Tag: The ACA

Constitutional Serendipity

Serendipity is not a word one usually associates with the present raucous debate over the “individual mandate” of the Patient Protection and Affordable Care Act. Democrats tend to support both the mandate and the PPACA, while Republicans tend to oppose both. However, this “between the devil and the deep blue sea” approach, whereby one makes a Hobson’s choice between being tyrannized by a government command to buy health insurance, or seeing no comprehensive health reform enacted in a country that needs it, is a false dichotomy, serendipitously enough.

The PPACA offers comprehensive reform, including welcoming features such as guaranteed issue of insurance regardless of preexisting medical conditions. However, the fact that the PPACA has valuable features doesn’t automatically legalize any possible measure designed to fund the Act, including coerced health insurance purchase. As former Vermont governor Howard Dean noted in August 2010 on MSNBC’s The Daily Rundown, Vermont enacted a successful state health care program without an individual mandate; Dean emphasized, “And people don’t like to be told what to do.” This latter factor is not negligible in a country with a statue in New York Harbor dedicated to liberty. (Perhaps this is why a June 9, 2011 CNN poll shows 54% of Americans opposed to the mandate, and other polls report similarly.)

Our American liberty has various constitutional and legal underpinnings which can defend people from the federal individual mandate, and maybe even from state individual mandates. As for Congress’ power to tax for the general welfare: taxes and penalties, such as the “Shared Responsibility Payment”, the PPACA financial penalty for refusal to buy health insurance, are not just interchangeable “economic incentives”.

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Obamacare Exchange Opposite of Free Market

As described here last week, the latest tack of Republican Obamacare “exchange” proponents is to characterize their “MIHealth Marketplace” as a positive good rather than a least-bad option among several bad choices.

They are even using labels like “conservative” and “free-market” to describe the entity whose main role will be to administer the billions of dollars of insurance subsidies the federal Patient Protection Act distributes.

The boosters are also trotting out the old canard that the exchange is merely a “Travelocity and Orbitz” for health insurance.

Those claims and labels were badly dented in a recent hearing of the House Health Policy Committee, where staffers from one of the corporations hoping to profit from exchange contracts presented a “Mandated State Exchange Functions” flow-chart.

If a health insurance “Travelocity and Orbitz” is all these politicians really want, they’re in luck, because such websites already exist. Better yet, they really are “free-market” services provided by private companies, with no role in administering Obamacare — go to or to see examples.

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CMS Wants Docs to Ante Up to ACO Poker Game

In a high-stakes political, clinical and economic poker game that goes by the name of Accountable Care Organizations (ACOs), the Centers for Medicare & Medicaid Services (CMS) has just issued a call for doctors and hospitals to  grab some chips and ante up.

The set-up goes like this: one of the biggest potential changes in how health care is actually delivered contained in the Accountable Care Act was ACOs. They’re voluntary, but they allow doctor- or hospital-led organizations that take responsibility for coordinating the care of at least 5,000 Medicare beneficiaries to get reimbursed at a higher rate for providing better-quality, lower-cost care. It’s supposed to be a win-win-win for providers, patients and taxpayers and part of a more general move towards “value-based purchasing.”

The problem is that the draft rules proposed by CMS for ACOs back in March looked like a sucker’s bet. Not only were the requirements complex and expensive, the rewards were meager and the odds of winning were unattractive, particularly considering the initial costs to set up an ACO. The big health care systems and physician organizations that had been clamoring for a seat at the table when ACOs were first proposed told CMS they didn’t like the “house rules” and weren’t going to play. Although the concept of ACOs has deep bipartisan roots, a group of Senate Republicans anxious to pounce on any  administration shortcomings jumped in with “serious concerns” about one more possible ObamaCare failure.

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The Super Committee: Bracing for More Medicare Cuts

I attended a depressing forum on cost-saving ideas for Medicare to present to the Congressional “Super Committee” charged with coming up with $1.2 trillion in budget savings by the end of the year. The tone was ominous, best summed up by Mark Smith, president of the California HealthCare Foundation. “In times of crisis, meat-axes are taken to whole sectors. If you don’t believe me, ask the people who used to work for Lehman Brothers,” he said.

Here’s the backdrop. President Obama in his mid-September budget reduction plan called for coming up with an additional $320 billion in Medicare savings over the next decade, which would be on top of the half trillion dollars in Medicare cost reductions contained in the Affordable Care Act. The president would get there largely by cutting payments to hospitals and other providers, although the president also called for higher premiums on wealthier seniors for physician and drug coverage.

Will the Super Committee look for the same $320 billion in cuts to Medicare? A good case can be made that Medicare’s contribution to the $1.2 trillion recommendation should be less than what the president sought. The Congressional Budget Office’s current baseline projections for federal spending over the next decade has Medicare spending $7.4 trillion out of a total of $44 trillion. That’s 16.8% of ALL federal spending (defense, Social Security, discretionary domestic programs, you name it). Apply that 16.8% to $1.2 trillion and you get about $202 billion as Medicare’s “fair share,” not the $320 billion proposed by the president.

Still, there were precious few ideas at this morning’s forum that would come up with even a fraction of that total. Robert Berenson of the Urban Institute and Steve Phurrough of the Agency for Healthcare Research and Quality, both former top-ranking officials at the Center for Medicare and Medicaid Services, outlined a series of steps CMS could take to get better pricing, stop paying for uncalled for operations, and only pay the price of the “least costly alternative” when medical interventions are comparable. But most of those changes would require Congressional approval (fat chance), and none of the examples given (they spent a lot of time talking about implantable cardio-defibrillators, where an estimated 25% to 30% of the million operations each year are in patients who don’t really need them) raised more than a billion dollars.

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The Health Care Reform Law: What’s the Big Deal?

I’m not an attorney, so I cannot help the federal judges struggling to figure out whether the individual insurance mandate in President Obama’s healthcare law violates the interstate commerce clause of the U.S. Constitution. But as a taxpayer (and formerly a professor of public policy), it’s hard for me to understand what all the fuss is about.

The Patient Protection and Affordable Care Act created a monetary incentive for all taxpayers to obtain health insurance. Beginning in 2014, people without insurance will pay more to the IRS than people with insurance. Like the tax code as a whole, the rules for calculating the size of the penalty are incredibly complex. But once the penalty is fully activated in 2016, a single individual with no dependents will pay an extra $695, or 2.5% of his or her applicable income, whichever is higher. An uninsured family of four with annual income of less than $110,000 will typically pay $2,085 more than it would if insured.

This tax penalty is known as “the individual mandate.” It’s an important part of the new law because starting in 2014, insurers are prohibited from denying coverage or charging higher rates based on preexisting conditions. Without the mandate, people might wait to buy insurance until they needed medical care. To keep insurance affordable for patients and profitable for insurers, healthy people need to pay for coverage before they get sick.

Various courts have viewed the tax penalty in different ways. But some have concluded that it is a huge encroachment on individual rights. As a ruling from the U.S. 11th Circuit Court of Appeals put it, “This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy.”

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The Failure of Health Care Reform: An Insider’s View

Employer health insurance premiums went up on average about 9 percent in 2011, and you can expect a lot more where that came from.  Only a fool didn’t see this coming, which is to say the White House, every member of Congress who voted for the health care legislation, and all of their liberal enablers who have dreamed so long for the day when the government would take control of the health care system.

I was in the middle of the fight against ObamaCare.  Trying to explain to Democrats and their staffs why the legislation would make health insurance premiums explode was like banging your head against the Berlin Wall.

They would mindlessly—almost zombie-like—regurgitate the liberal talking points, asserting that if we could just get everyone in the health insurance pool, premiums would go down, not up.  Didn’t President Obama repeatedly promise that premiums would fall $2,500 for a family by the end of his first term?

So the government:

•    Provides coverage to an additional 45 million to 50 million uninsured Americans—note that the uninsured spend less than half of what the insured spend on health care, so their spending will rise significantly;

•    Requires insurance to cover lots of additional treatments and services, in many cases free of charge to the patient; and

•    Guarantees that people will spend very little out of pocket, which insulates them from the cost of their decisions;

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Should Hospital Boards Embed Generative Thinking into Their Agenda?

Hospital systems and physician groups are faced with unprecedented change demanding decreased per-capita cost and increased quality in American health care. Boards of directors are underutilized resources that must be tapped more effectively in order for such organizations to survive in a time of industry consolidation. Generative thinking is a tool that can help organizations innovate in order to improve patient care and the financial bottom line.

Generative thinking is when a board becomes involved early on with management in trying to make sense of the current environment. For example, any US hospital must figure out strategies and tactics to deal with Medicare cuts, demands for higher quality, and migration away from fee for service to global payments in both the PPACA and the federal budget ceiling compromise that will result in at least $1.5 trillion or $1.2 trillion federal budget cuts staring in January 2012. Local events in each market will be different in each region. Western Pennsylvania hospitals, for example, must effectively respond to the Highmark purchase of West Penn Allegheny and the continuing tensions between Highmark and UPMC.

One way to encourage generative thinking in this setting is to make sure the board is present when a problem is defined because such a definition will affect strategies, policies, decisions, and actions to respond to the above described environment. Boards should help management decide what problems to pay attention to and not just respond to management’s understanding of the environment. Generative thinking has been described as getting to the question before the question and is about values, beliefs, assumptions, and organizational culture that will affect what problems we pay attention to and what strategies and tactics we choose.

The importance of framing the problem correctly was demonstrated by Clayton Christensen in The Innovator’s Prescription when he described the unsuccessful attempts by a company to increase milkshake sales. As Peter Drucker once wisely wrote: “The customer rarely buys what the company thinks it is selling him.” It turns out that 40% of milkshakes are purchased in the morning by long distance commuters who like the fact that it takes a long time to drink and that you can still drive with one hand on the wheel. By defining the job that the milkshake was being asked to accomplish, the fast food company was able to increase sales by making the shakes thicker so it would take more time to drink them on the long commute.

Generative thinking is not the only function of a board of directors. The three different modes of governance are fiduciary, strategic, and generative. The first two are self-explanatory, but the last mode is the least understood and the most neglected by non-profit boards.

Generative thinking requires a greater comfort with conflict and disagreement than is usually present on nonprofit boards. Because generative thinking is about deciding what the real problem the hospital faces in a confusing, unpredictable, and rapidly changing external environment, there needs to be conflicting viewpoints.

Alfred Sloan, GM chairman from 1923 to 1956, once stated: “Gentlemen, I take it that we are in complete agreement on the decision here. Then I propose we postpone further discussion to give ourselves time to develop disagreement and perhaps gain some understanding of what the decision is all about.” John Wooden, the most successful basket coach in history advised, “Whatever you do in life surround yourself with smart people who’ll argue with you.” He won his first NCAA championship in his 16th year of coaching at UCLA when he stopped hiring yes men and instead chose Jerry Norman as an assistant coach who installed the zone press Wooden detested.

A hospital board needs to understand generative thinking and decide if it wants to be involved upstream in discussions about how the hospital should respond to the environment. If there is agreement about the need to improve this mode of governance, then different methods can be tried to embed the concept into the work of the Board.


Richard P. Chait, William P. Ryan, Barbara E. Taylor, Governance as Leadership: Reframing the Work of Nonprofit Boards. Hoboken, New Jersey: John Wiley & Sons, Inc., 2005.

Manda Salls, Why Nonprofits Have a Board Problem, Harvard Business School Working Knowledge for Business Leaders, 4/4/2005.

Michael A. Roberto, Why Great Leaders Don’t Take Yes for an Answer: Managing for Conflict & Consensus. Upper Saddle River, NJ: Prentice Hall, 2005.

Clayton M. Christensen, Jerome H. Grossman, MD, and Jason Hwang, MD, The Innovator’s Prescription: A Disruptive Solution for Health Care. New York: McGraw Hill, 2009.

Peter Drucker, Managing for Results, London: Heinemann, 1964.

Kent Bottles, MD, is past-Vice President and Chief Medical Officer of Iowa Health System (a $2 billion health care organization with 23 hospitals). He was responsible for the day-to-day operations of a large education and research organization in Michigan prior to his work with in Iowa with IHS. Kent posts frequently at his new blog, Kent Bottles Private Views.

The Affordable Care Act Supreme Court Petitions: Issues And Implications

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 28th, 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.

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Mandate On Its Way To the Supreme Court?

It may have looked like a non-event, but it was a significant one.

Monday September 26 was the last day on which the Obama administration could ask the Eleventh Circuit Court of Appeals to reconsider its three-judge panel’s ruling that the Affordable Care Act’s individual mandate was unconstitutional. The fact that the Justice Department took no action almost certainly means that its intent is to ask the Supreme Court to decide the issue.

The administration’s thinking was most likely dependent on three factors. First, given that the full Eleventh Circuit is considered even more conservative than the three-judge panel that struck down the mandate, the only advantage of a second hearing would have been to delay consideration by the Supreme Court. Against this was presumably factored the political risk of a further well-publicized rejection of the mandate providing additional ammunition for opponents of reform.

Second, the administration may still be able to delay a Supreme Court decision either by filing its request for a hearing at the last possible moment in November, or even by asking for a filing extension—something that the Court might be willing to consider, given the potential impact of a decision in the middle of a presidential election.

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Preparing for the Exchanges

What is the biggest waste of effort in American health care today?

I’d suggest it is the hustle and bustle to establish PPACA’s Health Benefits Exchanges.  The health insurers’ trade association, AHIP, has an entire educational series on “preparing for exchanges.”  The likelihood of exchanges being up and running by January 2014 is vanishingly close to zero.  Indeed, they may not exist at all except in very few states – whether or not President Obama wins re-election.

Last January, I wrote in The Health Care Blog that states should not collaborate with the federal government in establishing exchanges.  Almost all states have taken this course.  Recent days have brought forward new evidence that exchanges are facing even bigger problems than previously understood.  The New York Times reports that Republican state senators are blocking a bill that would allow the state to establish an exchange and claim federal handouts to get it up and running. (A few weeks previously, Kansas governor Brownback actually sent a $31.5 million federal PPACA grant back to D.C.).

If they can’t get a PPACA exchange up and running in New York, of all places, where the heck will they? Only 13 states have passed pro-exchange legislation (and some of these bills don’t do much more than establish study groups).

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