“Where in the Affordable Care Act (ACA) does it mandate that every health insurance policy must include a free annual checkup?”
I posed this question to Al Lewis and Vik Khanna in the comments of their recent post entitled: The High Cost of Free Checkups, where they argue against the Affordable Care Act (ACA) provision that requires “free checkups for everyone.” They cite a recent New York Times Op-ed authored by ACA co-architect, Dr. Ezekiel Emanuel, that essentially debunks the link between annual checkups and overall health outcomes. For Lewis and Khanna the solution is simple, we need to “remove the ACA provision that makes annual checkups automatically immune from deductibles and copays.” But for me there’s an enormous problem with their argument: The ACA doesn’t actually have any such provision.
After raising the issue in the comments section of the post, Mr. Lewis responded informing me that: “It’s definitely there” and “You’ll have to find it on your own, though — I unfortunately have to get back to my day job.” What Mr. Lewis doesn’t consider with his quick dismissal, is that I have already looked. I’ve combed through the law and other policy guidance, rules and regs; searching for any mention of this required annual wellness exam, physical, visit, or any other linguistic derivative. It doesn’t exist.
It turns out that while the law does require that an annual wellness visit be covered (sec. 4103. “Medicare coverage of annual wellness visit providing a personalized prevention plan”), this requirement is specific to Medicare beneficiaries and does not apply to individual or group plans. Beyond this particular section you won’t find any mention of a requirement within the ACA.
So what gives? Lewis and Khanna aren’t the only ones who’ve mentioned this “free” Obamacare benefit. Even when researching this piece I had to engage in a lengthy discussion with a friend who is a healthcare policy advisor, unexpectedly defending my position. This claim has to be coming from somewhere, surely people smarter than me have gotten it right?
I suspect the confusion stems from the fact that the ACA makes preventive services free for virtually everyone. But that’s not the same thing as saying everyone is entitled to a free annual checkup. When you read sec. 2713. “Coverage of preventive health services” of the ACA, it basically says that in the Individual and Group markets, at a minimum, insurers must provide coverage (meaning they must pay 100% of the cost) for certain preventive benefits and services. It goes on to state that those services are defined as “evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force;”
In other words, outside of a few mandated preventive services (such as visits for women and children only), the law leaves it up to this independent task force to determine what preventive services should be covered for free. Several of these services aren’t available every year and in the aggregate, they don’t necessarily comprise all the services typically included in the annual wellness exam. As Dr. Emanuel points out in his Op-ed, the lack of evidence that annual checkups lead to healthier outcomes is the main reason that same task force “does NOT have a recommendation on routine annual health checkups.”
Propelled by a derisive political debate primarily concerned with the promotion or denigration of this new healthcare law, somewhere along the way we’ve gotten it twisted. And while I wouldn’t normally care, navigating the truths of the industry is complex enough. It get’s that much more difficult when those truths are littered with negligent misinformation.
So, I’d like to take this opportunity to once again ask Mr. Lewis or Mr. Khanna: “Where in the ACA does it require insurance companies to provide a free annual checkup for everyone?” As a longtime reader of this blog I’ve always appreciated the provocative content, discussions, and thought leadership inspired herein; but I’ve never actually written anything. In this case, I just felt strongly about correcting the record, because understanding the ACA doesn’t have to be your day job to care about the veracity of what you write.
Christian Gleason is a healthcare marketplace analyst with GetInsured.com
At the most granular level, I pose this question: Did the ACA literally outline a definition of preventative services that are covered at the CPT level? If not, has such a list been codified by consensus amongst providers and insurers?
If I have a high deductible plan as a consumer, I should literally be able to know what I expect to pay for. Of course, the average consumer does not concern themselves with the intricacies of medical coding, but SOMEONE, ANYONE should be able to answer this question. If not, then the fucking bill needs to be clarified.
Thanks for share. http://note.taable.com/
There is commonality between the Supreme Court case and the blog post — both rest on the definitions of words being used and the intent. In the blog post, words such as screening, check-up, and physical examination are all used, though never defined, as they were never defined nor mentioned in the ACA. To the lay person, most do not see the difference between a check-up, a physical examination, a screening or a preventive benefit. Having performed Medicare Wellness visits in the past, I am well aware that those patients thought they were going to get something entirely different from what was offered.
The ACA does define preventive benefits and services, though does not define screening periods (some of the “A” and “B” recommended preventive services do not have a defined screening period, eg. alcohol and obesity to mention two obvious examples). So, if I screen and counsel my patients on obesity once a year, as allowed by the ACA as a covered preventive benefit, it could be construed by the general public as “an annual examination” covered by the ACA.
As Mr. Glason highlighted in a response to my earlier post, the choice of words matters. I would also suggest that their definitions matter, especially when there is difference of understanding between medical professionals and the general public. This difference is turbo-charged when some folks can get it “free” and others have to pay for it.
As to the Supreme Court, that’s for another blog and another day.
When a conversation devolves into accusing those with whom you disagree of abetting National Socialism, count me out.
We have placed a public apology both for being wrong (though there is some ambiguity– the shots are free, the screens are free, as part of a checkup) AND for being snitty about it — on http://theysaidwhat.net/2015/03/10/stop-the-presses-we-goofed/
This is literally the first time we have ever been wrong (though it doesn’t change the answer, which is that companies need to stop attaching more money to these things) and I’d like to think we are setting an example for Ron Goetzel and his wellness cabal but owning up.
“I don’t know what [that] is supposed to be!”
Did the ACA say everyone has a free wellness exam in exactly those words? No. But at http://www.hhs.gov/healthcare/facts/factsheets/2010/07/preventive-services-list.html#CoveredPreventiveServicesforAdults we see the following…
“the following preventive services must be covered without your having to pay a copayment or co-insurance or meet your deductible. This applies only when these services are delivered by a network provider. ”
Some of you guys are like concrete, and have difficulty seeing the forest for the trees.
What are those services? Blood pressure screening for all adults. If a network provider provides that service is that not a portion of the wellness exam? How about the interpretation of cholesterol screening for adults over 50? Doesn’t that at least require a provider’s skill and history in order to interpret the results? How does one do depression screening for adults without the provider being involved? Who orders, interprets and relays to the patient all those free covered services? Who keeps track of the immunizations and timing? The list of preventative services is huge so the provider is very much involved so that even though the exact phrase doesn’t exist the sum total of actions the provider must take is tantamount to a wellness exam.
Al and Vik aren’t 100% right, but they aren’t wrong either and in fact are far more right then wrong. Maybe they didn’t cover the fact that the exact words weren’t said, but it is obvious that they recognize the implications of the law.
Preventive services are often provided opportunistically (in the course of a visit that’s primarily for something else).
They might be, but they don’t have to be. Some people might not visit a doctor for years.In any event the physician should be paid extra for managing and evaluating things that another might call a preventative service so I am not sure of your point.
Let me go further. Just because Medicare offers wellness visits and pays for the visit doesn’t mean the physician will want to use that code number treating a patient.
Too much top down garbage that creates confusion, increased cost and eventually impacts quality and access.
I’m sorry. I was responding to: “If a network provider provides that service is that not a portion of the wellness exam?”
The issue with the traditional annual physical is that data has shown it doesn’t necessarily lead to better health outcomes. Thus most of Al and Vik’s argument about the “High Cost” of the free annual checkups. The list of preventive services you reference the ACA mandates be covered, are specific preventive services an independent task force has identified as having a strong impact on health outcomes. Once that link has been established, unless you disprove the taskforce’s evidence, I’m just not sure how the argument still stand. This is why they’re not the same thing.
Furthermore, from the consumer perspective, it’s one thing to schedule an appointment for an “annual physical,” it’s another thing entirely to schedule an appointment for “my free preventive services under the ACA.” The traditional annual physical includes services and test that go beyond what the task force recommends. While many plans will cover an annual physical at no charge to you, there’s no guarantee or mandate under the ACA that requires them to. The services listed on the link you provided, they are required to provide for free.
It get’s more complicated if we look at the actual CPT codes used to bill. Are they billing for an annual checkup, or are they billing you for the specific preventive services you’ve asked for that should be free under the affordable care act. These nuances in language DO matter.
From Vik’s book:
“Hospitals are happily lapping up the supply of newly insured Americans and shoving them through their overbuilt capacity of scanners and blood testers to find incipient problems for which they can render even more services. Thus, while the service was “free” to you, the hospital still billed the health plan for it. More people = more billings = more revenue for hospitals and health systems and, in turn, more claims submitted to health plans. This will cause health plans to complain and reapply themselves to the process of limiting other forms of care through administrative hurdles, narrow networks, preapprovals and precertification, and raising premiums because, hey, you people just use too many services. Thus, we will set in motion a massive replay of the era of managed care. The only people who will get rich are health plan executives and hospital administrators.
Beware also the slow control creep that will occur with the screenings mentality. Right now, screenings are “recommended” and paid for by health plans (a federal mandate), because making things “free” inclines people to use them, no matter how worthless they are. Under Obamacare dictates, health plans MUST cover and pay for Level A and Level B recommendations by the USPSTF. That does not mean, however, that they cannot entice people to get other screenings, especially when it is financially beneficial for both the health plan and its partner hospitals and health systems. Remember, however, it is only a stone’s throw from the recommended to the required.
The time may well come when the government, through its health plan and hospital agents, determines that you must have a prostate specific antigen (PSA) test or mammogram or a colonoscopy or a checkup with your doctor or [fill in the blank], even though you want none of the above…”
Vik Khanna. Your Personal Affordable Care Act: How To Avoid Obamacare (Kindle Locations 2632-2646).
I find it interesting that the website that Mr. Glason works for has the following posted on their website regarding free annual exams (https://www.getinsured.com/answers/expert-answers/what-kind-of-medical-services-does-my-plan-offer-for-free/):
“Q: What kind of medical services does my plan offer for free?
Answered by : Sean WoodsAugust 29, 2014
The Affordable Care Act (ACA) has a rule that qualified health insurance plans sold on healthcare.gov, state-based marketplaces, or through a certified Web broker must include 10 essential health benefits. One of these benefits is preventive care, such as some annual checkups, physicals, and screenings. None of these are subject to any kind of health insurance expenses, meaning you are entitled to take advantage of them free of charge.”
Sounds like getinsured.com is endorsing the concept that the ACA requires insurers to offer free annual check-ups (FYI: Sean Woods is an agent at getinsured.com for 1 year and a licensed agent for more than 20 years).
Maybe HE’S the friend Christian told us about!!!
I appreciate the reply as I truly believe this is worthy of a discussion. Also, thanks for getting my name correct :). You’ll notice the copy says, “some annual checkups” but not “all annual checkups.” This was intentional as it’s been difficult to get a black and white answer on this. It’s the whole reason I wrote the post.
One of the preventive services that’s listed on healthcare.gov SPECIFICALLY for women is: “Well-woman visits to get recommended services for women under 65.” This is a separate line item from all the other preventive services listed for women and adults. You won’t find a corresponding mention specifically for men. So it’s not incorrect to say “some annual checkups are free as a result of the ACA,” but I’d still maintain it is incorrect to say the ACA mandates “free annual checkups for everyone.”
I read the ACA with amendments cover to cover. It does seem to imply coverage for an annual check up, which is sometimes called the annual wellness exam.
For certain the ACA has an abundance of ambiguity.
BTW: Wearables update, the release of the iWatch, or, as I call it, the iWatch YOU®
HMOs are the answer. The ACA provision covers a small range of preventive services that are known to make a difference in health care outcomes. However, this has been pitched to the consumer/voter as an entitlement to free annual check-ups, an assumption that is the bane of every primary care provider’s billing office. The idea behind the provision is to catch things early and thereby, theoretically, provide treatment that is both more likely to be effective and cost less in the long term. The problem is that medical care doesn’t parce nicely along such lines. To wit: A perfectly healthy individual doesn’t need to make a co-pay for an unremarkable visit, or for one during which a problem is identified for the first time. Once hypertension, diabetes, obesity, depression, cancer, etc, have been diagnosed, visits are no longer preventive, rather they fall into the category of disease management. So the patient comes in for the “free” annual exam along with a list of medications that need refilling, and protests when they are billed for the copay. I think I pay my billing staff for their phone time explaining this to unhappy patients, an amount equal to all the dollars saved by the health plans on early diagnosis! Colonoscopies, mammograms, weight loss and smoking cessation counseling, and certain vaccinations are worth providing with no copay/deductible, but medicine by committee is always more complex in its application than anticipated. Did I mention that HMOs are the answer?
What problem do HMOs answer?
Al and Vik, where did you get the misinformation?
I think it’s a benefits consulting urban legend. We made the assumption they knew what they were talking about — it’s not true in wellness (Mercer in particular has been caught in several lies) but we assumed that since they get paid to implement ACA, that they knew the first thing about ACA.
“I made a mistake. I trusted the experts,”
–John F. Kennedy
Using that quotation doesn’t help your credibility.
Thanks Mr. Galson for posting this.
Can’t understand why Vik and Al can’t just say “we were wrong”, instead of attempting to promote their “wellness checkups don’t work” mantra to obfuscate their error.
Peter1, as you’ve read in the posts here it is easy for people goodwill to differ on interpreting ACA mandates. I do not believe Al and Vik have anything to apologize for unless it is for interpreting an ACA ambiguity.
This was a demonstration of quality of information and then of character. It did not involve an ACA ambiguity.
I respectfully disagree. I personally saw the ambiguity myself when I read the ACA bill in its entirety
please correct me if I misunderstood your comment.
I can’t tell why you disagree.
ACA is riddled with ambiguity.
“I do not believe Al and Vik have anything to apologize for unless it is for interpreting an ACA ambiguity.”
Tom, Al lewis states:
“and do we not claim to be experts of ACA rule-making, just on the implications of those rules”
The two ends of that statement don’t connect. If they aren’t “experts” on one how can they be experts on the other?
“While Mr. Gleason is technically correct that the ACA does not specifically and explicitly confer covered status upon annual physicals”
So nowhere in their promotion that the ACA does mandate free checkups is there any caveat about the assertion.
I can’t say for Al Lewis, but Vik’s writings show him to be on the Tea Party side of the Republican Party and probably an opponent to the ACA, so any negatives to ferment trouble seems not out of his intentions.
I’m not seeing much “goodwill”.
Thanks, Tom but we did apologize,publicly, on our website, just the same. We are not wrong about the proposed action — that is the same — just about the misinterpretation. Now I’d like to see Mercer, AonHewitt and all those others who have told large employers the exact same thing we just said (we got our info from them) that despite their huge fees and not knowing anything about wellness, it turns out they don’t know anything about ACA either
Who does know anything about wellness?
see http://www.theysaidwhat.net — you’ll see a lot about wellness. Obviously it is right or we would have been sued by now
What do you say you’re trying to accomplish?
If one looks at the Wellness rules attached to the ACA, http://www.dol.gov/ebsa/pdf/workplacewellnessstudyfinalrule.pdf, and you go to page 6, you will see that for these programs the wellness visit; “1. The program must give eligible individuals an opportunity to qualify for the reward at
least once per year.” This is essentially the same type of evaluation as the Wellness visit for Medicare. There are more “clarifications” in the final rule. But in essence it requires the individual to go yearly to be able to obtain a discount on their premium. While not mandatory, it is coercive.
This article misses the obvious – the AV calculator
Thank you. I still agree with the article (except for Dr. Emanuel’s misunderstanding) and wonder why David thought this was “the obvious” and missing.
Federal legislation is fickle beast. The ACA’s unwarrented propulsion of prevention to the fore (undeserved standing for most clinical preventive services aimed asymptomatic adults, except perhaps for vaccines) is the first problem. No federal health legislation had ever staked out this ground before. While Mr. Gleason is technically correct that the ACA does not specifically and explicitly confer covered status upon annual physicals, most of us who have worked around federal and state legislation and regulation for some time, are used to reading between the lines. Here is what it actually does, in Section 2713 (Coverage of preventive health services):
“Nothing in this subsection shall be construed to prohibit a plan or issuer from providing coverage for services in addition to those recommended by United States Preventive Services Task Force or to deny coverage for services that are not recommended by such Task Force.”
This is what opens the door for coverage and promotion of the annual physical exam. Even a cursory look at the marketplace tells us that the health plan industry and medical care providers have taken this ball and run with it. Pitching covered annual physicals to healthy adults is essential to the meme of positioning the industry and its wares as the tool to save lives and promote well-being. To wit:
My wife’s employer, a very large company (self-insured, three coverage options), with a coercive, groundless, and idiotic wellness program: annual physical covered in full and promoted actively to employees and dependents.
A large, privately held employer in St. Louis for which I am about to do some work (self-insured, four coverage options, no wellness program): annual physical exams covered at no cost to the employee in all four tiers.
A massive healthcare system that is a client of mine (also self-insured with multiple coverage tiers): annual physical exams promoted to employees, both inside and outside of their wellness program.
Promotional mailings that we get from Missouir health insurers: annual physicals covered at no cost for adults and children.
Here are additional examples from Harvard Pilgrim (https://www.harvardpilgrim.org/pls/portal/docs/PAGE/MEMBERS/WELLNESS/PREVENTIVE/CC4297_postDOTpdf)
Wellmark Blue Cross Blue Shield: http://www.wellmark.com/HealthAndWellness/WellnessResources/PreventiveCareDOTaspx
Further, as Al and I will reveal today on our website TheySaidWhatDOTNet, the medical care industry is chasing healthy adults and enticing them into the clinic with the fervor of Las Vegas show girl hawkers. If anyone is lying to Americans, it isn’t us. As we will show in our posts about SSM Healthcare of St. Louis, they are intentionally deceiving people into believing that not only is an annual physical exam insufficient to good health, you actually need a bevy of tests to prevent the event that you were probably never going to have anyway.
Speaking of deception, here is what Mr. Gleason’s employer posts right on its own website about the value of preventive care:
Expert Advice About Preventive Care:
“All marketplace plans must cover certain preventive services. And they’re free of charge, as long as you use an in-network provider.”
“Taking advantage of no-cost preventive care is a smart idea. It can help you and your doctor spot potential medical issues (hopefully before they become a big deal) or treat a condition before it blows up into something major. Chances are, in the long run you’ll not only feel better, you’ll save some cash on healthcare.”
“However, any plan you buy on a federal or state marketplace (or with a government-approved partner like GetInsured) will include free preventive care.”
It’s ALL FREE, and we are all going to live FOREVER through the magic of preventive healthcare!
Sheesh, at least the story we tell is connected to reality.
“Most” is a dangerous oversimplification.
Preventive services, appropriately selected, have value.
Try not to conceal that.
How do you define value? Something that you can sell to people as part of your “preventive medicine and public health” medical practice?
For myself and my family, I define value in clinical preventive services as something might actually favorably impact the risk of mortality or morbidity by being “caught” early as opposed to being treated after symptoms emerge. The list is shockingly small.
As John P. Ioannidis just showed in his meta analysis published in the Int J of Epi:
“Conclusions: Among currently available screening tests for diseases where death is a common outcome, reductions in disease-specific mortality are uncommon and reductions in all-cause mortality are very rare or non-existent.”
Please revisit this after you read How to Disagree, an essay by Paul Graham.
Tazia, I’m referring to the statement by Vic above “For myself and my family, I define value in clinical preventive services as something might actually favorably impact the risk of mortality or morbidity by being “caught” early as opposed to being treated after symptoms emerge. The list is shockingly small.”
My point is that there is screening and there is Screening. The first is what is the present state of art. The second might be coming. I hope. Policy has to zip along and dance to the tune of technology else it generates ridicule. Tuned Raman laser spectroscopy on human breath is one of those dazzling possibilities because it is so incredibly sensitive, so cheap, so fast, so safe.
Who is Vik? What are his qualifications and conflicts of interest?
What are yours?
And what do you think of his statement “The ACA’s unwarrented propulsion of prevention to the fore (undeserved standing for most clinical preventive services aimed asymptomatic adults, except perhaps for vaccines) is the first problem.”?
You are probably correct here…now…at this time, but it would sure be nice if we could whack out very small early malignancies. There is some thinking that tuned Raman lasers could pick up from the human breath about 40,000 different volatile molecules, many of which could/might be markers for malignancy. And there are a few medical illnesses that it would be great to pick up, very early, before symptoms. E.g. hemochromatosis, Crohn’s, iron deficiency, all forms of diabetes, glaucoma, celiac, sicke cell traits, Hgb SC disease (PE threat), coagulation problems can be asymptomatic for awhile and can be very dangerous. Eg thrombocytopenia.
The laser spectroscopy on the breath might be super, with almost no false positives. Fast, no invasive danger.
Our policy thinking has to be very nimble these days as the technology is streaking ahead faster than we can adjust.
Which statement are you trying to indicate is “probably correct”?
I completely concur with everything else you say, but I think it’s irresponsible to say the ACA mandates something it doesn’t. To me this is so important because the first step to ending this problem, is to make people aware of what the law actually mandates. Continuing to report the myth only spreads the idea that it’s something employers must do.
You’ll notice that the content you refer to on our website specifically references “free preventive services” and not a “free annual physical.” This is not the same thing. I don’t disagree with your point that annual physicals/wellness visits as traditionally understood and studied are bad medicine. But the “free preventive services” identified as a result of the affordable care act are specific preventive services chosen by the taskforce that have an A or B rating. According to the TaskForce, these A or B ratings are based on scientific studies examining actual health outcomes. Not all services are available annually, and some are based on age as well as gender. To say making these preventive services free is bad medicine, is to argue against the evidence the taskforce uses to make its determination. I don’t have that evidence, but I didn’t see anything in your post attempting to refute it. Once again, the JAMA study you reference refutes the idea of the traditional annual checkup, but it’s not the same thing.
You mention in your article: “there is no blood-based test that the United States Preventive Services Task Force (USPSTF) recommends be done annually on healthy people.” This is true, and if you have an annual blood test as apart of your annual physical, the ACA doesn’t mandate that it be covered.
While many employers do cover annual physicals, to me, this is not an ACA inspired phenomenon. I worked with large employers implementing benefits prior to the the passing of the ACA, and I remember covering an annual physical to generally be table stakes. Is there any evidence to suggest this is in reaction to the ACA?
Interesting little minor dustup.
More pressing, WHERE in the ACA does it set forth that HIX subsidies can ONLY be provided to consumers living in states that established their own HIX’s?
Answer: NOWHERE (a fact that appears to have escaped legions of $500/hr lawyers).
Excellent point. And how unfortunate that SCOTUS has become our English teacher.
You referred us to Toobin’s statement: “The plaintiffs can’t assert that the A.C.A. violates the Constitution, because the Justices narrowly upheld the validity of the law in 2012”
Is that statement correct? IMO No. I think the justices only review the portions of the bill relevant to the issue at hand. From this statement (and others) I think one should recognize that Toobin represents a point of view and his statements have to be taken with a grain of salt.
Why were these four words included “established by the state”. Someone had to put them there.
“Why were these four words included “established by the state”. Someone had to put them there.”
Are you REALLY that clueless? The words were placed there because Congress intended that states do HIX as a matter of administrative preference under the law (a federalism “closer to the people” rationale).
Section 1311(b)(1) begins (pg 72) “IN GENERAL” — repeat, “IN GENERAL” — prior setting forth the default HIX definition with the ostensibly contested words. But, 13 pages later Section 1321 goes on to set forth in detail the HIX backup authority of the federal government in cases where states fail to act.
Now, of course, plaintiffs and their supporters have disingenuously and naively glommed onto the subsequent Subtitle E Section 1401 (page 110), specifically the section citing changes to 36(B) of the IRS code:
“…the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311…”
But, again, circling back around to the defining antecedent clause, 1311 is supplanted and trumped by 1321. This is not just Toobin’s opinion, it was brought up in Orals.
Moreover, plaintiff’s Counsel Carvin got caught with his pants down when it was brought up that HE had argued the reverse of his current position in the 2012 NFIB case (which upheld the constitutionality of the ACA in the aggregate). Yes, it was only 5-4, turning on Roberts’ vote.
This time, I’m thinkin’ 6-3 to uphold.
BTW, re “legislative intent,” Subtitle E header (pg 110) says
“Subtitle E—Affordable Coverage Choices for All Americans”
Not “affordable coverage choices for ONLY Americans residing in states that set up HIXs.”
“Are you REALLY that clueless?”
If that tiny little head of yours has any more hot air pumped into it I am afraid it will explode. Is your arrogance so extreme that you cannot conceive that your considered option doesn’t stand alone?
Is what you are saying that Congress can pass a piece of junk in a hurry and then when questions are raised about what it says expect the Supreme Court to correct its errors? I think the Supreme Court should return the entire bill to Congress to be appropriately rewritten. Whether or not they do that is their choice, but that doesn’t make the option invalid.
6-3 to Uphold.
“Is your arrogance so extreme that you cannot conceive that your considered option doesn’t stand alone?”
LOL. MY “arrogance”? “Stands alone?
Read the Orals transcript (in particular Sotamayor). Read Toobin’s New Yorker article. Read the amicus briefs supporting the Burwell position…
I’m done here. Enjoy your last word.
Yes, your arrogance gets a gold medal.
I have read everything that I need to for I recognize the last word will come from the majority of the Supreme Court whether or not my interpretation leads to something else. But take note, even they recognize that there is more than one point of view that can exist at the same time.
Thank you for offering me the last word. I always appreciate that. I suggest you follow the habit of the 9 members of the Supreme Court and recognize that this issue is not clear and is open to interpretation. In fact we might see some individual disagreement among those that agree.
“The law is too divisive and was passed in a divisive manner. ”
Indeed it is and was. And it should be debated, reformed, etc.
But that does not make a technical challenge grounded in obsessive textualism and suprious intent bordering on conspiracy theory truthism any less absurd.
I doubt your highly erudite founding fathers would be terribly impressed with the today’s pettifogs who affect the protection of the constitution every nanosecond.
“The words were placed there because Congress intended that states do HIX as a matter of administrative preference under the law (a federalism “closer to the people” rationale).”
I think the problem with this lawsuit is the post hoc justification of the language as it is written. Both sides insist that the language was written deliberately with intent that is syntonic with their world view.
Perhaps the most compelling argument in favour of the government is the absence of the word “only.” It stands gigantically conspicuous by its absence. This is common sense. If it doesn’t strike one as being utterly absurd to the core then it never will.
But I’m told that some quarters believe that such application of common sense is a slippery road to National Socialism….
A social contract without presupposition of common sense would be a statutory nightmare.
“I think the problem with this lawsuit is the post hoc justification of the language as it is written. Both sides insist that the language was written deliberately with intent that is syntonic with their world view.”
That is absolutely true.
One could say that the main reason for the Supreme Court’s existence is to protect the Constitution. As citizens we don’t have to worry about its protection so we can expound on our world views without harm, but should the Justices of the Supreme Court do the same? I guess that depends upon how one views the Constitution. As a document that is changed through the amendment process or one that is changed like toilet paper, when the roll runs out.
Historically, (IMO) part of the reason this country has succeeded so well is because the Constitution acts like an anchor supposedly free of the
“world view” and leaves us something we can all unite around (whether we like everything or not). It would be a pity to destroy the Constitution and let the nation devolve to the point that Constitutional interpretation is based upon petty politics and personal world views. For example, some have suggested that the laws of other nations have standing when considering our own Constitutional issues.
From there we are taken to what Saurabh calls the most “compelling argument”. The word ‘only’ was left out even though the statement itself means ‘only’. Using that criteria how many laws have not used the word ‘only’ yet were interpreted as ‘only’. In a normal court of law the judge would tell the lawyer if you meant something else you should have put it in. The contract is the binding document not what one assumed to exist. Saurabh wishes to use common sense, his common sense that the word ‘only’ was the operative word. In my common sense the word ‘and’ should have been used if they wished the bill to be more inclusive.
So much for the common sense idea which is low on the scale. Instead protect the Constitution and throw the bill back to Congress where it belongs. Let Congress put in the ‘only’s and the and’s’. Let Congress do its job and deliberate. This bill doesn’t affect just Democrats. It affects the entire nation and deliberation is key to a unified nation and it the way the founders were thinking when they required a 9/13 acceptance of the Constitution using compromises like the Great Compromise and Bill of Rights to finally get unanimous acceptance for the new nation.
[Great Compromise: proportional representation in the House and one representative per state in the Senate.]
” It would be a pity to destroy the Constitution”
Indeed. It would be a short step to National Socialism….
Meanwhile Mad Hatter’s Tea Party continues..
“Indeed. It would be a short step to National Socialism….”
Hit the hammer against the knee and what do we get, a brainless knee jerk reaction for the knee jerk reflex is independent of higher brain function. Apparently in some people the same type of reaction occurs when there is a high level of discussion involving decision making and the Supreme Court. The only difference between the classic knee jerk response and this response is that this response had two responses for the price of one.
First response: Inappropriate Sarcasm. The discussion immediately devolves to National Socialism. This is the higher level K-J response of the two because there is some truth in it even though the response didn’t reach the highest level. Had there been concern for the constitution in pre war Nazi Germany Hitler could have been stopped while he was weak.
Second response: Demonization. This is one of those base responses beneath the intellect of most people on this blog.
“Meanwhile Mad Hatter’s Tea Party continues.”
This comment makes little sense though it might make Saurabh feel better. Demeaning the Tea Party is a lot easier than actually discussing what it stands for. Demonization also requires less brain power. The Tea Party’s stated platform is smaller government, a balanced budget and adherence to the Constitution. Some people think this platform is crazy. Is that what you are trying to say Saurabh?
Does this seem like the right place to have this discussion?
“Meanwhile Mad Hatter’s Tea Party continues.”
Nearly half your country thinks the other half are balmy and the other half thinks that the half who thinks they are balmy are marching them to constitutional anarchy!
It’s not me you need to worry about old chum! I’m just an observer, observing the absurdities of the polarization.
One absurdity is lawsuit. The fact that you are taking its premise so seriously adds, not subtracts, to the absurdity.
“Does this seem like the right place to have this discussion?”
It is actually strangely relevant.
To what extent are you going to take the ACA at its absolute literal level with no scope for uncertainty?
Should the ACA be subjected to a grammar test to make sure the prepositions and conjunctions make sense?
Why doesn’t Bobby’s blog seem like the right place for it?
“Nearly half your country thinks the other half are balmy…”
Your hysteria is not necessary. Take a Valium.
The Supreme Court will peacefully decide and then Congress and the Presidency will pass more laws because this law was not a compromise that suited the majority of Americans. Eventually most of the public will settle into whatever law exists at the time whether satisfied or not. Some, however, will not act peacefully and will act violently. The Tea Party didn’t act violently, but OWS and similar groups do, and have done so repetitively.
You have your own method of confrontation. While not physically violent you assault those you don’t agree with by demeaning them opening the doors for violence.
“One absurdity is lawsuit.”
When you find that you have a contract dispute with your boss, go ahead demean him/her, use violence or whatever other way you have to deal with these things. I prefer the use of the judicial system. You might prefer coercion and violence. That is your choice.
I highly doubt your founding fathers would consider state vs. federal exchange qualification for subsidy an affront on the constitution.
I’ve read stuff written by your founding fathers. They had a penchant for common sense and seemed to have a highly tuned BS radar.
I suspect they might have found this line “You might prefer coercion and violence” an utterance from a muppet.
The pettiness in this lawsuit, that you appear to endorse, belittles their wisdom.
“I highly doubt your founding fathers would consider…”
The lawsuit is not grounded in pettiness. The law is too divisive and was passed in a divisive manner. That is what has created the problems exhibited today. Your manners are divisive so I doubt very much you understand the intent of our founders that emphasized representative democracy and never perceived of politics as a profession.
Please have this conversation over there instead.
Use your scroll function.
It looks like you doubly minimized and dismissed the article that was published here, then changed the subject to what you had written, and are now conversing about it. Here. Am I mistaken?
Excellent note. Thank you.
Well, let’s put it this way. First, I would love to be wrong about this. It doesn’t change the recommendation, which is that companies that pay employees or fine them for not getting free checkups should have to disclose that the overwhelmingly majority of research says not to get them.
Second, if we are wrong (and do we not claim to be experts of ACA rule-making, just on the implications of those rules), that means the entire benefits consulting industry is also wrong. We always assumed that since they know less than nothing about wellness (which is not technically a benefit in the legal sense of the word), it was because they were spending their time consulting on benefits design, which requires knowing the salient points of ACA.
Since we’ve already proven that (with the exception of a few people at Towers, Hays and Marsh) benefits consultants are stupid almost beyond comprehension (see https://thehealthcareblog.com/blog/2013/07/10/british-petroleums-wellness-program-is-spewing-invalidity/ –after our expose, the response of the wellness industry was to give them a Koop Award for the brilliance of their program), this means they are even stupider than we thought, since they can’t even read the law they are paid to advise on.
This level of stupidity challenges our fundamental assumption that the benefits consulting industry’s stupidity has reached an irreducible minimum, because one cannot reduce a number by greater than 100%.
But I don’t see that anywhere in ACA either…perhaps we are wrong about that too? 🙂
I understand the evidence about the value of well visits, as performed in decades past by primary care providers; and about workplace wellness programs.
I think the reason my insurer provides a free visit is that consumers want it.
How can you tell that “free checkups for everyone” is a provision of the Affordable Care Act?
Consumers want a lot of things. But why should something this worthless be free? Isn’t the whole point of these activist benefits designs to save money? And our specific objection is to employers on the advice of their half-witted benefits consultants, doubling down and providing money (or fines) for people to get these exams.
Ask the insurance company.
Activist benefits? I can’t tell what you’re referring to.
No, I don’t think it’s all about money.
You waste a lot of your readers’ time by spewing whatever you feel like saying.
It’s a confusing law, which confuses even hardcore policy wonks. It should not surprise that it is a seed of misinformation, even when misinformation is not deliberately sought.
It does mandate zero cost sharing for preventative services approved by the USPSTF. Forcing a distinction between that and free annual check ups is nuanced, over nuanced, and misses a critical point in the critique by Vik and Al.
Whether it’s a surprise is irrelevant.
We’re not “forcing a distinction.”
Well it sort of isn’t irrelevant.
If complex regulations confuse then confusion is the end result whether it was the intention or not.
If a statute can be interpreted in many ways, that’s a bigger problem than if the statute wasn’t there.
Ultimately, we are all arguing what’s in the bill because of confusion, not clarity.
This entry was about a rumor, not a reasonable misinterpretation.
Actually, I see it neither as a rumour nor a reasonable misinterpretation.
I see it as a downstream consequence of a complex regulation.
It was a rumor, though.
Yes, a billion dollar rumour!
Dr. Emanuel’s explanation of why the USPSTF doesn’t have a recommendation about checkups is wrong.
I’m the other person who cares about this. I emailed several journalists/bloggers about it last year after noticing two reporters had published this same misinformation. I searched healthcare.gov, hhs.gov, and the PPACA text, I asked the wrong person at HHS (who wouldn’t suggest the right person or department), etc. Good work.