Category Archives: 2020 Election Issues

The Battle for Health Care

Posted on by • Posted in 2020 Election Issues, ACA, Essential Health Benefits, Health Insurance Coverage Adequacy, Health Policy, High Deductible Health Plans, Individual Mandate, Out of Pocket Expenses, Preexisting Conditions, Supreme Court, Underinsured, Uninsured • Leave a comment

https://www.newyorker.com/podcast/comment/the-health-care-defense?reload=true

The Battle for Health Care

The latest Republican effort to destroy the Affordable Care Act appears likely to reach the Supreme Court in the heat of the 2020 Presidential race.

One of the central questions of the 2020 Presidential campaign was posed last week before the Court of Appeals for the Fifth Circuit, in New Orleans, to a lawyer for the Trump Administration, who didn’t even pretend to have an answer. A three-judge panel was hearing the appeal of a ruling by Reed O’Connor, a Texas district-court judge, that the Affordable Care Act, or Obamacare, was unconstitutional in its entirety—an opinion that the Administration has endorsed. O’Connor had ordered that the government cease implementing or enforcing all aspects of the A.C.A., including its protections for people with preëxisting conditions, its ban on lifetime caps, its expansion of Medicaid and coverage for young adults on their parents’ plan, and its support for the treatment of addiction. The order could cost tens of millions of people all or much of their coverage, and throw the health-care system, which accounts for a fifth of the economy, into chaos. But O’Connor, in what Judge Jennifer Elrod, of the Fifth Circuit, described with no apparent irony as a “modest” act, had stayed his own order, pending appeals. Here, now, was the first appeal. So, if the stay is lifted, Elrod asked, “What’s the government planning to do?”

As the lawyer, August Flentje, struggled to answer (“This is a very complicated program—multifaceted, obviously”), it became clear that Republican opposition to the A.C.A. remains a project of blind destruction. One of President Trump’s few health-care initiatives, on drug prices, fell into disarray last week, with one measure defeated in court and another abandoned. Otherwise, he has mostly complained that Democrats want to extend care to, among others, undocumented people. His almost pathological need to undo President Obama’s legacy can be added to the mix; the restraint sometimes said to characterize conservatism can be subtracted. And there is a growing conviction among the A.C.A.’s opponents that the current Supreme Court, given the addition of Neil Gorsuch and Brett Kavanaugh, will back them up.

They may be right; the threat that this case, Texas et al. v. United States, presents to Obamacare should not be underestimated, especially as it is likely to reach the Court in the heat of the 2020 campaign. The case was brought by twenty states whose most distinct common quality is their redness. Maine and Wisconsin dropped out of the suit after the 2018 midterm elections, when their Republican governors were replaced by Democrats. When the Trump Administration declined to defend the law, a group of mostly blue states—currently twenty-one—got permission from the district court to do so. They were joined by a lawyer for the Democratic-controlled House of Representatives. When Kurt Engelhardt, another of the appeals judges, pointedly asked that lawyer why the Senate hadn’t sent someone to defend the law, he replied that the Senate “operates differently.” It is, after all, led by Mitch McConnell, not Nancy Pelosi.

The complaint concerns the so-called “individual mandate.” When the A.C.A. was enacted, in 2010, it directed every American to get insurance or face a penalty, which was calculated on a sliding scale (and dropped altogether for low-income people; other groups, such as prisoners, were exempt). The constitutionality of the mandate was the subject of an earlier challenge to the A.C.A., but Chief Justice John Roberts wrote an opinion classifying the penalty as a tax, which Congress has the power to levy. Trump’s 2017 tax package, however, reduced the penalty to zero. For the A.C.A.’s opponents, this led to a wild surmise: if the mandate had survived because the penalty was a tax, the absence of a tax might make the mandate unconstitutional. That point might seem academic—constitutional or not, the mandate is, for all practical purposes, already gone, now that there is no penalty for ignoring it. But Texas et al. makes a far more radical claim: The phantom mandate is not only unconstitutional but “inseverable” from the rest of the law. If it is invalid, then all nine hundred and six pages of Obamacare are also invalid.

This argument is as senseless as it is ruinous. It’s like saying that the 2017 tax bill was a stealth total repeal of the A.C.A., something that even leading Republicans denied at the time. And yet at least two of the judges, Elrod and Engelhardt, appeared inclined to accept it. The main issue for them seemed to be just how much of Obamacare to trash.

On that question, too, the Administration has been erratic. Initially, it argued that the court should invalidate only certain provisions, such as preëxisting-condition protections—a major feature that Trump has elsewhere claimed to like. Then, in March, the Administration said that it agreed with the Texas ruling: burn it all. Two months later, though, it argued that, while every word of the law was invalid, any relief that the lower court granted should be limited to damages suffered by Texas and the other states, without defining what those damages might be. This led to utter confusion in the oral arguments: Would there be different versions of the law for different states? Which provisions might the government want to keep? (“You would leave in place the calorie guides?” Judge Elrod asked.) Flentje, the Justice Department’s lawyer, told Elrod that, really, “things don’t need to get sorted out until there’s a final ruling”—that is, from the Supreme Court.

Obamacare has reduced the number of uninsured Americans by twenty million and, while the system is imperfect, premiums are more manageable than is often reported. But, as the Texas case suggests, it can still all be undone. And there is much more to do; the United States has not achieved universal coverage. All the Democratic Presidential front-runners share that goal, but they have what are sometimes sharply diverging proposals for getting there. Vice-President Joseph Biden, Mayor Pete Buttigieg, of South Bend, and former Representative Beto O’Rourke, of El Paso, want to build on the A.C.A. and make Medicare available to all as a public option, alongside private insurance. Senator Bernie Sanders, of Vermont, has a Medicare for All bill that aims to displace private insurance, and in most cases make it unlawful, leaving a public option as the only real option. Senators Elizabeth Warren and Kamala Harris have signed on to Sanders’s plan, although Harris has at times tried to downplay the impact on private insurance.

The next Democratic debates, which will be held on July 30th and 31st, may sharpen the candidates’ positions or further polarize them. The Democrats need a plan to protect Americans’ health coverage. And they need a plan to win in 2020. Those might even be the same thing. ♦

 

Democratic Presidential Candidate Bernie Sanders calls Hahneman University Hospital Impending Closure Insane

Posted on by • Posted in 2020 Election Issues, Academic Medical Center, Bankruptcy, Financially Distressed, Health Policy, Health System, Hospital, Hospital Bankruptcy, Hospital Industry • Leave a comment

https://philadelphia.cbslocal.com/2019/07/14/presidential-candidate-bernie-sanders-hahnemann-university-hospital-closure/

Image result for Fight to Save Hahnemann

 

 

 

Appeals Court Upholds Decision Barring Trump Birth-Control Exemptions

Posted on by • Posted in 2020 Election Issues, ACA, Health Policy • Leave a comment

https://www.wsj.com/articles/appeals-court-upholds-decision-barring-trump-birth-control-exemptions-11562973913

Ruling finds employers can’t withhold contraception coverage, in fresh blow to administration’s deregulatory push

A federal appeals court unanimously upheld a lower court decision blocking a revised set of Trump administration rules allowing employers with religious or moral objections to opt out of providing their workers with birth-control coverage.

The ruling late Friday by the Third Circuit Court of Appeals is a blow to the administration, which had prioritized weakening an Obama-era mandate requiring employers to offer free contraceptive health coverage to their employees—a top concern for Catholic and antiabortion groups. The court’s decision, which applies nationwide, makes it much less likely that the administration will be able to fashion an exemption acceptable to the courts.

A spokeswoman for the Department of Health and Human Services didn’t immediately return a request for comment. The agency is expected to appeal the ruling to the Supreme Court.

The Trump administration’s rules, issued in November by the DHHS, would have exempted a broad swath of employers from the mandate contained in the Affordable Care Act. Those rules represented a second attempt by Trump officials to create such an exemption, after a first set was blocked in 2017.

Judge Patty Schwartz, writing for the court, said the Affordable Care Act plainly states women must be provided preventive health services. “Nowhere in the enabling statute did Congress grant the agency the authority to exempt entities from providing insurance coverage for such services,” she wrote.

That makes birth control another realm in which courts have halted the Trump administration’s deregulatory agenda. The administration has lost more than 90% of lawsuits brought over its deregulation efforts, according to New York University School of Law’s Institute for Policy Integrity.

“Yet another court has stopped this administration from sanctioning discrimination under the guise of religion or morality,” said Louise Melling, deputy legal director at the American Civil Liberties Union.

The Obama administration issued the birth-control mandate in 2011 as part of its broader implementation of the Affordable Care Act.

In response to court challenges by some Catholic employers that object on religious grounds to most forms of birth control—along with other religious employers with specific objections to emergency contraception—Obama health officials created a workaround allowing female workers whose employers objected to covering contraception to obtain it directly from insurers.

Religiously affiliated employers, however, considered that insufficient because the insurance plans they sponsored were still being used as a vehicle for providing birth-control coverage.

The Trump administration’s changes sought to exempt them from the requirement completely. The administration also added moral objections to religious ones as grounds for an exemption.

 

 

 

Biden unveils health care plan: Affordable Care Act 2.0

Posted on by • Posted in 2020 Election Issues, ACA, Health Policy • Leave a comment

https://www.politico.com/story/2019/07/15/joe-biden-health-care-plan-1415850

Image result for aca 2.0

Democratic front-runner Joe Biden on Monday unveiled a health plan that’s intended to preserve the most popular parts of Obamacare — from Medicaid expansion to protections for patients with preexisting conditions — and build on them with a new government-run public insurance option.

Biden would also empower Medicare to directly negotiate drug prices, allow the importation of prescription drugs from abroad and extend tax credits to help tens of millions of Americans buy lower-priced health insurance.

The plan — which the campaign says will cost $750 billion over a decade, to be paid for by reversing some of the Trump administration’s tax cuts — is less transformative than the “Medicare for All” proposal advanced by Sen. Bernie Sanders (I-Vt.) and supported by some other Democrats, which would effectively do away with private insurance and shift all Americans to government-run health coverage.

“I understand the appeal of Medicare for All,” Biden said in a video posted Monday morning. “But folks supporting it should be clear that it means getting rid of Obamacare. And I’m not for that.”

Progressives have argued that Democratic candidates should aim for Medicare for All because it protects the party from starting with — and settling for — a more incremental compromise. Democrats and former President Barack Obama previously supported a public option that could compete with private health plans before dropping it as part of negotiations around the Affordable Care Act.

On a call with reporters on Sunday, campaign staff stressed that Biden wouldn’t settle for a watered-down compromise as president and that his plan would help 97 percent of Americans get health coverage. Nearly 5 million Americans in states that haven’t expanded Medicaid would get premium-free access to Biden’s new public option, for instance.

“We’re starting with the Affordable Care Act as the base and going to insist on the elements that we sought last time,” said a senior Biden campaign official. “And we’ll get them this time.”

Biden’s public option plan drew fire from Republicans and health care industry lobbyists who said that the proposal went too far.

The Biden administration also would allow all shoppers on the individual insurance market to qualify for premium tax credits, which are currently capped at four times the federal poverty level, or nearly $50,000 for an individual. Undocumented immigrants would be newly allowed to purchase coverage in the ACA marketplaces, although they wouldn’t be eligible for federal subsidies, a campaign official said.

Speaking with reporters, campaign staff slammed the Trump administration’s efforts to strike down the ACA in court and also addressed Biden’s differences with rival candidates. Biden on Friday suggested that there would be “a hiatus of six months, a year, two, three” that would put patients at risk if Democrats pursued Medicare for All — a claim that Sanders swiftly attacked as “misinformation.”

In response to POLITICO’s questions, Biden’s campaign said the former vice president was emphasizing the need for immediate action.

“We can’t afford the years it will take in order to write and maybe pass Medicare for All,” a spokesperson wrote in an email. “A stop in progress is unacceptable. That’s why the Biden Plan builds on Obamacare and works toward achieving universal coverage as soon as possible.”

Health policy experts said that Biden’s coverage plan appears to be more politically feasible than Sanders’ proposal.

“Building on the ACA is the quickest way to get more people insured and improve affordability, while not taking on any powerful health industry group or disrupting coverage for those who already have it,” said Larry Levitt, executive vice president of health policy for the Kaiser Family Foundation. But incremental improvements to the ACA would leave “an inefficient and costly health care system in place,” Levitt added, preserving high prices and high deductibles for the roughly 160 million Americans with employer-based health coverage.

But even Democrats’ incrementalist approaches face deep opposition from a well-funded health industry opposed to expanding government-backed health insurance.

“Vice President Biden’s proposal for a new government insurance system through a ‘public option‘ would undermine the progress our nation has made and ultimately lead our nation down the path of a one-size-fits-all health care system run by Washington,” said Lauren Crawford Shaver, executive director of the Partnership for America’s Health Care Future, in a statement released Monday morning. Shaver— whose group includes dozens of major associations, including hospital lobbyists— pointed to studies that hospitals would lose revenue if Medicare was expanded.

Republicans also attacked Biden’s plan, resurrecting arguments used to bash the ACA. “Obamacare 2.0: Because it worked so great the first time,” tweeted RNC spokesperson Elizabeth Harrington, pointing to the troubled rollout of the online insurance marketplaces, government coverage mandates and other implementation challenges.

Meanwhile, some Wall Street analysts were skeptical of Biden’s public option proposal, arguing the policy was flawed.

“We suspect that provision is unlikely to be implemented, as it would allow employers to ‘dump’ the highest cost patients into exchanges,” wrote Raymond James in an investor’s note Monday morning.

Biden also announced new ideas to combat the nation’s high drug prices. Pointing to lessons learned from his signature cancer initiative — which announced on Monday it was suspending operations because of Biden’s campaign — the former vice president says he’ll have the Department of Health and Human Services establish an independent review board that will link the price of new specialty drugs to the average price in other countries. His plan also calls for capping most drug price increases at the rate of inflation.

Meanwhile, Biden would seek to expand access to abortion and contraception, reiterating his recent calls — like those of other Democratic candidates — to enshrine Roe v. Wade in federal law and restore federal funding for Planned Parenthood.

Biden’s plan also takes aim at health care providers, suggesting that he’ll try to tackle problems like unexpected large medical bills and health care market concentration, although the details released by the campaign are sparse. Biden also would double investment in community health centers, arguing that the centers help reach underserved populations.

Campaign staff said Biden would soon announce additional proposals to combat gun violence, improve rural health and address other health care initiatives.

 

Healthcare stocks rally after Trump administration nixes drug rebate plan

Posted on by • Posted in 2020 Election Issues, Biotech, Drug Rebates, Health Insurance Industry, Health Policy, Pharmaceutical Industry • Leave a comment

https://www.beckershospitalreview.com/finance/healthcare-stocks-rally-after-trump-administration-nixes-drug-rebate-plan.html

Shares of major health insurers and other healthcare companies surged July 11 after the Trump administration yanked a plan to curb drug rebates. The healthcare rally helped push the Dow Industrial Average to 27,088 — its highest close ever.

UnitedHealth Group led the Dow to its all-time high, according to The Wall Street Journal. UnitedHealth climbed 5.5 percent July 11 to $261.16 per share.

Shares of major pharmaceutical companies, including Merck, Pfizer and Eli Lilly, lost ground on July 11, hampering the Dow’s climb, according to TheStreet.

“Pharma is getting absolutely shellacked,” Jamie Cox, managing partner for Harris Financial Group, told TheStreet. “I think being in the crosshairs of both parties in advance of an election year is definitely not a good place to be. It’s the one area where Democrats and Republicans can agree-they can beat up on pharma and there’s no negative repercussions.”

The S&P 500 also reached a record July 11, trading 0.2 percent higher. In the S&P 500, Cigna jumped 9.2 percent to $175.34 per share, while shares of CVS Health climbed 4.7 percent to $57.97. However, pharmaceutical companies and biotechnology firms broadly declined, according to The Wall Street Journal. 

 

Does the United States Ration Health Care?

Posted on by • Posted in 2020 Election Issues, Access & Quality of Healthcare, Forgoing Healthcare Treatment, Health Policy, Medicare for All, Rationing Care, Single Payer Health System, Single Payer Healthcare System, Universal Healthcare System • Leave a comment

https://www.commonwealthfund.org/blog/2019/does-united-states-ration-health-care

MRI taking place in the U.S.

As recent congressional hearings on Medicare for All proposals have illustrated, members of Congress and presidential candidates are looking outside the United States to find ways to achieve universal coverage. Some have suggested that other countries are able to provide universal coverage because they “ration” care — a term rife with negative connotations. This post examines the extent to which health care is rationed in Germany, the Netherlands, Sweden, Switzerland, and the United Kingdom — as compared to the U.S.

Examples of health care rationing tend to focus on long wait times for procedures —such as hip replacements, or MRIs — or limited access to the newest drugs. This happens in some (but not all) countries and can be a challenge for policymakers. But there are other ways in which health systems engage in rationing, by restricting access to insurance, through insurance benefit design, or by imposing high patient cost-sharing. While other countries may ration because of national budget constraints and supply-side factors, the United States’ lack of access to comprehensive insurance and affordable care represent a de facto form of rationing that leads people to delay getting care or going without it entirely.

Getting in the Door

In the five European countries we examined, all residents are entitled to health care through the national system. These range from tax-funded systems in Sweden or the U.K. to private insurance-based systems in Germany, the Netherlands, and Switzerland. In the latter, governments regulate premiums to be affordable and provide income-related subsidies to low-income families, which include 27 percent of Swiss and 30 percent of Dutch residents. Governments also mandate generous benefit packages that typically guarantee a minimum set of services: primary, specialty, and hospital care; prescription drugs; mental health; maternity; and palliative care.

In comparison, there are 30.4 million uninsured people in the U.S. Not having affordable, comprehensive insurance coverage often means that sick Americans do not even get in the door to see a doctor. For those who do have coverage, new rules that allow states to circumvent the Affordable Care Act’s mandated essential health benefits may mean skimpy coverage for some.

Waiting to Be Seen

Patients in some countries face longer wait times for specialty care than in the U.S., where only 25 percent of Americans need to wait longer than one month for a specialist appointment. Patients in Germany and Switzerland get in just as fast (27% and 26%, respectively) as their U.S. counterparts, but those in Sweden and the U.K. do not (45% and 43%, respectively). Similarly, very few U.S., Dutch, and Swiss patients (4% to 7%) who need elective surgery face wait times longer than four months, while 12 percent of Swedish and British patients do. It should be noted that in Sweden and the U.K., where wait times for specialty care are longer, people can buy supplemental insurance to gain quicker access to private specialists.

While Americans overall enjoy shorter wait times for specialty care, wait times for same- or next-day appointments when sick are around average compared to other countries. U.S. adults are among the most frequent users of emergency departments. Nearly half who do report doing so because they couldn’t get an appointment with their regular doctor.

Weighing Health Against Your Wallet

In a recent Commonwealth Fund survey, fewer than one of 10 patients in the U.K., Germany, the Netherlands, or Sweden reported skipping needed care or treatments because of cost. This contrasts sharply with the U.S., where one of three Americans reported the same. This is partly because of the rise in high deductibles, unpredictable and opaque copayments, and higher health care prices in the U.S. than in other countries. An estimated 44 million Americans who have insurance are effectively underinsured because their out-of-pocket costs and deductibles are very high relative to their incomes.

Other countries are more protective. In the U.K., Germany, and the Netherlands, patients have no out-of-pocket costs when they visit a primary care doctor, and Brits never pay for hospital care. In Germany, out-of-pocket costs are capped at 2 percent of annual household income and 1 percent for chronically ill people. In Sweden, out-of-pocket costs for physician visits and drugs are capped at $370 annually. No one in these five countries declares bankruptcy because of medical debt.

Paying for Value

A commitment to providing universal coverage means that other countries have to make hard choices to ensure that each health care dollar is spent effectively.

Countries aim to give patients access to the most clinically meaningful and cost-effective drugs. In the U.K., only drugs that are deemed cost-effective are covered, while in Germany, manufacturers have to demonstrate that their new drug adds clinical benefit to negotiate a higher price than other existing drugs. This doesn’t mean that new technologies aren’t available; in fact, 79 percent of new cancer drugs are approved for routine use in the U.K.

These kind of controls, coupled with fixed copayments and annual caps on patient drug spending, translate into better access. While nearly one of five U.S. adults skip doses or do not fill a prescription because of costs, just 2 percent to 9 percent of patients do so in the other countries discussed here.

Conclusion

It would be a missed opportunity for America to ignore lessons about universal coverage from other countries out of a fear that they ration health care more than we do. In reality, more people in the U.S. forgo needed health care because access to care is rationed through lack of access to adequate insurance or unaffordable services and treatments.

 

 

 

2020 Election’s Healthcare Debate: Truths, Half-Truths, And Falsehoods

Posted on by • Posted in 2020 Election Issues, Health Policy, Health System, Hospital, Hospital Industry, Medicare Buy-In, Medicare for All, Single Payer Health System, Single Payer Healthcare System, Universal Healthcare System • Leave a comment

https://www.forbes.com/sites/joshuacohen/2019/07/08/2020-elections-healthcare-debate-truths-half-truths-and-falsehoods/#57fb72076466

Image result for health policy

are may emerge as the number one issue in the 2020 election. In itself this isn’t surprising, given that for many decades the electorate has considered healthcare a key issue.

And, the truth is healthcare access continues to be a major problem in the U.S., along with inequalities in outcomes, relatively high prices for healthcare services, and high out-of-pocket spending. Democratic presidential candidates have weighed in on these issues.

Without more clarity, however, the debate runs the risk of unraveling into exercises in sophistry.

Politicians in America have had a knack for telling half-truths or even untruths about healthcare. For example, in 2012, John Boehner claimed that “the U.S. has the best healthcare delivery system in the world.” And, just prior to signing the Affordable Care Act (ACA) into law, President Obama stated “if you like your healthcare plan, you can keep it.”

Many constituents — myself included — are also confused by certain terms used in the current debate.

Democrats appear to all want universal coverage. Among the presidential candidates there are different ideas about how to achieve the objective. One group, led by Vermont Senator Bernie Sanders, wants a single payer system, misnamed “Medicare for All.” When Sanders and others talk about Medicare for All, they aren’t aiming to expand the currently existing Medicare program to include all U.S. residents. Rather, they’re talking about a government program that would replace all currently existing forms of insurance, both private and public. Sanders’s plan would also substitute premiums and out-of-pocket spending with taxes. Whether this single payer system would result in lower healthcare costs for individuals – paid in the form of premiums and out-of-pocket costs, or taxes – remains to be calculated.

When Sanders and others speak of eliminating private insurance and replacing it with Medicare for All they ignore the fact that private insurance is embedded in many aspects of the Medicare program. For example, more than a third of Medicare beneficiaries are enrolled in a Medicare Advantage plan, and over 60% have their prescription drug coverage managed in stand-alone fashion by a prescription drug plan. So, in addition to the abolition of commercial private insurance, Medicare for All would radically alter the Medicare program as it operates today, which makes the name of Sanders’ plan all the more curious.

There are of course some things that presumably Medicare for All would do that the currently existing Medicare program does not, including coverage of long-term care expenses, hearing, dental, vision and foot care.

A number of candidates have proposed tinkering with the existing system by expanding Medicare eligibility, i.e., Medicare for More, and still others have proposed including a “public option” to augment ACA. Regarding the former, certain groups of people — for example, those over age 50 — would be offered the opportunity to purchase Medicare. And, in the ACA-plus scenario, certain individuals could buy into existing programs, such as Medicaid, state employee health plans, or an entirely new health plan run by the state.

One area of apparent consensus across the Medicare for All, Medicare for More, and ACA-plus camps is establishing a system in which there are lower reimbursement rates for healthcare services, which would drive down costs. Currently, there is a very sizable gap between Medicare and private health insurer reimbursement rates to hospitals and physicians. Medicare for All goes furthest in ratcheting down payments to essentially a single rate. By abolishing private insurance the rates would be reduced to Medicare levels, which are at least 40% lower. This, however, could prove to be problematic as such measures could force hospitals to close if they had to accept the rates currently paid by Medicare. Physicians would also stand to lose under a drastic rate reduction.

The healthcare industry is particularly opposed to Medicare for All because of concerns about disruption to the system – even undermining insurers’ raison d’être – and much lower reimbursement rates.

A frank discussion would be welcome regarding the implications of all proposals across the political spectrum, including ramifications of undoing the ACA. For too long, the healthcare debate on both sides of the aisle has shied away from explaining the consequences of policy proposals, or inaction for that matter.

 

 

The Fifth Circuit Court Hears Arguments on the Future of the ACA

Posted on by • Posted in 2020 Election Issues, ACA, Dept of Justice (DOJ), Health Policy, Lawsuit, Severability • Leave a comment

https://www.commonwealthfund.org/blog/2019/fifth-circuit-court-ruling-future-aca

columns at courthouse

The future of the Affordable Care Act (ACA), the millions of Americans who depend on it, and, frankly, the American health care system, every part of which is touched by the ACA, were on the line in a federal courthouse in New Orleans on Tuesday. The Fifth Circuit United States Court of Appeals heard 106 minutes of oral argument in the case of Texas v. U.S., in which a district court judge ruled that the entire ACA was invalid. The case is being pursued by 18 Republican states and two individuals, joined by the United States on the appeal. Twenty-one Democratic attorneys general (AGs) and the U.S. House of Representatives have intervened to defend the ACA.

The plaintiffs argue — in a decision accepted by district court Judge Reed O’Connor — that:

  • the Supreme Court in 2012 held that the ACA’s individual mandate was unconstitutional as a command, and constitutional only as a tax
  • Congress in 2017 zeroed out the tax, leaving the mandate entirely unconstitutional
  • the mandate is essential to the rest of the ACA, which must be invalidated once the mandate is struck down.

The defendants contest each of these claims and further argue that the plaintiffs lack standing to bring the case since they have not been injured by the mandate.

The case was heard by three judges: Carolyn Dineen King, appointed by President Jimmy Carter; Jennifer Walker Elrod, appointed by President George W. Bush; and Kurt D. Engelhardt, appointed by President Donald Trump. Judges Elrod and Engelhardt questioned the parties vigorously; Judge King did not speak during the proceeding.

Nearly half of the argument focused on the question of the plaintiffs’ standing to bring the action and of the Democratic AGs and House to appeal the judgment. Under the Constitution, federal courts can only hear a case challenging a law if at least one of the plaintiffs is actually injured by the law and can only hear an appeal if at least one of the appellants is affected by the judgment.

Judge Elrod seemed skeptical of the argument made by the appellant Democratic AGs that the zeroing out of the tax made compliance with the mandate optional and therefore incapable of harming the plaintiffs. Judges Elrod and Englehardt seemed to accept the plaintiffs’ argument that the mandate remains a legal command, and as such harms the individual plaintiffs by requiring them to buy insurance they do not want. Judge Elrod also suggested that the Republican states might have standing because they had to fill out tax forms related to the mandate.

All the parties agreed that the court had jurisdiction to hear the appeal and did not contest the fact that the invalidation of the ACA would cost the Democratic states a substantial amount of money, although Judge Elrod questioned whether the lower court’s order applied to the Democratic states.

Judges Elrod and Engelhardt also greeted skeptically the argument of the Democratic AGs and House that the 2017 tax bill did not affect the constitutionality of the mandate. The Democratic AGs and House argued that the Supreme Court held in 2012 that the ACA merely gave individuals subject to the mandate a choice between buying insurance or paying a tax. The tax bill did not change this; it simply made the tax optional. The plaintiff–appellees argued that with the tax zeroed out, the mandate was wholly unconstitutional. Judges Elrod and Englehardt seemed sympathetic to this argument, although Judge Elrod prodded the plaintiffs on their position.

The court seemed a bit more uncertain, however, on the consequences of holding the mandate unconstitutional on the rest of the ACA. The Republican AGs argued that the findings section of the ACA created an “inseverability clause” by declaring that the mandate was “essential” to — and thus not severable from — other sections of the ACA. The Democratic AGs and House disagreed, arguing that when Congress adopted the 2017 tax bill it clearly intended to affect no other provisions of the ACA.

The judges seemed unimpressed with the statements made by members of Congress to this effect, asking why Congress did not repeal the mandate or the findings if it meant to preserve the rest of the law. (In fact, Congress couldn’t have done so, since the tax bill was a budget reconciliation bill that could only address provisions with financial impact.) Judge Elrod suggested that some members of Congress might have seen the zeroing out of the mandate tax as a “silver bullet” to bring down the ACA, even though there is no evidence of this and it would impute to Congress the intent to create an unconstitutional law. Judge Engelhardt asked why the Senate was not involved in the case if their intent not to harm the law was so clear.

The position of the Department of Justice (DOJ) on severability was quite murky, frustrating the court. On one hand, the DOJ argued that the entire ACA was inseverable from the mandate and thus invalid. On the other, the DOJ contended that as a matter of remedy, the court (or the district court on remand) should only enjoin compliance of provisions that directly affected the plaintiffs; perhaps only in the states that had sued. Remanding to the district court would likely be a futile exercise. Judge O’Connor has already concluded that the entire statute is inseverable. At one point, as the court pressed the DOJ attorney to clarify his position, he responded, “A lot needs to get sorted out and it’s complicated.”

Judge Englehardt seemed to think the problem was essentially political and should be left to Congress to determine which provisions were invalidated and which survived. Accusing Congress of not taking responsibility to clean up the mess that would be caused by invalidation of the statute overlooks, however, the responsibility of the judiciary not to create the mess in the first place, as the district court has done in its sweeping decision. This is one of the reasons why existing law on severability directs courts to invalidate only so much of a law as is necessary when a provision is found to be unconstitutional.

Listening to the argument, one may conclude that judges Engelhardt and Elrod do not understand the scope of the ACA and the serious trouble that invalidating it in its entirety would cause for the American health care system. Suggesting that Congress could readily “fix” the problems caused by the lower court’s decision or that a supposed “fix” other than reversal is even needed — or possible — reveals a lack of understanding of the scope of the ACA and a frightening degree of irresponsibility.

There seems to be a real possibility, however, that the Fifth Circuit may affirm the lower court’s judgment. It will then again be up to the Supreme Court to sort things out. In the meantime, a Fifth Circuit decision invalidating the ACA will likely become a major issue in the 2020 election. We should see by the fall whether the questions pressed by the court today presage its conclusions.

 

 

 

Trump’s Next Phase on Health Care: Everywhere and Nowhere

Posted on by • Posted in 2020 Election Issues, Center for Medicare and Medicaid Services (CMS), Dept of Health and Human Services (HHS), Health Policy, Hodgepodge, Indecision, Leadership Alignment, Leadership Commitment, Uncertainty • Leave a comment

https://www.bloomberg.com/opinion/articles/2019-07-09/trump-health-care-reform-he-s-everywhere-and-nowhere

A scattershot and at times contradictory approach to fixing the system is impeding progress.

A hodgepodge of news this week is telling the confusing and contradictory story of President Donald Trump’s efforts to change American health care.  

On Monday, a federal judge blocked the administration’s efforts to force drugmakers to disclose the often astronomical list prices of medicines in their TV ads. It was intended to shame pharma into lowering prices, and would have been the first of the Trump administration’s major drug-cost initiatives to actually take effect.

On Tuesday, oral arguments were set for a Department of Justice-backed case that could wipe out the Affordable Care Act. 

Wednesday will reportedly see the president reveal an ambitious set of initiatives intended to rein in spending on kidney costs. 

The kidney initiative is among the administration’s better notions, along with its effort to index some drug costs covered by Medicare to the lower prices available abroad. Yet even when the administration lands on a good idea in health care, it seems to get in its own way. The Trump-backed ACA lawsuit, for example, would directly undermine the kidney initiative and price-indexing plan. And while the president has a variety of other proposals in the works – from an effort to pass drug discounts directly to consumers to a plan to force hospitals to make their pricing transparent – many could be exposed to the kind of legal risks that killed the drug-ad initiative. It’s all part of a scattershot and often incoherent approach that isn’t as effective as it could be.

Take the kidney-care push: this area of treatment is costly in part because the current system incentivizes expensive care at dialysis centers that are largely run by two companies: DaVita Inc. and  Fresenius Medical Care AG. (Peter Grauer, the chairman of Bloomberg LP, is the lead independent director at DaVita.) The Department of Health and Human Services reportedly wants to change that dynamic with new payment models intended to shift patients to more cost-effective treatment at home. At least part of the administration’s ability to implement those models comes from the Center for Medicare and Medicaid Services’ Innovation Center, which was created by the ACA and is threatened by the lawsuit.

The contradictions don’t end there. People with end-stage kidney disease are covered by Medicare, so the lawsuit wouldn’t strip their coverage. However, the administration’s plan reportedly emphasizes intervening before people get to the point where they need dialysis or transplants. Killing the ACA is at direct odds with that goal. It would see millions lose insurance coverage, would eliminate protections for people with pre-existing conditions like chronic kidney disease, and crimp access to preventative care.

Though it is a long shot, the court case demonstrates the administration’s inconsistency in health care. Just about every health initiative would be harmed by the disruption that would result if this lawsuit succeeds, especially considering that the administration doesn’t have a replacement plan. If it were serious about keeping people off of dialysis or curing HIV, it would oppose this suit and stop other ongoing efforts that harm the ACA’s individual market and Medicaid.

The administration hasn’t detailed an ACA alternative because its previous effort to pass one was a political disaster that helped Democrats seize control of the House of Representatives in 2018. Instead, its health-care efforts have largely been confined to executive orders and rule-making. That approach narrows the scope of what the administration can accomplish, and comes with significant risks. If a federal judge thinks that forcing the disclosure of drug prices in ads is an overreach, there’s clearly a chance that the administration’s more ambitious plans will also have issues.

I’m rooting for the kidney effort. It targets a real problem and could have an impact, depending on the details. I’d be more optimistic about the plan’s chances if it were part of a cohesive set of policies that had Congressional backing, rather than the current jumble. 

There’s little chance appeals court will strike down ACA, legal experts say

Posted on by • Posted in 2020 Election Issues, ACA, Health Insurance Industry, Health Policy, Health System, Hospital, Hospital Industry, Lawsuit, Severability • Leave a comment

https://www.modernhealthcare.com/legal/theres-little-chance-appeals-court-will-strike-down-aca-legal-experts-say?utm_source=modern-healthcare-daily-finance&utm_medium=email&utm_campaign=20190708&utm_content=article3-readmore

Seven months after a federal judge struck down the Affordable Care Act, a coalition of 21 Democratic attorneys general will once again defend the landmark healthcare law in New Orleans on Tuesday. The challenge, if upheld, would have far-reaching consequences for millions of Americans and the healthcare companies that serve them.

Left-leaning and conservative legal experts alike say there’s little chance the three-judge panel in New Orleans agrees with the lower court and declare the ACA unconstitutional. The arguments used by the Republican states that sued to wipe out the ACA are “frivolous,” the experts say.

“This case is different from all of the previous Obamacare cases because there is a consensus among the Republican intellectual establishment that the legal arguments are frivolous,” said Yale University health law professor Abbe Gluck. “You’ve got a lot of prominent Republican legal experts siding against the Trump administration in this case, so I think that most people are hoping that this circuit will apply very settled law and reverse the lower-court decision.”

Even so, Democratic senators on Monday were worried that the ACA would ultimately be struck down, causing millions of Americans to lose their insurance and consumer protections overnight without any Trump administration plan to pick up the pieces.

“Make no mistake, this lawsuit has a good chance of succeeding,” Sen. Chris Murphy (D-Conn.) said during a conference call Monday with reporters. “I understand that there are some legal scholars that say that the theory of the petitioners is wacky, but it survived the district court and it now has the administration as a full and complete partner with the attorneys general. There is real muscle on the side of the plaintiffs in this case.”


The appellate court arguments largely mirror those in the district court. This time around, the U.S. Justice Department is urging the 5th U.S. Circuit Court of Appeals to uphold the lower-court ruling that the entire Affordable Care Act must fall because the 2017 Congress reduced the individual mandate penalty to zero. Previously, the Justice Department argued the individual mandate is unconstitutional, but could be “severed” from most of the ACA.

This question of whether the entire ACA must go is the crux of the case. Gluck explained that a non-controversial, settled legal doctrine called “severability” states that the decision to scrap a piece of a law or destroy the whole thing rests on what Congress would have wanted. That’s something courts usually have to guess, but in this case there’s no question what Congress would have wanted: it already zeroed-out the individual mandate penalty and left the rest of the ACA alone.

“It is an absolutely outrageous argument to say that the district court was doing what Congress wanted when Congress in 2017 reduced the penalty and left the entire statute standing,” Gluck said.

Nicholas Bagley, a law professor at the University of Michigan Law School, similarly said, “These are bad legal arguments.”

The odds of the Fifth Circuit declaring the entire ACA unconstitutional are low, he said, given the arguments in the case “are thin to the point of frivolousness, and I think the Fifth Circuit judges will know that, whatever their political disposition may happen to be. But I’d be lying if I said I knew that for sure.”

The panel announced last week includes Judges Jennifer Walker Elrod, Kurt Englehardt and Carolyn Dineen King. Two were appointed by Republican presidents; one is a Democratic appointee. U.S. District Judge Reed O’Connor, who struck down the healthcare law, was also appointed by a Republican president.

Legal experts said it is also likely that oral arguments will devote time to whether the Democratic states and the U.S. House of Representatives have standing to intervene in the case. The Fifth Circuit judges last week asked for supplemental briefs on that question. While the court’s request was seen by some as a sign that it is supportive of the Republican states, others viewed it as normal, given the high stakes and the fact that the Justice Department declined to defend the law.

Gluck said it’s unlikely the court will decide neither the blue states or the House have standing in the case. It would be hard to argue that the Democrat-led states would not be harmed by a ruling that invalidates the entire ACA, and the House has previously intervened to defend a statute when the executive branch chose not to, she said.

But if the Fifth Circuit does decide neither have standing, it would have to decide whether to let the lower-court decision stand or erase it, she said.

Should the appellate court uphold the lower-court ruling, the consequences would be sweeping. In a June analysis, the left-leaning Urban Institute found that the number of uninsured Americans would climb 65% to 50.3 million in 2020 if the ACA is ultimately struck down. The decision would affect not only people who buy coverage in the individual market but also those with coverage through Medicaid expansion, Medicare and from their employers.

That would also impact healthcare providers and insurers.

“No industry has been more directly impacted by the ACA than health insurance providers, which have invested vast amounts of resources to participate in the relevant markets, comply with the law’s myriad reforms, and organize their businesses to operate in a revamped healthcare system,” insurance industry lobbying group America’s Health Insurance Plans wrote in an amicus brief filed in April in support of reversing the lower-court decision.