Tag Archives: Health Care Reform

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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Comment By Don McCanne

Don McCanne outlines below some things the previous post, Universal healthcare could save America trillions: what’s holding us back? | Opinion | The Guardian left out.

Here are Don’s Comments:

Those who are up to date on the health policy literature may not find much new here, but there are a few points worth emphasizing:

* It is irrefutable that a well designed, single payer Medicare for All program would meet our health reform goals of affordability, universality, equity, effectiveness and efficiency.

* The barrier to reform is not financing since we are already spending enough to pay for such a system, especially once administrative efficiency is factored in.

* Using taxes to pay for the system should not be a problem since our current public spending on government-financed health programs, on tax expenditures for employer-sponsored plans, and on the purchase of health care for public employees would already pay for much of the system, and the remaining taxes needed would be offset by the elimination of insurance premiums, deductibles and other cost sharing.

* The fact that the taxes would be progressive would be a small step to help offset the egregious inequities in income that hold back too many of us who are contributing our fair share of effort to society while too often having to scrimp on essential needs. Tax policies should be used to adjust inequities that result in a select few being able to accumulate obscene levels of wealth – amounts far, far in excess of what their personal efforts contribute to society. They will not suffer from a very modest reduction in their excesses.

* The primary barrier to reform is political. Although Adam Gaffney says, “Good numbers do not a political movement make,” they sure do help. Advocacy is much easier when the facts are on the side of the people. So let’s all get out and nurture that political movement that we need.

The policy fight should be over. It is a political battle that we now face.

Universal healthcare could save America trillions: what’s holding us back? | Opinion | The Guardian

More fuel to the fire on single payer from The Guardian, as a follow-up to my two previous posts on the subject, Healthcare Lobbying Group Double-Crossing Democratic Voters and Establishment looks to crush liberals on Medicare for All – POLITICO.

A slew of studies are confirming that America can afford real universal healthcare, but some call it economically infeasible

Source: Universal healthcare could save America trillions: what’s holding us back? | Opinion | The Guardian

Those Damn Models Again – Health Care As An Experiment in Bait & Switch

Another shout out to Dr. McCanne, who posted today about a study sponsored by the AMA and conducted by RAND that basically said that alternative payment models (APM) are affecting physicians, their practices and hospitals.

Here is the RAND Summary with key findings:

RAND
October 24, 2018
Effects of Health Care Payment Models on Physician Practice in the United States
By Mark W. Friedberg, et al
This report, sponsored by the American Medical Association (AMA), describes how alternative payment models (APMs) affect physicians, physicians’ practices, and hospital systems in the United States and also provides updated data to the original 2014 study. Payment models discussed are core payment (fee for service, capitation, episode-based and bundled), supplementary payment (shared savings, pay for performance, retainer-based), and combined payment (medical homes and accountable care organizations). The effects of changes since 2014 in the Affordable Care Act (ACA) and of new alternative payment models (APMs), such as the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) Quality Payment Program (QPP), are also examined.
Key Findings
Payment models are changing at an accelerating pace
Physician practices, health systems, and consultants find it difficult to keep up with the proliferation of new models, with some calling for a “time out” to allow them to better adapt to current APMs.
Payment models are increasing in complexity
Alternative payment models have become increasingly complex since 2014. Practices that have invested in understanding complex APMs have found opportunities to earn financial awards for their preexisting quality — without materially changing patient care.
Risk aversion is more prominent among physician practices
Risk aversion among physician practices was more prominent. Risk-averse practices sought to avoid downside risk or to off-load downside risk to partners (e.g., hospitals and device manufacturers) when possible.
RAND press release

https://www.rand.org/news/press/2018/10/24.html

Here is the comment by Don McCanne:

There is much more here than a casual glance might imply. The search for value-based payment in health care, as opposed to paying for volume, has led to various payment models such as shared savings, accountable care organizations, bundled payments, pay for performance (P4P), medical homes, and other alternative payment models. How well is that working?
To date, most studies have been quite disappointing. Claims of cost savings are belied when considering the additional provider costs of information technology and human manpower devoted to these models, not to mention the high emotional cost of burnout. This RAND study shows that these models are increasing in complexity, making it difficult for the health delivery system to keep up. Even worse, they are inducing risk aversion. The health care providers are trying to avoid those who most need health care – the opposite of what our health care system should be delivering.
Much of the experimentation in delivery models has been centered around reward or punishment. But, as Alfie Kohn writes, “intrinsic motivation (wanting to do something for its own sake)… is the best predictor of high-quality achievement,” whereas “extrinsic motivation (for example, doing something in order to snag a goody)” can actually undermine intrinsic motivation. It has been observed by others that the personal satisfaction of achievement of patient health care goals is tremendously rewarding, whereas the token rewards based on meager quality measurements are often insulting because of the implication that somehow token payments are a greater motivator than fulfilling Hippocratic traditions. Even more insulting are the token penalties for falling on the wrong side of the bell curve simply as a result of making efforts to care for patients with greater medical or sociological difficulties.
Quoting Alfie Kohn again, “carrots or sticks… can never create a lasting commitment to an action or a value, and often they have exactly the opposite effect … contrary to hypothesis.” The RAND report suggests slowing down and working with these models some more while increasing investment in data management and analysis with the goal of increasing success with alternative payment models. No. These models are making things worse. It’s time to abandon them and get back with taking care of our patients. The payment model we need is an improved version of Medicare that takes care of everyone. Throw out the sticks and carrots.

 

But however we see it, from the point of view of carrots and sticks as not able to change behavior, or by introducing ever newer models of alternative payments, the end result is the same.

Health care suffers because of the wasteful, bureaucratic, and arbitrary imposition of models that only serve to make life for physicians and hospitals harder, and makes health care more expensive and complex.

As Dr. McCanne says above, throw out the carrots and the sticks. Get rid of the models that don’t work and go to a single payer system that is streamlined and less bureaucratic and arbitrary.

Ex-UN chief Ban Ki-moon says US healthcare system is ‘morally wrong’ | US news | The Guardian

Here is an article from The Guardian newspaper that spells out what is wrong with the American health care system.

We should pay attention to what Secretary General Ban said.

—————————————————————————

Exclusive: Former UN secretary general accuses ‘powerful’ health interests in the US of blocking universal healthcare

Source: Ex-UN chief Ban Ki-moon says US healthcare system is ‘morally wrong’ | US news | The Guardian

Healthcare Lobbying Group Double-Crossing Democratic Voters

For nearly a year now, I have been advocating single payer health care ever since I was diagnosed with end-stage renal disease. BTW, I am doing fine, even if I have been rejected twice for access to transplant centers due to personal reasons I won’t go into here.

Today, I found an article on The Intercept.com that reported that several candidates for Congress and other offices in Hawaii and other states have secretly secured opposition to “Medicare for All” single payer healthcare, even though they have told their voters that they support it.

According to the article, the candidates in Hawaii’s 1st Congressional District, former state Sen. Donna Mercado Kim, Hawaii Lt. Gov. Doug Chin, and Honolulu City Council Member Ernest Martin are taking heat from opponents for talking to an industry-friendly group, the Healthcare Leadership Council (HLC).

The Healthcare Leadership Council seeks to advance the goals of the largest players in the private health care industry. These candidates are talking to the HLC even as public opinion is moving towards positions opposed by giant health care companies.

Kaniela Ing, a state lawmaker running for the seat on a democratic socialist platform stated that, “Democrats running in a primary election will say they support ‘Medicare for All,” but what do they say to lobbyists behind the scenes?”

In fact, the article reports, one leading candidate has campaigned on a pledge to crack down on over-priced pharmaceuticals and promote single payer, but told the consultant sent from the HLC that he would maintain drug industry friendly pricing policies and views Medicare for All with skepticism.

HLC spends over $5 million a year on industry advocacy and brings together chief executives of major health corporations, and represents an array of health industries — from insurers, hospitals, drugmakers, medical device manufacturers, pharmacies, health product distributers, and information technology companies.

HLC’s outreach in Hawaii began in January. The group told candidates, in an email obtained by The Intercept, that it was in the process of forming a coalition to “jointly develop policies, plans, and programs to achieve their vision of a 21st century system that makes affordable, high-quality care accessible to all Americans.”

This language obscures their national campaign to monitor and blunt the energy behind progressive policy reform. In an email to The Intercept, Michael Freeman, executive vice president of HLC said that they survey “congressional candidates every election cycle regarding their views on a wide range of healthcare issues.”

Former state Sen. Kim’s dossier profile said she is very pro-market, opposes any attempt at single payer, does not support price controls on pharmaceuticals and agrees that Medicare and Medicaid need to be managed by the private market.

It would seem that besides the opposition from the insurance companies and the pharmaceutical industry, single payer, Medicare for All, is under assault below the radar of most voters, if not most Democratic voters during the primaries.

Despite alleged strong support for bills such as the one Bernie Sanders introduced, lobbyists for the medical-industrial complex are fighting hard to defeat health care reform for all Americans, and no matter what the public attitude is, they will prevent at all costs, the transition to single payer.

HLC also keeps tabs on candidates who could be a threat to their agenda, such as Ing, stating that she vocally supports a single payer, public health care system.

Lobbyists have told executives in the health care industry to be vigilant about the threat of single payer.

“It would be a mistake for us to overlook the growing number of lawmakers who are supportive of measures to expand significantly government’s role in healthcare,” according to a report HLC published at the end of last year. The report went on to say that while these ideas do not have the political support to pass at the moment, the “momentum on the Democratic side of the aisle is undeniable,” They have dispatched teams of lobbyists to keep tabs on rising candidates.

So, even if you vote for a Democrat in November, chances are, that they will double-cross you when it comes to supporting Medicare for All. Which is wrong-headed on their part, especially the hospitals and pharmaceutical companies.

If more people are covered, and the government pays for their health care, hospitals will get more patients covered under the plan and thus more revenue, even if they charge lower prices than for private insurance, and drug companies will sell more drugs to these patients, even if the prices are brought under control.

What difference does it make if a patient gets their health are from a government plan like Medicare or Medicaid, as many already do, or if they get it through private insurance? The hospitals and drug companies still make money, just a smaller amount. The number of newly insured will offset any assumed loss of profit, thereby increasing profit, and just not from a select group of people who can afford health care on their own.

Advocates for single payer need to be vigilant also. Don’t buy a pig in a poke. Confront these and other candidates for office to see if they really believe in single payer, or are pigs with lipstick.

 

 

 

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.