We need prescription medicines and regular checkups. We are not invincible– and we know it.

A majority of us are supportive of the health reform bill.  As young people, we must educate ourselves about the health reform bill so that we know where we stand. We are an integral piece of the reform legislation working as planned.  And while we won’t be duped to do something that harms us more than helps us, we also won’t be beguiled into believing that the new health care legislation is not for us — it is for us– and we should reap its benefits as part of our political patrimony, knowing that in doing so we also help to provide for our posterity.

Consumer Watchdog Spots Health Reform Loopholes

Consumer Watchdog has authored an important letter to HHS Secretary Kathleen Sebelius on loopoholes in PPACA. The letter highlights the importance of rapid and forceful rulemaking at HHS to ensure that the framework set up by legislation actually promotes affordable access to care. Here are some highlights.

1) Vague “review” of insurance rate increases: The statute provides grants to assure that states “review” insurer rate increases, but does not provide adequate guidance on acceptable performance here. Without something like “all-payer rate setting” operating as background cost-control, the legislation’s prescribed “medical loss ratios” could even encourage insurers to increase rates:

the federal law’s requirement that insurers spend 80% or 85% of the premiums they collect on health care services will—absent strict rate regulation—perversely encourage insurers to raise their premium rates. In the same way that a Hollywood agent who gets a 20% cut of an actor’s salary has an incentive to seek the highest salary, insurers will have incentive to increase health care costs and raise premiums so that their 20% cut is a larger dollar amount.

2) Lack of real rescission reform: One of reform’s key selling points is preventing rescissions–an insurance company’s cancellations of policies for members just at the point they need them most. Consumer Watchdog worries the protections will turn out to be illusory:

A key rallying cry for federal reform was the insurer practice known as rescission—retroactive cancellation of coverage after a patient makes a claim for health care services. Insurers often argue that a rescission is warranted because the patient intentionally failed to report minor health problems when applying for coverage. Such rescissions are carried out unilaterally by the insurer and regardless of whether the patient even knew about, or understood the significance of, the health problem the insurer claims was intentionally omitted from the application. Since an applicant’s health condition is no longer relevant to determining insurability, coverage rescissions should be barred outright.

However, section 2712 of the Senate legislation allows for rescission of health policies on
the basis of fraud or the “intentional misrepresentation of material fact as prohibited by
the terms of the plan or coverage.” The insurers are left to define the terms of future coverage rescissions in the fine print of their policies. No new regulatory oversight of rescission is provided to ensure that omissions or errors are indeed fraudulent or intentional, rather than innocent mistakes.

3) Manipulating the Medical Loss Ratio: Here CW calls out Wellpoint, whose CEO enjoyed a massive pay increase last year while socking it to California insureds.

The new federal health reform law requires that insurers spend at least 80% of customers’ premiums on medical care in the individual insurance market, and 85% in the employer/group market. HHS must narrowly define what constitutes medical care to block gaming of the new medical loss ratio requirement by health insurers. [because insurers like Wellpoint have said they would] simply re-label administrative costs as “medical care” in response to the new health reform law.

4) Weak federal fallback. This is one of the most disturbing aspects of the Consumer Watchdog letter, and definitely bears watching as state governments hostile to reform begin implementing it:

The threat of strong federal fallback is the kind of carrot and stick approach that would encourage state regulators to act where they otherwise may not. However, federal enforcement fallback provisions are virtually absent from the bill. For example, under section1321(c) federal regulators shall step in to operate a state Exchange if (and only if) a state fails to implement one at all. . . . Medicaid, HIPPA, COBRA, and the CHIP program for children’s health insurance all provide minimum
federal standards and funding levels but allow states to fit the federal program to local needs,
provide enforcement, and adopt more robust regulations not envisioned by federal law.

Since the courts have not been very supportive of judicial interventions to enforce Medicaid beneficiaries’ legal rights (given Gonzaga v. Doe), it’s essential for the feds to develop a record of enforcement when wayward states fail to protect their citizens.

Image Credit: Linda Hirschman.

The Individual Mandate’s No Insurance Tax & the IRS: How Will they Collect?

Interesting article by Timothy Noah over at Slate on the enforceability (read, “collection”) of taxes assessed for failure to procure insurance under the individual mandate contained within the new Health Reform law.

Noah, working with some posts from Prof. Timothy Jost and some recent comments from the IRS Commissioner, Douglas Shulman, notes provisions within the bill that will make enforcement difficult. They are worth noting.

As the failure to procure assessment is a tax, the IRS is charged with its collection. Verification will be done through a form similar to the 1099 for bank interest, but this form will be received from one’s insurance company. You will then attach that form to your tax return. And if you don’t and do not pay the either $695 or 2.5% of your income–whichever is higher? The Health Reform law imposes fairly stringent restrictions upon the form that collection efforts may take. From Noah:

What if your failure to obtain health insurance means you owe the penalty but you nonetheless refuse to pay it? That’s where things get tricky. The IRS can’t throw you in jail, because the health reform law explicitly states (on Page 336): “In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.”

Nor can the IRS seize your property, because the law states (also on Page 336) that the health and human services secretary may not “file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty … or levy on any such property with respect to such failure.”

So without the ability to prosecute, penalize, or file a notice of lien–what’s left? As Noah notes, Tim Jost points out that most people, desirous of obeying the law generally, will do so in this matter particularly. And many who do not have health insurance–often the self-employed or independent contractors of some sort or another with long complex and deduction riddled tax returns–will be prudently averse to raising the red flag of  civil disobedience.

According to Commissioner Shulman (again via Noah who took the time to transcribe Shulman’s press conference in its pertinent parts),

“People will get letters from us. We can actually do collection if need be. People can get offsets of their tax returns in future years, so there’s a variety of ways for us to focus on things like fraud, things like abuse, and we’re gonna run a balanced program.”

Noah then asks a rather interesting series of questions:

But if the IRS owes you a refund, isn’t that refund in effect your property? And if the IRS decides to withhold part or all of that refund because you didn’t pay your tax penalty for not obtaining health insurance, doesn’t that amount to seizure of your property? Or was Shulman just talking about people who might claim they paid the penalty but really didn’t, or who might claim that one of the law’s exemptions applied to them when it really didn’t, or who might engage in some other form of conscious duplicity that violated some other statute? (Is that what Shulman meant by “things like fraud, things like abuse”?) I’m not certain Shulman’s reply addressed the scenario Jost envisioned, wherein a civilly disobedient citizen would forthrightly tell the IRS: Yes, under this law I owe you $695, but I refuse to pay it. What are you gonna do about it?

First things first, I would argue that fraud and duplicity are separate from merely not paying or refusing to pay. Congress enjoined the prosecution or the levy of liens for a failure to pay–that does not include, in my estimation, a similar proscription against prosecuting tax fraud– which is what such “conscious duplicity” would entail. Separate matter, separate punishment– which I think the Commissioner alludes to in the above quote.

As for the withholding of a refund? It is, I believe, a valid exercise of the office. It may, however, for analysis, be easier to think of the practice as “an offset,” not a withholding of refund. It’s an important distinction under these circumstances and the Commissioner spoke in terms of “offset.”  The IRS will not so much be keeping your refund from you, as they will be merely utilizing the money withheld for its explicitly intended purpose: to pay a valid tax. In the scheme of things it would not be proper to say that the IRS owed you a $1000 refund, but then deducted $695 tax from your refund for your failure to have health insurance, and thereby left you with a refund of only $305.

They never owed you $1000 to begin with. Because you didn’t have health insurance, you owed an additional $695 in tax. You never had $1000 coming from the IRS. They only ever owed you $305; the “refund” being that which remains after all your tax has been paid. The other $695, by law, was always theirs and they have merely used the money set aside (for most people, incrementally through each paycheck) in the manner for which it was intended: to pay a valid tax. It is not “seizure,” merely appropriate allocation.

Mintz Levin: “Health Care Reform Advisory: Assessing the Impact of Federal Health Care Reform on Employers and Employer-Sponsored Group Health Plans”

I’ve written before on this blog about the value of Mintz Levin’s reports, and am about to do so again (you can find their  work, as a permanent link, under “Resources” on this blog). There is, linked below, a very nicely done recap of the health reform law– which gets quickly to the point regarding the implications of a number of provisions within the law for employers and employer-sponsored group health plans. For those of you unfamiliar, Mintz Levin is  a law firm with its primary office in D.C., and a health sciences group with a well deserved reputation for excellence. If you are an employer, or even an employee that has some appropriate notion of “trickle-down,” I highly recommend you take a look.

Written by Alden J. Bianchi and Patricia A. Moran, “Assessing the Impact of Federal Health Care Reform on Employers and Employer-Sponsored Group Health Plans,” may be found here.

Health Care Reform Law: Help for Hospitals?

Last week, Samuel Maizel, a bankruptcy lawyer specializing in representing health care businesses in distress, gave a great talk here at Seton Hall Law on “Hospitals in Crisis: Debt Restructuring Options & Issues for Financial Survival.”  Mr. Maizel painted a grim picture of the financial pressures facing hospitals and said he does not believe the situation is going to improve in the near term despite the overall economic recovery.

Near the end of his talk, Mr. Maizel told us that hospitals across the country are combing through the health reform legislation looking for anything that could improve their bottom lines.  This piqued my interest and made me wonder what they will find.  Using the House Committees’ summary of the provisions in the bill relating to delivery system reform as a guide, I came up with the following.

Sec. 3001.  Rewarding High-Quality and Efficient Care.

This provision, which applies to patients discharged on or after October 1, 2012, establishes “value-based purchasing,” meaning that the government will make “value-based incentive payments” to hospitals that provide care to Medicare patients that meets or exceeds certain performance standards to be established by the Secretary of Health and Human Services.  Initially the standards must relate to at least the following five conditions: heart attack, heart failure, pneumonia, surgery, and healthcare-associated infections.  Eventually (by fiscal year 2014) the standards are to incorporate “efficiency measures,” that is Medicare spending per beneficiary must be a factor.

Sec. 3022.  Medicare Shared Savings Program.

This provision, which Jordan Cohen analyzed at length here, directs the Secretary of Health and Human Services to establish a program by January 1, 2012 through which accountable care organizations that save Medicare money would be entitled to a cut of the savings they achieve.  Hospitals are eligible to participate in the program through a partnership or joint venture arrangement with physicians or as employers of physicians.

Sec. 3023.  National Pilot Program on Payment Bundling.

Under this 5-year long pilot program, which the Secretary must establish by January 1, 2013, the government will make one bundled payment “for integrated care during an episode of care provided to an applicable beneficiary around a hospitalization in order to improve the coordination, quality, and efficiency of health care services.”  Episodes of care begin 3 days prior to hospitalization and end 30 days after discharge.  Hospitals can apply to participate in the program (and/or submit a bid) as part of “[a]n entity comprised of … a hospital, a physician group, a skilled nursing facility, and a home health agency.”

While the above three provisions hold out hope of improvement to hospitals’ bottom lines, the House Committees’ summary also highlights two provisions which establish negative incentives.  Section 3008 on Hospital Acquired Conditions provides that, beginning in fiscal year 2015, the government will cut by 1% the payments it makes to hospitals in the top quartile for hospital acquired conditions.  Similarly, Section 3025, the Hospital Readmissions Reduction Program, provides that, after October 1, 2012, the government will begin reducing the amount it pays to hospitals with “excess readmissions.”

Health Reform, “Death Panels,” & Section 1182–What the Text Really Says

This post is a follow-up to my prior post on the Patient-Centered Outcomes Research Institute, a nonprofit corporation created by the Patient Protection and Affordable Care Act (the Health Reform Law), which will oversee comparative clinical effectiveness research–or, in Palin-ese, “the Death Panel.” The pertinent text of the law under which the Institute will operate appears below along with explanation in the plainest English available.

LIMITATIONS ON CERTAIN USES OF COMPARATIVE CLINICAL EFFECTIVENESS RESEARCH

Sec. 1182. (a) The Secretary may only use evidence and findings from research conducted under section 1181 to make a determination regarding coverage under title XVIII if such use is through an iterative and transparent process which includes public comment and considers the effect on subpopulations.

• TRANSLATION: Must be open and transparent and must consider effect on particular groups, but can use research to make determinations regarding coverage

‘(b) Nothing in section 1181 shall be construed as–

‘(1) superceding or modifying the coverage of items or services under title XVIII that the Secretary determines are reasonable and necessary under section 1862(l)(1); or

‘(2) authorizing the Secretary to deny coverage of items or services under such title solely on the basis of comparative clinical effectiveness research.

• TRANSLATION: Coverage cannot be based solely on CER

‘(c)(1) The Secretary shall not use evidence or findings from comparative clinical effectiveness research conducted under section 1181 in determining coverage, reimbursement, or incentive programs under title XVIII in a manner that treats extending the life of an elderly, disabled, or terminally ill individual as of lower value than extending the life of an individual who is younger, nondisabled, or not terminally ill.

• TRANSLATION: CER cannot be used to assign a  lesser value to extending the life of the elderly, disabled or terminally ill (as compared to the younger and healthier) in regard to treatment. Health care dollars cannot be allocated first (or exclusively) to young and relatively healthy individuals under the rationale that extending the lives of the younger and healthier is, by definition, more valuable. The issue is further explored in 1182(e), discussed below. 1182(e) further limits the use of such valuations with regard to the Quality Adjusted Life Year.

‘(c)(2) Paragraph (1) shall not be construed as preventing the Secretary from using evidence or findings from such comparative clinical effectiveness research in determining coverage, reimbursement, or incentive programs under title XVIII based upon a comparison of  the difference in the effectiveness of alternative treatments in extending an individual’s life due to the individual’s age, disability, or terminal illness.

• TRANSLATION: When evaluating treatments to extend an individual’s life, CER can be used to determine whether Medicare will cover one  treatment rather than an alternative. Specifically, an individual’s age, disability, or terminal illness can be a factor in deciding which treatment will be covered, reimbursed and/or incentivized.  For example an elderly person with severe coronary artery disease may have two treatment options: surgery (e.g. revascularization) or drug therapy. Both of these treatments would theoretically extend the life of the patient by reducing the odds of a heart attack or stroke. However (hypothetically) CER data may demonstrate that an individual of advanced age lives longer on average if they opt for drug therapy. In such a circumstance, this section provides that CER data may take into account the individual’s age, disability and terminal illness when comparing two alternative treatments. It may also be the case that CER data shows that individuals with certain disabilities are less likely to respond to surgery or to different treatment, possibly due to immobility, or even impending death. Again, these facts can be taken into account in the CER calculus.

‘(d)(1) The Secretary shall not use evidence or findings from comparative clinical effectiveness research conducted under section 1181 in determining coverage, reimbursement, or incentive programs under title XVIII in a manner that precludes, or with the intent to discourage, an individual from choosing a health care treatment based on how the individual values the tradeoff between extending the length of their life and the risk of disability.

• TRANSLATION: The Secretary cannot use CER to deny or try to persuade a patient from choosing a treatment that may prolong their life but leave them severely disabled. Alternatively, the Secretary cannot prevent a patient from choosing a treatment which may improve the quality of their life, as opposed to an alternative treatment which may extend the length of life.

‘(2)(A) Paragraph (1) shall not be construed to–

‘(i) limit the application of differential copayments under title XVIII based on factors such as cost or type of service; or

• TRANSLATION: The extant differential copayment guidelines are unaffected. 

‘(ii) prevent the Secretary from using evidence or findings from such comparative clinical effectiveness research in determining coverage, reimbursement, or incentive programs under such title based upon a comparison of the difference in the effectiveness of alternative health care treatments in extending an individual’s life due to that individual’s age, disability, or terminal illness.

• TRANSLATION: See 1182(c)(2) discussed above.

‘(3) Nothing in the provisions of, or amendments made by the Patient Protection and Affordable Care Act, shall be construed to limit comparative clinical effectiveness research or any other research, evaluation, or dissemination of information concerning the likelihood that a health care treatment will result in disability.

• TRANSLATION: This section is straightforward. The Institute can compare various treatments and determine which is more likely to result in a disability, and disseminate those findings.

‘(e) The Patient-Centered Outcomes Research Institute established under section 1181(b)(1) shall not develop or employ a dollars-per-quality adjusted life year (or similar measure that discounts the value of a life because of an individual’s disability) as a threshold to establish what type of health care is cost effective or recommended. The Secretary shall not utilize such an adjusted life year (or such a similar measure) as a threshold to determine coverage, reimbursement, or incentive programs under title XVIII.’

• WHAT IS A QALY?: The Quality-Adjusted Life Year (QALY) is defined by the NIH as:
  • (1) A unit of measure of utility which combine life years gained as a result of health interventions/health care programs with a judgment about the quality of these life years.
    (2) A common measure of health improvement used in cost-utility analysis, it measures life expectancy adjusted for quality of life. (See NIH’s Health Economics Information Resources, Glossary, at http://www.nlm.nih.gov/nichsr/edu/healthecon/glossary.html#QALY)
• The goal of the QALY is to ensure that healthcare resources are allocated in a manner which is most beneficial. Because healthcare resources are scarce, however, the $/QALY looks to allocate those resources economically. The QALY ipso facto discounts the value of life due to a disability. This is because the QALY works by assigning different states of health along a continuum, with perfect health being 1 and death being 0. The QALY is interested in whether different treatments provide more QALYs, In other words, QALYs are interested in whether one treatment provides more years at a better state of health (i.e., closer to 1) than another treatment. See M. Weinstein, Spending Health Care Dollars Wisely: Can Cost-Effectiveness Analysis Help? (2005)

• TRANSLATION: The Institute cannot utilize a $/QALY ( or a similar measure) as a threshold to establish what treatment is cost-effective, recommended or incentivized. (It is, however, noteworthy that in describing “similar measure,” both “age” and “terminal illness” are not expressly excluded as prohibited criteria in the development of a metric, as they are throughout the text of other portions of the provision).

• Note: 1182(c)(2) does allow for a disability to be taken into account when comparing various treatments for an individual. That section must be distinguished from the current section (1182(e)), where the upshot is that the dollar valued QALY cannot be a benchmark by which to allocate resources. If we are only determining which of two resources to a given individual shall be reimbursed, then the individual’s disability may be taken into account, i.e., treatment effectiveness under the individual’s circumstances  is a metric for which CER may be utilized; however, dollar value of life quality is not a permitted metric or criteria for treatment.

States Disclaim Own AG’s Suit

A few days ago we published Professor Mark Hall’s post, “Are The Attorneys General’s Constitutional Claims Bogus?” It seems he is not the only asking that question. As noted in The Plum Line, The Governors of four states,  Chris Gregoire of Washington, Bill Ritter of Colorado, Ed Rendell of Pennsylvania, and Jennifer Granholm of Michigan, have expressed their dismay at the prospect of the AG’s suit in a letter to US Attorney Eric Holder:

We believe their legal efforts will fail in court, unnecessarily delay the urgent need to get our citizens access to health care and waste our state tax dollars. As you prepare and deliver your defense of this landmark legislation, you have our commitment to work with you, at your request, to assist in this effort.

Again courtesy of The Plum Line, read the full letter here.

Health Reform, Women Helped Make It Happen

As I watched C-SPAN last Sunday afternoon, I found it inspiring that the health care legislation was being voted on in the House during Women’s History Month.  And to see the fight to passage being led by two amazingly powerful women, Speaker of the House Nancy Pelosi, and her right-hand woman Representative Louise Slaughter of New York, the milestone of health care reform became even more monumental for me. The commitment to health care reform by women leaders such as Pelosi and Slaughter led to the reconciliation bill’s passage on Sunday.

Nancy Pelosi, who is now being called “Lyndon Johnson in a skirt,” was vital in rallying needed Democratic votes last Sunday.  Pelosi held individual meetings with many of the swing-voters, reminding them of the importance of the bill.  In addition, many cite her persuasive skills in keeping the Obama Administration from ceding more to Republican demands.  Meanwhile on the floor of Capitol Hill, Louise Slaughter, a Congresswoman whose district serves Rochester, Niagara Falls, and Buffalo, NY, added a personal element of to reform as she called on other representatives to share stories of their constituents’ everyday issues with the current health care system.

Though some were said to be uncomfortable with the executive order which essentially reiterated the Hyde Amendment, there are a number of wins that women can point to, regardless of their stance regarding the executive order.  Women will have cheaper premiums since insurance companies can no longer practice gender rating.  They will have coverage for needed preventive care like mammograms and Pap smears.  In 2014, insurance companies will be required to cover maternity care, newborn care, and certain mental health care.  Also by 2014, health insurance companies will no longer be able to discriminate based on pre-existing conditions such as C-sections and past domestic abuse.  Women who are small business owners also stand to gain from the reform.  By 2014, small firms will be allowed to pool together in exchanges to purchase health insurance.

Though neither side was fully satisfied with the final bill, the fact that uninsured Americans will be guaranteed access to quality, affordable health care warrants an applause for those leaders who worked to make health care for all a reality.

Are The Attorneys General’s Constitutional Claims Bogus?

Immediately after passage of health care reform, over a dozen state A.G.s sued to declare it unconstitutional, as violating states’ rights.  The Florida complaint is here, and Virginia’s here. Reminiscent of southern governors in the 1960s blocking their state universities’ gates, these legal officers in effect are saying “not on our sovereign soil.”  Since the constitutional issues have already been hashed through so thoroughly, what’s new to talk about?

First, the Florida complaint, which a dozen other states joined (AL, CO, ID, LA, MI, NE, PA,SC, SD, TX, UT, WA), focuses mainly on the financial burdens of expanding Medicaid.  This is challenged under the “commandeering” principle, as requiring states to devote sovereign resources to achieve federal aims.  But, as we know, states are free to withdraw from Medicaid, so the argument seems to fall entirely flat.  The complaint makes a bait-and-switch type of estoppel argument , that states got into Medicaid without any expectation of this expansion, and now it’s too damaging for them to withdraw.  So, in effect, states argue that the Constitution allows them to keep the federal carrot but refuse the federal stick.  Good luck selling that to an appellate court.

Second, these states complain about having to implement the insurance purchasing exchanges and their rules, but here again, states are entirely free to opt out and let their citizens use the federal exchange.  The only reason states have to implement exchanges is that they insisted the legislation give them this option, rather than forcing everyone into a single national exchange.  States can hardly complain about the responsibilities they asked for, especially when they’re still free to duck them.

Third, there are procedural problems.  States probably have no standing to enforce arguments about violation of individual rights (which is the main concern regarding the individual mandate).  Also, consider the remedy if states were to prevail:  It would wreak havoc to overturn the mandate to purchase, but not the mandate for insurers to sell without any medical underwriting.  Doing that would cause massive adverse selection and probably destroy some companies and some portions of the market, so a court would have little option but to strike down most or all of the entire law.  Surely that measure is extreme enough to give even the most activist judge pause, and so will compel most courts to find every possible way to uphold constitutionality, regardless of political persuasion.

Finally, do state nullification statutes like Virginia’s make a difference?  Not according to Harvard’s Charles Fried (who was Reagan’s Solicitor General):

The notion that a state can just choose to opt out is just preposterous…. As long as the federal law is independently constitutional, it doesn’t matter what Virginia says… It’s like Virginia saying we don’t have to pay income tax….One is left speechless by the absurdity of it.

This leaves only the well-worn arguments about exceeding powers to regulate commerce and to tax for the general welfare.  On these, most legal scholars are loud and clear about the merits.  In sum, as Sandy Levinson’s (Univ. Texas) says, “The argument about constitutionality is, if not frivolous, close to it.”

Originally posted at the O’Neill Institute for National and Global Health, Legal Issues in Health Reform.

[Ed. Note: Also Read Professor Hall's prior post on Health Reform Watch, "Is it Unconstitutional to Mandate Health Insurance?"]

Health Reform, a Class Act

Class Act

Thomas (Tim) Greaney
Director, Center for Health Law Studies
Saint Louis University School of Law

A few headlines from coverage of the passage of the health reform bill:

Winners, Losers in the House Healthcare Bill (Reuters)

Health Reform: What’s in it for you? (US News) 

Already Insured? Get Ready to Pay More (CBS)

Almost immediately after the House vote on Sunday, the media switched its “horse race” coverage from analyzing the politics of the affair to what it characterized as a clash of economic classes. Analysts were often quick to suggest that the average American might find himself in the loser column.  Others offered the conventional  ”on the one hand, on the other hand” pseudo-journalism, probably leaving most to assume (not unreasonably, based on their experience under trickle-down economics) that they have little to gain.  And inevitably, confusion spawns cynicism: The first question on Monday from my 91 year old uncle  was:  ”Do I still have Medicare?”

If we are going to do a triage by economic class, lets get it right:  I’m still waiting for a headline writer to capture the real story of the legislation: Health Reform Law Reallocates Opportunity to the Working Class

One unassailable fact that emerged from the year-long legislative debate is that the working poor and those in the middle economic stratum are the primary victims of our dysfunctional health system.  It is widely recognized that health care debt ranks at or near the top causes of personal bankruptcies. Less commented on, however, is the effect of widespread financial insecurity resulting from the high cost and lack of access to care.  More than 4 in 10 people earning under $40,000 per  year say their household has had problems paying medical bills over the past year. Not only does that statistic imply that many households are adjusting their budgets away from socially-important expenditures, like childcare and education, but it also reveals the personal toll imposed on lower income individuals and families. For those who have insurance, increasing premiums have forced them to take on more risk: Nearly one in five Americans say cost increases caused them or their employer to switch to a less comprehensive health plan, while almost half of all people purchasing insurance in the dysfunctional individual market say they have had to switch to a less comprehensive plan.

The misinformation spread throughout the debate has lent credence to those who would paint health reform as a victory for elites.  Judging from the expressions of outrage about health reform by some middle class citizens, many appear to carry the misapprehension that the primary beneficiaries of the legislation are those unwilling to work.  Nothing could be further from the truth; today’s uninsured are predominantly found in working families. In fact over 15% of employed workers and a stunning 41% of low income workers lack health insurance. And given the stampede of employers dropping health care coverage for their workers, the epidemic of uninsurance or underinsurance is undoubtedly spreading upward in the economic class order.

Also under-reported are the many ways the current health care system works to disadvantage the working class. Most prominent is the tax benefit which gives a significant and regressive tax subsidy to wealthy elites.  Excluding employer contributions for health insurance from taxable income–at $168 billion per year– is the largest “tax expenditure” in the budget– and obviously benefits the higher brackets more than the lower ones. (Revising this indefensible and economically inefficient  redistribution would have been a sensible way to help fund reform, but Congress settled for adding some progressivity to the payroll tax and some other taxes aimed at upper income citizens).

In addition, the health care system perversely redistributes wealth in a variety of other ways.  For example, as Mark Hall and Carl Schneider have made clear, hospitals and physicians price discriminate against those with lower incomes:  the uninsured and those in the individual market –who generally lack the bargaining power to command lower prices–pay higher prices to hospitals (often as much as two or three times higher) than those with group insurance.

Even less widely acknowledged is the fact that insurance favors the upper classes in subtle ways.  Co-pays, for example, burden those with low incomes much more severely than upper class insureds. Havinghurst and Richman aptly summarize the “distributive injustice” of the system:

[C]onditioning eligibility for insurer payments on patients’ willingness to make certain out-of-pocket payments causes lower income participants in employee health plans to get disproportionately fewer benefits than their more affluent coworkers receive in return for equivalent premiums

To be sure, the health reform legislation does not assure equal access to care among the social classes; but it certainly is a big step in the right direction.

I doubt that most Americans accept the idea that social class should dictate vast differences in opportunity for our citizens.  The capacity of health reform to lessen the economic and physical burdens imposed on the working class then should be headline news.

[Ed. note, post script: See excellent analysis published after this post by David Leonhardt characterizing the bill as "the federal government's biggest attack on economic inequality since inequality began rising more than three decades ago"
http://www.nytimes.com/2010/03/24/business/24leonhardt.html?src=me&ref=homepage]

Entrepreneurs, Rejoice!

Among the many jeremiads on the moderate-to-conservative health reform legislation just passed, David Brooks’s lamentation stands out. Brooks describes the legislation as one more drain on America’s entrepreneurial energies:

The essence of America is energy — the vibrancy of the market, the mobility of the people and the disruptive creativity of the entrepreneurs. . . . Today, America’s vigor is challenged on . . . [and] the country is becoming geriatric.

With the word security engraved on its heart, the Democratic Party is just not structured to cut spending that would enhance health and safety. The party nurtures; it does not say, “No more.”

But the legislation, in the long run, cuts the deficit. And people just starting out in the workforce–including many entrepreneurs–will find that the legislation greatly increases their flexibility. Just try out this calculator to see. As I noted three years ago, entrepreneurs have a lot to gain from a steady source of insurance.

The Health Reform Battle: From Procedure to Policy

Many bloggers have highlighted bits and pieces of the legislation just passed by the House of Representatives. But how do we best understand the bill as a whole? The Obama Administration recently recruited Edward Tufte to visualize the ARRA (which, amazingly enough, many Americans think went entirely to Wall Street). Some savvy media outlets have already explained health reform in accessible formats.

Farhana Hossain at the NYT summarizes the language of the Senate Bill, and how it will change in the coming week(s) if Senate Democrats follow through on their promises and pass the House’s Reconciliation Bill. For example, in the Senate Bill:

Within six months, insurers would be prohibited from denying coverage to children based on pre-existing medical conditions, from placing lifetime dollar limits on coverage and from rescinding coverage when a person becomes sick or disabled. The ban on exclusion based on pre-existing conditions would be extended to every one when the exchanges are operational in 2014.

But the reconciliation bill “would extend the ban on lifetime limits and rescission of coverage to all existing health plans within six months.” Mike Madden of Salon also does a good job summarizing “Ten Things You Need to Know About the Health Care Bill.” For example, “children would be allowed to stay on their parents’ insurance until they turn 26.”

I’m sure there are many more great resources out there; I’m happy to host them in the comments. I don’t want to clutter a post on simple guides to the health care bill with too many leads. But for now, let me just congratulate two of the top journalists of the health care debate, Timothy Noah of Slate, and Ezra Klein of the Washington Post, for their tireless attention to the real policy issues. And congratulations to Timothy S. Jost, one of the law professors who has most exhaustively described (and frequently defended) the bill just passed by Congress. His article “Health Care Reform Requires Law Reform” is a helpful look at the many issues likely to arise as reform is implemented.

X-Posted: http://www.concurringopinions.com/archives/2010/03/the-health-reform-battle-from-procedure-to-policy.html.

The Health Care Reform Bill, Text & Summaries, Amendments & Provisions at a Glance

As the dust settles and we come now to live with the Health Reform bill, it may prove useful to have links to the bill, summaries, amendments and various provisions on hand. Granted, this list was culled from the Speaker of the House’s website, but the text is the text and although some of the links have a decidedly pro-bill slant, the links in totem provide a nice overview. In addition, the exact language of the bill itself is something we’ll all need to become accustomed to.

Tip of the hat to Ezra Klein for pointing the way to this resource.

UPDATE: YOU CAN ALSO SEE THE LAW IN FULL AND BROKEN INTO ITS VARIOUS TITLES ALONG WITH THE RECONCILIATION IN THE FIRST SIDE COLUMN (SCROLL DOWN PAST THE THUMBNAIL PICTURES AND “SIBELIUS WATCH” UNTIL YOU COME TO “HEALTH REFORM LAW (PPACA) COMPLETE TEXT.”)

LEARN MORE ABOUT THE LEGISLATION

Bill Text (Posted on Rules.House.gov on March 18, 2010 at 2:07pm):

• Health Care and Education Affordability Reconciliation Act of 2010 Text»
• Text of the Senate Amendments to H.R. 3590 (Senate health reform bill)»
• 9-Page Manager’s Amendment – posted on 3/20»

CBO Score:

• Four Key Points You Need To Know About the New CBO Score»
• Full CBO Score»

Summary Documents:

• 3 Page Summary»
• Summary of the Manager’s Amendment»
• Section by Section of the Reconciliation Bill»
• Reconciliation Bill Makes Key Improvements To Senate-passed Bill»
• Regular Procedure to Pass Health Insurance Reform»
• Health Care By the Numbers: Open & Transparent Process»
• Immediate Benefits»
• Cost of Inaction»
• Health Care By The Numbers: Why We Need Reform»
• Fact Sheet»
• District By District Impact»

Provisions At A Glance:

• Timeline for Implementation»
• Helping Small Businesses»
• Consumer Protections & Insurance Market Reform»
• Preventing Waste, Fraud & Abuse»
• Making Coverage Affordable»
• Employers and Health Reform»
• Prevention & Wellness»
• Strengthening Medicare»
• Medicare Part D»
• Medicare Advantage»
• Shared Responsibility»
• The Health Insurance Exchange»
• Innovative Delivery System Reform»
• Strengthening The Nation’s Health Workforce»
• Guaranteed Benefits»
• Summary of Revenue Provisions»
• Cost Containment»
• Addressing Health and Health Care Disparities»
• Rural America & Reform»

Support:

• Statement of Administration Policy»
• List of Organizations Expressing Support For Health Reform Legislation»