Day 3 was, to be frank, a whole bunch of nothing. That’s what happens when you spend Day 2 examining all of the most interesting things. As a result, I haven’t got much to say, but I can give you my sense of what the outcome of this third day of arguments was. Essentially, it seems that the argument that the federal government’s expansion of the Medicaid program is very unlikely to be considered coercive to the states. This isn’t very surprising, as the real surprise was that the Court actually considered this issue in the first place. The other take-home message was that the Court is likely to invoke severability–even though Congress didn’t explicitly specify that in the Affordable Care Act–meaning that the entire law will not be struck down as unconstitutional even if the Court rules that the individual mandate component of the law is unconstitutional. That’s good news and bad news. It’s good news because it means that many important provisions of health reform will remain intact. It’s bad news because it means that Congress will figure out how to keep certain provisions (e.g., guaranteed issue, community rating) in the absence of the mandate.
Monthly Archives: April 2012
I want to spend some time today examining what I think is a most interesting demonstration of an illogical position on the part of opponents of the Affordable Care Act, and I want to visit the topic through the comments of Justice Ginsburg.
Justice Ginsburg said “I do think one striking feature of the argument here that this is a novel exercise of power is that what Congress chose to do was to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare/Medicaid type model. And so, it seems a little ironic to suggest that that counts against it.”
Later, she continued “Congress, in the ’30s, saw a real problem of people needing to have old age and survivor’s insurance. And, yes, they did it through a tax, but they said everybody has got to be in it because if we don’t have the healthy in it, there’s not going to be the money to pay for the ones who become old or disabled or widowed. So, they required everyone to contribute. There was a big fuss about that in the beginning because a lot of people said — maybe some people still do today — I could do much better if the government left me alone. I’d go into the private market, I’d buy an annuity, I’d make a great investment, and they’re forcing me into paying for this Social Security that I don’t want. But that’s constitutional.”
She made the point one last time, saying “There’s something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that’s fine, but if the government wants to get — to preserve private insurers, it can’t do that.”
This is, honestly, mind-boggling. First of all, there’s the interesting fact that the individual mandate was originally a conservative idea. Born by some of the brilliant minds at the Heritage Foundation, the idea was to move towards a model of personal responsibility: by requiring everyone to purchase their own health insurance coverage, we’d finally stop subsidizing the uninsured. Then, when this principle was actually passed by Democrats, the conservatives moved to attack the legislation on the grounds that people were being “forced” to buy a product they didn’t want. Yet everyone agrees that Congress has the authority to compel everyone to participate in a national health insurance program like Medicare, which is very clearly a more liberal approach to solving the problem than the current approach, which relies heavily on the private market. The funny thing is, if the individual mandate falls, a single-payer national health insurance system may well become inevitable. It will just be a painful road we have to travel to get there, littered with incredibly sick, incredibly bankrupt individuals.
If I had to sum up what happened on the second day of oral arguments at the Supreme Court last month, it would be this: Several of the justices demonstrated for the world that, while they may be experts in the law, they are anything but experts in the U.S. health care system. Of course, that didn’t apply to everyone, and it often seemed that those most likely to rule against the Affordable Care Act were those with the poorest grasp of health economics. What I’d like to do now is walk you through some of their more ridiculous comments.
Justice Kennedy, the guy that most experts think the outcome hinges on, asked quite early on “Can you create commerce in order to regulate it?” That’s not an absurd question, but it does underscore a theme that several of the justices continued to visit throughout the day, which is that they don’t think that everyone is already in the health care market by virtue of their existence. It came up when Justice Alito asked if there was a market for burial services (since everyone dies), and when he said, referring to healthy young people, “Isn’t it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.” To which Justice Ginsburg (who “gets” it) responded: “If you’re going to have insurance, that’s how insurance works.” She’s right, of course.
Then the analogies really broke down. For instance, Justice Scalia compared the health insurance market to the market for automobiles: “Mr. Verrilli, you could say that about buying a car. If people don’t buy cars, the price that those who do buy cars pay will have to be higher. So, you could say in order to bring the price down, you’re hurting these other people by not buying a car.” General Verrilli rightly responded that the health care market is different because the uninsured are “going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow–that–to which we’ve obligated ourselves so that people get health care.” To which Justice Scalia actually said “Well, don’t obligate yourself to that.” That’s right. Scalia is actually suggesting that the burden of the uninsured doesn’t have to be a burden, because we could just refuse to provide them care. He has a point, though. If this is going to be a country where the sick and the dying are refused treatment because they didn’t get insurance before their health declined, then we don’t need an individual mandate. That’s not the America I believe in.
At a later point, Scalia also said “When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance, like the rest of us.” Man, this guy just doesn’t get it. I’m guessing he’s never heard of Joseph Stiglitz, who won the Nobel prize in Economics for, among other things, detailing the phenomenon of the “death spiral” in which, if only sick people buy insurance, the price keeps getting more and more expensive until the entire system collapses.
Finally, I’ll conclude this post with the comments of the counsel for the State of Florida who said “It is clear that the failure to buy health insurance doesn’t affect anyone.” It doesn’t? Is that why my health insurance premiums are inflated to account for the costs of uncompensated care? Maybe not in Justice Scalia’s world, but that’s precisely what happens in mine, and I’d like it to stop.
What has been billed as the court case of of the century is almost so ridiculous that I am tempted to begin this entry with “The Supreme Court, the Affordable Care Act, and the Obama Administration walk into a bar association….” but the sad fact of the matter is, that no matter how many brilliant legal minds have weighed in on this issue, it ultimately comes down to the five who make up the majority opinion. So, I’m going to give you my take on the oral arguments in a series of posts. I’ve waited, because I wanted to have time to reflect on what I read in the transcripts from the Court. A decision is still months away, so I figured I had some time to gather my thoughts.
The first day of oral arguments was concerned with whether or not the state of Florida had legal standing to bring this case before the Court. That hinged on whether the penalty associated with the individual mandate was a “penalty” or a “tax.” You see, if it is a tax, then the law says that no one can go to court over it yet, because no one has yet had to pay the tax. This stems from laws designed to ensure that the federal government is able to collect tax revenues without having to prove that payment is owed in court. Instead, people are required to pay their taxes, and may seek subsequent legal action to have their taxes returned to them. You have to admit, it makes sense. So, if the penalty in the ACA for those who don’t obtain insurance under the individual mandate is a “tax” then the whole case gets tossed out. If it’s a “penalty” it goes forward.
The funny thing is, neither the Obama Administration nor the state of Florida viewed the penalty as a tax, so the Court had to assign someone–Robert A. Long–to argue that the penalty was actually a tax. Another funny thing is that no one is arguing that the penalty is unconstitutional. Opponents are only upset over the individual mandate to buy insurance. They don’t think that the federal government can compel people to do that, but if the Court says they can, then the penalty is seen as coming along for the ride.
For me, this was the most telling exchange between several Justices and the counsel for the state of Florida, Gregory Katsas:
KATSAS: I’m happy to focus on currently eligible people who haven’t enrolled in Medicaid. That particular class is the one that gives rise to, simply in Florida alone, a pocketbook injury on the order of $500 to $600 million per year.
JUSTICE KAGAN: But that does seem odd, to suggest that the State is being injured because people who could show up tomorrow with or without this law will–will show up in greater numbers. I mean, presumably the State wants to cover people whom it has declared eligible for this benefit.
KATSAS: They–they could, but they don’t.
Translation: The state of Florida (and others like it) are concerned that people who are eligible for Medicaid, but currently unenrolled, might actually show up and ask for their benefits because of the mandate. They have estimated this to cost hundreds of millions of dollars–a “pocketbook injury”–that they wish to avoid in favor of the “no-cost” alternative of leaving these folks uninsured.
Now, this makes perfectly good sense from the State’s point of view, because they have to balance their budget, and adding substantially to the Medicaid rolls is a daunting prospect. In fact, it might push them to do things like raise taxes or cut other programs. It would be far better to let this play out “off the books” and pass the costs on to the insured in hidden ways that they can’t perceive nearly as readily as they could a tax increase. And that is precisely what they’ve done for decades.
Here’s hoping things get better on day 2…..
Last week at this time, Augusta National Golf Club was abuzz with activity as the Masters–the most beloved of all professional golf tournaments (except for that not allowing women thing)–got underway. Last Sunday evening, after an exhilirating finish in regulation, Bubba Watson defeated Louis Oosthuizen on the second playoff hole to claim his first “green jacket.” You can watch a moving clip here. It was a lifetime achievement for the self-taught golfer and fellow graduate of my alma mater, the University of Georgia, who stood out among a gathering of greats. I love the Masters, because it heralds the start of spring, the beginning of longer days, and the renewal of life. It is in that spirit that I present to you a “masterful” edition of the Health Wonk Review, full of fresh ideas, wonderful writing, and some of the best recent writing from some of health policy’s greats. The metaphor really breaks down after that, though, so just read on for the good stuff. (I was going to include pictures from last week’s tournament, but I don’t want any copyright issues–so I’m afraid you’ll have to use your imagination.)
On the 1st tee, we have continued talk of the Supreme Court. Joe Paduda asks what the opponents of health reform will do if the Supreme Court overturns the mandate: “If the Supremes overturn health reform and/or the individual mandate, employers, taxpayers, and individuals are going to see higher health insurance premiums. The entire market will be in a death spiral. As more opt out of coverage, the cost for the shrinking number of insureds will increase. Members of the Chamber of Commerce, the NFIB, and the Club for Growth will find their profits eaten up by health insurance premiums, or they’ll be forced to drop coverage entirely.
Hopefully they’ll be okay with that, secure in the knowledge that they’ve sacrificed good health and medical treatment, for themselves and their families, on the altar of liberty. Individuals outraged by the mandate will be free to find coverage on their own, coverage which will be unaffordable for all but the richest Americans without any pre-existing medical conditions…And no, the free market will not come up with a solution. If it could have, it would have by now.” I agree with this sobering, but accurate assessment, starting the round with a par.
Headed to number 2, a long par 3 over the water and into the wind, requires careful club selection. Fortunately, Jaan Sidorov of the Disease Management Care Blog is here to scrutinize the “Choosing Wisely” web site that lists common medical tests and procedures that are often unnecessary. Being an evidence-based and a skeptic, Sidorov has little problem with the tests, but he does criticize the use of a relatively primitive web page in an attempt to change physician and patient behavior. He comes away unimpressed and wonders if a Web 2.0 approach or adoption by the population health management vendors would result in better outcomes. Read Jaan’s full post, here. Armed with this information, you make par.
The 3rd hole is a great place to take a break and make sure that you understand how the game is played. Enter Roy Poses, who writes often about ethics and conflicts of interest in health care at Health Care Renewal. This week, in a post entitled Conflict of Interest or Bribes? Biomet, Smith & Nephew Settle, Roy writes about a legal case that illustrates that some apparent conflicts of interest may in fact be health care corruption and suggests that true health care reform would better regulate and more strongly restrict conflicts of interest because of their potential for causing, or being health care corruption. A move in the right direction with a birdie.
Similarly, at the 4th, Julie Ferguson of Workers Comp Insider tells us that in a 50-sate roundup, there were no “A” students in the State Integrity Investigation, a $1.5 million public collaborative project designed to expose practices that undermine trust in state capitols. See her post: How does your state score for insurance, ethics, accountability, corruption? Tough break, bogey.
The 5th hole serves up an update on accountable care organizations, with Louise of the Colorado Health Insurance Insider. In “Cigna and CSHP Collaborating on an Accountable Care Program,” Louise writes “Cigna has already established their collaborative accountable care programs with provider groups in other states and the success of those programs is what’s driving the expansion into ten more states, including the collaboration with CSHP. Hopefully the program will continue to be successful in the new locations, resulting in better patient outcomes, more accessible and affordable healthcare, and better patient satisfaction. I would also expect to see more of this sort of collaboration between health insurance carriers and healthcare provider groups as time goes on.” In other words, par for this hole.
Another conspiracy appears to be in the works at the 6th, according to Neil Versel of the Meaningful Health IT News blog. In his recent post, Neil reveals that he wanted to attend the recent TEDMED conference, but found out that “TEDMED’s new owners say it won’t credential healthcare trade press unless they agree to be paid “media partners.” Double-bogey at the 6th.
The 7th hole offers an opportunity to regroup after struggling at the 6th. With Kat Haselkorn’s post “The Power of Employee Engagement” at the Corporate Wellness Insights blog, we learn of the subtle but crucial difference between employee participation and employee engagement in worksite wellness programs. In order to fully engage employees and improve population health, intrinsic motivation must be a factor. External motivators (like the ever-popular incentive program) can lead to high levels of participation but little personal investment in adopting healthy behaviors. Back on track with a birdie.
Headed to the 8th, we have “The Big Shift” written by Bob Vineyard of the InsureBlog. Does less health care really equate to lower health care costs? InsureBlog’s Bob Vineyard explores this conundrum and his answer may surprise you. The magnitude of wasteful spending amounts to a hazard, and after the penalty stroke, you’re lucky to escape with double bogey.
Finishing the front nine is David Williams of the Health Business Blog who has good things to say about health reform in Massachusetts. In his post “Massachusetts health reform has not driven up costs,” we learn that despite what GOP Presidential candidates would have you believe, Massachusetts has achieved its coverage goals without the undesirable side effect of increased per capita spending. We also learn that with near universal coverage in place, Massachusetts is ready to tackle costs. No need to lay up here, go for the green and make birdie.
As we kick off the back nine on number 10, it’s worth asking how other countries pay for health care. Jason Shafrin, who blogs at the Healthcare Economist, considers this topic in a post entitled Healthcare Spending in Indonesia. How do Indonesians pay for healthcare? What is the government’s role in the provision of healthcare services in Indonesia. The Healthcare Economist provides the answers. Eagle at the 10th is a great way to start off the back nine.
The 11th is a chance to hear from the relatively new voice of Brad Flansbaum, blogging at The Hospitalist Leader about the limited availability of healthy fruit and vegetable options in many neighborhoods in a post entitled “This is About Brussel Sprouts, Not Broccoli (And It’s Not What You Think).” After catching a bunker, it’s a solid par.
Hole number 12 comes courtesy of the Health Affairs Blog. In a piece from their “Contributing Voices” section by David Lansky, the President and CEO of the Pacific Business Group on Health, titled “Public Reporting Of Health Care Quality: Principles For Moving Forward,” David notes challenges for public reporting, discussed in articles in the March issue of Health Affairs and elsewhere, including the shortcomings of hospital reporting, the importance of framing quality information in ways consumers can understand and apply to real-world decisions, and the need for more consumer-relevant measures. He suggests that we have not done a good job designing public reporting programs to deal with these challenges, but he says the answer is not to abandon reporting but to do it right. Accordingly, he offers several principles for moving forward, such as meeting consumers where they are — rather than trying to lure them to stand-alone websites or publications — and implementing measures that consumers say they want, regardless of the inherited limited data infrastructure. Things continue moving in the right direction with a birdie at the 12th.
Lucky number 13 is a piece from John Goodman’s Health Policy Blog at the National Center for Policy Analysis that explains the economic sense of choosing a high deductible health plan. In an attempt to avoid moral hazard, you lay up short of the green, and two putt for bogey.
A string of pars on 14, 15, and 16, leads to Anthony Wright’s Health Access blog on the 17th, exploring “What California Has at Stake at the Supreme Court.” According to Wright, California is well on its way to implementing health reform—and so hundreds of thousands, if not millions,would lose coverage and financial help if the ACA were to be struck down. California was desperately trying health reform before “Obamacare,” and the status quo is unsustainable, so it will try again with or without the federal law (including improving upon it, especially if a part is struck down)—but it would be very, very hard without the tools and resources from the Affordable Care Act. On the green under regulation, with another two putt, this time for birdie.
Finishing the round at the 18th, we have an excellent post from Joanne Conroy, MD, writing at Wing of Zock, who explains how health reform could really benefit from having some continuity of leadership at CMS. According to Dr. Conroy, “The “who’s right” of partisan politics gets in the way of what’s right. Our health care system is too important to be a political football. Stable leadership does not remove the input of elected officials. It just makes recruitment of health care leaders to government service and the implementation of sound policy more efficient if you are not playing musical chairs every 18 months.” The long birdie putt drops in.
Well, that’s it. If you’re playing along at home, we’re 2 under for today’s round. Not bad after a series of dramatic ups and downs. Stay tuned for the next edition of Health Wonk Review being hosted by everyone’s favorite “To Be Determined.”
My apologies for the longer than normal blog silence. Things have been a little hectic lately, and are going to stay that way for a bit. Nicole and I are working on putting together a series of posts on the Supreme Court hearings over the Affordable Care Act, which should be headed your way soon, but until then, I wanted to point you to some excellent writing elsewhere on the web.
First up, a wonderful post on the absurdity of Paul Ryan’s budget proposal from Jon Oberlander.
Next, you might enjoy looking at the recently released (and very interactive) County Health Rankings.
Finally, there’s also an excellent overview of the SCOTUS hearings at the Health Affairs blog.
Hopefully, all of that will tide you over for a while.
Also, I’ll be hosting the Health Wonk Review in a little over a week, so be sure to stop back by.