Editor's Note -
Here is a link to a New York Times Op-Doc about the worldwide leadership role of the US in identifying and containing viral pandemics - everywhere but in the US itself!!
Read it and weep.
-SPC
"The Despair Is Smoldering in Society"
by Benjamin Bidder and Michael Sauder - Der Spiegel - June 24, 2020
The economists Anne Case and Angus Deaton: "We’re against people getting rich by burdening other people."
The college town of Princeton is located in New Jersey, which has been hit especially hard by the coronavirus. The economists Anne Case and Angus Deaton, Nobel Laureate in 2015, have thus spent a lot of time at home in recent months. Both are at particular risk from COVID-19. In spring, the couple published the book "Deaths of Despair and the Future of Capitalism." It traces the fall of the American working class, which has seen wages stagnate for decades. The two believe the country's desolate health-care system is partially to blame.
DER SPIEGEL: Ms. Case, Mr. Deaton, the whole world is wondering why the United States has been hit so hard by the coronavirus pandemic. Do you have an explanation?
Deaton: We're not epidemiologists, but the pandemic is once again revealing that the U.S. health care system is a mess. It was a mess before the pandemic, but the pandemic is really showing how problematic it is. More than 30 million people have lost their employment. And now, because insurance is tied to employment, there are millions of people without health insurance.
DER SPIEGEL: The U.S. has some of the best doctors on earth, an innovative pharmaceutical industry and world class hospitals with the best medical technology. Where is the problem?
Case: The U.S. is spending around 17 percent of GDP on health care, more than any other country in the world. But we have the lowest life expectancy of any rich country in the world. And the health-care industry is responsible for a lot of this.
DER SPIEGEL: You have even called the health-care industry a "parasite on the economy” and said it is "like a tribute to a foreign power." Isn't that a bit of an exaggeration?
Deaton: The man who first compared the health-care industry to a tapeworm was Warren Buffett, the famous investor. There are many ways of figuring out what the health-care industry ought to cost and what it delivers. Take, for example, the comparison with Switzerland, the country with the second highest health care expenditures as a share of GDP: They spend 12 percent of GDP, but they live six years longer on average than Americans! If a fairy godmother were somehow to reduce the share spent on health care in America to the Swiss level, a lot of money would be available for other things. It would free up a trillion dollars. That’s the "tribute” that we refer to, the waste. But we are paying it to ourselves, or to some of ourselves, not to a foreign power.
Case: We are not attacking the people in the industry. The doctors and nurses are doing a tremendous job, especially during this crisis. We are attacking a system that is no longer functional.
DER SPIEGEL: But it’s a very American system. It stresses personal responsibility.
Deaton: I don’t think so. It’s especially putting pressure on working-class Americans. A family policy last year cost $20,000 a year. This may be affordable for high paid workers, but not for those who earn less, say $30,000 a year. So as rates kept getting larger and larger in recent years, corporations cut back on hiring low-wage workers. In short, the cost of health care and our system of financing it is a wrecking ball to the less-educated labor market, throwing people out of good jobs into much worse jobs in the outsourcing sector, or out of the labor force altogether.
Case: At the same time, federal and state governments pay for a large chunk of medical care for the elderly or for people without the means to pay for Medicaid. But that is putting great financial stress on the states, because every year, the cost of providing health care goes up. There is less money left over to repave roads or to fund state universities. In the long run, one of the mechanisms by which working-class children could get a good college education is being pulled out from under them because tuitions are being raised.
DER SPIEGEL: You have argued that this is one reason why many workers without a bachelor's degree have left the labor market. What becomes of those people?
Deaton: Some of them live off government benefits. Some of them take early retirement or live off friends or relatives. Some move into a cheaper place. There are lots of ways of surviving.
DER SPIEGEL: They fall into poverty?
Case: Not necessarily. It’s more a disintegration of a way of life. One of the consequences is that, in those areas, there is a reduction of social integration. There are fewer marriages in the white working class, fewer people going to church, fewer people with stable home lives and a lessened sense of community. That puts these people at great risk.
DER SPIEGEL: And it contributes to those deaths of despair, as you have called them. What is behind this phenomenon?
Case: We were puzzled by the discovery that mortality rates are no longer sinking, but accelerating in the group of middle-aged whites with low education. They are dying from drug overdoses, alcoholic liver disease and suicide - all deaths by their own hand. And they have all risen dramatically since the early 1990s.
DER SPIEGEL: Why? What about the opioid epidemic?
Deaton: If despair due to the hollowing out of the white working class wasn't there, the drug epidemic would be much smaller. The despair is smoldering in society, and this created an opportunity for the pharmaceutical industry, an industry that is not appropriately regulated, which made the situation with opioids much worse. At the height of it, there were enough prescriptions for every American to have a month's supply. It was essentially legalized heroin.
DER SPIEGEL: What has caused this mass-despair in white, middle-class life?
Deaton: Look at the labor market, at wages. Life-time jobs and the meaning that comes from a life like that is very important. Roles for men and women are defined by it, as is their place in the community. It's almost like Marx: Social conditions depend on the means of production. And these means of production are being brought down by globalization, by automation, by the incredible force of health care. And that's destroying communities.
DER SPIEGEL: Yet where there are losers, there should be winners as well. Who is to blame for this development?
Deaton: Many people have said that there are two ways of getting rich: One way is by making things, and the other is by taking things. And one of the ways of taking things is to make the government give you special favors. Those special favors don't create anything, but they can make you rich, at the expense of everybody else.
Case: For instance, the pharma companies get a law passed that Medicare has to pay for drugs at whatever price the pharma companies choose. Or the doctors' lobby doesn't allow as many people to go to medical school, which helps to keep doctors salaries up. That's one of the reasons why doctors are the largest single occupation in the top 1 percent.
DER SPIEGEL: Would you argue that those in the top 1 percent are peculiarly prone to rent seeking?
Deaton: No, but many people are in the 1 percent because of rent seeking. This mechanism is creating a lot of very wealthy people who would not be wealthy if the government hadn't given them a license to rip off the rest. We're not among the people who think of inequality as a causal force. It’s rent-seeking opportunities that create inequality.
DER SPIEGEL: How do the losers of this development react politically?
Deaton: Well, many of them like Donald Trump (laughs)!
Case: The election in 2016 was unique: Many people felt their voices weren't being heard either by the Republicans or the Democrats. They tended to move either toward Bernie Sanders on the left or to Donald Trump on the right. They wanted to signal that things were not well with them, that they did not see the country moving in the right direction. People did not feel like the parties in the middle were adequately serving their needs, especially the working-class people.
DER SPIEGEL: It’s a phenomenon seen throughout the West – that center-left parties are no longer champions of the working class and that their leaders are mostly intellectuals.
Deaton: In the United States, the Democratic Party gave up representing the unions and switched to being a coalition of well-educated elite on the one hand and minorities on the other. And the white working-class in the middle was just left unrepresented. In this respect, Hillary Clinton was the worst candidate you could possibly imagine. She's such a representative of that educated elite that appears to have no understanding of, nor sympathy with, ordinary working-class people.
DER SPIEGEL: She called them "deplorables."
Deaton: It revealed what she really thought of them. But those people do not see themselves as deplorable at all! There are a lot of people who think they're not represented by this educated elite, whether it's on the left or the right.
DER SPIEGEL: So the rage of Trump supporters has a rational foundation?
Case: Oh, certainly! They know something is wrong, and it's easy to scapegoat in such cases. Things like: If we can just shut down immigration, then wages would improve.
DER SPIEGEL: The president himself seems to be the rent-seeker in chief. Is he actually doing anything to mitigate the pain of his base?
Deaton: He - like inequality - is a consequence, not the cause. He certainly has changed attitudes towards international trade. Even Democrats have picked this up. And it's possible that the dismantling or slowing down of globalization could benefit some white, working-class voters. On the other hand, if manufacturing is being brought back to the U.S., robots are likely to be doing most of the work, not the less educated.
DER SPIEGEL: Yet Trump himself is a member of the top 1 percent. Why are those voters attracted to Trump?
Case: He makes people feel that they have status, that they're being seen and heard. That's incredibly important. And if people can hold on to that and have faith in him, then even if things go against what they see as their immediate interests, they believe that in the long run, he will restore them to some position. People need hope.
DER SPIEGEL: But has he ever delivered?
Case: Not in an economic sense, probably, but in terms of how they feel about themselves and their status, certainly.
Deaton: We spend a lot of time in Montana when we were writing our book and we talked to a fair number of people there. They are very Republican. The Montanans feel that a lot of the regulations they have to obey, a lot of the environmental regulations, the wildlife regulations, are being set not in their interests, but in the interests of the educated elites in California and New York. Issues like bringing the wolves back are divisive that way. Donald Trump is certainly doing something for those kinds of concerns by dismantling regulations. I'm sure he would kill all the wolves in Montana if he could.
DER SPIEGEL: Is it possible to identify the point when things started to go wrong in the U.S.?
Deaton: One great question to ask is: Why doesn't America have a strong federal welfare state with health care like other European countries do? One answer is the issue of race. In the middle of the 20th century, it was the southern senators of the Democratic party who blocked any consideration of publicly funded health care. People don't like to pay for services that go to people that don't look like them, especially when they are black.
DER SPIEGEL: There have been a lot of attempts to reform the system, the latest being Obamacare. Why did it fail?
Deaton: Obamacare was a good proposal, but in order to get it through, all the health care providers had to be bought off, and that made them even stronger. What Obamacare was doing was extending insurance to many more people, but there were no effective price controls. It got more people covered, but it made the whole industry even more expensive, not less.
DER SPIEGEL: If American capitalism is failing so many, is it still possible to fix the system?
Deaton: We’re certainly not in favor of killing robots or stopping buying cheap goods from abroad. A really essential problem is the reduction of lobbying in Washington. I've talked to a few politicians and they say: We need campaign finance rules. As one congressman said to me: As long as I'm spending all my waking hours raising money, I can't resist these people.
Case: The other heavy lift would be change in our education system. Currently, from kindergarten to high school, the focus is on children who will go on to university, where only 35 to 40 percent of them currently earn a bachelor's degree. Education is a great divide when it comes to death, when it comes to pain, to mental health, marriage. Even in Britain, you don’t have this sharp divide between people with an BA and people without. Many people point to Germany as being a superior system, where there are many different qualification levels. We need something more like that.
DER SPIEGEL: You are critical of the political process in Washington. What has to change in order to put powerful interest groups on the defensive?
Deaton: Maybe this crisis will speed change up, a 50-50 chance perhaps. You know, catastrophes are not good for reform, or at least they're very risky: Think about the 1930s, America got Roosevelt, but you in Germany got Hitler. So, it could strengthen populism, it could undermine democracy. Or it could make it stronger.
DER SPIEGEL: You seem a bit tentative, though. You criticize bottom-up redistribution, but you’re not arguing in favor of those re-distributional policies that some Democrats want. Why are you against more progressive income taxation?
Deaton: As we mentioned earlier, in our view, inequality is the result of other deeper problems. First, we have to fix those deeper problems, and then we can worry about the tax system.
DER SPIEGEL: Amazon founder Jeff Bezos, to take one example, has a fortune of more than $100 billion!
Deaton: We have no objection to people who bring us enormous benefits getting very wealthy. We’re against people getting rich by burdening other people. The trouble with unfairness, though, is that everybody has different notions about what it is. The unfairness we identify is the rich getting rich by transferring money upwards. If you tax the rich, if you even take away all their money and give it to the poor, each of them would get only very little money.
DER SPIEGEL: What is your proposal?
Case: We want to focus on the reverse procedure: We have to put a stop to very rich people getting even richer by taking small amounts of money from millions of us. For example, every month I get a bill from a tech company for 99 cents for a service that I don’t remember ever asking for, and that I have no idea how to stop and it's not worth my time trying to find out. But if, as I suspect, they do it to millions, it is small amounts of money moving from a large number of people to a small number of very wealthy people. That is just one example of the sort of upward redistribution that we talk about in the book.
DER SPIEGEL: Ms. Case, Mr, Deaton, thank you very much for this interview.
What Will a Biden or Trump Victory Mean for Healthcare?
by Shannon Firth and Joyce Frieden - MedPage Today - November 4, 2020
With the results of the presidential election and the race for control of the Senate still undecided, it's also not entirely clear what will happen to the many healthcare issues facing Congress, the president, and federal agencies. We asked experts to discuss the possibilities under a Trump administration or a Biden administration, and how a Democratic- or Republican-controlled Senate might play out.
The Affordable Care Act and Other Reforms
If President Trump wins re-election, what can Americans expect to see as far as healthcare reform? "Nothing," said Kavita Patel, MD, MPH, a nonresident fellow at the Brookings Institution, and a primary care physician. "I think he'll be betting the Supreme Court decision could invalidate the ACA [Affordable Care Act], and there's no reason to try to do anything in advance of that," she said referring to the California v. Texas lawsuit, a case that centers around whether the law as a whole can stand now that the individual mandate penalty has been eliminated. Oral arguments in the Supreme Court case are expected on Nov. 10.
Asked about the possibility of a replacement plan were the ACA to be eliminated, Patel is suspect. "He hasn't been able to do that in the past 4 years, I have no faith he could do it now," she said.
Chris Pope, PhD, a senior fellow at the Manhattan Institute, also does not expect to see major healthcare reforms if Trump is re-elected. "I think on the Republican side, the appetite for touching healthcare again is very very low.... Assuming that [Republicans] somehow won the House again, I don't see where you get many Republicans who would want to touch healthcare again." Joseph Antos, PhD, a healthcare scholar at the American Enterprise Institute here, agrees that there will be very little movement on healthcare if Trump is re-elected but for different reasons. "Nancy Pelosi will still be Speaker of the House. Without the House, you really can't get significant legislation passed," Antos said.
With regard to Medicaid, many of the waiver invitations and work requirements were the ideas of Seema Verma, administrator of the Centers for Medicare & Medicaid Services, Antos said. "If Seema stays on, there's no question that she will continue to push in the directions that she's already pushed. If it's somebody new, then they may be less enthusiastic about it," Antos said.
Looking at the bigger picture, Pope said the Senate outcome matters more than who wins the presidency. "Instead of it being a Trump healthcare arrangement or a Biden healthcare arrangement, it really depends on who has the Senate majority, and who is that pivotal 51st senator or 50th senator," said Pope. Also, even "a 51-seat majority leaves a very different type of healthcare policy [vs] a 54-seat Senate majority or a 55-seat Senate majority," he noted.
If Biden wins the White House, said Antos, his first priority will be to respond to the pandemic and its associated economic crisis, and to pass a COVID relief bill, before turning to a "public option" health insurance reform. Despite Biden's "political problem" with so-called progressives who champion a single-payer system, "I think he's going to stay true to what he really believes in, which is ... to build off of the ACA," Antos said. "He wants to find a cheaper plan alternative within the exchange structure."
The focus on a COVID relief bill will buy Biden time to figure out the details of a public option "before he really has to push hard to get it to happen," Antos continued. "I could easily see that a public option could pass in the spring of 2022," he said, assuming an effective vaccine is in wide deployment and the pandemic is finally under relative control.
For his part, Pope anticipates that given the millions of people that are out of work and may have lost their healthcare, Biden would focus on expanding ACA subsidies and helping uninsured Americans in states that didn't expand Medicaid through a federal public option. But Pope sees that as ultimately failing.
"The idea that there's a free lunch out there" with a public option just isn't plausible, he said. Hospitals and doctors aren't going to give the same care for less money, just because a plan is stamped "public option"
"You only spend less if you give people less," Pope said.
Passing any significant plan to expand access to health insurance will be difficult without "sweeteners for industry," said Patel, irrespective of which party is in charge. Expanding coverage, whether through a public option or increasing access to ACA plans, would be expensive and likely lead to reimbursement cuts somewhere. So it will require some "creative negotiation" on both sides of the aisle, she said.
In the short term, Biden could take concerns about the California v. Texas lawsuit off the table. Pope said Biden could ask Congress to pass a law stipulating that the individual mandate is severable from the ACA. "Congress could easily do that ... and that would essentially make the lawsuit go away," he said.
As for the Medicaid program more broadly, "the Trump administration has spent their time in office trying to undermine and weaken the Medicaid program and think of new and different ways to prevent people from getting Medicaid coverage," said Joan Alker, a professor and the executive director and a co-founder of the Center for Children and Families at Georgetown University. "With a Biden administration we will see a strong fundamental commitment to the program and a welcome mat put out for children and families seeking Medicaid coverage and the welcome mat has very much been pulled back in the last few years," she said.
Some of the most important changes Biden could make would be personnel changes, said Patel. "We've really seen now how destructive people can be when you have the wrong leadership.... Having the right person at the CDC might be the most important change that could get made."
The COVID-19 Pandemic
Biden and Trump take very different approaches to the pandemic, said Robert Wachter, MD, of the University of California San Francisco. If Biden wins, "I think you'll see a pretty early and very strategic communication strategy," he said in a phone interview. "He'll have two months [before the inauguration] to position himself as a leader who'll have a new approach." That means "you'll see a naming of health leaders fairly quickly, a rollout of a strategy -- particularly on testing -- and a much more concerted strategy on public health maneuvers."
Regarding making mask-wearing mandatory: "Does the president or the CDC have the authority to make everybody in the country wear a mask? Probably not -- it's more using the bully pulpit to make the case that there should be universal masking and maybe even make the case that there should be more consistency in terms of local and regional policies regarding what's open and what's not open," Wachter said.
Increasing contact tracing depends on the state of the epidemic, he added. "If things are going as off the rails as they are now, then contact tracing is probably not all that applicable -- there's just too many cases for contact tracing to be super useful." On the other hand, "I think you're going to see a push for more testing -- more insistence on getting kits out into communities and more guidance from the CDC on who should be tested and when."
And if Trump wins? "You can expect more of the same -- which is chaos," said Wachter. "He's as predictable as my clock; he doesn't want to confront a hard problem." States will continue to be left to their own devices if there's a second Trump administration, he added.
Care for Older Americans
"If Biden wins the election, he is under pressure to expand Medicare (or a rough equivalent) to a somewhat larger slice of the near-elderly population," Thomas Miller, JD, resident fellow at the American Enterprise Institute, said in an email. "In the final analysis, this is easier to do as a somewhat-Medicare-like public option for those either 60-65 or perhaps 55-65, on a quasi-optional basis. In this manner, a Medicare expansion would not as directly threaten to eat away at some of the current Medicare coverage for the over-65, and it would not directly change the scoring of the over-65 Medicare budget and Part A Trust Fund projections. It also would allow the below-65 'new' Medicare coverage to differ somewhat from conventional Medicare."
In terms of expanding the Medicare population, "Without an overwhelming blowout win in the presidential race (closer to 60% than below a 55% share of the popular vote, accompanied by more than 55 Senate Democrats), Biden won't have the margins to move toward a 'Medicare for a Lot More' option for the rest of the below-65 population," Miller continued. "Pandemic and continued economic recovery needs will overwhelm a major move in federal health policy mega-expansion."
As for Medicare Advantage, it "has grown too large, and popular, to be placed back in political jeopardy," he added. "However, Medicare participation requirements could be leveraged to essentially try to mandate participation by insurers and providers in any new expansions of below-65 post-ACA public coverage options (the partial public options expansion that will be attempted)."
Biden's proposal to lower the age of Medicare eligibility to give adults ages 60-64 an option to get more affordable health insurance "would be a pretty big deal for older adults who have trouble finding affordable coverage," said Tricia Neuman, ScD, executive director of the Kaiser Family Foundation's Program on Medicare Policy. "It could also lead to savings for employers and state Medicaid programs."
Patel predicted that Biden would make good on his promise to lower the age of Medicare to 60, create a Medicare "buy-in," or establish a separate public option, Patel said. "Those three choices will shape what the 2021 landscape looks like in terms of healthcare," she noted. Patel said she also anticipates a "slate of executive orders" on day one of a Biden presidency reinstating Title X family services planning and "putting back into place everything that got decimated" under Trump.
One trend that's likely to continue under a Biden administration is the shift towards value-based care, Patel said. "I don't see Biden coming in and undoing value- based models that the Trump administration started," she said, such as the Kidney Care Initiative and the 'Primary Care First' payment model.
If President Trump is re-elected, on the other hand, "expect some deal-making proposed to change the mix of givebacks in prescription drug pricing between insurers and drug manufacturers," said Miller. "More permanent telemedicine reforms could be institutionalized in Medicare before trying to expand them to the rest of the health care sector. Luckily, Medicare would not run out of money any sooner than the rest of the U.S. government and economy does!"
Drug Pricing
Healthcare consultant Marsha Simon, PhD, said in an email that if Biden wins, she expected him to "rein in the more outrageous behavior of the drug companies. For example, several companies are denying 340B discounts to some safety net providers, which should result in the loss of access to the Medicaid market, but the Trump administration has done nothing." On the other hand, "whether Biden achieves reforms to drug pricing policy ... turns on Democrats also taking the Senate majority since [Republican leader] Mitch McConnell refuses to take up the Grassley bill" containing modest drug price reforms.
"Historically, Joe Biden has not been a champion of restraining drug prices -- reflecting both the role of drug manufacturers as important employers in Delaware and, after the Obama administration, his apparent greater interest in novel drug development to treat cancer than in access to these expensive new drugs," she added.
If Trump is re-elected, Simon expects him to "continue his approach to reining in drug prices -- proposing genuine reform such as European Union reference pricing, for example -- while implementing marginal policies such as the Medicare insulin demonstration that will have only a marginal impact on access to affordable drugs for a few seniors with insulin-dependent diabetes enrolled in certain Medicare drug plans."
Kaiser's Neuman noted, "While Trump and Biden have both talked about drug prices, a big difference between them is that Biden supports the proposal to let the [Health and Human Services] Secretary negotiate prices," adding that one of Trump's other promises -- a $200 discount drug card for seniors -- has not yet materialized.
Miller predicted that "more action (albeit more symbolic than real) is likely in the drug pricing arena, related in part of Medicare, due to the latter program's overall purchasing leverage. At least some entry into federal government price negotiations with drug sellers will begin, though far from what's been promised. Further gap-filling in cost sharing (lower catastrophic coverage ceilings) and pricing restrictions on sole source suppliers will be initiated."
https://www.medpagetoday.com/washington-watch/electioncoverage/89488
Obamacare Is Back in Court. The Stakes Couldn’t Be Higher.
This time, the issue is democracy, and the Supreme Court’s duty to leave political decisions to the elected branches of government.
by Abby Gluck - NYT - November 10, 2020
Today, the newly constituted Supreme Court will hear a challenge to the Affordable Care Act — the seventh in eight years. It is the most challenged statute in modern American history. In addition to the Supreme Court cases, there have been more than 1,700 cases in the lower courts; Republicans in Congress have tried more than 70 times to repeal it; the Trump administration has engaged in an unprecedented array of executive actions to undermine the insurance markets and financially starve the law; red states rebelled against it from the day it was passed; and state initiatives have been enacted by supporters to force states to effectuate it.
And still the Affordable Care Act, which may be the most resilient statute in American history, has done more than survive: It has transformed our health care system and the way Americans think about their right to care. Even prominent Republicans like Eric Cantor, the former House majority leader, have concluded that we cannot go back to the era before the law, when millions fewer people had access. Yet here we are again, at the Supreme Court, for a case so weak that even many conservative legal scholars who oppose the law also oppose the lawsuit.
What is at stake is even more than the nearly one-fifth of our economy that the health care industry represents and what has become a new baseline on coverage for Americans. It is democracy, and the court’s duty to leave political decisions to the elected branches of government.
The legal doctrine of “severability” — at the center of the new case — became something of a household name at the Amy Coney Barrett confirmation hearings. The doctrine requires courts to leave the remainder of statutes standing when one provision is invalidated, unless Congress has clearly indicated otherwise. It requires courts to respect Congress’s actions — and Congress did not wipe the entire law off the books. The Supreme Court, under the settled doctrine, should not either.
The main issue is Congress’s amendment to the Affordable Care Act in 2017. After all those failed attempts to “repeal and replace” the law, Congress was only able to cobble together the votes to zero-out the tax penalty associated with the unpopular insurance mandate — the requirement that everyone get insured or pay a tax.
The Trump administration’s Justice Department and 18 primarily red states are arguing that with no penalty, the mandate is no longer a tax and so is now unconstitutional — because in 2012 the court upheld the mandate under Congress’s taxing power. But that matters little. The mandate has never been fully enforced, and markets have adjusted to a world without it. What matters is that the challengers are also arguing the entire Affordable Care Act is so tied to the mandate that all the other programs in the over 2,000-page law should be struck down with it.
In other words, they are using a challenge to a now insignificant piece of the act to blow it all up.
This is bad enough, but it’s worse because Congress has already spoken. Sometimes the severability inquiry requires the court to guess what Congress would have wanted to happen to the rest of a law without the offending provision. In the Affordable Care Act case, no guessing is necessary. It was the 2017 Congress itself that rendered the mandate unenforceable; Congress therefore itself determined the law could function without it and left the rest of it standing.
That should be the end of it under the settled legal rule. It doesn’t matter if anyone took a different position in 2010 when the law was enacted, or even in 2012, when the court decided the first case. The Constitution requires that later Congresses are always allowed to make new decisions and change laws — and the 2017 Congress did so with the benefit of years of experience with the Affordable Care Act. That’s why the case has angered even legal scholars who led previous challenges to the act — because it threatens the separation of powers and asks the court to usurp Congress’s role.
We also heard a lot at the Barrett hearings about textualism — a preferred method of statutory interpretation for some justices. But the challengers are dangerously trying to manipulate the act’s text to argue that Congress somehow told the court to strike down the entire law. Congress did no such thing.
Congress knows plenty well how to direct the courts to render statutes inseverable when it wants to — how to direct courts to strike down whole statutes when a single provision is invalidated. Congress speaks directly to the point when it does this, and always uses the same basic phrasing, including the word “invalid” — entirely missing from the relevant provisions of the Affordable Care Act.
This is where textualism is especially important: All of the justices have agreed that when Congress shows it knows how to draft something expressly, we don’t imply it elsewhere.
What would an adverse ruling in this case mean? We now take countless things for granted that come from the law and that so many Americans — not just those on public programs — benefit from: insurance covering childhood vaccines, colorectal cancer screenings with no co-pay, no annual caps on insurance, older people’s vastly expanded drug coverage, no denials based on pre-existing health conditions and much more. All of that and more will be gone if the court strikes down the law.
Already 133 million Americans have benefited from the ban on pre-existing conditions, and Covid-19 might now be deemed a pre-existing condition. Twelve million people have been newly covered by the Medicaid expansion. Are we going to take coverage away from those people?
What about the 12 million people who got additional drug benefits under Medicare, estimated to be worth more than $2,000 per person? Nine million people got subsidies to help them buy insurance in the private market. They would also lose their coverage.
A recent Brookings paper details the havoc that an adverse ruling would wreak on the hospital system, whose payment structures would be upended, and on the states, 36 of which (as well as Washington, D.C.) have expanded Medicaid and whose budgets would be shrunk by billions. Other government programs would be seriously disrupted — for example, the act so fundamentally changed Medicare payment rules that it’s not even clear how they could be reconstituted or how the $800 billion in payments a year at stake could go to providers and insurers in the meantime.
The Affordable Care Act is not perfect and should be improved. But the place for that is in the democratically elected branches of government — the president and Congress — not the courts.
The Supreme Court Will Not Wreck Obamacare
This is an update of an article originally posted in September.
Health Care Policy and Marketplace Review - November 9, 2020
With the Supreme Court due to hear arguments this week on a case brought by a number of Republican state attorneys general that could throw out the entire health care law, and with conservatives now having a 6-3 majority on the Supreme Court, there is great concern among ACA/Obamacare supporters that this could well mean the end of the health care law.
The Obamacare case currently before the court deals with the 2017 repeal of the law's tax penalty enforcing the individual mandate for people to buy health insurance coverage. In 2012, Chief Justice John Roberts cast the deciding vote in the 5-4 decision upholding Obamacare generally, and the individual mandate specifically, as valid under the Congress' taxing power. After the mandate's tax penalty was repealed in 2017, a number of Republican state attorneys general sued, arguing that since the mandate was no longer tied to a specific tax penalty, it had lost its legal underpinning. They also argued that because the individual mandate was key to a number of the law's provisions that made it a workable system of insurance, the entire law should fall, including preexisting conditions protections.
This
whole legal process is now being driven by one decision by one Texas
federal judge that bought the plaintiff's painfully tenuous arguments in
deciding that the entire law is unconstitutional.
While it is certainly possible the Supreme Court could toss all of the Affordable Care Act/Obamacare before the end of this term, I see that as highly unlikely for the following reasons:
- I don't know of any conservative legal scholars that led prior Supreme Court challenges to Obamacare who see the current challenge as credible on the merits. For example, the architect of the last challenge, Jonathan Adler of Case Western University, said in a friend of the court brief the current challenge is, "unmoored from law or contemporary doctrine."
- Those
now arguing that the Court is almost automatically capable of wrecking the law appear to
believe Republican appointed justices are purely partisan political
animals marching to the Trump political line. That reflects a lack of
understanding about the justices and their dedication to the rule of
law. According to the Supreme Court Database, from 2000 to 2018, 36% of all decisions were unanimous. Their 7-to-2 or 8-to-1 decisions made up 15 percent
of decisions. The 5-to-4 decisions, by comparison, occurred in only 19
percent of cases. And, in the 2019-2020 term, with Gorsuch and Kavanaugh aboard, only 21% of the decisions were 5-3 or 5-4.
- The
concerns over the Court wrecking the whole law lie with the dubious
notion that if the individual mandate's tax penalty is gone so should
the broader parts of the law such as the Medicaid expansion and the
individual insurance subsidies. The Medicaid expansion, for example, has
absolutely nothing to do with the individual mandate that was
originally placed in the law as a means to support insurance companies'
ability to underwrite individual health insurance policies. And, the
individual health insurance market itself has been chugging along in no
worse condition since the tax penalty, and effectively the mandate, was
repealed back in 2017 as part of the Republican tax bill.
- If the justices decided that the whole law had to go, they would force upwards of 20 million people onto the rolls of the uninsured overnight on the dubious premise that the excising of the individual mandate's tax penalty undercuts the individual health insurance coverage expansion when the past three years of actual experience shows that no such thing has happened.
During the recent election campaign many Democrats wanted to paint that picture if for no other reason that it fit an effective election season argument, that Republicans wanted to take away your preexisting condition protections, your insurance subsidies, and your Medicaid expansion.
And, since Republicans have brought this suit and the Trump White House has supported it, their actions legitimately lay Republicans wide open to that claim. And, that begs the question of why Republicans would do such a stupid thing in the first place?
Ironically, Republicans are now moving to blow up the law in court after abysmally failing to repeal and replace Obamacare in 2017 (in part leading to their 2018 election defeats) and then just as abysmally failing to come up with a new replacement proposal since then.
Luckily, the Supreme Court is staffed by adults who will save Obamacare, and the Republicans from themselves.
We should expect a Supreme Court ruling on this case late in the spring of 2021.
https://healthpolicyandmarket.blogspot.com/2020/11/the-supreme-court-will-not-wreck.html?
A New Item on Your Medical Bill: The ‘Covid’ Fee
A surprise charge that can take advantage of vulnerable people and possibly violate consumer protection laws.
By Sarah Kliff and - NYT - November 5, 2020
When Michael Hambley got the call from his 87-year-old mother in July, he was sure there was a mistake. She told him that her assisted living facility, the one she paid for with her pension, was charging a one-time, $900 fee for masks, cleaning supplies and meal delivery.
Jennifer Koeckhoven had a similar experience in June: a $60 personal protective equipment charge — tacked onto her mother’s ambulance bill — that went uncovered by insurance.
“She was already wearing a mask,” said Ms. Koeckhoven, who noted that the one-mile ambulance ride already cost $1,759 before the fee.
In New York City, Zariely Garcia was surprised to see a $45 fee tacked onto a dental cleaning in July. It was billed to her directly, not her health plan, a practice that state regulators outlawed the next month as a violation of consumer protection laws.
The coronavirus pandemic has made the practice of health care more costly as providers must wear protective gear and sanitize equipment more often, even as they face declining revenue. Two groups of providers have been particularly hard hit. Dentists have lost billions since patients began postponing nonurgent dental care this spring. And assisted living facilities, grappling with lower overall demand, have also been forced to admit fewer residents to help stop the spread of infection
To address this financial shortfall, some health providers are turning directly to patients. Surprise “Covid” and “PPE” fees have turned up across the country, in bills examined by The New York Times.
“It’s a complicated answer, who pays for this,” says Scott Manaker, a physician who is in charge of the American Medical Association’s practice expense committee. “You look around the community and see additional costs being imposed right and left because of Covid-19. Barber shops, pedicures and restaurants all have additional charges. It would be an undue burden to ask the medical community to bear this alone.”
Some of these fees — when millions of Americans are reeling after losing jobs and the health insurance that came with it — have drawn the attention of state attorneys general who say that charging patients directly can take advantage of vulnerable consumers or violate health insurance contracts and consumer protection laws. The new charges range from a couple of dollars to nearly $1,000.
“The cynical view is that some see this as an opportunity: Everyone understands something unusual is going on, and most customers are ready to embrace the idea they will need to bear some expense,” said Darrin Fowler, an assistant attorney general in Michigan who has been investigating coronavirus fees in assisted living facilities. “Unfortunately, in every setting there are a percentage of folks who will take advantage of that situation.”
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The charges appear to be especially prevalent in dental offices, where industry guidelines suggest that fees denied by insurers are “typically billable to patients.” In the spring, millions of dental patients canceled planned cleanings, and offices were shuttered with new stay-at-home orders. When dental workers came back to their offices, they used heavy protective equipment, including N-95 masks and face shields.
The American Dental Association has urged dental health plans to begin reimbursing a new fee to cover the expense. Some health plans have done so, but others haven’t, which can leave patients paying new bills.
Times readers shared new protective equipment fees from dentist offices that ranged from $12 to $45. Insurance companies typically reimburse less, usually between $7 and $10.
Sabine Reichert decided to forgo a dental cleaning after learning she would be charged a $16 protective equipment fee. She would need to submit the claim to her insurance and, because of her deductible, would probably be responsible for the full charge.
“I thought it was ludicrous,” she said. “We have a high deductible, and this year we are saying no to the things we don’t really need.”
Carrie McGurk, a retired lawyer in Boca Raton, Fla., was surprised to see a $15 charge tacked onto her cleaning bill in July. She said she was not informed of the fee in advance, and noticed it only after requesting an itemized bill.
“When I was putting it away in my file, I saw ‘Covid charge’ and thought, Jeez, you could have at least told me,” she said. Because she does not carry dental insurance, she had to pay the full charge.
The American Dental Association “strongly encourages” dentists to disclose any fees to patients, saying the decision to charge the fee is an “individual dental practice business decision.”
Regulators in Connecticut, Maryland and New York have received numerous consumer complaints about new fees at dentist offices. All three states have warned that state and federal laws do not allow in-network health providers to tack on new fees.
“We’re seeing complaints of all types,” said William Tong, Connecticut’s attorney general. “All the arguments in favor of billing patients are not at all compelling to me.”
Much like nursing homes, assisted living facilities have been pummeled by the pandemic. To protect residents and contain the virus’s spread, they have bulked up their sanitation, increased staff pay and their testing, and invested in masks and other protective equipment.
Occupancy levels are at a record low, according to Mark Parkinson, the chief executive of the American Health Care Association and National Center for Assisted Living, the largest industry trade group, representing about 4,000 centers. “Revenue is at record lows, and expenses are at record highs,” Mr. Parkinson said, adding that the industry, unlike other heath care sectors, received federal assistance only in September.
Most residents at assisted living facilities pay out of pocket, since federal programs like Medicare typically don’t cover the stays. Unburdened by federal oversight or existing insurance contracts, assisted living facilities have wide latitude to charge residents a variety of fees. Some have raised rents, while others have charged residents to cover rising cleaning costs and masks.
“There is a real desire to not have to pass on any of these costs,” Mr. Parkinson said.
Still, in more than a dozen states, ombudsmen, who advocate on behalf of residents in long-term care facilities, said in interviews they worried such fees were only a fraction of what’s being tacked into bills and slipped into monthly rent statements. With nursing homes and assisted living facilities restricting visitors, there is less scrutiny of their practices. And some residents may assume that the cost is theirs to bear.
Mr. Hambley, whose mother faced the $900 charge at her assisted living facility in Portage, Mich., had a particular reason to be skeptical: He works in the industry, running a continuous care facility in another state.
Some of the extra charges, including an $11 daily lunch fee, stood out, especially because his mother had been complaining about the quality of lunches since the start of the pandemic. “It seemed like this was an opportunity to take advantage of a population that is already vulnerable,” Mr. Hambley said. “They have no visits, no engagement. And on top of that they are scared.”
After Mr. Hambley complained to state regulators, the facility rescinded the fee. He asked that the place not be named because his mother still resides there, and he did not want to affect the quality of her care.
The charges may soon be coming to more doctor’s offices. Last month, the American Medical Associated lobbied Medicare to begin paying for a new billing code that covers increased protective costs.
The association proposed in September that Medicare reimburse $6.57 for costs associated with protective equipment and new procedures for each visit, a fee significantly less than what some patients have already faced.
When Medicare chooses to reimburse a new medical service, private insurers have traditionally followed the public insurer’s lead — often paying two or three times more. The charge could also turn up on bills sent totuninsured Americans, whose ranks have swelled during the pandemic.
A Medicare spokeswoman declined to comment on whether the new fee would be approved, but said the agency had already “provided additional funding to support providers responding to the Covid-19 pandemic.” That includes billions distributed to providers through the Provider Relief Fund, and a 20 percent increase in Medicare reimbursements for hospitalized Covid-19 patients.
For now, those patients hit with coronavirus fees say the costs, though often relatively small, add up, especially at a time of such economic uncertainty.
“It didn’t break me, but they should have told me before it happened,” Ms. McGurk said. “I didn’t need to have my teeth cleaned just then. I could have waited until it was necessary.”
https://www.nytimes.com/2020/11/05/upshot/covid-fee-medical-bills.html?referringSource=articleShare
Democratic leaders play a ridiculous blame game with progressives
by James Downie - The Washington Post - November 9, 2020
If a football coach went into a game saying “we’ll rely on passing the ball,” executed that strategy, lost the game, then blamed the loss on running the ball, everyone would laugh at that coach. And yet that’s exactly the approach Democratic moderates are taking after Tuesday’s disappointing House and Senate results: Reject progressives’ suggestions, then blame those suggestions anyway for their failures.
Remember, from the Democratic primary onward, party leaders warned against running on Medicare-for-all, a Green New Deal and other progressive ideas. That approach, they said, would lead Democrats to lose states such as Florida. (About that…) Instead, Democrats went small, focusing on saving the Affordable Care Act and providing a check on President Trump.
But after the party lost House seats and failed to retake the Senate, the knives are out for the left anyway. On a House Democrats conference call on Thursday, party leaders and moderates blamed their failures on progressives. Majority Whip James E. Clyburn of South Carolina warned against running on defunding the police or socialized medicine. (Since 2007, Clyburn has collected more than $1.2 million from pharmaceutical PACs, among the most of anyone in Congress.) The attacks were best summed up by Rep. Abigail Spanberger (D-Va.): “We need to not ever use the word ‘socialist’ or ‘socialism’ ever again. … We lost good members because of that.”
Spanberger’s view was echoed by Sen. Mitt Romney (R-Utah) on “Meet the Press”: “I don’t think the American people want to sign up for the Green New Deal. … I don’t think they’re interested in Medicare-for-all or higher taxes that would slow down the economy.” But this diagnosis is at odds with the numbers. A near-majority of voters in swing districts supported the Green New Deal. Fifty-three percent of Americans support Medicare-for-all (and 70 percent support a public option). In exit polls, 57 percent of voters expressed support for Black Lives Matter. In Florida, while moderate Democrats up and down the ticket fell flat, voters passed the $15 minimum wage that the left has been pushing for years. As Rep. Alexandria Ocasio-Cortez (D-N.Y.) observed, every swing-district House Democrat who co-sponsored Medicare-for-all kept their seat.
Yet even if we assume that these polls and results are all misleading, as Ocasio-Cortez pointed out on CNN on Sunday, “not a single member of Congress that I’m aware of campaigned on socialism or defunding the police.” It’s understandable that congressional Democratic leaders want to blame something other than their own candidate recruitment process. But if a candidate didn’t run on defunding the police, yet still couldn’t avoid being tied to “defunding the police,” that’s the candidate’s fault. If a candidate ran on reaching across the aisle, yet got defined as a socialist, that’s the candidate’s fault. And if that candidate couldn’t manage to tie his or her Republican opponent to almost a quarter of a million covid-19 deaths in the United States, a tanked economy or a dozen other policy fiascos, at least one of which was probably directly relevant to the candidate’s district, that’s the candidate’s fault.
And it’s the fault of a party that is far behind the times when it comes to campaigning online. During the George W. Bush presidency, Democrats dominated the digital space: Forums and blogs (the so-called Net roots) gave the party an edge in both advertising and organizing. But in 2020, sites like Facebook and (especially) YouTube absorb Americans’ attention spans, regardless of affiliation. Yet Democrats are still playing catch-up from 2016 on the former and have barely begun to mobilize on the latter. Progressives such as Ocasio-Cortez have built their brands in this new online space with techniques the whole party could learn from. Yet leadership has all but ignored their successes.
Offline, things are little better. Black, brown and working-class voters delivered Joe Biden the presidency; the hard work of turning out those voters wasn’t done by the national party this year, but by grass-roots organizers over many years. Stacey Abrams, whose 2018 Georgia gubernatorial campaign cemented the organizational groundwork that turned the state purple this cycle, noted on CNN that “for minority communities, there has to be consistent engagement.” Running away from Black Lives Matter and real health-care reform is the opposite of that approach.
This is not to say there is a one-size-fits-all approach to contesting 100 Senate seats and 435 House seats. But it is simply false to claim that standing up proudly for policies such as Medicare-for-all and a Green New Deal hasn’t worked, when the truth is it hasn’t been tried. For decades, congressional Democrats have run every cycle with a moderate message engineered by moderate, high-priced consultants. When this plan succeeds, the party establishment trumpets their wisdom. Yet when it more frequently fails, the leadership and moderates blame the progressives they rejected the entire campaign. It’s a “heads we win, tails you lose” approach, and it’s a farce. Until congressional Democrats stop punching left and start fixing their mistakes, more disappointments are sure to follow.
'Every. Single. One.': Ocasio-Cortez Notes Every Democrat Who Backed Medicare for All Won Reelection in 2020
The same cannot be said for those more centrist lawmakers who continue to defend the nation's increasingly unpopular for-profit healthcare system.
Highlighting an interesting—and to many, instructive—electoral trend that others have spotted in the days since 2020 voting ended earlier this week, Congresswoman Alexandria Ocasio-Cortez on Saturday—just as jubilation spread nationwide among Democrats and progressives upon news that Joe Biden will be the next U.S. President—pointed out that every single congressional member this year who ran for reelection while supporting Medicare for All won (or was on their way to winning) their respective race.
The tweet emerged as many across the corporate media landscape, including pundits and former high-level Democratic officials like Rahm Emanuel, unabashedly pushed a narrative that progressives calling for policies like a single-payer universal healthcare system or the Green New Deal are somehow a hindrance to electoral success. Ocasio-Cortez was not standing for it:
As Common Dreams reported Friday, while corporate-friendly Democrats have continued to go to bat for the for-profit healthcare system that lavishes billions of dollars each year on insurance companies, for-profit hospitals, and pharmaceutical giants, a new poll this week—put out by Fox News no less—shows that 72% of all U.S. voters would prefer a "government-run healthcare plan." And the poll is far from an outlier, with numerous surveys in recent years showing this trend.
"Polls consistently show a majority of the U.S. electorate [is] considerably to the left of both party leaderships... on issue after issue—the environment, electoral reform, [and] Medicare for All," said Jacobin's Luke Savage in response that poll.
Despite what "corporate front groups and lazy pundits always say," tweeted journalist Andrew Perez, "people absolutely do not like their private health insurance."
When it comes to the 2020 election—even though Biden himself ran against Medicare for All—the following illustration, which includes Democratic incumbents and challengers, made the connection very clear when it came to races in the U.S. House of Representatives this cycle:
As astute political observers have been pointing out for years, the United States electorate remains very supportive of universal programs and other progressive policy ideas that their elected representatives—both Democrats and Republicans—have refused to embrace.
With an increasing focus on the need for radical and far-reaching changes to the world's economic and energy systems in order to address the existential crisis of the climate emergency, voters across the political spectrum have showed—in poll after poll after poll—their support for such action to be taken.
And as Ocasio-Cortez added to her tweet about Medicare for All on Saturday: "We're running numbers on [the Green New Deal]" next.
Thanks again especially for the Ocasio-Cortez article in Common Dreams.
ReplyDeleteIncreasingly, "progressive" ideas are common sense.
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