By Betsy McCaughey

As the U.S. Supreme Court deliberates the Obama healthcare law, the court itself is on trial.

Obamacare supporters are attacking the justices as “hacks dressed up in black robes,” calling for limits on their life tenure, and claiming judicial review is undemocratic.

Worse, President Obama and his Secretary of Health and Human Services Kathleen Sebelius are shoveling money into implementing the law as fast as possible and refuse to discuss an alternative. That’s irresponsible. What’s needed now is not court bashing but contingency planning.

The Obama administration and allies in Congress have nine weeks to plan how to pick up the pieces on a vast array of health insurance issues. It’s the President’s duty to have a plan. It will signal his respect for the nation’s system of checks and balances — something he has utterly failed to show.

Continue reading “Obama Supporters Put High Court on Trial”

By Maggie Mahar

Consider these two scenarios.

What if the Supreme Court:

1). Strikes down the requirement that everyone buy insurance, or pay a penalty (a.k.a. “the individual mandate”), but leaves in place the rule that insurers are required to insure everyone — including those who are suffering from a preexisting condition?

or 2). Throws out both the individual mandate and the provision which says that insurers cannot either deny coverage , or charge higher premiums, if someone is already sick?

Begin with the first scenario: you are not forced to buy insurance, but when you get sick, insurers will be forced to cover you, charging the same rates they charge healthy people in your community (a.k.a. “community rating”).

What would happen?

Continue reading “What If the Supreme Court …”

By Kent Bottles, MD

Three recent developments have highlighted how difficult it is to predict when and if disruptive technologies will transform clinical medicine in the United States. That we are undergoing an avalanche of new information and new technology is hardly newsworthy. From the dawn of civilization to 2003, human beings created 1 billion gigabytes of new information. In 2012, Google says they catalog 2 billion gigabytes of information every two days.

One of the confounding factors on how this new knowledge and technology is adopted by an industry like health care is the law. Henry Perritt, Jr. describes two ways to think about the relationship between the law and technology. Technological change is “a major source of human problems that the law must address.” The law also always lags technology because the common law tradition requires “that the legal system should not predetermine the course of technological application and product development.” http://jolt.law.harvard.edu/articles/pdf/v10/10HarvJLTech689.pdf

The first example of this concept of the law lagging technology involves American citizen Ellie Lavi who underwent in vitro fertilization and the subsequent birth of twins in Israel. When she went to the American Embassy, she was told that her children would not be American citizens unless she could prove that either the egg or sperm used in her case came from an American citizen. “The problem is that the law hasn’t kept up with the advances in reproductive technology,” states Lawyer Melissa Brissman. http://www.usatoday.com/news/world/story/2012-03-19/in-vitro-citizenship/53656616/1

Continue reading “The Law Always Lags Technology: Implications for Digital Medicine”

By PAM BONDI

Florida and more than half of the states in the nation have challenged the federal government’s Affordable Care Act because it deprives Americans of their individual liberty and violates the United States Constitution. The U.S. Supreme Court will decide whether to enforce constitutional limitations on federal authority — or, conversely, whether to allow the federal government to dominate states and individuals to the point of dictating day-to-day decisions.

The court should reaffirm the basic constitutional bargain struck among the states that makes our federal government one of limited, enumerated powers.

By Frank Pasquale

Those challenging the ACA in court profess deep concern about government forcing citizens to buy insurance or pay a fine.  The fundamental harm here is monetary; it’s about being required to purchase insurance, not to use it (or to get any medical care at all).

If the Court agrees with them, why can’t there be a parallel monetary right not to be bankrupted by health care costs?  In the 1973 case San Antonio School District v. Rodriguez, the Supreme Court decided, by a 5-4 vote, that children did not have a constitutional right to education.  But at that time, at least four justices thought the state was obliged to make a decent education available to all.  Why can’t a future Court do the same for health care?

If the current Supreme Court were to declare the ACA unconstitutional, it would need to abandon several landmark precedents.  That’s not a problem for the Roberts Court; it’s already jettisoned once-venerable holdings on campaign finance, equal protection, antitrust, and voting rights.

For many Americans in these tough economic times, rights to education, housing, health care, and food are a lot more meaningful than the right to be free of an insurance mandate.  We the people can locate these ideals in a Constitution and a Declaration of Independence rich with grand and sweeping language.  If the ACA’s opponents can use our nation’s founding texts to undermine the ACA, those who care about meeting basic human needs need to gear up to use them to do quite a bit more.

Continue reading “A Constitutional Right not to Be Bankrupted”

By Robert Laszweski

2013 may be the most significant year in health care policy ever.

But we have to get through 2012 first.

Once the 2012 election results are in there will be the very real opportunity to address a long list of health care issues.

If Republicans win, the top of the list will include “repealing and replacing” the Affordable Care Act. If Obama is reelected, but Republicans capture both houses of Congress, we can still expect a serious effort to change the law. Then there is the granddaddy of all problems, the federal debt. The 2012 elections could well prepare the way for entitlement reform—particularly for Medicare and Medicaid. Even if Obama is reelected, the 2013 agenda will include a serious debate about Republican ideas to change Medicare into a premium support system and block grant Medicaid to the states.

If the election is a draw with neither side able to unilaterally move their agenda—likely in the form of Obama still in the White House but facing a Republican Congress, the pressure to deal with the growing costs of Medicare and Medicaid as well as nagging concerns about the implementation of the Affordable Care Act will create an imperative for action in 2013.

Continue reading “2012: A Year of Huge Uncertainty in Health Care Policy”

By DAVID DRANOVE

As the New Year begins, I look forward to reading and commenting on the latest developments in health economics. I thought I would start by making a few predictions:

1) With the economy on a slow but steady road to recovery, Republicans will resurrect health reform as a key issue in the fall election. They run a controversial ad showing a patient named Debbie getting diagnosed by her iPhone’s Siri. In response, Democrats show Debbie filing for bankruptcy because her insurance refused to pay for Siri’s consultation fee.

2) The Supreme Court will uphold the purchase mandate in the Affordable Care Act. Lobbyists for every major industry flood Congress with requests for more purchase mandates.

3) Healthcare continues to be a bright spot in a sluggish labor market. As a way to simultaneously address persistent unemployment and the growing needs of the elderly, Nancy Pelosi proposes a new law mandating that all baby boomers purchase a caregiver for their parents.

4) CMS will release new revised rules for ACOs. The new rules discourage ACOs from only covering patients in good health by reducing reimbursements for patients who are able to lift the new 1200 page ACO rulebook.

Continue reading “New Year’s Predictions: More Mandates (Maybe), House Rules at CMS”

By Timothy Jost

On November 14, 2011, the Supreme Court decided to review a decision of the Eleventh Circuit Court of Appeals striking down the minimum coverage requirement of the Affordable Care Act (ACA) as unconstitutional.  The case will probably be argued before the Court in March and decided in the early summer.

Procedurally, the Court “granted certiorari.”  This means that it agreed to review certain questions raised by the certiorari petitions presented by the various parties in the Florida case, including the plaintiffs who challenged the constitutionality of the Affordable Care Act — 26 states, the National Federation of Independent Business, and two private individuals — and the federal government, which defended the Act’s constitutionality.  The Eleventh Circuit had ruled against the federal government on the question of whether the minimum coverage requirement of the ACA is constitutional, but had ruled against the plaintiffs on all other issues.

The Supreme Court did not rule on certiorari petitions pending before it from the Virginia, Liberty University, and Thomas More cases, two of which rejected a challenge to the ACA on jurisdictional grounds and the other of which held the minimum coverage requirement to be constitutional.  (The Virginia petition was not yet before the Court, as it was filed later than the others).  The fact that the Court only granted petitions in the Florida case probably signals nothing about the Court’s ultimate decision, as the Florida case raises all of the issues raised by the other cases and reviewing additional cases would have merely made the case more complex administratively.

Continue reading “End Gaming the Supreme Court’s ACA Review”

By D. Brad Wright

Any ruling by the Supreme Court on the constitutionality of the Affordable Care Act’s controversial individual mandate isn’t likely for at least another several months, but it’s worth thinking about what might happen after the case is decided. The first scenario is easy: If the Court upholds the mandate, the ACA goes forward as planned to the continued objections of many conservative Americans and politicians. The second scenario is less clear: If the Court finds the mandate unconstitutional, do they find it severable from the rest of the law? If not, they’ll strike the whole ACA down. This seems like the least likely outcome. If, on the other hand, they do invoke severability, the ball is back in the White House’s court. The decision at that point would be whether or not health reform can be successful without the individual mandate.

The concern here is the death spiral first described by Nobel Prize-winning economist Joseph Stiglitz. In essence, if we don’t require everyone to buy insurance, then insurance will be disproportionately purchased by the sick, making it more expensive and leading many to discontinue coverage in a continuous cycle that drives the price higher and higher until no one can afford insurance any more and the system collapses. By contrast, getting everyone into the pool is seen as the only way to keep costs down and maintain the insurance system. So the question is: What happens if the Supreme Court strikes down the individual mandate? Does the Obama adminsitration wash its hands of health reform, proclaiming that it can’t be done without the individual mandate because costs will rise too rapidly and the insurance system will collapse, or does it forge onward and see what happens?

Continue reading “What if the Supreme Court Strikes Down the Individual Mandate?”

By TIMOTHY JOST

Wednesday, September 28 was a busy day at the Supreme Court clerk’s office.

It had been widely expected that there would be a major pleading filed with the clerk in an Affordable Care Act challenge, as the response of the United States to a certiorari petition in the Sixth Circuit’s Thomas More case, which had upheld the ACA as constitutional, was due.  A cert. petition asks the Supreme Court to exercise its discretion to review the decision of a lower court, and the losing plaintiffs in Thomas More had requested the Supreme Court to reverse that decision and find that Congress had no authority under the Commerce Clause of the Constitution to adopt the ACA’s minimum coverage requirement.

The Justice Department did file a response in that case, but very late in the day.  Earlier in the day, to the surprise of most observers, three certiorari petitions were filed, asking the Court to review thedecision of the Eleventh Circuit Court of Appeals in the Florida case, which had held the minimum coverage requirement to be unconstitutional. The Eleventh Circuit upheld several other rulings of the lower court finding other parts of the ACA to be constitutional, and had reversed the decision of the lower court striking down the entire ACA as being not “severable” from the minimum coverage requirement.

Late in the morning on the 28^th, the National Federation of Independent Business and two individuals, plaintiffs in the Eleventh Circuit case filed a cert. petition, asking the Supreme Court to reverse the decision of the Eleventh Circuit refusing to hold the entire ACA to be unconstitutional.  An hour or so later, the twenty-six states that are plaintiffs  in the Eleventh Circuit case filed their own cert. petition asking the Court to strike down the entire ACA, but also asking the court to reverse the appellate court’s decision upholding the constitutionality of the ACA’s Medicaid expansions and of the employer mandate as applied to the states.

Continue reading “The Affordable Care Act Supreme Court Petitions: Issues And Implications”