Filed under: Health Law, Health Reform, Patient Protection and Affordable Care Act
Cross-Posted at HealthLawProf Blog
Millions – including millions of the “young invincibles” – have been enrolled in the ACA’s private and public insurance programs. And a recent study by Sommers, Long, and Baicker in the Annals of Internal Medicine, suggests that this enrollment will save lives. That’s great news for all interested in progressive health reform. But there is a lot of work to be done to ensure that care follows coverage. In this and subsequent posts, I’ll point to key implementation issues that share two characteristics: First, they go beyond the very important enrollment issues. Second, although federal implementation and advocacy is vital, my issues can be addressed largely through state and local government or private parties.
But before that, let’s call it: 2014 enrollment in ACA-related care is a success. The numbers are quite compelling. Private plan enrollment totals a surprising 13 million. This includes the 8 million signing up through federal or state exchanges, and the additional 5 million signing up outside the exchanges with plans that must meet Qualified Health Plan standards and share a common risk pool with in-exchange plans. About 28% on-exchange, and 45% of off-exchange enrollees are in the important 18-34 age group. More good news? Insurers report that at least 4 out of 5 have already paid their first month’s premium. And an additional 4.8 million are newly enrolled in Medicaid and SCHIP.
Sustaining that success won’t be easy. As Henry Aaron describes in the current issue of the New England Journal of Medicine, the success of the ACA in the short term will be subject to “brutal political war.” Aaron also describes the legacy of the political war that led to crafting of the ACA as an incremental plan, rather than a comprehensive, coherent design. The practical problem, in Aaron’s words, is that:
[R]eform had to be built on the most complex, kludgy, and costly system on planet Earth. Multiple layers of health coverage – as a fringe benefit of private employment, as compensation for military service, as public charity for the poor, as public coverage for the elderly and disabled, and as a private commodity purchased by individuals in a remarkably dysfunctional market – overlap and intersect to pay for care through a bewildering variety of agents in a system that even experts seldom fully comprehend.
“Kludgy” is exactly the word for it (not as cool as Henry Aaron? Here’s a definition). But it is a big step forward from the pre-ACA system – tens of millions newly covered, an end to the worst features of American health insurance underwriting, meaningful financial support for those previously shut out of coverage, and a variety of new delivery design initiatives.
The reforms embodied in the ACA can be sustained and improved, but only through the efforts of those in and out of government dedicated to improving access for those historically shut out of care. The case is not unlike that of Medicare, now a beloved social insurance system with almost 50 million beneficiaries, but in the 1960s a fragile program loved by few and reviled by many. As Ted Marmor, Jonathan Oberlander and others remind us, Medicare was born in a political maelstrom, and has been sustained, changing over time, through the hard work and creative accommodations by many in and out of government.
As with Medicare, there will be tough political fights about the future of the ACA, and grindingly difficult administrative challenges for federal regulators. But the states and private actors are critical to the ACA’s success. The fact is that the ACA’s innovations largely lay over the construct of existing insurance law. In addition, gaps in coverage and ambiguities in the protection of civil rights means that those outside of the federal political and administrative processes will have lots to do. Those tasks include:
- Affordability. Many advocates are concerned that people newly enrolled in QHPs will have trouble affording care notwithstanding the ACA’s subsidy systems. This concern goes beyond premium costs, and runs to patient cost-sharing through deductibles and copayments. States should be considering the adoption of a Basic Health Plan option, and innovative “bridge” and “wrap-around” programs.
- Coverage of immigrants. In perhaps no other area of implementation are the political and the pragmatic so at odds. The fragmented regulation of access to care for different cohorts of immigrants has caused confusion, limitations on access, and bad results – both intended and unintended. States can take the lead here.
- Protection of people with disabilities/chronic conditions. The structure of the ACA’s underwriting reforms are good news for people with disabilities, as are its nondiscrimination mandates, as Sara Rosenbaum has described in detail. But the reforms mix uncertainly with the financial incentives that remain in the insurance system, and state regulatory oversight and advocacy will be essential to fulfill the statute’s goals.
- Denials and network adequacy. The ACA embodies a paradox: it both federalizes the regulation of health insurance, and largely devolves that federal regulation back onto the states for supervision and enforcement. That means that QHPs will continue to employ utilization management tools, including medical necessity review, to limit access to care – properly and improperly. Perhaps more pressing is the problem of narrowing networks of providers in health plans. Properly constructed networks can be a benefit to consumers; improperly constricted networks can deny access in covert and dangerous ways. Vigilance by states and private actors will be crucial here.
The ACA’s goals are noble, and its somewhat clumsy (or kludgy) structure can succeed, but only through a lot of work from a lot of people. I’ll return to these issues in upcoming posts.
According to the website designated for the new health insurance marketplace, www.healthcare.gov, “The Health Insurance Marketplace is Open!” Yet, despite this encouraging message, people are having trouble accessing the website since its launch. According to sources, the website had over 19 million visits in the first ten days, which caused numerous problems for users.
On October 21, 2013, President Obama spoke publicly about the disappointing malfunctioning of the government’s healthcare website. Obama’s speech was apologetic yet optimistic, as he reassured the public that this minor kink in the system would be fixed.
“[L]et me remind everybody that the Affordable Care Act is not just a website,” Obama said. “It’s much more.”
Obama also responded to critics of the healthcare law and rollout of the website, as he reassured the public,
“It’s time for folks to stop rooting for its failure, because hardworking, middle-class families are rooting for its success.”
Despite Obama’s optimistic remarks, reports indicate that the website could take weeks or months to work properly, citing heavy traffic on the website as a roadblock to accessibility. To address this delay, Obama read aloud the phone number listed on the government website—1-800-318-2596—whereby citizens can still apply for healthcare coverage, despite the issues with the government website. Insisting that waiting times for people calling the toll-free number have been minimal—averaging less than one minute—Obama hoped that reading the number on camera would encourage people to make the call.
Meanwhile, the Department of Health and Human Services plans to bring in specialists to help fix the problems with the website. The website has been updated several times since problems arose, and officials hope it will be running seamlessly soon.
Currently, the website includes several features which will become more useful in the coming weeks, including a live chat option, resources in foreign languages, and quick information links for different populations, including states, businesses, and the media.
While the federal healthcare exchange has been experiencing problems, many of the nation’s uninsured have been able to sign up on state-run healthcare exchanges with fewer issues. Still, state-run exchanges relying on federal processes such as identity verification have experienced complications.
To date, at least sixteen states and the District of Columbia have their own state-run exchanges in lieu of the federal exchange, offering a variety of options for consumers to choose from. After consumers start buying insurance on the exchanges, companies will decide whether to increase or decrease their participation in the federal and state healthcare exchanges, as they gauge the interest of various populations.
Though reports have illustrated the healthcare marketplace roll out as slow, since the new program has been implemented and the marketplace has been opened, almost 500,000 people have already applied for healthcare—though it is unknown how many of those 500,000 actually purchased a policy. Moreover, a Pew Research Center poll reported that 22% of America’s uninsured have visited the online exchange since its launch. To increase the number of people signed up in the new program, administration officials will soon be venturing to areas of the country with a significant portion of uninsured individuals, in order to persuade people to sign up for healthcare on the exchanges.
Undeterred by the critiques of the website, Obama stated,
“Our goal has always been to declare that in this country the security of health care is not a privilege for a fortunate few, it’s a right for all to enjoy. That’s what the Affordable Care Act’s all about. That’s its promise. And I intend to deliver on that promise.”
It seems that Obama has made it to the last hurdle. The coming weeks will show whether he can make the jump.
TIM JOST INTERVIEWS ANDY KOPPELMAN ABOUT KOPPELMAN’S NEW BOOK, THE TOUGH LUCK CONSTITUTION (Oxford University Press 2013).
Q. (Tim Jost) Your book explains, for the general reader, what was at stake in the health care fight and what the Supreme Court did. Why should the general reader care? All this is old news.
A. (Andy Koppleman) If you’re sitting on a hill, and a large boulder rolls past you, it’s a good idea to look uphill to see if any more boulders are coming. The history matters because it shows that there are real dangers.
Last spring, the Supreme Court came within one vote of taking health insurance away from more than 30 million people. Chief Justice John Roberts declined to join the four judges who wanted to do that, but he embraced all their principles. Those principles are nasty. All five judges think that universal health care would be unconstitutional. All are suspicious of a law that asks the healthy and rich to support medical care for the sick and poor. All of them are still on the Supreme Court. They continue to exercise political power over the rest of us. Americans need to understand what happened.
Q. So what do you tell us that we don’t already know from the news stories?
A. My book explains why Obama decided to include the unpopular provision requiring everyone to have insurance. I also show that the Republicans, who originally proposed that idea, turned against it just because they wanted to deny Obama a victory. Most importantly, I show where they got the idea that the mandate was somehow a violation of an important liberty.
Q. Why did the constitutional case take the form it did?
A. The Republicans’ objection to the Act was a combination of politics and substance. Some of them honestly thought it was bad policy. But you can’t challenge a law in court because you don’t like the policy. You need to make a constitutional objection. The constitutional objection was invented, in sketchy form, just as the bill neared passage and almost instantly became Republican Party orthodoxy. It relied on an extreme libertarian philosophy, which holds that, if you get sick and can’t pay for it, that’s your tough luck. The challengers’ arguments would have struck down the Act even if the alternative was a huge population of uninsured. The dark heart of the case against the ACA is the notion that the law’s trivial burden on individuals was an outrageous invasion of liberty, even when the alternative was a regime in which millions were needlessly denied decent medical care.
Q. What about the legal arguments?
A. These are less complex than many people think. Insurance is part of commerce among the several states. Congress can regulate it. Therefore, Congress can prohibit health insurers from discriminating on the basis of preexisting conditions. Under the Necessary and Proper Clause, it gets to decide what means it may employ to make that regulation effective. I explain how the challengers tried, and failed, to get around this simple argument.
Q. Much of your book deals with the history of these constitutional provisions that formed the basis for the ACA litigation. Why should we care about this history?
There are two reasons. One is that, in interpreting any law, it is helpful to know the reasons why the law was passed. The second is that the framers of the Constitution were very bright people, and their insights are useful in addressing today’s problems.
The Constitution was adopted specifically in order to give Congress power adequate to address the nation’s problems. That is its fundamental and overriding purpose. The health care issue is one that the states had tried and failed to address: only Massachusetts did it, and its circumstances were very unusual. A situation in which neither the states nor the federal government could solve the country’s problems was what we had under the Articles of Confederation. It is precisely what the Constitution was intended to prevent.
Q. What are the boulders that you suggest may still be coming down the hill?
A. The real moral force behind the challenge to the ACA wasn’t any technical legal argument. It was most clearly stated at the oral argument, by Justice Antonin Scalia. The counsel for the United States argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick. Scalia responded: “Well, don’t obligate yourself to that.”
Q. Does Justice Scalia really think that there’s no obligation to care for sick people? Why was he saying this?
A. The answer has to do with the structure of constitutional law. If you want to trash the ACA –- and Scalia did –- you have to assert constitutional limits that would exist even if there were no other way to deliver medical care to everyone.
This is why so many people (including, in the end, a near-majority of the Court) who were not Tough Luck Libertarians at all, who would find that philosophy repellent, nonetheless found themselves saying Tough Luck Libertarian things, and making claims based on a Tough Luck Constitution –- a constitution in which there is no realistic path to universal health care. That Constitution won’t be attractive unless Tough Luck Libertarianism is right that it is acceptable to deny people the medical care they need. The challengers to the ACA talked a lot about slippery slopes – at the bottom of this one was a law requiring you to buy broccoli – but there’s a slope in the other direction as well. Once you decide that it’s acceptable to hold your nose and make this kind of argument, it will be easier next time.
Q. The NFIB case which the Supreme Court decided was only one of dozens of cases that have been brought challenging the Affordable Care Act. One of those cases brought by Liberty University challenged that provision of the ACA requiring large employers to offer health insurance to their employees or pay a tax penalty. Liberty University lost that case in the Fourth Circuit Court of Appeals, but the Supreme Court remanded it for reconsideration. Is there any possibility the courts will find that Congress lacks the power to require large employers to offer health insurance? Would Tough Luck Libertarianism go this far?
A. It’s hard to see how. The employer mandate is described as a tax in the statute. The individual mandate isn’t, but the Court upheld it as a tax. Chief Justice Roberts also objected to the mandate because you don’t have to do anything to be subject to it. To be subject to the employer mandate, you have to decide to employ people. Congress has had the power to regulate economic transactions for nearly a century. Even the Roberts Court isn’t going to change that.
Q. Several states are refusing to implement the insurance market reforms imposed by the ACA and one state is considering legislation that would prohibit the licensure of an insurance plan that would participate in an ACA exchange. Does the Supreme Court’s decision give any hope to states that are still refusing to assist in implementing the ACA?
A. If states won’t participate in the health exchanges, then the Federal government can and will do it for them. That has already been happening. It has been well settled for years that state laws designed to disrupt the operation of a federal law are unconstitutional.
The one part of the Court’s decision that empowers the states to stay out of the federal scheme is Chief Justice Roberts’s decision that states could refuse to provide Medicaid to their poorest citizens. The Court ruled that the states could turn down the Medicaid expansion while continuing to participate in the old Medicaid program. One might have expected that no state would turn down such a good deal: the federal government will pick up 100% of the costs until 2016, with its contribution gradually declining to 90% in 2020 and thereafter. And there is added pressure to take the money, because previous forms of federal aid were cut off. Hospital associations agreed to accept cuts to their reimbursement rates, expecting that this would be more than made up by money from patients newly insured through Medicaid. States refusing the money would not only be hurting their own working poor. They’d be rejecting a huge infusion of cash into their economies, creating many, many jobs –- good jobs, for doctors and well-paid medical technicians. That money has a powerful multiplier effect, creating jobs outside the health sector as well.
Many Republican governors have now turned down the money, but that number is shrinking. Gov. Rick Scott of Florida, for instance, recently changed his mind. The big question mark is Texas. One in four Texans is uninsured. The ACA would insure almost two million of them. The expansion would give Texas an additional $52.5 billion from 2014-2019, which is more than half of the state’s annual budget. Gov. Rick Perry has insisted that he won’t take the money. If you are a hospital executive in Texas, you probably have a fiduciary duty to do all you can to defeat Rick Perry. Meanwhile, the Court has succeeded in hurting millions of people. Four days before Perry announced his decision, the federal Agency for Healthcare Research and Quality ranked Texas as having the worst health care in the nation. This is the Court’s notion of “liberty.”
Timothy S. Jost holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. He is a co-author of the casebook, Health Law, used widely throughout the United States in teaching health law, and of a treatise and hornbook by the same name. His other publications are simply to numerous to list.
Andrew Koppelman is John Paul Stevens Professor of Law, Northwestern University. He has written extensively about the legal debate surrounding the Affordable Care Act for Salon. His latest book, The Tough Luck Constitution and the Assault on Healthcare Reform, will be published by Oxford University Press on March 22, 2013 and available online and through bookstores everywhere.
“Andrew Koppelman has magnificently captured the current legal, political and policy-related lay of the land in Washington. His insightful analysis here should be mandatory reading for anyone concerned about the future of health care in America.”
–Tom Daschle, former Senate Majority Leader
Filed under: Health Law, Health Reform, Medicaid
Professor Jacobi writes:
GOVERNOR CHRISTIE’S decision to expand Medicaid coverage to more residents will improve the health of many low-income New Jerseyans, and save the lives of some. In addition, the expansion dovetails with other reform efforts in the state, furthering implementation of innovative programs for the poor and vulnerable.
The governor’s announcement is great news for low-income individuals. The Rutgers Center for State Health Policy estimates that the expansion will lead to an enrollment increase of about 234,000 in NJ FamilyCare, which combines New Jersey’s Medicaid and Children’s Health Insurance Program.
The expansion addresses gaps in the current Medicaid system, under which many poor people were ineligible even if they had absolutely no income or assets.
The expansion will plug those gaps, allowing people to enroll so long as they are lawful residents with an income of no more than about $15,414 per year, which is about the gross income of a full-time minimum wage worker.
Health insurance coverage is important to personal health, and it is simply not true that all Americans have meaningful access to health care. As the Institute of Medicine of the National Academy of Sciences has found, people who have health insurance — including Medicaid — have better access to a regular source of health care. Those with no coverage, in contrast, are more likely to do without medically necessary care, particularly for chronic conditions, and to not fill prescriptions due to cost.
As a consequence, the uninsured are more likely to be in “fair” or “poor” health — and to die before their time. Medicaid expansion will keep people healthy and even save lives.
Read the full feature, “How Medicaid expansion will help New Jerseyans”
U.S. Supreme Court Health Reform Litigation, the Individual Mandate, Anti-Injunction Act, Commerce Clause and Even The Militia Act
We are literally only days away from the Supreme Court oral arguments in the ACA litigation (or the Health Reform case as it is popularly known) and as such, we thought it would be of some help to publish again some of our past posts on aspects of the law now being challenged. In addition to being published here at HRW, many of the pieces below found further life elsewhere, the Washington Post, NY Times, The Record, The Health Care Blog, Health Law Prof Blog, Concurring Opinions, the aca litigation blog, to name a few. Some originated elsewhere and found a home here. Either way, they’re here in one place for your enjoyment as we all hold our breaths and get ready to attempt to count robed votes by virtue of questions posed in the arguments to come.
aca litigation blog (All the briefs, docs, lawyers, helpful updates, analysis, etc. in one easy place. Prof Joondeph and Brandon Douglass are to be commended for this splendid effort — yeomen’s work and finely done. The aca litigation blog is automatically fed into our sidebar and we were pleased to offer a few of Professor Joondeph’s posts in full here at HRW, and very much look forward to posting more. If you haven’t checked it out yet, you absolutely should.)