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Justice Kennedy Swings Again

Mar 28, 2012• 4

By Michael Ricciardelli

More than a few prognosticators have posited a 5-4 split (either way) after reading the tea leaves of oral argument before the Supreme Court on the Individual Mandate yesterday. I don’t disagree. I won’t venture a guess, up or down, but I will say that it is likely, as usual, that Justice Kennedy (surprise, surprise) will be the swing vote. As such, you can find below three Justice Kennedy quotes that may be indicative of which way he’ll swing. (page numbers refer to the page number of the transcript, linked here.) And for those of you swallowed by sorrow at the prospect of the Individual Mandate going down in flames, pay particular attention to the last quote and Justice Kennedy’s consideration of “degrees” of uniqueness as a cabining principle. It is, I believe, as I heard a particularly astute health law professor say today, indicative that “Justice Kennedy is in play.”

JUSTICE KENNEDY–Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution? (p.11-12)

Can’t We Do Better Than State-Sponsored Broccoli?

Mar 28, 2012

By Nathan Cortez

Legal arguments often rely on analogies. Indeed, during the first year of law school, students learn to analogize and distinguish cases. “This case is like this one, not that one.” Good lawyers can always conjure up and deploy a good analogy.

So why was it so hard yesterday for some of the most skilled lawyers and judges in the country to identify a good analogy for the individual mandate – the Affordable Care Act’s requirement that almost everyone buy minimum essential health insurance coverage or pay a penalty?

After listening to Tuesday’s historic two-hour oral argument and reading the transcripts, I counted roughly 17 different analogies to the insurance mandate – none of which seem particularly apt.

Here’s a brief rundown of the analogies invoked yesterday (by both the justices and the advocates), and then some thoughts on why they fall flat:

1. Is mandating health insurance like mandating that people buy cell phones to call 911? (Chief Justice Roberts).

2. Is the mandate like a requirement that we buy insurance to pay for our own burial services? (A macabre Justice Alito, who’s right: we’re all going to die).

3. Is the mandate like forcing us to buy broccoli? (Justice Scalia, invoking the dreaded broccoli analogy, which is apparently one of the parade of horribles that logically flows from the health insurance mandate, a canard that David Orentlicher has exposed).

The Individual Mandate and Severability

Mar 27, 2012• 5

By Michael Cannon

[youtube width=”560″ height=”275″]http://www.youtube.com/watch?v=bCzJgHMH5pQ[/youtube]

THCB contributor and Cato Institute Director of Health Policy Studies Michael Cannon on the severability clause, which looms large after Tuesday’s Supreme Court hearing.

The THCB Reader — the SCOTUS Oral Arguments

Mar 27, 2012

What if the Supreme Court Strikes Down the Individual Mandate?
By D. BRAD WRIGHT

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.

The Broccoli Mandate
By AVIK ROY

If you’ve been paying attention to the debate over the constitutionality of the health reform law, you’ve probably heard mention of the hypothetical “broccoli mandate.”

Sizing Up the Obama Administration’s Defense of the Health Reform Law
By HENRY J. AARON

Back in 2009, when the Affordable Care Act was being written, few doubted that Congress can constitutionally impose a tax penalty on people who refuse to carry adequate insurance.

Health Care Jujitsu
By ROBERT REICH

Not surprisingly, the Supreme Court argument over the so-called “individual mandate” requiring everyone to buy health insurance revolved around epistemological niceties such as the meaning of a “tax,” and the question of whether the issue is ripe for review.

Why Healthcare Is Different (No, Really)

Mar 27, 2012

By Andrew Oram

Working in the health care space has forced me to give up many hopes and expectations that I had a few years ago. Forgive me for being cynical (it’s an easy feeling to have following the country’s largest health IT conference, as I reported a month ago), and indeed some positive trends do step in to shore up hope. I’ll go over the redeeming factors after listing the five tough lessons.

1. The health care field will not adopt a Silicon Valley mentality

Wild, willful, ego-driven experimentation–a zeal for throwing money after intriguing ideas with minimal business plans–has seemed work for the computer field, and much of the world is trying to adopt a “California optimism.” A lot of venture capitalists and technology fans deem this attitude the way to redeem health care from its morass of expensive solutions that don’t lead to cures. But it won’t happen, at least not the way they paint it.

Health care is one of the most regulated fields in public life, and we want it that way. From the moment we walk into a health facility, we expect the staff to be following rigorous policies to avoid infections. (They don’t, but we expect them to.) And not just anybody can set up a shield outside the door and call themselves a doctor. In the nineteenth century it was easier, but we don’t consider that a golden age of medicine.

Instead, doctors go through some of the longest and most demanding training that exists in the world today. And even after they’re licensed, they have to regularly sign up for continuing education to keep practicing. Other fields in medicine are similar. The whole industry is constrained by endless requirements that make sure the insiders remain in their seats and no “disruptive technologies” raise surprises. Just ask a legal expert about the complex mesh of Federal and state regulations that a health care provider has to navigate to protect patient privacy–and you do want your medical records to be private, don’t you?–before you rave about the Silicon Valley mentality. Also read the O’Reilly book by Fred Trotter and David Uhlman about the health care system as it really is.

The Great Game

Mar 27, 2012

By Richard Hoey

Last week, the British Government’s Health and Social Care Bill finally completed what has been one of the most tortuous passages through Parliament of any piece of legislation in recent memory.

The bill has been the subject of 15 months of intense political wrangling and more than a thousand amendments – many focused on its provisions for greater competition in the National Health Service (NHS).

Competition is a fact of life in most areas of UK society, but as soon as it is proposed within the sphere of the state-funded NHS, many people here start to get very jittery about it.

The key concern among critics is that competition between multiple providers will fragment the NHS and remove one of its big potential advantages – its ability to get different elements of healthcare working together within a single, integrated system.

On the other hand, proponents of competition argue that state monopolies like the NHS can become sluggish and unproductive, and that an injection of competition is just what is needed to drive efficiency and push up quality.

Health Care Jujitsu

Mar 27, 2012• 9

Not surprisingly, yesterday’s debut Supreme Court argument over the so-called “individual mandate” requiring everyone to buy health insurance revolved around epistemological niceties such as the meaning of a “tax,” and the question of whether the issue is ripe for review.

Behind this judicial foreplay is the brute political fact that if the Court decides the individual mandate is an unconstitutional extension of federal authority, the entire law starts unraveling.

But with a bit of political jujitsu, the president could turn any such defeat into a victory for a single-payer healthcare system — Medicare for all.

Here’s how.

The dilemma at the heart of the new law is that it continues to depend on private health insurers, who have to make a profit or at least pay all their costs including marketing and advertising.

Decentralizing the Analysis of Health Data

Mar 26, 2012

By Harley Geiger

The transition from paper to digital health care records promises a significantly enhanced ability to leverage claims and clinical data for secondary uses – uses beyond that for which the health data was originally collected, such as research, public health surveillance, or fraud prevention. Done properly, these secondary uses of data that were originally collected for treatment or payment can aid the creation of a more effective, information-driven health care system. For example, researchers are using digital claims data to provide the public with comparisons of the quality and cost effectiveness of treatment for particular conditions among plans or health care facilities in a given market.

Patient privacy and data security are among the first considerations of agencies establishing such programs, and many agencies have instituted strong technical controls (such as de-identifying the data) and policy frameworks to protect the confidentiality and integrity of the data. Although a strong policy framework is essential, the technical architecture of information exchange is another important factor. This week, the Center for Democracy & Technology (CDT) released a report challenging the prevailing centralized model of health data analysis and urging Dept. of Health and Human Services (HHS) to explore distributed systems for secondary use programs. The paper comes at the same time that the Centers for Medicare and Medicaid (CMS) issued a final rule for its risk adjustment program – mandated by the Affordable Care Act of 2010 – that would use a distributed system as a default, changing course from the proposed rule, which would have required a centralized model.

Health Reform: Still the Best-Covered Social Policy Story, Ever.

Mar 26, 2012• 11

By Harold Pollack

Two years ago, I put myself in hot water by making the simple (admittedly somewhat hyperbolic) claim:

Because it is so easy to find bad reporting and public stupidity, it is easy to overlook something. Press coverage of health care reform was the most careful, most thorough, and most effective reporting of any major story, ever.

This column appeared on April Fools’ Day. Some readers didn’t quite believe that I was serious. I was. Others were simply horrified. Allison Kilkenny, writing in the Huffington Post, typified the reaction among frustrated left-of-center commentators who had just witnessed the “death panels” debacle, the demise of the public option, and similar depressing episodes: “Harold Pollack went out on a limb, and unfortunately fell off the edge.” Andrew Sullivan said something similar.

The Columbia Journalism Review’s Trudy Lieberman was more brutal:

Last week, The New Republic turned over its health care blog “The Treatment” to an odd commenter on media coverage—University of Chicago professor Harold Pollack, who runs the university’s Center for Health Administration Studies. I thought I knew most of those who dabble in these waters, but Pollack’s name took me by surprise. Pollack, a special correspondent for The Treatment, may know something about welfare programs and substance abuse, but we on Campaign Desk take issue with his credentials as a press critic and dispute his central point….

Better coverage than the Vietnam War; the civil rights movement; the consumer movement? Really? In the case of the civil rights struggle, the press helped change the discourse; Americans began to view race in a new way, which led to the eventual passage of the Civil Rights Act. During the Vietnam War, the media effectively changed the public dialogue from a war we couldn’t lose to one we could not win. In the early days of the consumer movement, media coverage of Ralph Nader led Congress to enact significant consumer protections. Coverage of health reform has hardly risen to that level.

Losing one’s credentials as a “press critic” is a particularly low blow. The only thing worse would be to lose the moniker “Democratic strategist” on the cable talk circuit. I appreciate where Lieberman is coming from, but I think she missed my point, which was actually intended to be sobering.
Continue reading…

IPAB and Medicare Costs Are Bad Medicine

Mar 26, 2012• 23

By Douglas Holtz-Eakin

During the original debate over the Affordable Care Act, I wrote that the proposed law failed to address out-of-control Medicare spending. Two years later, this urgent problem remains.

Medicare is awash in a sea of red ink — $280 billion in cash flow deficits already and getting worse — that is driving the U.S. credit rating south and threatening the very foundations of the U.S. economy. It makes no sense to sit idly by while the social safety net unravels and the promise of our future dims.

Advocates argue the health care law solves this problem. Specifically, it creates the Independent Payment and Advisory Board, which will be formed in 2014 and could make its first recommendations in 2015. This advisory board will consist of 15 officials appointed by the president. Board members will be required to make recommendations to cut Medicare funding in years when spending growth exceeds targeted rates. For Congress to block these recommendations, it must veto the board’s proposal with a 60 percent majority and pass alternative cuts of the same size.

In other words, this board puts Medicare on a budgetary diet. What’s wrong with that?

First, the system is clearly set up so that the advisory board, rather than Congress, makes the policy choices about Medicare. This means that the IPAB is not just an advisory body — despite its name. And policy choices, which should be made by elected representatives, are not.

Second, the advisory board threatens the quality of patient care. It can, in essence, ration the health care available to seniors. While technically prohibited from directly altering Medicare benefits, the IPAB will have no choice but to attempt to ratchet back spending by slashing providers’ reimbursement rates.