Friday, March 30, 2012
First, my good friend, Dean Jeremy Paul of UConn Law School, explains why the emotional part of the argument -- the government shouldn't force me to buy something I don't want -- really has nothing to do with Commerce Clause analysis.
Second, Paul Krugman talks about the politicization of the Supreme Court.
Both are worth a read if you get a moment. Jennifer
But where will the votes fall? The conventional wisdom is that Justice Kennedy, and perhaps Chief Justice Roberts, are on the fence. The NY Times says Justice Kennedy's primary value is liberty -- but is health care liberty, or is not having to buy health insurance liberty? And if the Court strikes down the mandate, will it strike down the whole law with it? If they don't -- if they just strike down the mandate -- the insurance industry will go ballistic. They will say they can't cover people with pre-existing conditions without also driving healthy people into the pool. Perhaps that will force Congress to act to find a different way to encourage people into the market. If they strike down the whole law -- well, I doubt Congress will ever get any meaningful reform through any time soon. But that would come as a relief to insurance companies -- and the likelihood of that scenario has maintained investor confidence in insurance companies.
And what if the law is struck down? The system is broken, as most people admit. If this version of reform doesn't work, then what? The GOP certainly hasn't put anything resembling a plan on the table. I'd expect a lot of chaos as we try to sort out how to undo the parts of the law that already have taken effect. I think there will be an effort to revisit the idea of coverage of pre-existing conditions, but if we try to do that through high risk pools, the price will put the plan out of reach for most Americans, at least without subsidies. A reporter called me yesterday and told me that Connecticut Governor Malloy's office said they would consider imposing a mandate on the state level, like Massachusetts. But where would they get the money for subsidies? Without subsidies, you can't have a mandate because too many people can't afford market prices. In the meantime, we're in limbo, with implementation going forward in many states who don't know whether these efforts will be in vain.
Most of all, if part or all of the law is struck down, what happens to us patients?
And what will the decision mean for the presidential election? Would striking down the law energize President Obama's base? After all, the opposition to the law can be construed as an effort to provide care to as few people as possible. Or will it be a crushing blow to his presidency?
Lots of questions with no answers for quite some time. So now, we go back to our regular lives waiting for word from the Court on whether people with chronic illnesses will be treated as equals for insurance purposes in our lifetimes. Jennifer
Thursday, March 29, 2012
Of course, that doesn't stop the press and pundits from acting as if they know the answers. How will the Court's decision impact the Presidential election? Will this, in some strange way, boost President Obama's chances? What happens to our health care/insurance system if the mandate fails? Will Medicaid emerge intact? Speculation and more speculation. The American people are split on the mandate, but not on coverage of pre-existing conditions and the other consumer protections and market reforms -- especially those that have already taken effect. Will those provisions survive?
For now, all we really have are the questions. The Court should issue a ruling by the end of the term, meaning the end of June. I admit, I'm terrified -- I don't think we will have another shot at true reform in my lifetime. Going back to the status quo ante, how things were before the law was passed, is unthinkable. Even if I just consider the number of external appeals we've won -- cases that we would have lost without external appeal -- I am overwhelmed with anxiety. We just can't go back. And yet, we might. Jennifer
Wednesday, March 28, 2012
Then again, since they might strike down the individual mandate, and since we don't know how much of the rest of the law they will strike down if they do that, nothing is very certain. Frankly, I'm glad it's over.
I'll bring you the media's recaps in the morning. Jennifer
The Obama administration's position was disputed by all of the Justices who asked questions. How do you decide to strike down some provisions but not others? Justice Scalia was very forceful; he was not inclined to go through 2700 pages of statutory language to try to figure out what provisions depended on the individual mandate and which do not. The Obama administration could not identify a principle that would sever some provisions but not others. But the Obama administration tried to point to lots of unrelated portions of the Act, and they expressed great concern about all the people under age 26 on their parents' policies up, all the Medicare drug discounts, the very existence of the Pre-existing Condition Insurance Plan -- what do we do about those portions of the law that have taken effect already? Does all of that just disappear?
The states and NFIB's argument was less difficult to articulate, but Justices Kagan and Sotomayor in particular felt that there was so much of the law that is not tied to the individual mandate -- Congress should not have to start over from scratch. Justice Scalia kept saying that the individual mandate is the heart of the Act, so if you remove the heart, how can you leave the rest? On the other hand, Congress did make a finding that the individual mandate was in the Act to make insurance affordable once you open the market to people with pre-existing conditions. But does that mean you just sever those provisions, as the Obama administration urged, or do you strike down the whole law? And if you strike down the individual mandate, pre-existing condition coverage, and premiums not based on health status, then haven't you really taken the heart out of the law?
The lawyer appointed by the Court was just brilliant -- by far, the best of the three arguments this morning. He said you leave it to Congress to decide what to do. Justice Scalia wasn't thrilled about this argument, but I think Attorney Farr had the best of the three arguments. Leaving the job of what to do to Congress best respects the Constitutional separation of powers.
And that's pretty much that. I'll be back a bit later (or possibly tomorrow morning) with this afternoon's argument on the Medicaid expansion. Jennifer
I have Crohn's disease. I did nothing to deserve it. I got sick as a kid. Up until then, I did all the things you're supposed to do -- regular doctor visits, eat reasonably well, take vitamins. Nothing other than the fact that a first cousin of mine also has Crohn's disease explains the reasons why I was this unlucky. Since I was diagnosed, I've done everything the doctors have said. Eight surgeries. Every medication known to humankind. Very careful about what I eat. I've never gone on disability, even when I was sick enough. I spend my life taking care of other sick people. If getting sick is not entirely random, there's no explanation for why I have had to suffer. No -- this is not my fault.
Getting sick is, for the most part, nobody's fault. Nobody wants to suffer like this. And really, you can't imagine the suffering. The fatigue. The pain in every inch of my body 24/7. Not to mention the fecal incontinence that comes with Crohn's flares -- truly, hell on earth.
Why, then, do millions of Americans think it's okay for me to be treated like a second class citizen when it comes to health insurance? Thankfully, there is one group plan in Connecticut in which you can have a group of one. Were it not for that -- were I in most any other state -- I would not be able to buy insurance -- period. At best, I would have to go six months without insurance to get into a high risk pool. Six months without insurance wipes out my entire savings. There are millions of people like me. Why is that okay?
We don't allow discrimination in employment, schools, public accommodations. Why do we allow insurers to discriminate against people who did nothing wrong other than to get sick? I talk to people every single day who did nothing wrong -- nothing -- but they can't afford to go to the doctor, and if they can, they can't afford the medication the doctor prescribes. People who can afford to pay an insurance premium can't find an insurer willing to take them because of their pre-existing condition. Why is that okay?
It's not okay. Period. I know -- if we're allowed into the individual insurance market, premiums will go up for everybody. If there's a requirement that everybody has to buy insurance so that we can spread the cost of including people with pre-existing conditions, then healthy people are subsidizing our health care. And they don't like that. No matter that they could get sick tomorrow. No matter that they could have a sick child. People resent having to help out those who are less fortunate.
And I resent the hell out of that. I pay my taxes. I help fund wars I don't believe in. I help pay for Social Security for today's seniors. I help pay for Medicare even though I'm ten years away from getting it. Money comes out of my paycheck every week that I don't choose to spend the way it's being spent. We shift costs all the time in this society. Why not for people with pre-existing conditions?
Of course, there are those who believe that Medicaid, Medicare, Social Security are all "ponzi schemes" or unjust ways of shifting wealth. But we support those programs even if they don't help us directly because we know that, without those programs, people will suffer terribly. What makes health insurance for people with pre-existing conditions so different?
The world I want to live in is a world in which we care for each other, where we don't balk at paying a little more if we're able so that those less able can manage. The world I want to live in is one in which we do not discriminate, we do not treat people as less than, simply because they were unlucky enough to draw the short straw and get a chronic illness.
I'm tired of the lies and vitriol around health reform. There are nearly 50 million people in the United States who don't have insurance. Most of them want insurance but can't get it because of pre-existing conditions, or can't afford it because of cost. The health reform law fixes both of those problems, so everybody who wants insurance can get it. The great benefit of that outweighs the interests of those who do not want to do their share to help make this a healthier society.
But that is short-sighted. If people who are sick are insured, they can access health care to prevent a flare or spread of their diseases, and we can treat people while their illness is under control -- when it costs a lot less than surgeries and hospitalizations and nursing homes. Instead of spending $43 billion on health care for the uninsured, we will enable people to buy insurance on their own -- at a cost of far less than $43 billion. In the end, doing the right thing for sick people in the short-term saves us money in the long term.
The kind of world I want is one in which compassion is our central value. And if I can't have that, I'd like a rational world, where people choose the less expensive, long-term solution. Either way, I want to be treated as equal when I go to buy insurance. I have to live with this stinking disease; I shouldn't also have to live with discrimination. The health reform law does away with this discrimination.
And that's the kind of world I want. Jennifer
The government says that, if the mandate falls, so, too, must the requirement of coverage of people with pre-existing conditions and the provision that would have stopped insurers from considering health status when calculating premiums. The States and NFIB argue that, if the mandate falls, the whole law must go. The Court appointed a lawyer to argue a third position, that the mandate can fall without affecting any of the remainder of the law. A lot of the press felt that yesterday was very negative for the government on the individual mandate, so the severability question just got even more important than ever before. Indeed, for those of us with pre-existing conditions, this may well be the most important part of the case. The government was way wrong in conceding that we lose coverage of pre-existing conditions if we lose the mandate. They should have kept open the possibility that we could lose the mandate and still figure out a way to make the law work while covering people with pre-existing conditions.
The Medicaid expansion question came as a surprise to many of us, who did not think the Court would agree to hear this issue. The federal government has huge spending powers; the Court has never said the federal government was out of line in a spending powers case. Here, because the federal government is paying the cost of the Medicaid expansion through 2016, and most of the cost thereafter, it doesn't seem like a huge burden on the states. And Medicaid is optional; states can opt out if they like, at least theoretically. The states argue that, even if they only have to pay 10%, that's still millions of dollars, and as a practical matter, no state can really leave the Medicaid program since it covers thousands of poor people. If the Court were to rule that this expansion violates the Constitution, it could throw into doubt a whole host of federal laws that cost the states money.
As for yesterday's arguments, some believe the Court is split 5-4 down party lines, but a poll of Supreme Court lawyers and former clerks found only 35% of them predicting that the law will be overturned. Others are already arguing that the mandate can be struck down and the rest of the law can still work. But here's an account of a WaPo columnist who was in the room that pretty much agrees with my analysis that Justices Kennedy and Roberts seem stuck in the middle, asking tough questions on both sides. And here's an analysis written by my law school mentor, Mark Tushnet, now of Harvard Law School. He thinks Chief Justice Roberts was swinging in favor of the law. Still, there is concern that Justices Kennedy and Roberts might not be swayed. The Wall St. Journal offers five take-aways from yesterday, and they agree that Justices Kennedy and Roberts could be going either way. And here are Politico's five take-aways. If you're inclined to judge for yourself, the transcript is here.
And across the street with the protesters reside the ongoing lies about the law. Indeed, if there was one thing the Obama administration should have done differently is that it should have done a better job of selling the law. That might have made a difference in the Supreme Court.
I'll leave it there for now. Be back later with updates. Jennifer
Tuesday, March 27, 2012
For what it's worth.
More tomorrow! Jennifer
As you will recall, the states challenged the individual mandate on the ground that, under Congress's commerce power, the federal government can't force anybody to buy anything. The throw-away line -- if the government can do this, then they can force you to eat broccoli. Well, the failure of people to eat broccoli doesn't cost the taxpayers $43 billion per year in health care expenses when people without insurance get care that they can't pay for. The states say you can't force someone to act; you can only force them to stop acting (inaction vs. action). But there's no inaction here -- everybody gets health care; this is just a question of how they will pay for it.
Is forcing people to buy health insurance a valid exercise of Congress's commerce power? Well, in Wickard vs. Filburn, the court said the feds could regulate wheat a farmer grew for his own consumption because the farmer would eat his own wheat rather than buying wheat on the open (interstate) market. In Gonzalez v. Raich, the Court (including Justice Scalia) said the federal government can regulate the growth of marijuana in someone's home for that person's own use because of the strong federal interest in stopping the flow of illegal drugs. Health care certainly is more commercial than either of these two things, it seems to me.
In my view, the government's best argument is that it had to do something about the 50 million people in America without insurance. This is a complex regulatory scheme of which the individual mandate is only a small part. There's no question that the federal government can regulate health care -- HIPAA, COBRA, ERISA, for example. The experiences of states like New York and New Jersey tell us that, if you force insurers to cover people with pre-existing conditions without an individual mandate, premiums skyrocket, healthy people leave the system, and premiums go up even more. So to cover the uninsured with pre-existing conditions, it was "necessary and proper" for Congress to enact the individual mandate (under the Necessary and Proper Clause). The government has stressed this argument in its briefs; I expect this to be its main emphasis in oral argument -- and, I believe, rightly so.
The government also argues that the penalty for failing to buy insurance is a tax -- not the kind of tax that's subject to the Anti-Injunction Act (yesterday's argument), but a tax in the broad Constitutional sense of the word -- a levy on citizens. So then it would come under Congress's taxing power. I think this is a throw-away argument.
For the Court, this case involves an analysis of precedent. But underlying today's argument is the larger discussion of what kind of society we are. Do we just let the markets do whatever they will, or do we as a society make an effort to ensure that everybody has access to comprehensive, affordable health insurance? Since my life is dedicated to helping people with chronic illnesses -- indeed, since I have chronic illnesses myself -- I want us to do the right thing and make insurers cover people with pre-existing conditions. If the price we pay for that is an individual mandate, all the better -- let's stop people from being irresponsible and not having insurance when they get acutely ill, end up in the emergency room, and can't pay their bills, leaving the taxpayers to clean up their mess when they file bankruptcy. Indeed, one of the original plaintiff's in the case challenging the health reform law did just that - got sick, couldn't pay her bills, filed bankruptcy, leaving the taxpayers to foot the bill for her health care. The people who are screaming that they don't want to be forced to buy insurance -- even with subsidies to make it more affordable -- how do they plan to make sure the rest of us aren't forced to pay their health care bills when (not if) they get sick?
Anyway, here's the NY Times's summary of today's argument. The battle of the law professors is here. And in case you don't know this already, the individual mandate was a Republican idea. They only decided to hate it when they decided to hate President Obama. Actually, only 2 percent of Americans would be subject to the mandate's penalty; most will continue to be covered by their employer, and others will get subsidies to help them pay for insurance.
What happens if the Court strikes down the individual mandate? Many people want the law to require that everybody can buy insurance, even if they have pre-existing conditions, but they don't like the individual mandate. But the general consensus is that you can't have one without the other. Indeed, the Obama administration has asked the Court to strike down the requirement that insurers can't exclude people with pre-existing conditions if the Court strikes down the individual mandate. But others are looking for alternative solutions. Some states are already working on a plan B. After all, we know from Massachusetts not only that states can enact an individual mandate, but that it works. And then there's the somewhat perverse politics of the whole thing, where a win for the health law is a loss for President Obama because it could energize the GOP base.
For me, this is all about people with chronic illnesses who can't get insurance due to pre-existing conditions. The Court MUST uphold the individual mandate if that is going to happen. Later today, I'll give you a report on how the argument went. In the meantime, I just have to remember to breathe! Jennifer
Monday, March 26, 2012
Today is not going to be a very exciting day -- or that's my best guess, anyway. It's all on the Anti-Injunction Act, which says that you can't sue to stop collection of a tax before the tax is being collected. The argument is that, if the penalty for not buying health insurance is a tax, and that tax isn't being collected until 2015, lawsuits to stop the collection of the tax are premature. I think there's less than no chance that the Court is going to throw out these cases based on this kind of technicality. Indeed, the parties were not arguing this, which is why the Court had to assign an outside lawyer to argue this issue. So I don't expect any big news or reliable forecasts to come out of today's argument.
However, starting today, you will be hearing a lot of media about the health reform law. For example, the challenge of arguing four issues before the Supreme Court in three days is very difficult for the lawyers. Lawyers practice for weeks for one typical 30 minute argument. To be prepared for 6 hours over three days has to be a huge challenge. Meanwhile, people have been waiting in line for tickets all week-end. There will be no Twitter feed, since phones are not allowed in the courtroom. So far, it appears the law's supporters outnumber the critics demonstrating outside the Court. There's no question that the scene outside the Court mirrors the passion so many of us have about the health reform law, pro or con.
Tomorrow is the really big day, when the Court will hear arguments on the individual mandate (called the minimum coverage provision). I'll do my best to keep you updated. If you have questions, you can post them in the comments and I'll try my best to answer them. Jennifer
Friday, March 23, 2012
Three days of oral argument will begin on March 26. So I thought I would give you a bit of a primer, both on the Court and on the issues in this case. This is not (at least to start with) an argument for or against; this is a guide to help you understand all you will be hearing in the next week.
The Supreme Court is made up of nine Justices -- three women (Ginsburg, Sotomayor and Kagan) and six men (Chief Justice Roberts, Breyer, Thomas, Scalia, Alito and Kennedy). All three women and Justice Breyer make up a fairly reliably liberal wing; Justices Roberts, Thomas, Scalia and Alito make up a fairly reliably conservative wing, although some experts are saying that Chief Justice Roberts also is not quick to overturn Acts of Congress and he cares about his legacy as Chief Justice, so there is speculation that he may swing with wherever the majority is in this case. Justice Kennedy most often is the swing vote. It's very rare for the Court to hear multiple days of argument in one case; it has never happened, to the best of my recollection, in the years I've been a lawyer (which is a lot of years!). Although argument will take place this month, we should not expect a decision until late June, when the Court ends its Term.
There are four issues presented in this case: (1) Is the individual mandate -- the requirement that everybody purchase insurance -- a valid exercise of Congress's powers? (2) Is the Medicaid expansion an encroachment on state sovereignty? (3) Is the case barred by the Anti-Injunction Act? and (4) If the Court strikes down the individual mandate, should the rest of the law remain, or must the Court strike down the whole thing (called severability)?
Monday 10 - 11:30 am: Anti-Injunction Act
Tuesday 10 to noon: Minimum coverage provision (individual mandate)
Wednesday 10-11:30: severability & 1-2 pm: Medicaid expansion
The case will be argued by the Solicitor General of the United States, Donald B. Verrilli, Jr. in favor of upholding the law; Paul D. Clement on behalf of 26 states and Michael A. Carvin on behalf of the National Federation of Independent Business (NFIB) against upholding the law -- and, in another unusual turn, although the parties actually agree that the Anti-Injunction Act doesn't apply, the Court wanted to consider this issue, so it appointed Robert A. Long, Esq. to brief and argue that issue; it also appointed H. Bartow Farr III, Esq. to argue that the individual mandate is severable from the rest of the case.
Let's first get the Anti-Injunction Act out of the way since it's very technical and not likely to determine the outcome in the case. The Anti-Injunction Act prohibits a court from enjoining a federal tax unless and until it is being collected, which, in this case, would be 2015. If the Court finds that the penalty for violating the individual mandate is a "tax" under the Anti-Injunction Act -- not the same definition of "tax" as, for example, used in the tax code -- then it could find that no challenge to that provision can be brought until 2015. It would, then, dismiss all of the pending health reform cases. As best I can tell, nobody thinks that is going to happen. The case is really focused on the individual mandate, not the penalty for violating it. And by 2015, most of the law would be implemented and it would be impossible to turn back the clock. However, the Court and the government, especially, are likely to take this issue very seriously because anything they say about the Anti-Injunction Act could make a difference in future cases.
The argument on the individual mandate is the one all of us are most familiar with. This part of the law requires everybody to purchase insurance (and if they can't afford it, there will be subsidies, and if they still can't afford it, they are exempt from the penalty and may be Medicaid-eligible). The States and NFIB argue that Congress does not have the power under the Constitution to require people to buy anything, including health insurance. Congress anticipated this argument and made findings that sought to legitimize this exercise of power by finding that the entire health care system is in crisis, and fixing it certainly involves "commerce," so since the individual mandate is part of that "fix," requiring people to purchase insurance is a valid exercise of the Commerce Clause. However, under the Constitution, Congress cannot regulate purely intrastate commerce -- commerce that occurs only within state lines. The Supreme Court has interpreted the Commerce Clause to permit Congress to pass laws that have an "effect" on interstate commerce, though, so even if an activity occurs within state lines, Congress can regulate it if it has an interstate effect. The Government argues that the individual mandate is part of a comprehensive regulatory scheme involving the entire health care system, which operates in interstate commerce. The individual mandate is "necessary" to this comprehensive regulatory scheme, and it regulates conduct with a substantial effect on interstate commerce, the Government says. The argument that the individual mandate is necessary to carry out a broader regulatory scheme rests on the Necessary and Proper Clause of the Constitution, which allows Congress to do whatever is Necessary and Proper in carrying out its powers under the Constitution, including its powers under the Commerce Clause.
There's also an argument that the penalty that is assessed if you violate the individual mandate is a tax, not a penalty, and as such, it comes within Congress's taxing powers (and the meaning of "tax" here is different than its meaning in the context of the Anti-Injunction Act). The States say no, it's a penalty. The parties did not devote much of their briefs to this argument.
The States and the NFIB argue that the Commerce Clause does not allow Congress to compel people to engage in commerce; it only allows Congress to regulate commerce that already exists. The Government responds that everybody eventually uses health care and, as such, they are engaged in commerce, and the health reform law only regulates the means by which they pay for their health care. The States and the NFIB argue that the individual mandate cannot be "necessary and proper" to enforce the commerce power because, they say, there is no legitimate exercise of the commerce power. The Government responds that this is a complex regulatory scheme affecting the health care market, which is a legitimate regulation of the commerce power -- after all, Congress has passed a lot of laws that affect health care, like COBRA, HIPAA and ERISA -- and that the individual mandate is necessary because, without it, healthy people will wait until they get sick to buy insurance, uninsured people will keep going to emergency rooms for health care that they don't end up paying for (so the government pays for it), and all of that affects commerce. The States and NFIB argue that if Congress is allowed to do this, they can do pretty much anything, and that contradicts the Constitution's notion of a limited federal government. The Government responds that this is a complex regulatory scheme, and because of its complexity and the fact that many legitimate exercises of Congressional authority are part of this complex regulatory scheme, this exercise of Congressional power is permitted, in contrast with laws that have been struck down, which were stand-alone bills and not part of complex regulatory schemes.
The Medicaid expansion issue sort of surprised most of us; we really didn't expect the Court to hear that issue. Medicaid has existed for a long time (since 1965), and federal law always has imposed eligibility requirements, allowing states to EXPAND those requirements, but requiring all states that participate in Medicaid (which is all states) to meet those basic eligibility rules. For Congress to expand Medicaid eligibility to cover childless and non-disabled adults up to 133% of the federal poverty level is just a new eligibility rule. And from 2014 to 2016, the federal government would pay 100% of the cost of this expansion; that amount will gradually decrease until, in 2020 and thereafter, the federal government will pay 90% of these costs.
Nevertheless, the States challenged this expansion under the state sovereignty granted by the 10th Amendment. They claim that they really have no choice but to participate in Medicaid, and that, therefore, Congress is forcing them to pay their share of the costs of this expansion. The Government says the States are not being forced to participate in Medicaid; they choose to do so. While everybody expects every state to continue to participate in Medicaid, that's not coercion; it's still a choice. I confess, I have a hard time seeing the weight of the States' position on this issue; Congress has expanded and elaborated Medicaid so many times without challenge, and this time is no different.
Finally, there is the argument regarding severability. The question here arises only if the Court strikes down the individual mandate. There are very strong arguments that the individual mandate is very critical to the entire statutory scheme. As we argued in our amicus brief, in order to cover people with pre-existing conditions without premiums skyrocketing, there must be healthy people in the pool. (Indeed, in our brief, we argue that the individual mandate was "necessary and proper" to ensure coverage of people with pre-existing conditions.) There are states that have gone to "guaranteed issue" -- the elimination of pre-existing condition exclusions -- and in those states, premiums have increased dramatically because all of the sick people are in the pool, but many of the healthy ones are not. So there's a real question as to whether the system would work without the individual mandate. On the other hand, only one court that found that the individual mandate is unconstitutional also found that it was not severable, and that the entire law had to be struck down. It is unlikely that the Supreme Court would invalidate the entire statute, but anything's possible.
Of course, at the heart of all of this is a question about the role of the federal government in the lives of Americans. Does government have a responsibility to care for our most vulnerable, including the sick and uninsured; or should government stay out of our lives and hope that private charities care for the needy? In light of the fact that there are 50 million people in the United States who are uninsured, and the fact that private charity has not been able to meet their needs or even come close to it, I come out on the side of believing that government has a role in caring for those who need help. In my view, it's no different from Social Security, Medicare, Medicaid, and so on -- all of which were challenged when they first were initiated. But then again, there are those who think those entitlements are wrong, too.
The health reform law already has done a lot of good. over 1 million people up to age 26 were allowed to enroll in their parents' plan because of this law. Children under age 19 have gotten insurance despite pre-existing conditions. Seniors have gotten help with prescription drug costs. About 50,000 people have enrolled in the Pre-existing Condition Insurance Plan (PCIP).
And I believe that coverage of pre-existing conditions would be the most important civil rights advance for people with chronic illnesses -- ever. Sure, the Americans with Disabilities Act helps some, as does the Family and Medical Leave Act. But you can't get coverage under the FMLA until you've been working somewhere for a full year. And under the ADA, if you're unable to perform the essential functions of your job -- including not being absent from work, even if due to illness -- the law doesn't protect you. But what would protect you is to know that you can always buy insurance, change insurance, and not be penalized by your insurer due to having a pre-existing condition. More of us could stay employed and healthy. Fewer of us would end up on disability. We would be equal, really, for the first time. For me, this is the most important part of the health reform law. Every one of us could get insurance, regardless of pre-existing conditions. I can't think of anything that would be more meaningful to people with chronic illnesses than to be treated like everyone else when we are sick.
We'll find out in late June how the nine Justices of the Supreme Court feel.
So if Medicare is okay, why isn't health reform? Jennifer
If the Supreme Court could set aside 6 hours for oral arguments in the health reform case -- the longest argument in over 45 years -- then I certainly can change the "rules" for this blog during the oral arguments, which start on Monday. So rather than doing my usual news round-up each morning, I will spend my time trying to stay as up to speed as possible about not only the arguments themselves, but the circus that will surround the Court in what is the most important case for people with chronic illnesses EVER.
As you know, the focus of the court case is the individual mandate -- the requirement that everybody purchase insurance. However, for those of us with chronic illnesses, the most important part of the law is the requirement that, as of 1/1/2014, insurers have to cover people with pre-existing conditions. But the two are tied together. In states that have outlawed pre-existing condition exclusions without an individual mandate, lots of sick people bought insurance, which drove up premiums, leading healthy people to leave the pool, increasing premiums even more. In fact, the Obama Administration has asked the Court to strike down the pre-existing condition provision if it strikes down the individual mandate.
Thus, if the individual mandate falls, so, too, does coverage of people with pre-existing conditions. And that includes every single person in America with a chronic illness.
So over the next week, I will bring you the best information I can about what's going on at the Supreme Court, along with some analysis that I hope will help make the arguments clear enough for non-lawyers. If you have questions, please post them as comments and I'll try to answer them as best I can. And keep in mind that we will not know for sure where the Court is going until we see the decision. What happens at oral argument -- which Justices ask which questions -- doesn't always provide as clear an idea of where the Justices are going as some reporters think. So take it all with a small grain of salt.
To read my op-ed about the case, go here. Some time between now and when arguments start on Monday, I'll post a primer on the case so you will understand what's going on.
And hope against hope that we with pre-existing conditions don't lose the most important legal protection we have ever had before it even takes effect. Jennifer
Today marks the second anniversary of health reform. Here's a timeline of the law's milestones to date. We have coverage of kids under age 19 despite pre-existing conditions. 2.5 million kids are on their parents' policies up to age 26. The elimination of lifetime caps and the phase out of annual caps. Free preventive care. The Pre-existing Condition Insurance Plan. Lower drug costs for seniors. And through external appeals, we are winning cases that, in the past, would have been unwinnable. Although the really big stuff comes in 2014, the changes that have already taken place have been entirely positive -- no rationing, no death panels -- none of the gloom and doom has occurred. So why aren't Americans jumping on the health reform bandwagon? Politico says it all comes down to the Dems' failure to explain the law to Americans, to message it and educate about it. And the White House is not doing much to combat that; the President is laying low on health reform in the run up to the Supreme Court arguments. But yesterday, HHS condemned insurance premium rate increases in 9 states as being excessive -- another benefit of health reform that has, in fact, slowed the rate of increase. And 49 of 50 states have implemented at least part of health reform.
What happens if the Supreme Court strikes down health reform? It depends on whether they strike down the whole law, but for sure, if they strike down the individual mandate, we will lose coverage of pre-existing conditions. And that, to me, is just unthinkable. What do the big players in the health care industry -- insurers, pharmaceutical companies, hospitals, doctors -- think of health reform? It seems all pretty driven by self-interest. If the individual mandate falls, insurers are worried they'll still have to cover people with pre-existing conditions -- although the government asks the Court to strike down that provision, too, if it finds the individual mandate to be unconstitutional.
Yesterday, the House voted to repeal the Independent Payment Advisory Board (IPAB), which is supposed to help control Medicare costs by studying treatments and making recommendations about what to cover and what not to. The GOP calls it rationing (although they are willing to turn Medicare into a voucher system, so I don't really buy their hand-wringing about reducing access to care). The intent is to study different treatments to determine cost-effectiveness -- if a more expensive treatment really doesn't work any better than the less expensive alternative, for example. And Congress has the right to overturn their recommendations. Indeed, the IPAB isn't even appointed yet. Striking it down before we can even see how it works without any suggestions on how better to control costs (other than by gutting Medicare entirely) seems short-sighted to me.
Insurers are selling a new kind of insurance -- self-funded insurance for small businesses. The plans offer stop-loss coverage, so after the employer has spent $10,000 (or whatever amount the policy dictates) on an employee, the insurer then kicks in. The allegation is that insurers are using this to cherry pick employers with low health care costs -- and it takes these plans out of regulation by state insurance departments because self-funded plans are not governed by state law. And that is worrisome, as consumers will lose important consumer protections.
The Justice Department has accused AT&T of improperly collecting $16 million from the government to support communications for the deaf, knowing it was being used to perpetrate a scam. If this is true, it's horrendous.
Anthem Blue Cross of California has reduced the premium rate hike that they previously requested. They still want an 8.2% rate increase, though.
The war on women's health in Texas has been brewing for quite some time, according to this account. There are those of us who are old enough to have lived through this war the first time around. I don't know about you, but I'm pretty offended at having to fight this war all over again.
The ever-wonderful Dr. Pauline Chen writes about patients learning from other patients -- peer mentoring, she calls it. That's sort of what I do, at least some of the time. I definitely think I'm more effective at my work because I'm also a patient. Interesting.
And that's it for this morning. Have a great day. Jennifer
Thursday, March 22, 2012
Here's an outline of some of the commerce clause issues that are involved in the health reform case. And here's Nancy Pelosi's defense of the health reform law. The law not only helps young Americans stay on their parents' policy, but it keeps them insured longer, says a new report. What does health reform mean to you? Here's a consumer guide.
Meanwhile, the Independent Payment Advisory Board (IPAB) is under House GOP attack. The IPAB is designed to cut Medicare costs by comparing treatment outcomes to see what really works and what doesn't. Congress could reject any recommended changes the IPAB wishes to make. But the GOP calls it rationing. What gets me is that the GOP wants to dismantle Medicare entirely, instead giving us vouchers to buy insurance (as if there is insurance for people over age 65 with pre-existing conditions, which most seniors have), but they're ready to go to the mat to get rid of the IPAB. Doesn't that tell you it's not about principles; it's about politics?
As you know, Massachusetts already has health reform that's pretty similar to the federal law. But I bet you didn't know that the other state that has an exchange -- but a very different one -- is Utah. How much flexibility will the feds allow Utah if it wants to stick with its bare bones exchange? That's the question.
The GOP budget proposal passed the Committee and now heads for the full House. I think it's interesting that the GOP yelled and screamed that they didn't have enough time to read and study the health reform bill before the votes, but they pass the Ryan budget -- many thousands of pages long -- after only one day. Health care, education, transportation all take huge hits. I just don't believe that a majority of Americans want this.
Disabled people in New York are found to be at needless risk, warehoused and abused. This has to stop -- but how, especially among all the budget cutting?
More men are moving into the nursing profession as manufacturing jobs dry up and health care jobs stay in high demand.
Researchers are close to a test that would predict when you were about to have a heart attack. Wow!
Hospital stays can speed the cognitive decline of the elderly. Yet another reason we have to find a way to let people get care in their homes.
I'm not sure I understand this one -- doctors treating a heart defect in a four year old little girl make an important discovery about stem cells, causing the body to regenerate new cells.
Antibiotics do no good for most sinus infections.
And that, my friends, is that. Have a great day! Jennifer
Wednesday, March 21, 2012
So first, the FMLA. There are 2 parts to the FMLA -- one part that says you can take leave to take care of another person -- spouse or child -- and one part that says you can take leave to take care of yourself. In general, you can't sue a state for money damages unless Congress has properly invaded sovereign immunity due to race or sex discrimination. Several years ago, the Court held that allowing state employees to sue their employers over FMLA violations of the family leave part of the law was okay because there was a history of discrimination in the workplace against women who took care of children and spouses. However, yesterday, the Court held that allowing state employees to sue for violations of the self-care portion of the FMLA is NOT a valid exercise of Congress's power because the self-care portion of the FMLA was not, they said, motivated by a desire to correct a history of discrimination based on gender. States can waive sovereign immunity, as I suspect some will after this ruling. But as a general rule, state employees who are sick cannot sue their employers for violating the FMLA. Justice Ginsberg wrote a scathing dissent.
Next, the GOP budget. It would cut spending by $5.3 trillion, shaving $205 billion from Medicare and $770 billion from Medicaid and other health programs, and $2 trillion from other programs for the poor, unemployed, farmers. It also would repeal health reform (which, by all accounts, would save money, but why nitpick?). Medicare would become a voucher program -- assuming, of course, that you can find an insurance policy that will cover someone over age 65 with pre-existing conditions, as most seniors have. More details are here. The 35 percent corporate tax would be decreased to 25 percent, and individual tax rates would be collapsed into two rates, the highest being 25 percent -- a break for the wealthy. Now, I'm sorry folks, but REALLY???? This budget is so transparently one-sided, favoring the rich and deeply harming the poor. It's one thing to take the deficit seriously. It's another thing to place the entire burden for fixing it on those who are most vulnerable while delivering high rollers a huge break. Setting aside my outrage for the moment, the GOP proposal also abandons the deal made over the debt ceiling for agency budgets. Since the new fiscal year starts in the fall, you could see a threat of a government shut-down leading up to the Presidential election.
The uninsured consumed $116 billion in health care costs in 2008, while failing to pay for 63 percent of that. Do you need more of an argument in favor of an individual mandate? Even if you are not in favor of health reform, do you support allowing people a free ride on taxpayer dollars? Because key pieces of the law don't take effect until 2014, you can't see yet all the good it will do. If you were the parent of a kid with hemophilia who lost his insurance over and over because there used to be lifetime caps on benefits, though, you'd get that this law already is saving lives. Here are some of the things we would lose if the law were repealed. And we know from the experience of New Jersey that forcing insurers to cover people with pre-existing conditions without an individual mandate driving healthy people into the pool drives prices up and healthy people leave the system -- a train wreck. If health reform is going to work, we are going to have to do something to drive healthy people into the pool. Here's an analysis of how people in Illinois will fare under health reform.
IBD patients take note: The Supreme Court has ruled that blood tests that rely on a correlation between medication and disease state are NOT patentable -- SO the Mayo Clinic's tests that duplicate the Prometheus labs for 6MP levels are entirely legal. Watch for the other big labs to follow suit. We may finally be getting to insurance coverage of these tests.
More and more, anesthesia is being used for colonoscopies rather than the old conscious sedation -- at a cost of $1 billion per year in unnecessary spending.
Black women are less likely than white women to get breast cancer, but they are more likely to die from it due to fear of confronting it. But income is also an issue, access to health care is critical, and public education efforts need to be properly targeted.
Two new studies find that an aspirin a day may reduce cancer risks. So if you do NOT have a digestive disease, it may be a good idea to take one. If you DO have a digestive disease, check with your doctor first to make sure your stomach can tolerate aspirin.
Obesity can cause joint pain, diabetes, heart disease.
A relatively inexpensive drug may help bleeding victims. It's used on the battlefield, and slowly is becoming accepted in emergency rooms.
Take a generic drug and you can't sue the manufacturer if it harms you. Hmm.
And that's it for today. Have a great day! Jennifer
Tuesday, March 20, 2012
Today, the Supreme Court ruled that a state employee does not have the right to sue his/her employer for violating the provision of the Family & Medical Leave Act that provide employees the right to job-protected leave due to their own medical condition. The Court found that there was no history of gender-based discrimination in sick leave policies and, thus, unlike the provision of the FMLA that allows an employee to take leave to care for a spouse or child's illness -- clearly a gender-based issue -- employees do not have a right to sue to enforce this part of the FMLA. State employees, this is a HUGE deal if you're using FMLA for job-protected medical leave. I suspect Congress will fix this eventually, but for now, you have no right to sue your state employer if it violates your FMLA right to job-protected medical leave. Below is the statement of Debra Ness, which gives you some more insight into the decision. This is a HUGE loss. Jennifer
Women’s Leader Calls Supreme Court’s Coleman Ruling "Appalling and Dangerous"
Statement of Debra L. Ness, President, National Partnership for Women & Families
WASHINGTON, D.C. — March 20, 2012 — "Today’s U.S. Supreme Court decision in Coleman v. Maryland Court of Appeals is a deep and bitter disappointment. By the narrowest of margins, the Court ruled that millions of state workers all across this country will have no meaningful recourse if their employers deny them medical leave under the Family and Medical Leave Act (FMLA). This effectively puts state workers and their families at risk when workers become pregnant or illness strikes. It is an appalling and dangerous ruling that simply cannot stand.
States should be held accountable for violating the fundamental rights of workers. All too frequently, workers suffer negative consequences after requesting or taking leave to address their medical needs. We intend to appeal to state governments to uphold these rights and pursue every possible avenue to restore them for all state workers. The FMLA has been law for nearly 20 years, and it has worked well to provide unpaid, job-protected family and medical leave to support workers with caregiving responsibilities. The Supreme Court previously upheld the rights of state workers to hold their employers accountable for violating the family leave provision of the FMLA, and it should have used the same standard to protect state workers who need medical leave under the law.
As Justice Ginsburg said in her very powerful dissent, "the self-care provision validly enforces the right to be free from gender discrimination in the workplace." Justice Ginsburg noted that “[t]he plurality pays scant attention to the overarching aim of the FMLA: to make it feasible for women to work while sustaining family life. Over the course of eight years, Congress considered the problem of workplace discrimination against women, and devised the FMLA to reduce sex-based inequalities in leave programs. The self-care provision is a key part of that endeavor, and in my view, a valid exercise of congressional power...."
Even Justice Kennedy’s opinion acknowledged that "[d]ocumented discrimination against women in the general workplace is a persistent, unfortunate reality, and, we must assume, a still prevalent wrong. An explicit purpose of the Congress in adopting the FMLA was to improve workplace conditions for women.”
Today’s ruling underscores how tenuous the rights of workers are in this country, and the urgent imperative for the Senate to confirm only those justices and judges who have a demonstrated commitment to equal rights under the law and a real understanding of the impact of their rulings on women, workers and others who struggle to make ends meet."
As you know, the challenge to the health reform law begins with the argument that Congress overstepped its authority under the Commerce Clause of the Constitution. If you want to understand what the Commerce Clause cases say, here's a well-told story of the landmark case upon which the government relies. And here's some maneuvering on the political side of the case. Is it true that, if people understood health reform better, they would support it? I tend to think so, which is why I try so hard to educate people about what the law does and does NOT do. For example, most people think the individual mandate is unconstitutional and should be struck down. But when I tell people that, in order to get coverage of pre-existing conditions without premiums going bonkers, we have to have an individual mandate so healthy people join the pool -- and that there will be subsidies to help people pay for health insurance -- they think again. And we know seniors have saved a lot of money as a result of health reform. Here's a chart that shows the politics of the law. Here's more. Insurers say the worst case scenario is that the mandate is struck down but they still have to cover people with pre-existing conditions. Insurers are adamant that the end of the mandate means the end of covering people with pre-existing conditions. Indeed, the Obama Justice Department has already asked the Court to strike down coverage of pre-existing conditions if the mandate is ruled unconstitutional. And that, to me, is the worst case scenario. People with chronic illnesses -- pre-existing conditions -- must be able to buy insurance in America. If we lose that piece of the law, we will go back to having second-class status, the uninsurables. I truly can't bear the thought. But health reform implementation continues. There certainly are pieces of the law that will survive overturning the individual mandate. Here's a list of things to watch in the coming year.
Texas has the highest rate of uninsurance and Massachusetts has the lowest. What's it like in those two states? Read about it here. You need to read this.
The Pre-existing Condition Insurance Plan (PCIP) -- part of the health reform law -- has premiums that are low when compared with private sector individual insurance, but still too much for some. So nonprofits and states are helping some with those premiums. But not every state. From the perspective of the people who call us, the biggest problem isn't the premium; it's the requirement that you go without insurance for 6 months in order to qualify.
And now extended unemployment benefits will start to dry up in several states. This was part of the deal the GOP extracted in exchange for extending the payroll tax cut. Just awful.
The GOP's budget czar, Paul Ryan, will release his 2013 budget proposal today. Let's see what it does to Medicare? The best guess is that there will be an option -- stick with traditional Medicare or take the money to buy insurance. Of course, if the health reform law is struck down and we don't have coverage of people with pre-existing conditions, most seniors won't be able to buy individual coverage for any amount of money. But hey -- what's a little scamming of the American people all for the cause of shrinking the size of the federal government no matter who loses?
Women spend more on health care than men. Insurance premiums are higher. That will change if health reform is allowed to take full effect.
Most women see their gynecologist for a breast exam and pap smear every year, but with new national recommendations saying that's not necessary, is this a good message to be sending to women?
Gut infections are becoming more lethal. Clostridium difficile (c-diff) is the leading cause of GI deaths. The second leading cause is norovirus. Both are contagious and can be prevented largely if people (including doctors and nurses, especially in hospitals) wash their hands.
A better approach to advanced illness, treat at home, stay comfortable, and save a ton of money in the process.
You know those new cigarette labels with the graphic pictures? A trial court said cigarette makers couldn't be forced to use them, but a court of appeals says they're legal. Another case headed to the Supremes?
Here's a good one. A man freezes his sperm and then dies, perhaps at war. His child is conceived and born after he dies. Is his child entitled to Social Security survivor's benefits? The Supreme Court will have to decide.
How much of your health info do you get from the internet? Be careful -- there's bad info out there.
A headache that was hard to treat and harder to diagnose -- "new daily persistent headache." Not a migraine. Just a headache. Every single day. I think I would cut my head off.
Hearing loss may raise the risk of falls in seniors.
Exercise can help recovery from a stroke.
If you're going to the London Olympics, it's best to get your measles vaccine. Indeed, it's important to get this and other vaccines in any event -- and in some parts of the country, vaccination rates are way lower than they should be.
And that is today's health news. Have a great day! Jennifer
Monday, March 19, 2012
Why do people listen to crap like this http://www.youtube.com/watch_popup?v=HcBaSP31Be8&vg=medium?
It is NOT true that health care will be rationed.
It is NOT true that illegal immigrants will be able to get health care.
It is NOT true that the reason for "linguistic and ethnic appropriateness" is to make the law understandable to illegal immigrants. It's to make the law understandable to people in the United States legally whose first language is not English.
It is NOT true that all doctors, regardless of specialty, will be paid the same. Where do they get this?
It is NOT true that your health care spending will be limited to $5000 indiv/$10,000 family. There are out-of-pocket maximums that limit what you personally will have to spend before your insurance covers at 100%, but these are not limits on benefits you can receive.
It is NOT true that you will not have a choice about what benefits you want covered in your health insurance. It IS true that the states will choose an essential benefits package that will serve as a floor, the minimum that will qualify as a "qualified health plan" through the exchanges. You will have the option of buying insurance outside of the exchanges, and inside the exchanges, you will have the option of buying a bronze, silver, gold or platinum plan if you want more services and/or lower deductibles, copays, coinsurance. I don't have national data, but a very recent report found that 50% of plans in Connecticut do not provide all of the "essential benefits," so you're going to get more under health reform, not less.
I have neither the time nor the inclination to go through every single lie told in this 10 minute video. Suffice it to say that the person who created it doesn't care about making sure you get accurate information; they have a particular point of view. While I am pro-reform and have never hidden that, if I thought there was something negative in it, I would tell you. Indeed, we have written lots of comments on regulations implementing the law that point out aspects with which we disagree.
But here's what I think is a good rule of thumb: If it sounds crazy, it probably is. Jennifer
White House Office Hours on Health Care
Two years ago, President Obama signed the Affordable Care Act – legislation to improve our health care system – into law. As the President said in March, 2010: “The bill I’m signing will set in motion reforms that generations of Americans have fought for and marched for and hungered to see.”
As we look back on two years of progress, senior administration officials are turning to Twitter to answer your questions about the Affordable Care Act in a series of White House Office Hours.
On Monday, March 19th at 10:30 a.m. EDT, Nancy-Ann DeParle, Deputy Chief of Staff and former Director of the White House Office of Health Reform, will be on Twitter for "Office Hours." Then on Friday, March 23rd at 2:00 p.m. EDT, Cecilia Muñoz, Director of the Domestic Policy Council, will answer your questions.
Do you have a question about what the law means for you and your family? Here's how you can join:
- Ask your question on Twitter with the hashtag #WHChat
- White House officials answers your questions from the @WHLive account https://twitter.com/whlive
- Follow the Q&A through the @WHLive Twitter account and the hashtag #WHChat
- If you miss the live event, the full session will be posted on WhiteHouse.gov and Storify.com/WhiteHouse http://Storify.com/WhiteHouse
As the provisions in the law start to take effect, millions of Americans are seeing a noticeable difference in the cost and quality of their health care. How has healthcare made a difference for you and your family? We want to hear from you: http://www.whitehouse.gov/mycare
If you received this email as a forward but would like to be added to the White House Disability Group email list, please visit our website at http://www.whitehouse.gov/disability-issues-contact and fill out the "contact us" form in the disabilities section, or you can email us at email@example.com and provide your full name, city, state, and organization.