Category Archives: Individual mandates

ACA Declared Unconstitutional: Now What?


In another example of how cruel and inhumane the radical Conservative/Libertarian Republican Party has been regarding health care, a Federal judge in Texas late Friday, struck down the Affordable Care Act as unconstitutional.

The judge, Reed O’Connor, appointed by George W. Bush, struck down the law on the grounds that its mandates requiring people to buy health insurance is unconstitutional and the rest of the law cannot stand without it, as reported yesterday in the New York Times.

According to the Times article, the ruling was over a lawsuit filed earlier this year by a group of Republican governors and state attorneys general. States led by Democrats promised to appeal the decision, which will not have immediate effect.

However, the Times reports, it will make its way to the Supreme Court, where the survival of the law and the health of millions of Americans will be in doubt.
Judge O’Connor said, the Times quoted, that the individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’s tax power.” In addition, the judge said, “the individual mandate is unconstitutional” and that the remaining provisions of the ACA are invalid.

The main issue, pointed out in the Times piece, was whether the law’s mandate still compelled people to buy coverage after Congress zeroed out the penalty as part of the tax overhaul this year.

20 states, led by Texas, argued that with the penalty zeroed out, the mandate had become unconstitutional, and that the rest of the law could not be severed from it, the Times wrote.

The Justice Department under former Attorney General Sessions, declined not to defend just the individual mandate, but the pre-existing conditions provision as well.

A spokesman for California attorney general Xavier Becerra said that California, and other defendant states, would challenge the ruling with an appeal in the US Court of Appeals for the Fifth Circuit in New Orleans.

Becerra’s statement, reported by the Times, said the following, “ Today’s ruling is an assault on 133 million Americans with pre-existing conditions, on the 20 million Americans who rely on the ACA’s consumer protections for health care, on America’s faithful progress towards affordable health care for all Americans…The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court.”

The chief plaintiff in the case, Texas attorney general Ken Paxton, applauded the decision, and was quoted in the Times in a statement, “Today’s ruling enjoining Obamacare halts an unconstitutional exertion of federal power over the American health care system.”

Meaning that the American “health care system” can only be a private insurance-based system that allows companies to profit off some people’s health, or lack thereof. He is upholding the “right” of insurance companies, drug companies, medical device manufacturers, and others to profit at our expense and to play with the lives of millions of Americans who will lose what coverage the ACA gave them.

This also means, that any attempt to enact Medicare for All/single payer health care will result, at some future date, to a judge or court striking it down as unconstitutional.

Simply put, Conservative jurisprudence believes that the Constitution enshrines free-market health care.

The Times added that Paxton also said, “Our lawsuit seeks to effectively repeal Obamacare, which will give President Trump and Congress the opportunity to replace the ‘failed’ [quotes added] social experiment with a plan that ensures Texans and all Americans will again have greater choice (to be ripped off and overcharged) about what health coverage they need and who will be their doctor.”

In other words, Mr. Paxton wants the American health care system to stay where it is, so long as companies can make money from it.

Here are a few takeaways from the rest of the Times’ article:

• If the judge’s decision stands, about 17 million Americans will lose their health insurance, according to the Urban Institute. This includes millions who gained coverage through Medicaid expansion, and millions more who receive subsidized private insurance through the ACA marketplaces.
• Insurers will also no longer have to cover young adults up to age 26 under their parents’ plans
• Annual and lifetime limits on coverage will again be permitted
• And there will be no cap on out-of-pocket costs
• Also gone will be the law’s popular protections for people with pre-existing conditions

This last takeaway was front and center of the Democrats midterm campaigns, and while most Republicans insisted that they did not want to withdraw those protections, the article reported that most were silent after the ruling.

Without those protections, insurers could deny coverage to such people or charge them more; they could also return to charging them based on age, gender or profession, according to the Times.

The Kaiser Family Foundation, the Times noted, estimated that 53 million adults from 18 to 64 — 27 percent of that population would be rejected for coverage under practices in effect before the ACA.

Larry Levitt, senior vice president of the Kaiser Family Foundation wrote on Twitter, “If this Texas decision on the ACA is upheld, it would throw the individual insurance market and the whole health care system into complete chaos…But the case still has a long legal road to travel before that’s an immediate threat,” the Times quoted.

Democrats attacked the decision as absurd. Incoming House Speaker Nancy Pelosi said that when the party took control of the House next month, it would “move swiftly to formally intervene in the appeals process to uphold the lifesaving protections for people with pre-existing conditions and reject Republicans’ effort to destroy the Affordable Care Act.”

Healthcare Dive.com, in reporting Friday about the decision, wrote that a decision had been waiting in the wings since September, when the Justice Department asked Judge O’Connor to wait until the individual market’s open enrollment period ended, which was also a convenient time for Republicans running in the midterms.

Healthcare Dive.com also stated that the decision would be appealed to the conservative Fifth Circuit, and possibly to the Supreme Court, where advocates worry that it will be struck down.
Providers such as the American Hospital Association (AHA) and American Medical Association (AMA) urged a stay until a higher court could take it up.

One state not a part of the defendants was Maryland, according to Healthcare Dive.com. Maryland’s Democratic Attorney General, Brian Frosh, brought its own case seeking a reaffirmation of the ACA’s constitutionality.

Attorney General Frosh argued that Maryland residents who became insured under the ACA would be harmed if the law was unconstitutional or eliminated. About 150,000 people in Maryland gained insurance through the ACA marketplace in 2018, and more than 300,000 are insured through the state’s expanded Medicaid program.

The Maryland case is still ongoing.

So now what?

In the short-term, nothing will change, as mentioned in the two articles above. However, in the long-term, there will be serious consequences, just as Larry Levitt said on Twitter Friday.

But more importantly than chaos in the insurance market and health care system, millions of Americans will once again be at the mercy of insurance companies, be denied coverage for pre-existing conditions, including pregnancy, cancer, and a whole host of illnesses, be denied life-saving drugs, or rejected for surgeries, etc.

And among those millions, many will die needlessly because of the greed of the insurance companies and the actions of a Cowboy judge.

What does this mean?

Allow me to put on a different hat here and offer an opinion as to what may transpire in the future, since none of us are clairvoyant. As someone who studied both American history and American government and politics, in my opinion, we will not see universal health care in this country unless and until, to use a medical metaphor, this Conservative/Economic Libertarian virus is eradicated from the American political system, or at least is brought under control.

I do not say this lightly, nor am I being flippant here. Let’s face facts. The Republican Party stands in the way of the adoption of rational, universal health care for all Americans because they are the defenders of a rapacious, greedy Capitalist health care system that demands that investors, shareholders, insurers, manufacturers, and service providers and consultants, be allowed to profit by the health and welfare of the American people.

However, as also reported in the New York Times on Sunday, the ACA could be hard to knock down, despite the judge’s ruling, according to legal scholars quoted in the article.

Yet as Ezra Klein writes in Vox.com, Republicans have refocused Democrats on building what they failed to build in 2010: a universal health care system simple enough and popular enough that it is safe from constant political and legal assault. And that means some version of Medicare-for-all. Democrats are promising swift action once they take over the House in a few weeks, so we wait and see how that will turn out.

But on the other hand, as I have pointed out in previous posts, both those penned by myself, and those that I reposted from other sources, the medical-industrial complex is pushing back hard against any move to alter this broken system.

Two recent posts, Healthcare Lobbying Group Double-Crossing Democratic Voters and Establishment looks to crush liberals on Medicare for All – POLITICO highlights the attempt by the health care industry to keep the status quo, or at least to convince Democratic politicians who might be opposed to full single payer health care, to offer alternatives that will allow the insurance companies to profit from providing coverage to only those who are not sick, which is called adverse selection.

There are some people in this country who argue that what we need is not less competition in health care, but more. However, this misses the point. Whether or not there is more or less competition is not the reason why our health care system is broken. The reason why it is broken is because there is competition in the first place. No other Western country has this problem, and they all have some form of universal, single payer health care.

So, the prognosis for the future of universal health care is cloudy, if not downright gloomy. Advocates for single payer, improved Medicare for All must take a sober hard look at reality and formulate a strategy to meet this new and regrettable challenge. And they must do so with a clear eye and mind on the realities of the political landscape, and not be lulled into thinking that just because polls indicate approval by voters, that enacting Medicare for All will be easy or accomplished quickly. We have enemies, and one of them is Reed O’Connor.

Additional Reading:

Judge Rules Obamacare unconstitutional, endangering coverage for 20 million
Obamacare ruling delivers new shock to health system

 

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Mad Dog Attacks Public Transport

Tom Lynch of LynchRyan’s Workers’ Comp Insider blog, wrote an article this morning that follows on the heels of my post from yesterday about the Justice Department not defending portion of the Affordable Care Act (ACA).

According to Tom, the GOP finally figured out how to fight the ACA, and he discusses three events beginning with February of last year in which the GOP-led Congress attacked the ACA. The three events are:

February 2017 – tax cut law that zeroed out the penalty for not having insurance.

February 2018 – getting 20 states to sue the federal government and contend that repeal of the penalty obviates the individual mandate making the entirety of the ACA unconstitutional.

And just last month, as I wrote yesterday, got the Justice Department to not defend the government in the suit.

Tom continues to say that if the 20 states win, pre-existing conditions, which the ACA protects, goes out the window. There are about 133 million Americans under the age of 65 who fall into that category. I am one of them.

Insurance companies are not happy either, Tom reports, and the trade association for the health insurance companies, America’s Health Insurance Plans, supports the provision under the ACA, and is quoted thus: “Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019,” according to a statement released by AHIP.

Finally, Tom asks the question — what happens if the 20 states win their suit? His answer, the 1.25 million Americans with Type 1 diabetes are waiting for an answer.

Yet, they and others don’t really have to wait for an answer, because the answer is staring us right in the face, but we refuse to see it, or even acknowledge its presence. Instead, we keep doing the same things over and over again, thinking the free market has the answer.

That is patently not true. A real, comprehensive, universal single payer system or an improved Medicare for All system that does not force those who are ill and don’t have a lot of money to pay for parts of the coverage, either the medical portion, or the 20% not now covered by Medicare, is the answer. Anything less is just a dog chasing a bus, catching that bus, and the dog and bus getting hurt.

Justice Dept. Says Crucial Provisions of Obamacare Are Unconstitutional – The New York Times

The following article should alarm every decent American, especially those who wants to see every American have health care that does not eat into their life savings or cause them to go into debt.

Your humble author is one of them and may also be affected if this draconian decision is upheld by the courts and the Supreme Court. Thanks Bernie Bots and Steiners…thanks for giving us Justice Gorsuch by not voting or not voting for the Democratic candidate two years ago.

For what this will mean to Americans, here is Dr. Don McCanne’s take on it:

“Amongst the more important provisions of the Affordable Care Act were the requirements for guaranteed issue and community rating. For individuals with preexisting conditions, insurers could not deny them coverage nor could they charge them higher premiums than are charged for others in the same age group. This corrected two of the most serious defects in the individual insurance market that existed before enactment of ACA and made insurance available to many who otherwise could not purchase the plans.

Now Attorney General Jeff Sessions says that he will no longer defend these provisions. If the courts uphold his position, individuals with significant health care needs may find insurance with adequate benefits to be either unaffordable or not even available to them. Then concepts such as “universal” or “affordable” become moot.

How does this compare to our traditional Medicare program? The courts have already ruled that Part A of Medicare – the hospital benefit -is mandatory and must be accepted if the individual also accepts Social Security benefits. However, this does not apply to Part B – the physician benefits – nor to Part D – the drug benefits. Thus the courts have ruled that the government can require certain mandates in health care, but it also demonstrates that our current Medicare program needs to be improved, for this and for a great many other reasons. So a single payer, improved Medicare for all should be able to pass constitutional muster.

Once we have an improved Medicare that covers everyone, instead of thinking of it as some sort of unwanted government mandate, most of us would think of it as an automatic program ensuring health care financing for all of us – one that we have earned though our individual contributions based on ability to pay – guaranteed, affordable health care forever.”

ACA Gains Reversing

The Commonwealth Fund reported today that the marked gains in health insurance coverage made since the passage of the Affordable Care Act (ACA) in 2010 are beginning to reverse.

This is according to new findings from the latest Commonwealth Fund ACA Tracking Survey.

According to the survey, the coverage declines are likely the result of two major factors:

1) lack of federal legislative actions to improve specific weaknesses in the ACA and

2) actions by the current administration that have exacerbated those weaknesses. These include the administration’s deep cuts in advertising and outreach during the marketplace open-enrollment periods, a shorter open enrollment period, and other actions that collectively may have left people with a general sense of confusion about the status of the law.

Here are the key findings:

*  About 4 million working-age people have lost insurance coverage since 2016
*  The uninsured rates among lower-income adults rose from 20.9 percent in 2016 to 25.7 percent in March 2018
*  The uninsured rate among working-age adults increased to 15.5 percent
*  The uninsured rate among adults in states that did not expand Medicaid rose to 21.9 percent
*  The uninsured rate increased among adults age 35 and older
*  The uninsured rate among adults who identify as Republicans is higher compared to 2016
*  The uninsured rate remains highest in southern states
*  Five percent of insured adults plan to drop insurance because of the individual mandate repeal
What are the policy implications of this reversal?
The absence of bipartisan support for federal action has seen legislative activity shifted to the states.
Broadly, the leaving of policy innovation to states will lead to a patchwork quilt of coverage and access to health care across the country. It will fuel inequity in overall health, productivity, and well-being.
Folks, as I wrote about in What’s Really Wrong With Health Care? and Obamacare: The Last Stage of Neoliberal Health Reform, until we see a change in the consciousness of both the American people, their representatives in Congress, and in Corporate America, especially within the financial industry to radically alter the direction health care is heading, the situation will only get worse.
We need to get the money and the greed and the corporations out of health care altogether. We need a single payer system that does not proletarianize physicians, does not turn health care into a commodity, does not financialize it, commercialize it, and compromise it for the benefit of a few, and to the detriment to the many.
As this is May Day, the international workers’ day, wouldn’t it be nice if we could start moving in that direction, as so many other nations have already done?

Americans Are Skipping Health Insurance

Bloomberg on Monday published an article by John Tozzi that reported that some Americans are taking a risk and skipping health insurance because of the cost.

In the article, “Why Some Americans Are Risking It and Skipping Health Insurance”, Bloomberg interviews three families; the Buchanans of Marion, North Carolina, the Owenses of Harahan, Louisiana, and the Bobbies in a suburb of Phoenix, Arizona.

The Buchanans decided that paying $1,800 a month was too much for health insurance and decided to go without it for the first time in their lives.

Doubling insurance premiums convinced the Owenses to do so as well, and Mimi Owens said that, “We’re not poor people but we can’t afford health insurance.”

Saving money to pay for their nine-year-old daughter Sophia, who was born with five heart defects, forced the Bobbies to go uninsured for themselves and their son Joey.

These three families are but a small part of the dozen other families Bloomberg is following to understand the trade-offs when a dollar spent on health insurance cannot be spent on something else. Some are comfortable financially, others are just scrapping by.

According to Tozzi, the share of Americans without insurance is near historic lows, the current administration is rolling back parts of the ACA. At the same time, Tozzi reports, the cost for many people to buy a plan is higher than ever.

In the case of the Buchanans, wife Dianna, 51, survived a bout with cancer 15 years ago, her husband, Keith has high blood pressure and takes testosterone. Both make more than $127,000 a year from an IT business and her job as a physical therapy assistant. They have additional income from properties they own.

However, their premium last year was $1,691, triple their mortgage payment, and was going up to $1,813 this year. A deductible of $5,000 per-person meant that having and using coverage would cost more than $30,000.

What made the Buchanans take this step was when Blue Cross and Blue Shield of North Carolina and the major hospital system in Asheville, could not reach an agreement, putting the hospital out of network. Keith Buchanan said, “It was just two greed monsters fighting over money.” He also said, “They’re both doing well, and the patients are the ones that come up short.”

The Buchanans are now members of a local doctors’ practice, for which they pay $198 a month. They also signed up for a Christian group that pools members’ money to help pay for medical costs. For this membership, it costs the Buchanans $450 a month, and includes a $150 surcharge based on their blood pressure and weight.

After dropping their coverage with Blue Cross and Blue Shield, Keith injured his knee, went to an urgent care center and was charged $511 for the visit and an X-ray. “If we can control our health-care costs for a couple of years, the difference that makes on our household income is phenomenal,” Keith said.

There is evidence, Tozzi writes, that having insurance is a good thing. People with insurance spend less out of pocket, are less likely to go bankrupt, see the doctor more often, get more preventive care, are less depressed and have told researchers they feel healthier.

Yet, some 27.5 million Americans under age 65 were uninsured in 2016 (myself included), about 10 percent of the population, according to the Kaiser Family Foundation.

The most common reason cited by KFF was that the cost was too high. A Gallup poll suggested that despite declining for years, the percentage of adults without coverage has increased slightly since the end of 2016.

However, other data, Tozzi writes, showed no significant change.

The following chart outlines the household income and health insurance status of people under 65 who qualify for government help with having insurance.

For the Bobbie family, the current administration’s proposal to make it easier for Americans to buy cheaper health plans could open options for the rest of the Bobbie family, but with over $1 million in medical costs for Sophia, these less-expensive choices would lack some of the protection created by the ACA that allowed her to get coverage.

The tax scam that became law in December will lift the ACA’s requirement that every American have coverage or pay a fine.

Some states are trying out the new rules, offering plans that don’t adhere to ACA requirements. This is the case in Idaho where the state’s Blue Cross insurer attempted to offer a so-called “Freedom Plan” that had annual limits on care and questionnaires that would allow them to charge higher premiums to sick people or those likely to become sick.

The current administration judged reluctantly that this plan violated ACA rules.

The Owenses decided to do something like what the Buchanans did. They tried a Christian health-sharing ministry for a few months, but joined a direct-primary care group, which Mimi Owens called, “the best care we’ve ever had.”

The three American families are by no means not alone in having to decide whether to have insurance or to take the risk and forgo paying huge premiums to save money or to use it for another family member with more pressing medical issues.

Two of these families are not low-income, as they both earn over $100,000 a year and could afford to buy health coverage if it was affordable. But the reality is that premiums have risen and will continue to rise and will price them out of the market.

Except for the Bobbies, no one in the other two families have serious medical issues that are exceedingly expensive, and they have found lower cost alternatives, but for many other families in the U.S., that may not be an option.

The only real solution is universal health care. Then the Buchanans, Owenses, and Bobbies of America will not have to worry about how they are going to pay for medical bills if some serious medical condition arises. We can and should be better than this.

Executive (Dis)order

The signing this morning of an executive order by the Orangutan will have, in the opinion of some of the bloggers and politicians, spell disaster for the nation’s health care system.

It will, if carried into action, likely siphon healthy people from the Affordable Care Act-compliant market, continuing a pattern of regulatory actions under the Trump administration that have undermined the ACA.

The rationale for such a move that has been given is that since Congress has not been able to repeal and replace the ACA, an executive order will, piece by piece.

Coupled with the recent budget move to eliminate the CHIP program for children’s health (New York State faces dire consequences if Congress does not act on CHIP), and cut backs to Medicare and Medicaid, the intent here is to privatize health care for some, and eliminate it for others, and to get government out of health care providing altogether.

There are provisions in this order for greater competition, short-term coverage, and lower premiums with less coverage. Why this is better is beyond me, unless the Orangutan is seeking to destroy health care so that single-payer will be the only option.

Cutting healthy people out of the ACA means leaving sick people to struggle with a health care law that many say needs to be fixed, not repealed and replaced. But because the Tea Party ranted and raved before it was enacted, and the Orangutan and the GOP campaigned on getting rid of it, they had no choice but to sabotage it if they could not do so through legislation.

I predict that we will soon see the total collapse of our health care system thanks to this stupid, overreaching, and ill-advised Executive Order. I even read today that the Vice President had to remind the Orangutan to sign the darn thing, something that almost slipped what is left of his so-called mind.

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