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Tag: The ACA

Congress Passes Socialized Medicine and Mandates Health Insurance – In 1798

The ink was barely dry on the PPACA when the first of many lawsuits to block the mandated health insurance provisions of the law was filed in a Florida District Court.

The pleadings, in part, read:

The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.

State of Florida, et al. vs. HHS

It turns out, the Founding Fathers would beg to disagree.

In July of 1798, Congress passed – and President John Adams signed – “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.

And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.

Here’s how it happened.

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Will Health Insurance Reform Reach Those Who Really Need It?

Issues that affect our lives don’t happen in a vacuum. Everything affects everything else, and there’s no area where that’s truer than health and access to care. So I’m going to take a slight detour from the financial and economic issues I write about most of the time to say a bit about the Affordable Care Act, which marks a historic expansion of access to health care.

Thanks to the law, an estimated 32 million previously uninsured Americans will be able to purchase health insurance in 2014. But right now there are real questions about whether this historic expansion of coverage will reach those Americans who need it most.

My colleagues on The Greenlining Institute‘s health team have been looking into this, and just published their findings in the form of a new report. They focused on the new Health Benefit Exchanges, which will allow consumers to compare the price, quality, and benefits of competing health insurance plans. Maybe most important, Americans will be able to purchase coverage through their state’s Exchange with federal subsidies that will help low and middle-income families cover the cost.

The bottom line is that getting the word out about these new options may be more complicated than it seems, and state Exchanges should get communities involved in the process sooner rather than later.

Current plans call for Web portals to serve as the main route through which consumers will access the Exchanges, but these websites won’t be able to do the job by themselves. States will need to pursue a variety of outreach and enrollment strategies, strategies that must be based on the populations they must reach.

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The Politics of Prevention

If there’s one thing everyone in Washington can agree on it’s that prevention is good. And that’s about as far as the agreement goes.

As for the rest of it – who is responsible for prevention, how to define prevention, what is the government’s role in prevention, how much to spend on prevention and when to spend it – is not so clear, and wrapped up in the bitter politics (and difficult economics) of the day.

Then, there’s the question of the Prevention and Public Health Fund created by the Affordable Care Act to enable states and communities to try to prevent illness and promote longer, healthier lives. To backers of the law, the fund is an engine for public health, community transformation, and a pivotal part of the effort to create a “health care” system instead of a “sick care” system.

To foes, it’s a “slush fund”, a $13.8 billion monument to everything they don’t like about the 2010 legislation.  It’s $13.8 billion that could easily end up on one of the deficit-cutting chopping blocks.

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The Super Committee Failure—What’s Next?

The stock market today was shocked, simply shocked, that the Super Committee didn’t come up with a debt deal.

I don’t know why. Republicans can’t vote for more taxes unless they’re willing to get “primaried” from the right and risk losing their seat. Ditto for Democrats who would face the same punishment from their base if they voted to change the sacred defined benefit entitlements without at least getting tax concessions from the Republicans.

Obviously, neither side has a lot of statesmen in their ranks who would actually be willing to compromise.

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End Gaming the Supreme Court’s ACA Review

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.

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Understanding the Supreme Court’s Health Law Review

By agreeing today to hear challenges to President Obama’s 2010 health care law, the Supreme Court set the stage for a decision — probably in late June and in the midst of the presidential campaign — that could be among its most important in decades.

The case, which will probably be argued in March on a date still to be announced, is especially momentous because it not only will determine the fate of President Barack Obama’s biggest legislative achievement but also will cast important light on the Supreme Court’s future course under Chief Justice John Roberts on issues of federal government power.

The central issue — but not the only important one — is whether Congress exceeded its constitutional powers to regulate interstate commerce and to levy taxes when it adopted the so-called “individual mandate” at the heart of the health care law.

That provision would require millions of people starting in 2014 to buy commercial health insurance policies or pay financial penalties for failing to do so.

The court also agreed to decide a challenge to the Affordable Care Act’s provision essentially requiring states greatly to expand their Medicaid spending.

The court made clear that if it decides to strike down the individual mandate or Medicaid provision, it will also decide which of the 975-page law’s hundreds of other provisions should go down too, by divining whether Congress would have wanted some or all of them to be effective even without the voided provision or provisions.

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Appellate Court Upholds ACA In Opinion By Prominent Conservative Judge

Yesterday, November 8, the United States Court of Appeals for the District of Columbia became the second federal court of appeals to uphold the constitutionality of the minimum coverage requirement of the Affordable Care Act.

To date, one federal appellate court has held the minimum coverage  requirement to be unconstitutional (although severable from the remainder of the ACA), while five other appellate court decisions have held that the courts lacked jurisdiction to consider the challenge brought to them, either because the plaintiffs in the particular case had not been injured by the minimum coverage requirement or because a federal statute, the Anti-Injunction Act, denies jurisdiction.

This is a very important decision.  Judge Laurence Silberman, who wrote the majority opinion upholding the statute, is a highly-respected conservative judge, appointed by President Reagan.  Judge Harry T. Edwards, a Carter appointee, joined Judge Silberman in the majority.  Judge Brett M. Kavanaugh, another well known conservative judge appointed by George W. Bush, dissented in an opinion that was much longer than the majority opinion, but on jurisdictional grounds rather than on the merits.  Kavanaugh would have held, as the Fourth Circuit did in the Liberty University case, that the Anti-Injunction Act deprives the federal courts of jurisdiction.  In the course of his lengthy opinion, Judge Kavanaugh suggests that there may be prudential as well as legal reasons why the courts may want to stay out of this fight, and suggests that if there is in fact a constitutional defect with the ACA (which he does not decide), it could be easily fixed by Congress.

This decision comes down two days before the Supreme Court will consider, and quite possibly decide, whether or not to take certiorari in one or more of four other appellate court cases that have been decided in ACA challenges.  Although a grant of certiorari is almost certain at this point, the D.C. Circuit’s decision, as well as the earlier opinion of Judge Jeffrey Sutton, another prominent conservative who sided with the constitutionality of the ACA in a Sixth Circuit case, will certainly be noted by the Supreme Court justices.  Moreover, the media narrative that seemed to explain the district court opinions—Republican appointees strike down the law while Democratic appointees uphold it—seems again not to work for appellate court judges.  It may not work for predicting the Supreme Court vote either.

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The Digital Age and the Doctor/Patient Relationship

The digital age has had a deep and likely permanent effect on the patient-physician relationship. I can’t tell you how many times I’ve had physicians beg me to provide them with a way to stop their patients from Googling their symptoms and diagnosing themselves before their first office visit and much to their chagrin, my answer is always the same, “You can’t stop them. Get over it.”

The internet acts as an enormous and easily accessible virtual research library for patients, granting them access on the one hand to quality, data-driven information and personal perspectives that can provide tremendous value and on the other hand to information that is no better than old-fashioned quackery.

But this access to information has not translated into improved interactions between patients and their physicians. It is clear to me that we all need help in rethinking how we can best work together, especially because I believe that we are still in the nascent stages of this age of disruptive new tools that delight some and threaten others. Time and time again I hear stories describing the ways in which this technology seems to be moving us backward instead of ahead:

· When Timothy B. Lee went to a dentist highly recommended on Yelp, he was asked to sign a “mutual privacy agreement” that would transfer ownership of any public commentary he might make in the future to the dentist.

· A TechDirt blog post reported that plastic surgeons have sued patients for their online negative reviews and a neurologist sued the son of a stroke victim for negative comments about the physician’s bedside manner.

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What if the Supreme Court Strikes Down the Individual Mandate?


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?

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Romney vs Romney

Republican presidential frontrunner Mitt Romney has pledged to end “Obamacare.” Upon taking office, he would immediately begin the process by granting the states waivers from having to implement it:

“I’ll grant a waiver on Day One to get repeal started. On Day One, granting a waiver for all 50 states doesn’t stop it in its tracks entirely. That’s why I also say we have to repeal Obamacare, and I will do that on Day Two, with a reconciliation bill [requiring only 51 votes in the Senate] because as you know, it was passed by reconciliation with 51 votes.”

Romney appears to be on thin ground in making his waiver promise and his promise to use reconciliation to stop “Obamacare” could lead to chaos in the market and among consumers.

The waiver promised is based on a provision in the law authored by Senator Ron Wyden (D-OR). Wyden’s provision was designed to allow states to petition the feds to opt out of the new health care law by taking the federal money that was going to be spent in their state under the Affordable Care Act and draft a comprehensive plan of their own that covered at least as many people as well as the Affordable Care Act would have.Continue reading…

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