Tag Archives: Constitutionality

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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Disaster Averted

Yesterday’s crushing defeat of the so-called “American Health Care Act” or AHCA, signals the end of the seven-year long attempt by the Republican Party to legislatively kill the Affordable Care Act (ACA).

Yet, as was pointed out on one cable news network last night, it won’t stop the health insurance industry from getting the Republicans in Congress to kill parts of the law slowly by eliminating the taxes that go to pay for the coverage.

Call it “genocide by stealth”, since millions of Americans will die, as per the Congressional Budget Office (CBO’s) scoring of AHCA. If they can’t kill the law outright, the so-called “Freedom Caucus”, actually the Congressional version of the Tea Party, will kill it slowly.

Why do you think they keep saying it is a disaster and it is crumbling? It’s because they are dead set against anyone getting health care unless someone else can make a profit from selling a policy.

Then there is the other question, the one usually raised by liberals and progressives, especially those who supported Vermont Senator Bernie Sanders last year in the primaries, as to why we are the only Western country without universal coverage.

The answer is complex, but not complicated (“who knew health care was so complicated?). First, everything the government of the US has ever implemented for the benefit of people has had to pass muster with the Constitution. It either has to be covered by the Constitution directly, or implied through the taxing mechanism.

Second, the Founding Fathers never mentioned or promoted the right to health care, as the prevailing political and social philosophy of the day was concerned with freedom, liberty, and private property. It has been unclear what, if anything, was meant by the phrase, “life, liberty, and the pursuit of happiness”, let alone, the phrase, “promote the general welfare.”

Why they never mentioned health care and why other nations have it, is due to the fact that the US was founded during the first half of the period historians call, “the Enlightenment”, when the right to private property, liberty, and freedom were the topics of discussion on both sides of the Atlantic. Basically, the difference between Classical Liberalism (Conservatism) and Modern Liberalism (Liberalism) is between negative rights (the right not to be killed) versus positive rights (the right to a job, education, housing, health care, etc.)

Canada gained its limited independence from Britain nearly a hundred years after we did, and therefore was influenced by the philosophy of the second half of the Enlightenment, which stressed involvement by government in the economy.

The only time the Founders cared about providing some kind of health care plan was directed towards a particular group of citizens in the late eighteenth century, as I wrote about in this post.

What is now called the Public Health Service began as a government-sponsored, health plan for merchant sailors on ships entering and leaving US ports and on inland waterways. It was never challenged in the Supreme Court as unconstitutional, nor was it ever attacked by members of the opposition party. In fact, it was supported by both Federalists and Anti-Federalist politicians of the day.

The third reason why we don’t have universal, single-payer is because the government allowed employers to provide coverage during WWII to attract women into the workplace when the men went overseas. The UK is often cited as an example for single-payer, but what most supporters of this type of plan do not realize is that because of the devastation the UK suffered at the hands of German bombs, their health care system needed to be re-built from scratch, so the government stepped in with the NHS. Even Churchill supported it.

Fourth, we have always provided health care to certain at risk groups like the poor (Medicaid), the elderly (Medicare), and to children (CHIP), as well as to former service persons and their families (Tricare), etc. Perhaps the way to begin to get universal coverage is to merge all of these programs into one, then expand it to cover everyone else.

But for the time being, a major disaster was averted, but we should not think this is the end of the debate, nor is there victory. The battle lines are drawn, and the enemy is not surrendering. This is not a time for congratulation, but for vigilance and resolve.

 

Opt-Out: Here We Go Again

Once again, we have to look at the issue of opt-out. This time in the land of Lincoln.

“Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.”

Abraham Lincoln

Yet, it seems that Capital is still trying to stick it to Labor by dismantling the workers’ comp state systems.

Stephanie Goldberg, writing yesterday in Business Insurance, reported that the Illinois Policy Institute, an organization the Republican Governor, Bruce Rauner, has previously donated to, issued a report last month calling for “updates” [Emphasis added] to the state’s more than 100-year-old system.

The author of the report and the director of the institute’s regulatory reform, Mark Adams, said in an phone interview that, “the system that is in place isn’t serving workers effectively.”

He acknowledged that it is difficult to reform the system because there are so many stakeholders (a point made by myself and others).

Yet, the report goes on to say that, “the most effective way for government to protect workers is not by a restrictive one-size-fits-all system, by by creating broad rules of the game that give workers more freedom to contract with employers for a deal that is better suited to their own situation.”

On the one hand, what the report is stating makes sense, and seems to agree with the idea of opening up the system to new ways of providing care to injured workers, but if we look deeper at the alleged success of opt-out in Texas, Oklahoma, and the failure to get it passed in Tennessee and South Carolina, we find that the proponents of opt-out have not been very up front and honest on the subject.

What they really want is to blow up the entire workers’ comp system nationwide, and take us back to before Triangle, a point they seem to be making quite successfully in some quarters of the work comp industry because of the apolitical and ahistorical atmosphere in which this issue is often discussed.

We recently lost one brave soul who fought the temptation to drink the kool-aid on opt-out, and we cannot let his memory pass without remembering that he was not fully convinced that opt-out had proved itself.

In my last post, I mentioned what happens to closed systems if they do not change. With opt-out, we would not be seeing an opening of the system that still offers protections to injured workers, albeit with more options and more flexibility, but rather a complete and utter destruction of the entire system, which is what ARAWC and the Illinois Policy Institute wants, so that the employer is the one who benefits, not the employee.

Mark Adams stated that the system they have looks like it deals with the 19th Century, and not with telecommuters, or people who balance caring for a child, an elderly relative, and work responsibilities. True, but going back to the 19th Century when workers had to sue for benefits, if they were lucky to get to court, is not the answer.

One reason why opt-out has not been successful outside of Texas and Oklahoma, is as Stephanie Goldberg, says, the potential for constitutional challenges to opt-out laws could give pause to states considering legislation, as what happened in February when the Oklahoma Workers’ Compensation Commission ruled that provisions of the state’s Employee Injury Benefit Act deprive workers of equal protection and access to the courts, and to unfairly allow employers to define “injury.” The Supreme Court in Oklahoma is reviewing the case.

One wonders what the old railsplitter would think about the idea to deprive Labor of its rights to equal protection and access to courts, and to benefits they deserve when injured on the job. Lincoln would be horrified to learn that Capital has become superior to Labor.

Where No One Has Gone Before: Or Will Captain Kirk Save Work Comp?

Tom Lynch, of LynchRyan published an excellent piece today about the bumpy ride workers’ comp has had since 1972, when a commission established by Richard Nixon made 19 recommendations for the improvement and uniformity of state workers’ comp standards.

As the Chairman of the Commission, John Burton suggested, “if we continue to advance at this rate, the 19 essential recommendations will be law throughout the land sometime in the 23rd century.”

“Hailing frequencies, open Captain.”

Tom is not the only one who wrote recently about the vested interests holding back progress and change. David De Paolo last week said the same when he wrote,

“Insurance companies are as much a vendor in either scenario as physicians, bill review companies, utilization review companies, attorneys, vocational counselors, etc. Each and every single one makes a buck off work comp, and each and every one has an interest in maintaining the status quo.”

Do we really have to wait until warp engines and transporters carry us off to far distant planets to have meaningful and substantial reform of workers’ comp that benefits the injured worker and minimizes the abuse by vested interests?

Or do we continue to illogically believe that nothing can change, and that new ideas are stupid and ridiculous and a non-starter? Or do we ignore those in the industry who blog about workers’ comp, but are impeding change by denying the credibility of the individuals presenting new ideas, or the ideas themselves?

These 19 recommendations should be looked at again and implemented, along any other ideas, outside of opt-out to bring injured workers better and less expensive medical care. To do otherwise is illogical.


I am willing to work with any broker, carrier, or employer interested in saving money on expensive surgeries, and to provide the best care for their injured workers or their client’s employees.

Ask me any questions you may have on how to save money on expensive surgeries under workers’ comp.

I am also looking for a partner who shares my vision of global health care for injured workers.

I am also willing to work with any health care provider, medical tourism facilitator or facility to help you take advantage of a market segment treating workers injured on the job. Workers’ compensation is going through dramatic changes, and may one day be folded into general health care. Injured workers needing surgery for compensable injuries will need to seek alternatives that provide quality medical care at lower cost to their employers. Caribbean and Latin America region preferred.

Call me for more information, next steps, or connection strategies at (561) 738-0458 or (561) 603-1685, cell. Email me at: richard_krasner@hotmail.com.

Will accept invitations to speak or attend conferences.

Connect with me on LinkedIn, check out my website, FutureComp Consulting, and follow my blog at: richardkrasner.wordpress.com.

Transforming Workers’ Comp Blog is now viewed all over the world in over 250 countries and political entities. I have published nearly 300 articles, many of them re-published in newsletters and other blogs.

Share this article, or leave a comment below.

Florida State Supreme Court Upholds Law’s Validity

Following up on what I reported on earlier this week, the Supreme Court of Florida unanimously decided not to review Daniel Stahl v. Hialeah Hospital, according to Business Insurance’s Stephanie Goldberg.

In my previous post, I mentioned that the 1st District Court of Appeal had ruled that attorney fee schedules violated state law.

But the Court of Appeal also ruled back in March in the above referenced case, that the workers comp system was an adequate exclusive remedy, Ms. Goldberg said in her article.

The State Supreme Court accepted jurisdiction to review the decision, and said in its ruling that, “after further consideration and hearing oral argument in this case, we have determined that we should exercise our discretion and discharge jurisdiction.”

So for the time being, it would seem that Florida’s Workers’ Compensation law is constitutional, and until other cases that are pending are resolved (see my articles, “Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel“, “Update on Constitutionality of Work Comp in Florida“, and “Advocacy Group Petitions Florida Supreme Court to Review Work Comp Constitutionality“), Florida’s injured workers will still have something to protect them.


I am willing to work with any broker, carrier, or employer interested in saving money on expensive surgeries, and to provide the best care for their injured workers or their client’s employees.

Ask me any questions you may have on how to save money on expensive surgeries under workers’ comp.

I am also looking for a partner who shares my vision of global health care for injured workers.

I am also willing to work with any health care provider, medical tourism facilitator or facility to help you take advantage of a market segment treating workers injured on the job. Workers’ compensation is going through dramatic changes, and may one day be folded into general health care. Injured workers needing surgery for compensable injuries will need to seek alternatives that provide quality medical care at lower cost to their employers. Caribbean and Latin America region preferred.

Call me for more information, next steps, or connection strategies at (561) 738-0458 or (561) 603-1685, cell. Email me at: richard_krasner@hotmail.com.

Will accept invitations to speak or attend conferences.

Connect with me on LinkedIn, check out my website, FutureComp Consulting, and follow my blog at: richardkrasner.wordpress.com.

Transforming Workers’ Blog is now viewed all over the world in 250 countries and political entities. I have published nearly 300 articles, many of them re-published in newsletters and other blogs.

Share this article, or leave a comment below.

Courts Striking Down Work Comp Laws

Coming back around to the constitutionality of aspects of the various state workers’ comp laws, an article by David De Paolo last week, suggested that rather than corporate America dismantling workers’ comp, it is the courts who are actually doing so.

David says that state supreme courts will be the ones doing the dismantling this year, piece by piece.

A week and a half ago, I wrote that the Oklahoma WC statute relating to the permanent partial disability deferral provisions of the state’s workers compensation statutes of 2013, was struck down in a 7-2 decision.

This decision was first reported in The Oklahoman.

And David also reported in the same article, that the 1st District Court of Appeals in Florida said that the state’s statutory limits on the payment of attorneys for injured workers was unconstitutional.

So while ProPublica and others rightly or wrongly accuse corporate America, the Koch Brothers, ALEC, ARAWC, the Illuminati, Martians, and anyone else we left out, it is the men and women who wear black robes who are striking down the workers’ comp laws in their states.

Is this a coincidence? Is this a vast conspiracy of right-wing jurists and those who put them on the bench? That is hard to say because we don’t know these people at all, who appointed them, and what their individual political motives are.

But if these decisions are any indication, the courts are ruling more in favor of injured workers, than their employers.

If you read De Paolo’s article and the cases linked to them, as well as the OK case, you will see that the courts are generally siding with workers.

What does this mean?

Well, it is too early to tell, but if these trends continue this year, 2016 may be the year the injured worker gets a little break. But we still have laws, regs, and rules in place that are holding back workers from getting the best health care available, at lower cost, no matter where that happens to be, even if it is not within the borders of their state or the country.

And that is something courts in the future will have to decide.

Oklahoma WC Statute Struck Down

The Supreme Court of Oklahoma struck down yesterday parts of that state’s Workers’ Compensation law.

In a 7-2 decision, the Court’s ruling invalidated the permanent partial disability deferral provisions of the state’s workers compensation statutes of 2013.

Justices on the Court said that deferring permanent partial disability payments if an injured worker returns to work was unconstitutional.

According to Justice Noma Gurich, who wrote for the majority, “an injured employee who returns to work receives no compensation for the physical injury sustained and no compensation for a reducing in future earning capacity, upending the entire purpose of the workers’ compensation system,

Two other Justices, Tom Colbert and Joseph Watt,said that the decision does not go far enough “to cure the Legislature’s unconstitutional scheme” and hinting that other provisions could have been tackled in the ruling.

The decision that led to the Court’s finding, involved four cases filed with the state’s Workers Compensation Commission by workers who were injured on the job.

In at least one case, officials improperly relied on American Medical Association guidelines for evaluating the extent of permanent impairment to a worker, according to the article.

An attorney who represented two workers in the case said that, “it is another example of the court having to correct a poorly written law.”

However, the president and CEO of the State Chamber of Oklahoma said that he was disappointed with the decision and believes the court should defer to the Legislature.

“Oklahoma workers and employers both benefit from an administrative rather than court-based system,” Fred Morgan said in a statement.

Both groups are harmed when the court continues to act like an unelected legislature, overturning the will of the people through their elected representatives.

Morgan’s comments are typical of Republican and conservative views when issues such as these are decided against them and their right-wing agenda, which is to return the nation to the 19th century, economically and politically.

They decry “activist judges” when decisions are rendered that upend their reactionary ideology and goals, but declare that the Courts are carrying out the will of the people when they rule in their favor.

What is the bottom-line here?

Workers’ compensation is increasingly being challenged, yet the industry itself refuses to yield to new ways of thinking, new ways of seeing improvements in the treatment and care of injured workers, and allows the Courts or legislatures to pick apart aspects of the laws that either hurt workers or hurt employers, but never do they consider what the workers want.

Instead, some are content to put their words in workers’ mouths, and declaring that injured workers will not seek surgery outside the US. Were they ever asked? No, and if it was up to many in the industry, it never will. So things will only get worse, not better.