Obamacare Insurance Mandate Is Struck Down by Federal Appeals Court
by Abby Goodnough - NYT - December 18, 2019
WASHINGTON — A federal appeals court on Wednesday struck
down a central provision of the Affordable Care Act, ruling that the
requirement that people have health insurance was unconstitutional.
But the appeals panel did not invalidate the rest of the law, instead sending the case back to a federal district judge in Texas to “conduct a more searching inquiry” into which of the law’s many parts could survive without the mandate.
The 2-1 decision, by a panel of the United States Court of Appeals for the Fifth Circuit in New Orleans, left the fate of the nearly decade-old health law in limbo even as access to health care has become a central issue in the presidential race. Republicans, for whom a decision to throw out the law heading into the presidential election year could have been a political nightmare, seemed relieved, while Democrats issued a flurry of statements emphasizing that the law was still in grave danger.
But the appeals panel did not invalidate the rest of the law, instead sending the case back to a federal district judge in Texas to “conduct a more searching inquiry” into which of the law’s many parts could survive without the mandate.
The 2-1 decision, by a panel of the United States Court of Appeals for the Fifth Circuit in New Orleans, left the fate of the nearly decade-old health law in limbo even as access to health care has become a central issue in the presidential race. Republicans, for whom a decision to throw out the law heading into the presidential election year could have been a political nightmare, seemed relieved, while Democrats issued a flurry of statements emphasizing that the law was still in grave danger.
The ruling was issued almost exactly a year after Judge Reed O’Connor of the Federal District Court in Fort Worth struck down the entire law,
saying the individual mandate could not be severed from the rest of the
Affordable Care Act because it was “the keystone” of the law, essential
to its regulation of the health insurance market. With Judge O’Connor
now facing a time-consuming assignment from the appellate court, the
case is unlikely to be resolved before next year’s presidential
election.
But Xavier Becerra, the California attorney
general who led 21 states that intervened in the case and argued to
preserve the law, made clear that he planned to challenge the appeals
court decision by petitioning the Supreme Court to take the case.
“For now, the president got the gift he wanted — uncertainty in the health care market and a pathway to repeal,” Mr. Becerra said in a call with reporters on Wednesday night.
In a statement that showed just how consequential the issue is for him, President Trump tried to appeal both to opponents of the law and voters concerned about losing their health care. He described the ruling as “a big win for all Americans,” but said it would not alter the health care system. Mr. Trump also said he wanted to protect people with pre-existing conditions, as the Affordable Care Act that he has repeatedly sought to kill does.
“Providing affordable, high-quality health care will always be my priority,” he said.
Two of the three appellate judges, Jennifer Walker Elrod, appointed by President George W. Bush in 2007, and Kurt Engelhardt, appointed by President Trump in 2018, wrote the ruling. The third, Carolyn Dineen King, appointed by President Jimmy Carter in 1979, dissented.
“For now, the president got the gift he wanted — uncertainty in the health care market and a pathway to repeal,” Mr. Becerra said in a call with reporters on Wednesday night.
In a statement that showed just how consequential the issue is for him, President Trump tried to appeal both to opponents of the law and voters concerned about losing their health care. He described the ruling as “a big win for all Americans,” but said it would not alter the health care system. Mr. Trump also said he wanted to protect people with pre-existing conditions, as the Affordable Care Act that he has repeatedly sought to kill does.
“Providing affordable, high-quality health care will always be my priority,” he said.
Two of the three appellate judges, Jennifer Walker Elrod, appointed by President George W. Bush in 2007, and Kurt Engelhardt, appointed by President Trump in 2018, wrote the ruling. The third, Carolyn Dineen King, appointed by President Jimmy Carter in 1979, dissented.
Some
17 million Americans could lose the coverage gained through the
Affordable Care Act if the law were thrown out, more than 50 million
people with pre-existing medical conditions could again be denied health
insurance and insurers would no longer have to cover people up to age
26 under their parents’ plans.
A central question in the case was whether the Affordable Care Act’s “individual mandate” requiring most Americans to buy health insurance or pay a penalty became unconstitutional after Congress reduced the penalty to zero dollars as part of the tax overhaul bill enacted in 2017. When the Supreme Court upheld the mandate in its landmark 2012 ruling that saved the law, it was based on Congress’s power to impose taxes.
A second, much more consequential question was whether, if the mandate were ruled unconstitutional, the entire law — including popular protections for people with pre-existing medical conditions, subsidies to help people afford health coverage and other measures — had to fall. Judge O’Connor ruled that it did, saying that both Congress and the Obama administration considered the mandate inextricably linked with the rest of the law when it was passed in 2010.
The ruling essentially asked him to justify such a sweeping decision, requesting that he “employ a finer-toothed comb.”
For example, their ruling noted, one provision requires certain chain restaurants to post calorie counts for menu items, while another sets certain bars for convicting someone of health care fraud.
“Without more detailed analysis from the district court opinion,” the ruling said, “it is unclear how provisions like these — which certainly do not directly regulate the health insurance marketplace — were intended to work ‘together’ with the individual mandate.”
A longstanding legal doctrine called “severability” holds that when a court excises one provision of a statute, it should leave the rest of the law in place unless Congress explicitly stated that the statute could not survive without that provision. But legal experts on both sides of previous A.C.A. battles said that Judge O’Connor’s reasoning was badly flawed in striking down the entire health care law based on how the penalty provision became moot by the 2017 tax legislation.
A central question in the case was whether the Affordable Care Act’s “individual mandate” requiring most Americans to buy health insurance or pay a penalty became unconstitutional after Congress reduced the penalty to zero dollars as part of the tax overhaul bill enacted in 2017. When the Supreme Court upheld the mandate in its landmark 2012 ruling that saved the law, it was based on Congress’s power to impose taxes.
A second, much more consequential question was whether, if the mandate were ruled unconstitutional, the entire law — including popular protections for people with pre-existing medical conditions, subsidies to help people afford health coverage and other measures — had to fall. Judge O’Connor ruled that it did, saying that both Congress and the Obama administration considered the mandate inextricably linked with the rest of the law when it was passed in 2010.
The ruling essentially asked him to justify such a sweeping decision, requesting that he “employ a finer-toothed comb.”
For example, their ruling noted, one provision requires certain chain restaurants to post calorie counts for menu items, while another sets certain bars for convicting someone of health care fraud.
“Without more detailed analysis from the district court opinion,” the ruling said, “it is unclear how provisions like these — which certainly do not directly regulate the health insurance marketplace — were intended to work ‘together’ with the individual mandate.”
A longstanding legal doctrine called “severability” holds that when a court excises one provision of a statute, it should leave the rest of the law in place unless Congress explicitly stated that the statute could not survive without that provision. But legal experts on both sides of previous A.C.A. battles said that Judge O’Connor’s reasoning was badly flawed in striking down the entire health care law based on how the penalty provision became moot by the 2017 tax legislation.
In
Wednesday’s ruling, the appellate judges also asked Judge O’Connor to
consider a proposal that the Justice Department, which had sided with
the states seeking to overturn the law, quietly put forth earlier this
year. It recommended blocking only the parts of the law found to harm
those states and the other plaintiffs, or to declare the law
unconstitutional only in the plaintiff states. The states are Texas and
17 others with Republican governors or attorneys general, and two
self-employed men in Texas who say the law still requires them to
purchase health insurance that they otherwise would not buy, even though
there is no longer a penalty for going uninsured.
The legal fights over Obamacare
While
not hinting one way or another what they thought about the severability
question, the appellate judges noted the huge stakes involved.
“It may still be that none of the A.C.A. is severable from the individual mandate, even after this inquiry is concluded,” the two judges in the majority wrote. “But it is no small thing for unelected, life-tenured judges to declare duly enacted legislation passed by the elected representatives of the American people unconstitutional.”
Importantly, the ruling also asked Judge O’Connor to consider the intent of Congress when it zeroed out the mandate’s tax penalty in 2017: Did the lawmakers consider the insurance mandate inseparable from the rest of the law? At oral arguments on the appeal in July, the intervening defendants pointed to statements from members of Congress at the time indicating they wanted the rest of the law to remain intact.
On Wednesday night, Senator Lamar Alexander, Republican of Tennessee, loudly joined that argument. “I am not aware of a single senator who said they were voting to repeal Obamacare when they voted to eliminate the individual mandate penalty” as part of the 2017 tax overhaul, Mr. Alexander said in a statement.
Ken Paxton, the Texas attorney general who led the state plaintiffs in the case, applauded the decision and promised to continue fighting.
“It may still be that none of the A.C.A. is severable from the individual mandate, even after this inquiry is concluded,” the two judges in the majority wrote. “But it is no small thing for unelected, life-tenured judges to declare duly enacted legislation passed by the elected representatives of the American people unconstitutional.”
Importantly, the ruling also asked Judge O’Connor to consider the intent of Congress when it zeroed out the mandate’s tax penalty in 2017: Did the lawmakers consider the insurance mandate inseparable from the rest of the law? At oral arguments on the appeal in July, the intervening defendants pointed to statements from members of Congress at the time indicating they wanted the rest of the law to remain intact.
On Wednesday night, Senator Lamar Alexander, Republican of Tennessee, loudly joined that argument. “I am not aware of a single senator who said they were voting to repeal Obamacare when they voted to eliminate the individual mandate penalty” as part of the 2017 tax overhaul, Mr. Alexander said in a statement.
Ken Paxton, the Texas attorney general who led the state plaintiffs in the case, applauded the decision and promised to continue fighting.
“We look forward to the
opportunity to further demonstrate that Congress made the individual
mandate the centerpiece of Obamacare and the rest of the law cannot
stand without it,” he said in a statement.
The Trump administration has yet to respond to the ruling. It took the highly unusual step of refusing to defend the law after the case was brought against the government early last year and sided with the plaintiffs — at first only partially, but after the lower court ruling invalidated the law, entirely.
That left the 21 intervening states, all with Democratic attorneys general, to appeal the lawsuit, joined by the House of Representatives after Democrats won control last fall. They maintained that the individual mandate remained constitutional, but even if the courts disagreed, they said, the rest of the law could remain.
Although the law has significantly reduced the ranks of the uninsured, it has not lived up to its promise for some groups who were supposed to benefit, particularly middle-class people who don’t get insurance through a job, earn too much to qualify for the premium subsidies the law provides and often struggle to afford coverage.
For now, the law stands and the government continues to enforce it. The Trump administration did not object and said it would continue to enforce the law until all appeals were exhausted.
Health care is playing a pivotal role in the Democratic presidential primary race, with some candidates calling for improving the Affordable Care Act, others aiming to replace it with a government-run system, but all planning to criticize Mr. Trump for supporting the lawsuit should they win their party’s nomination.
Abbe R. Gluck, a health care expert at Yale Law School who supports the health law, said she was heartened that the appeals panel “recognized some of the glaring weaknesses in the lower court opinion,” but frustrated that the law’s future would remain uncertain, and for now, in the hands of a lower-court judge who already tried to overturn it.
The Trump administration has yet to respond to the ruling. It took the highly unusual step of refusing to defend the law after the case was brought against the government early last year and sided with the plaintiffs — at first only partially, but after the lower court ruling invalidated the law, entirely.
That left the 21 intervening states, all with Democratic attorneys general, to appeal the lawsuit, joined by the House of Representatives after Democrats won control last fall. They maintained that the individual mandate remained constitutional, but even if the courts disagreed, they said, the rest of the law could remain.
Although the law has significantly reduced the ranks of the uninsured, it has not lived up to its promise for some groups who were supposed to benefit, particularly middle-class people who don’t get insurance through a job, earn too much to qualify for the premium subsidies the law provides and often struggle to afford coverage.
For now, the law stands and the government continues to enforce it. The Trump administration did not object and said it would continue to enforce the law until all appeals were exhausted.
Health care is playing a pivotal role in the Democratic presidential primary race, with some candidates calling for improving the Affordable Care Act, others aiming to replace it with a government-run system, but all planning to criticize Mr. Trump for supporting the lawsuit should they win their party’s nomination.
Abbe R. Gluck, a health care expert at Yale Law School who supports the health law, said she was heartened that the appeals panel “recognized some of the glaring weaknesses in the lower court opinion,” but frustrated that the law’s future would remain uncertain, and for now, in the hands of a lower-court judge who already tried to overturn it.
https://www.nytimes.com/2019/12/18/health/obamacare-mandate.html
Obamacare Ruling May Spare Republicans Some Political Pain
The
practical effect of the decision is likely to be months of delays,
pushing the final outcome of the case beyond the 2020 election.
by Margot Sanger-Katz - NYT - December 19, 2019
A federal appeals court in New Orleans handed Republicans a Christmas present.
The court had been considering a case with the potential to dismantle the entire Affordable Care Act, an outcome that could have set off waves of chaos and disruption leading up to the November election, and for which there was very little contingency planning.
The court had two main options. It could have agreed with the Trump administration, along with a set of Republican state officials and a district court in Texas, and overturned all of the law. Or it could have upheld Obamacare, undermining the arguments of the White House and its allies.
The court found a third way. In a decision at the close of business Wednesday, two of the three judges signaled their support for a key part of the Republicans’ legal argument. The two agreed with a lower court that Obamacare’s individual mandate had been made unconstitutional by a 2017 law that eliminated the financial penalty for remaining uninsured. But the judges punted on the case’s key question of what that meant for the rest of the health law, asking a lower court to reconsider it. The effect is likely to be months of delays, pushing the final outcome of the case beyond the 2020 election.
Starting in 2017, the Republicans’ failed effort to repeal and replace large portions of the health law was deeply unpopular and became a central campaign theme of the 2018 election, in which Democrats won a House majority. Democrats cast themselves as the protectors of Obamacare’s most popular provisions, especially its protections for Americans with pre-existing health conditions.
The court had been considering a case with the potential to dismantle the entire Affordable Care Act, an outcome that could have set off waves of chaos and disruption leading up to the November election, and for which there was very little contingency planning.
The court had two main options. It could have agreed with the Trump administration, along with a set of Republican state officials and a district court in Texas, and overturned all of the law. Or it could have upheld Obamacare, undermining the arguments of the White House and its allies.
The court found a third way. In a decision at the close of business Wednesday, two of the three judges signaled their support for a key part of the Republicans’ legal argument. The two agreed with a lower court that Obamacare’s individual mandate had been made unconstitutional by a 2017 law that eliminated the financial penalty for remaining uninsured. But the judges punted on the case’s key question of what that meant for the rest of the health law, asking a lower court to reconsider it. The effect is likely to be months of delays, pushing the final outcome of the case beyond the 2020 election.
Starting in 2017, the Republicans’ failed effort to repeal and replace large portions of the health law was deeply unpopular and became a central campaign theme of the 2018 election, in which Democrats won a House majority. Democrats cast themselves as the protectors of Obamacare’s most popular provisions, especially its protections for Americans with pre-existing health conditions.
While
most Democrats would have favored a court ruling that upheld Obamacare,
a reprise of those politics could have given them a lift in an election
year. Voters tend to trust Democrats more than Republicans on health
care, but much of the debate during the primary season has focused on
ambitious new expansions of government coverage. Those proposals do not
enjoy the widespread support attached to the preservation of Obamacare’s
core consumer protections.
Those dynamics have allowed Republicans to cast themselves as the protectors of private insurance and opponents of socialism, without forcing them to articulate their own detailed health plans. President Trump has periodically hinted at an imminent Obamacare replacement plan, but he has yet to produce one. Mitch McConnell, the Senate majority leader, has declined to produce or advance a major health care bill in the Senate.
But if a court had ruled that all of Obamacare had to be wiped off the books, it would have been far harder for Republicans to avoid articulating their vision for health care. The public did not like their previous attempts in 2017, and there has been little progress, even behind the scenes, to produce an alternative plan more palatable to the public. Two concepts have emerged since then, one from a group of conservative think tanks, and one from the House Republican Study Committee. Neither has received much public attention by party leaders, and both share the basic structure of an earlier legislative plan that divided Republican legislators so much that it never made it to a vote.
Meanwhile, Democrats could have retreated to safer ground, by promising to reinstate popular Obamacare provisions.
If the court had overturned all of Obamacare, it could have meant major disruptions to the health system. Such a ruling, if upheld by the Supreme Court, would have eliminated consumer protections for people with pre-existing health conditions, and wiped away financial assistance that have helped millions of middle-class Americans buy their own coverage.
Those dynamics have allowed Republicans to cast themselves as the protectors of private insurance and opponents of socialism, without forcing them to articulate their own detailed health plans. President Trump has periodically hinted at an imminent Obamacare replacement plan, but he has yet to produce one. Mitch McConnell, the Senate majority leader, has declined to produce or advance a major health care bill in the Senate.
But if a court had ruled that all of Obamacare had to be wiped off the books, it would have been far harder for Republicans to avoid articulating their vision for health care. The public did not like their previous attempts in 2017, and there has been little progress, even behind the scenes, to produce an alternative plan more palatable to the public. Two concepts have emerged since then, one from a group of conservative think tanks, and one from the House Republican Study Committee. Neither has received much public attention by party leaders, and both share the basic structure of an earlier legislative plan that divided Republican legislators so much that it never made it to a vote.
Meanwhile, Democrats could have retreated to safer ground, by promising to reinstate popular Obamacare provisions.
If the court had overturned all of Obamacare, it could have meant major disruptions to the health system. Such a ruling, if upheld by the Supreme Court, would have eliminated consumer protections for people with pre-existing health conditions, and wiped away financial assistance that have helped millions of middle-class Americans buy their own coverage.
It
would have erased the Medicaid expansion, which provides health
insurance to millions of low-income Americans in three dozen states. It
would have reversed Medicare policies that make prescription drugs more
affordable for seniors, and Food and Drug Administration rules that have
allowed cheaper copies of expensive biologic drugs to enter the market.
It would have undone major experiments in the delivery of care, meant to improve health care quality. It would have rolled back enhanced punishments for Medicare fraud. It would have reduced requirements that workplaces provide space for lactating mothers to pump breast milk, and requirements that chain restaurants post calorie counts for their food.
Around 20 million more Americans would have become uninsured, according to an estimate from the Urban Institute. Experts on Medicare policy said they were not even sure how some of the changes could have been carried out now that they have been enshrined in complex regulations and built on in subsequent laws.
None of those effects would have happened immediately, even if the Fifth Circuit had agreed in full with the lower court; the Supreme Court would have probably weighed in. But the prospect of such huge changes had the potential to reset the political conversation about health care in both parties. By avoiding a decision on the case’s consequences, the Fifth Circuit has effectively postponed that shift.
In a statement Wednesday night, President Trump applauded the court’s ruling that the individual mandate was unconstitutional. But he emphasized that the decision would not result in any meaningful changes to voters' health care.
“The radical health care changes being proposed by the far left would strip Americans of their current coverage,” he said. “I will not let this happen. Providing affordable, high-quality health care will always be my priority. They are trying to take away your health care, and I am trying to give the American people the best health care in the world.”
Such a statement would have been harder to issue if the court panel had agreed with the arguments made by Mr. Trump’s lawyers and called for the reversal of Obamacare’s coverage expansions.
It would have undone major experiments in the delivery of care, meant to improve health care quality. It would have rolled back enhanced punishments for Medicare fraud. It would have reduced requirements that workplaces provide space for lactating mothers to pump breast milk, and requirements that chain restaurants post calorie counts for their food.
Around 20 million more Americans would have become uninsured, according to an estimate from the Urban Institute. Experts on Medicare policy said they were not even sure how some of the changes could have been carried out now that they have been enshrined in complex regulations and built on in subsequent laws.
None of those effects would have happened immediately, even if the Fifth Circuit had agreed in full with the lower court; the Supreme Court would have probably weighed in. But the prospect of such huge changes had the potential to reset the political conversation about health care in both parties. By avoiding a decision on the case’s consequences, the Fifth Circuit has effectively postponed that shift.
In a statement Wednesday night, President Trump applauded the court’s ruling that the individual mandate was unconstitutional. But he emphasized that the decision would not result in any meaningful changes to voters' health care.
“The radical health care changes being proposed by the far left would strip Americans of their current coverage,” he said. “I will not let this happen. Providing affordable, high-quality health care will always be my priority. They are trying to take away your health care, and I am trying to give the American people the best health care in the world.”
Such a statement would have been harder to issue if the court panel had agreed with the arguments made by Mr. Trump’s lawyers and called for the reversal of Obamacare’s coverage expansions.
Democrats’ frustration
with the court’s indecision was palpable. Chuck Schumer, the Senate
minority leader, described the judges’ move as “cowardly.” The decision
is “obviously an attempt to shield Republicans from the massive blowback
they would receive from the public if the highest court in the land
were to strike down the A.C.A. before the upcoming election,” he said in
a statement.
It’s possible, of course, that the case will reach a final disposition sooner anyway. California’s attorney general, Xavier Becerra, announced that he and other Democratic state officials involved in the case would be appealing the decision to the Supreme Court. Even though the appellate court sent the case back to Texas, the country’s highest court could still choose to take it, should four justices wish to. But the most likely path involves months or years of additional litigation, with lingering uncertainty over the fate of Obamacare.
https://www.nytimes.com/2019/12/19/upshot/obamacare-ruling-appeals-court-decision.html?smid=nytcore-ios-share
It’s possible, of course, that the case will reach a final disposition sooner anyway. California’s attorney general, Xavier Becerra, announced that he and other Democratic state officials involved in the case would be appealing the decision to the Supreme Court. Even though the appellate court sent the case back to Texas, the country’s highest court could still choose to take it, should four justices wish to. But the most likely path involves months or years of additional litigation, with lingering uncertainty over the fate of Obamacare.
https://www.nytimes.com/2019/12/19/upshot/obamacare-ruling-appeals-court-decision.html?smid=nytcore-ios-share
A stunning indictment of the U.S. health-care system, in one chart
Americans are putting off medical treatment in record numbers because of cost, Gallup data shows
by Christopher Ingraham - The Wasington Post - December 10, 2019
An additional 8 percent have made the same choice for less serious ailments, the survey showed. That means a collective 33 percent of those polled have prioritized financial considerations over their health, tying the high set in 2014.
Gallup cautions that the Trump presidency may be influencing these numbers on a partisan level: From 2018 to 2019, the share of Democrats reporting cost-related delays for serious conditions jumped from 22 percent to 34 percent. Among Republicans, the year-over-year increase was more subdued, from 12 percent to 15 percent.
Gallup data also show Democrats (31 percent) self-report higher rates of preexisting conditions than Republicans (22 percent).
“Whether these gaps are indicative of real differences in the severity of medical and financial problems faced by Democrats compared with Republicans or Democrats’ greater propensity to perceive problems in these areas isn’t entirely clear,” according to Gallup’s Lydia Saad. “But it’s notable that the partisan gap on putting off care for serious medical treatment is currently the widest it’s been in two decades.”
Data from the Kaiser Family Foundation’s Employer Health Survey underscores the severity of the health-care spending problem. In 2019, 82 percent of covered workers must meet a deductible before health-care coverage kicks in, up from 63 percent a decade ago. “The average single deductible now stands at $1,655 for workers who have one,” according to KFF, “similar to last year’s $1,573 average but up sharply from the $826 average of a decade ago.”
Deductibles have surged 162 percent since 2009, data show — more than six times the 26 percent climb in earnings over the same period.
Physician pay is another significant expense. The Commonwealth Fund, a health-care research group, estimates American doctors earn “nearly double the average salary” of doctors in other wealthy nations. The American Medical Association, a trade group representing doctors, has a long history of opposing efforts to implement European-style single-payer health-care systems in the United States.
The American health-care system, in other words, works pretty well for the powerful players in the health-care industry. Hospitals and insurance companies are reaping significant profits. Doctors are earning high salaries. But what are the rest of us getting in return for our ever-growing co-pays and deductibles?
The disparities domestically are perhaps even more shocking: In the nation’s wealthiest places, where the high cost of modern health care remains within relatively easy reach, life expectancies are literally decades longer than in America’s poorest places.
As health care becomes more expensive and economywide inequalities more pronounced, these disparities in life span are likely to get worse — and the share of Americans skipping out on much-needed medical care only likely to grow.
https://www.washingtonpost.com/business/2019/12/10/stunning-indictment-us-health-care-system-one-chart/?_
Why are Democrats in Congress undermining Obamacare?
by The Editorial Board - The Washington Post - December 17, 2019
Compounding the damage is the fact that each tax also served legitimate health-market policy goals, in addition to helping pay for expanded coverage. By reducing incentives for excessive consumption of services, the Cadillac tax would have helped slow the overall growth of health costs. As for the health insurance tax and the medical device tax, those are the rough equivalents of partial rebates to the government for the expanded business those firms enjoyed because of Obamacare.
Of course, repeal is a bit redundant in that Congress has delayed or suspended each of the taxes at least once; indeed, the Cadillac tax has never been imposed, because of repeated “postponements.” Yet permanent elimination represents a final capitulation to the interest groups that opposed them. Both the GOP-aligned U.S. Chamber of Commerce and pro-Democratic labor unions waged a relentless campaign against the Cadillac tax, the former because it was hostile to Obamacare and taxes generally; the latter because union contracts often call for lusher-than-average health benefits. Among the leading Democratic presidential candidates, Sens. Elizabeth Warren (Mass.) and Amy Klobuchar (Minn.) have been particularly dogged foes of the tax on medical devices, in deference to home-state industry. Something to remember as they, and their rivals, promise tax hikes to pay for health-care expansion.
Obviously, there are policy downsides to the Obamacare taxes; less device innovation, say, or slightly higher insurance premiums. At least they address the truth that there is no free lunch; when government expands services, it should find a way to pay for them and make reasonable choices as to distributing the costs. Bipartisan comity, so rare in Washington, has been achieved in the abandonment of that elementary proposition.
https://www.washingtonpost.com/opinions/why-are-democrats-in-congress-undermining-obamacare/2019/12/17/4a898f76-20f1-11ea-a153-dce4b94e4249_story.html
Greed Outranks Compromise in Congressional Attempts to Fix Surprise Medical Bills
by Bob Laszewski - Health Care Policy and Marketplace Review - December 11, 2019
How were they to know that? As you're sitting on the gurney about to be rolled into surgery do you need to do a provider roll call asking each to confirm their network status?
The worst of these examples often has to be with air ambulances sending patients bills for tens of thousands of dollars they had no reason to expect. As the patient lays there with burns over 60% of their body and they need to be transferred to the regional burn center, are they supposed to say, "Before you put me on the helicopter, what is this going to cost?
Now, every politician I know of says that all of this needs to end.
But, they are yet to end it.
Both sides on this issue have legitimate concerns.
Insurance companies, employers, and union plan sponsors (payers) find themselves caught between their customers and health care providers in these circumstances. Some of these providers actually have business strategies to purposely not be in a network looking to charge anything they want in these situations. That is not to say health plans couldn't be doing a lot better in making their networks clear to patients––Why in this world of real time data can't health plans and providers confirm that all providers who are part of my procedure are in the network at point of service?
Hospitals, doctors, and other providers worry that some of the proposed solutions would de facto toss them into the payers' networks at the network's typical payment rates thereby disenfranchising them from being able to negotiate what their payment rates should be.
Like everything else in the American health care system, it's complicated.
When you have two sides offering legitimate but diametrically opposed arguments the solution can only come through compromise. And, I will suggest, when such a circumstance occurs in a matter involving public policy, it is the role of the legislature to impose a compromise that, as its first priority, meets citizen needs.
Last Sunday, led by Senate Health Committee Chair, Lamar Alexander (R-TN) and the House Energy and Commerce Chair Frank Pallone, Jr. (D-NJ) and ranking member Greg Walden (R-OR), it sure looked to me like a powerful bipartisan group in Congress did just that.
They offered a solution to this problem that was responsive to both sides arguments and would end up holding patients harmless from all of this.
If a patient is out of network and the provider refuses to accept the plan's payment:
The provider would have to accept a minimum payment reflecting the plan's market-based median in-network negotiated rate for the service in the geographic area where the service was delivered.This compromise would force the provider to accept a payment amount but it would be the median of all amounts that had already been negotiated in good faith in that market with a large number of providers.
But, providers could still have a reasonable objection arguing they should be able to negotiate their own rate and perhaps their circumstances justify a higher rate than the median.
Of course, they can always enter negotiations with the payers to be in their network in the first place.
But failing that, the proposed compromise would also give providers an out:
If the median in-network rate payment was above $750, the provider or the insurer could elect to take the matter to binding arbitration with an independent dispute resolution service. To keep people from gaming the system, a party could not go to arbitration for the same service more than once in 90-days.This is what I would call a compromise. Neither side gets all that they want, both get something reasonably resembling what they have asked for (payers wanted a median rate, providers wanted arbitration), and the consumer/patient caught in the middle no longer has to suffer from all of this.
So, what has been the response to this so far:
Insurance companies, employers and union plan sponsors don't like it––the Coalition Against Surprise Medical Bills––said anything with arbitration wasn't good enough, "The result of arbitration is that consumers, employers, unions, and taxpayers pay the price" pointing to what they said was abuse by providers in an existing New York arbitration system.
On the other side, providers generally objected. The American Hospital Association said the proposal would, offer an "arbitrary...reimbursement rate," jeopardize patient access to hospital care," and "provide a huge windfall to commercial insurance companies at the expense of community hospitals."
Under pressure from the payer lobby on one side and the provider lobby on the other, leading members of Congress have been leery of supporting the proposed compromise. For example, the ranking Democrat on the Senate Health committee, Patti Murray (D-WA), didn't join in support of the bill reportedly because Democratic Senate Minority Leader Chuck Schumer (D-NY), responding to hospital lobbying in his state, waived her off.
Much has been made of the current toxic political environment in Washington, DC and the inability to get things done because of it.
But here is an example of bipartisan leaders in Congress hammering out a reasonable compromise in spite of that.
But so far, and with time running out on this Congress being able to get something done this year, when year-end must pass pending bills provide a vehicle for passage, old fashioned special interest greed politics still out ranks finding a solution for regular people.
I sure hope none of these politicians, more interested in carrying the water for the special interests than worrying about their constituents, don't need an air ambulance over the holidays!
http://healthpolicyandmarket.blogspot.com/2019/12/greed-outranks-compromise-in.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+HealthCarePolicyAndMarketplaceBlog+%28Health+Care+Policy+and+Marketplace+Blog%29
Health Care Special Interests Four Hundred Billion - Consumers Zero
by Bob Laszewski - Health Care Policy and Marketplace Review - December 19, 2019
As the year winds down and must pass year-end spending bills are completed––and with that any chance of attaching and approving health care legislation––the special interests have won big and consumers have lost big.
Employers, unions, and insurance companies won big with the repeal of the "Cadillac" tax on high cost benefit plans at a cost of $200 billion over ten years as well as the repeal of the health insurance tax (HIT), and the 2.3% medical device tax sales tax.
The total cost for repealing just these things will add about $400 billion to the deficit over a decade and are part of a mammoth $1.4 trillion spending bill larded up for lots of different interests.
The HIT and the medical device tax were made a part of the Affordable Care Act (Obamacare) to help pay for the coverage expansion. The idea was let the insurance companies and medical device companies, benefiting from more people buying insurance and medical devices, pay for part of the expansion.
The "Cadillac" Tax on high cost health plans was intended to encourage plan sponsors to control their costs in order to avoid the big tax on excess cost as well as raise revenue to pay for Obamacare. About every health care economist I know of welcomed our finally getting this big incentive to control costs.
Advocates for the tax repeals will say those taxes would have been ultimately borne by consumers. All business taxes are ultimately borne by consumers. If you think the special interest pressure here was out of concern for regular people you just fell off the turnip truck.
While the powerful health care special interests won big this month, consumers lost.
The bipartisan drug price control bill authored by otherwise powerful Senate Finance Chair Charles Grassley (R-IA) and ranking member Ron Wyden (D-OR), and supported by President Trump, went nowhere this year in the face of drug company opposition. The bill would cap senior drug costs and would limit drug price increases to the rate of inflation.
And, a bipartisan compromise bill to deal with the surprise medical bill issue authored by Senate Health Committee Chair, Lamar Alexander (R-TN), House Energy and Commerce Chair Frank Pallone, Jr. (D-NJ), and ranking member Greg Walden (R-OR), that would have literally and artfully split the differences on the issue between plan sponsors and health care providers, also stalled in the face of special interest opposition.
So, let's summarize:
- The big health care special interests wanted to get rid of the Obamacare taxes at a price to taxpayers of $400 billion and they are getting what they want.
- The big health care drug special interests didn't want a bill to aimed at limiting the price of drugs and they got what they wanted.
- The big health care payer and provider special interests refused a reasonable compromise on surprise medical bills and they got what they wanted.
Think about that. The same week the partisanship on Capitol Hill was so bad the House impeached the President, Republicans and Democrats were able to come together to overwhelmingly agree to please the special interests and dis the consumer.
Who says Washington can't get along?
https://healthpolicyandmarket.blogspot.com/2019/12/health-care-special-interests-four.html
Americans take fish antibiotics because it's cheaper than a visit to the doctor
A study of antibiotics marketed for fish online found user comments about human use garner nine times as much attention
New research has found that some Americans are probably taking fish antibiotics as a substitute for going to the doctor, which can be prohibitively expensive for many in the US.
Unlike other antibiotics, fish antibiotics are readily available without a prescription online and are relatively inexpensive as anti-bacterial drugs for pet fish.
Researchers analyzed reviews for fish antibiotics available online, and found a small but significant percentage of consumers reviewed the antibiotics for human use.
In addition, at least five of the antibiotics marketed for fish that researchers looked at had the exact imprints, colors and shapes of antibiotics for humans, which could encourage people to use them.
“While human consumption of fish antibiotics is likely low, any consumption by humans of antibiotics intended for animals is alarming,” said Brandon Bookstaver, a pharmacist and director of residency and training at the University of South Carolina College of Pharmacy.
Bookstaver co-authored the research, which was presented at the American Society of Health-System Pharmacists (Ashp) semi-annual conference in Las Vegas, Nevada, in December.
“Self-medication and the availability of antibiotics without healthcare oversight might contribute to increasing antimicrobial resistance and delayed appropriate treatment,” Bookstaver said. “We were particularly concerned that the high volume of positive feedback on the comments about human use might encourage others to attempt to use these drugs.”
Researchers found nine antibiotics for sale at 24 different websites, including some of the most commonly prescribed to humans, such as penicillin and amoxicillin. Only 55 of the 2,228 comments reviewed described human use, but garnered nine times as much attention as others through “likes” and “dislikes”.
Additionally, at least one online seller responded to an online question, saying fish antibiotics were suitable for human use.
There is also anecdotal evidence Americans are increasingly taking veterinary medicine. Dr Farzon Nahvi, an emergency room doctor in New York City and a member of Physicians for a National Health Program, said he had a patient overdose on fish antibiotics.
“One of my patients took fish antibiotics because she didn’t have health insurance,” said Nahvi. “She overdosed, ended up in the intensive care unit, and ended up far more ill and – having no insurance – with an even bigger bill. Plus, she missed a job interview, which could have been her ticket to health insurance, because of her hospital stay.”
At least 27 million Americans have no access to healthcare at all, because they lack health insurance. In addition, polls have shown one in four Americans who take medications struggle to afford them, according to Kaiser Family Foundation.
Unlike in the UK, where patients may have a modest out-of-pocket payment determined by the National Institute for Health and Care Excellence, American patients have sometimes enormous costs in the US. Americans pay more for pharmaceuticals than anywhere else in the world.
“Humans taking fish antibiotics doesn’t seem to be a specific problem that can be addressed with a specific solution or single law like one increasing the regulation of fish antibiotics,” said Nahvi. “This simply seems to be a symptom of the much larger issue of a broken healthcare system, where people who are excluded from the system are looking for solutions outside of it, sometimes to dangerous effect.”
https://www.theguardian.com/us-news/2019/dec/11/fish-antibiotics-human-use-cheaper-than-doctor
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