Archive for the ‘Health Care’ Category
American People: Of Course the Individual Mandate Is Unconstitutional
Cato senior fellow Randy Barnett (also, of course, a Georgetown law professor and the “intellectual godfather” of the Obamacare litigation) blogs the results of a new USA Today/Gallup poll: 72% of Americans (including 56% of Democrats and 54% of those who think “the healthcare law is a good thing”) think the individual mandate is unconstitutional. This follows a Rasmussen poll showing that a majority of Americans favor repeal and an AP poll from August that found 82% to opine that the federal government “should not have the power to require all Americans to buy health insurance.”
Now, no court should rule a given way simply because a majority—even an overwhelming majority—of people want it to. Indeed, the judiciary is by design the non-political branch of government, one often required by the Constitution to reach counter-majoritarian results. But to the extent that in this unprecedented litigation over an unprecedented assertion of federal power, where the outcome could turn on whether something is “proper”—the intepretation of which term may depend on concepts such as “legitimacy” and “accountability”—the sustained, strong views of the public may, at the margins, matter.
Are you listening, Justice Kennedy Supreme Court?
There Is No Objective Definition of ‘Medical Necessity’
California regulators are coming down on Kaiser Permanente. According to HealthLeaders Media, the regulators reviewed a batch of coverage denials and “found that in excess of 75% of the cases the services indeed were medically necessary, and 10% were not.” Indeed?
Now seems like a good time to post what University of Tennessee law professor Haavi Morreim wrote about “The Futility of Medical Necessity“ in Regulation:
Clinical artificiality The ill fit between “necessity” and ordinary medical care is immediately obvious in the question facetiously bandied about when health plans first considered what to do about a recently approved drug for male impotence: How often per month (per week? per day?) is drug-assisted sexual intercourse “medically necessary”?
As typified by that case, most medical decisions do not post clear choices of life versus death, nor juxtapose complete cures against pure quackery. Rather, the daily stuff of medicine is a continuum requiring a constant weighing of uncertainties and values. One antibiotic regimen may be medically comparable to and much less expensive than another, but with slightly higher risk of damage to hearing or to organs like kidneys or liver. For a patient needing hip replacement, one prosthetic joint may be longer-lasting but far costlier than an alternative. Of two equally effective drugs for hypertension, the costlier one may be more palatable because it has fewer side effects and a convenient once-a-day dosage.
Across such choices, it is artificially precise to say that one option is “necessary” — with the usual connotation of “essential” or “indispensable” – while the other is “unnecessary” — with the usual connotation of “superfluous” or “pointless.” Various options have merits, and often no single approach is the clear, “correct” choice. A given option might be better described as “a good idea in this case,” “reasonable, given the cost of the alternative,” “probably better than the alternative, given a specific goal,” “about as good as anything else,” or “not quite ideal, but still acceptable.”
In many cases, the real question is whether a particular medical risk or monetary cost is worth incurring in order to achieve a desired level of symptomatic relief or functional improvement, or to reduce the risk of an adverse outcome or a missed diagnosis. A huge array of treatments fits that description: more or less worthwhile, but the patient will not die without it and other alternatives (that might have some drawbacks) exist. [Emphasis mine.] Read the rest of this post »
Does Mitt Romney Have Health Insurance?
It’s an interesting question. Romney is under age 65, which means that he would have to obtain private health insurance. He jokes that he is unemployed, which means he may have to purchase it on his own. Or he may get it as a retiree benefit from Bain Capital.
The question is interesting because Romney is so wealthy that to spend his money on health insurance might seem like a waste. (Of course, Romney may be very risk averse, and a man to whom $10,000 is a small wager probably isn’t going to notice a $20,000 health insurance premium. But Romney could pay for whatever medical care he and his wife — and his children, and his grandchildren — could possibly need.) On the other hand, if Romney doesn’t have private health insurance, it would look bad that he forced other people to buy it.
Moreover, Romney turns 65 on March 12, meaning he becomes eligible for Medicare on March 1. He likely received his Medicare card in the mail two months ago. If Romney does not enroll in Medicare, it would again look bad that he who forced others to purchase health insurance is opting not to obtain health insurance himself. But if he does enroll in Medicare, it’s worth asking whether the 99 percent should subsidize people like him.
Mandates in Practice: the Flap over Contraception Coverage
First, President Obama requires church-affiliated employers to offer insurance that covers contraception. When that’s properly challenged as a violation of religious liberty, the administration offers a supposed compromise that essentially shifts the burden to the insurance industry: the church-affiliated employer is off the hook, but its insurer has to provide coverage—and can’t charge for it. That’s right: private companies must provide free insurance for services that Obama’s HHS secretary has repeatedly called a major financial burden.
Government by fiat: to solve a First Amendment religious freedom problem that the president himself created, he orders private companies to offer contraception coverage at zero premium.
Then we’re treated to the nonsensical and unsupported assertion that insurers will save money in the long run because they won’t have to pay for pregnancies that contraception would have prevented. In other words, executives running a multi-billion dollar industry—until they were enlightened by HHS bureaucrats—were too stupid to realize that providing free contraception to everybody costs less than pregnancies by individuals who (a) had childbirth coverage, but (b) not contraception coverage, and (c) would have used contraception, but (d) didn’t, because (e) they couldn’t afford to. Of course, that’s just baloney. What’s really at work, as Charles Krauthammer has aptly characterized it, is breathtaking arrogation of power by the feds: a Washington, D.C. takeover of our private health care system.
Kaiser Family Foundation: If ObamaCare Increases the Cost of Your Coverage, That’s a ‘Benefit’
Jonathan Gruber, one of ObamaCare’s biggest defenders, estimates that even after accounting for the law’s tax credits and subsidies, nearly 60 percent of consumers in Wisconsin’s individual market (for example) will pay an average of 31 percent more for health insurance. Some will pay more than twice as much as they did pre-ObamaCare.
Inexplicably, the Kaiser Family Foundation, another defender of the law, counts everyone in the individual market—including those who would pay more—in its estimate of “the number of people who would benefit from the financial subsidies.”
Sebelius Admits ObamaCare Exchanges Aren’t Happening, Then Disqualifies Herself from Office
Politico Pro has published a short but remarkable article [$] stemming from an interview with HHS secretary Kathleen Sebelius. It offers a couple of illuminating items, and one very glaring one.
First, Sebelius undermines the White House’s claim that “28 States and the District of Columbia are on their way toward establishing their own Affordable Insurance Exchange” when she says:
We don’t know if we’re going to be running an exchange for 15 states, or 30 states…
So it turns out that maybe as few as 20 states are on their way toward establishing this “essential component of the law.” Or maybe fewer.
Second, the article reports the Obama administration has reversed itself on whether it has enough money to create federal Exchanges in states that decline to create them. The administration has repeatedly claimed that the $1 billion ObamaCare appropriates would cover the federal government’s costs of implementing the law. And yet the president’s new budget proposal requests “another $1 billion” to cover what Sebelius calls “the one-time cost to build the infrastructure, the enrollment piece of [the federal exchange], the IT system that’s needed.”
In other words, as I blogged yesterday, the Obama administration does not have the money it needs to create federal Exchanges. Therefore, if states don’t create them, ObamaCare grinds to a halt. (Oh, and this billion dollars is the last billion the administration will request. Honest.)
Most important, however, is this:
Even if Congress does not grant the president’s request for more health reform funding, Sebelius said her department will find a solution. “We are going to get it done, yes,” she said.
An HHS staffer prevented the reporter from asking Sebelius what she had in mind.
This is a remarkable statement. Sebelius basically just copped to a double-subversion of the Constitution: Congress appropriates money for X, but not Y. Sebelius says, “I know better than Congress. I’m going to take money away from X to fund Y.” Sebelius has already shown contempt for the First Amendment, first by threatening insurance carriers with bankruptcy for engaging in non-fraudulent speech, and again by crafting a contraceptives mandate that violates religious freedom. Now, she has decided the whole separation of powers thing is for little people. What will Sebelius do the next time something gets in the way of her implementing ObamaCare?
I don’t see why a federal official should remain in office after showing so much contempt for the Constitution she swore to uphold.
HuffPo Oped: ‘The Illiberality of ObamaCare’
My latest:
On Friday, President Obama tried to quell the uproar over his ongoing effort to force Catholics (and everyone else) to pay for contraceptives, sterilization, and pharmaceutical abortions. Unfortunately, the non-compromise he floated does not reduce by one penny the amount of money he would force Catholics to spend on those items. Worse, this mandate is just one manifestation of how the president’s health care law will grind up the freedom of every American.
Oregon Legislature Blocks ObamaCare ‘Exchange’
From the Portland Oregonian:
House Republicans block Oregon’s health insurance exchange in surprise vote
Updated: Monday, February 13, 2012, 1:08 PMA coalition of 30 Republicans and 1 Democrat in the state House of Representatives blocked approval of Oregon’s health insurance exchange this morning…
Last year, a bill to set up the exchange passed both houses of the Legislature with broad bipartisan approval.
House Bill 4164, which would give final approval to the exchange, cruised through its committee hearings without incident. But then, as the House met Monday morning to forward the bill to the Senate, Rep. Tim Freeman, R-Roseburg, made a motion to instead refer the bill to the Joint Ways and Means Committee, where he co-chairs a subcommittee on human services.
Freeman said questions had arisen in a recent caucus meeting of House Republicans over what commitments existed over federal funding of the program, as well as the potential for a change to the legal status of federal health care reforms, currently under consideration by the U.S Supreme Court…
The move led by House Republicans comes as Republicans in the Senate have vowed to block a companion bill on health care reform unless it is modified to include limits on lawsuit awards against health providers.
(HT: Eric Fruits.)
President’s Budget Shows Feds Can’t Create ObamaCare ‘Exchanges’
According to Politico Pro [$]:
More than $860 million of President Barack Obama’s proposed $1 billion increase in the CMS budget will go to building the federal exchange, acting [Centers for Medicare and Medicaid Services] Administrator Marilyn Tavenner said during a budget briefing at HHS on Monday.
This funding is necessary in part because the amount originally appropriated for the federal costs of implementing the Affordable Care Act — $1 billion — is expected to be gone by the end of this year, HHS officials said.
Assistant Secretary for Financial Resources Ellen Murray said at the briefing that half of these funds have already been obligated, and the remaining amount will be used by the end of the year.
She also said states will still be able to get help building exchanges, because other ACA funds are still available for exchange work.
“Funding for [state grants] was provided in the Affordable Care Act, so the money we’re asking for in this budget is just for the federal exchange,” Murray said.
In other words, the federal government doesn’t have the money to create ObamaCare Exchanges, and the administration has no hope of getting that funding through the Republican-controlled House. So if states don’t create Exchanges, they might not exist. (And even if the federal government does create them, they won’t work.)
Never mind the lawsuits. The Exchanges may be ObamaCare’s most serious vulnerability.
Credit Where It’s Due: Sarah Kliff Edition
On Friday, President Obama announced an “accommodation” to those who object to his contraceptives mandate. Since then, I have been astonished at how many reporters have portrayed the president’s announcement as some sort of compromise, even though it would not reduce — not by one penny – the amount of money he would force Catholics and others with a religious objection to spend on contraception.
In fact, the only reporter who seemed to grasp this may also have been the first out of the box. The Washington Post‘s Sarah Kliff:
“If a charity, hospital or another organization has an objection to the policy going forward, insurance companies will be required to reach out to directly offer contraceptive care free of charge,” one administration official explained…
Numerous studies have shown that covering contraceptives is revenue-neutral, as such preventive measures can lower the rate of pregnancies down the line…
“Contraceptives save a lot of money,” a senior administration official argued.
The catch here is that there’s a difference between “revenue neutral” and “free.” By one report’s measure, it costs about $21.40 to add birth control, IUDs and other contraceptives to an insurance plan. Those costs may be offset by a reduction in pregnancies. But unless drug manufacturers decide to start handing out free contraceptives, the money to buy them will have to come from somewhere.
Where will it come from, since neither employers nor employees will be paying for these contraceptives? That leaves the insurers, whose revenues come from the premiums that subscribers pay them. It’s difficult to see how insurance companies would avoid using premiums to cover the costs of contraceptives.
The Post‘s subsequent coverage would have benefited from such scrutiny of the president’s spiel. If I missed such scrutiny in the Post or elsewhere, I hope someone will let me know.
Obama’s Budget, Taxes, and Doctors
President Obama is releasing his FY2013 budget today, and it’s more of the same—trillion-dollar deficits, huge spending, and tax hikes on high-earners. The president wants to raise taxes substantially on households earning more than $250,000. It’s all about fairness he claims, even though effective tax rates on high-earners are already double the rates on middle-earners.
More importantly, supporters of President Obama’s soak-the-rich tax strategy don’t seem to be concerned about the negative consequences for the economy. They seem to have convinced themselves that the Top 1 Percent is dominated by shady Wall Street speculators and other supposed economic leeches.
The reality is that the Top 1 Percent is mainly populated by highly productive people who are crucial to America’s economy. Let’s look at one of the largest subgroups within the Top 1 Percent—doctors and surgeons. Bureau of Labor Statistics data show that there are about 700,000 doctors and surgeons in the United States. The Washington Post on Sunday provides median 2011 doctor salaries from a medical organization survey. Salaries range from $208,658 for family doctors to $501,808 for orthopedic surgeons.
The marketplace has rewarded doctors generously, but everyone knows that makes sense because doctors have extensive education and often work long hours in stressful environments. In its occupational overview of physicians and surgeons, the Bureau of Labor Statistics notes that these professionals need “4 years of undergraduate school, 4 years of medical school, and 3 to 8 years of internship and residency,” which are requirements “among the most demanding of any occupation.”
The BLS also notes that “many physicians and surgeons work long, irregular hours. In 2008, 43 percent of all physicians and surgeons worked 50 or more hours a week.” Doctors often need to make emergency visits to hospitals and nursing homes, and they need to spend many additional hours reading to keep up with medical advances.
So doctors study hard, work hard, and serve a crucial role in society. And what does President Obama want to do to them? He wants to punish them with higher taxes.
If doctor salaries are in the $200,000 to $500,000 range, then most of them will be hit by Obama’s plan to raise top income tax rates. Even doctors with salaries in the lower $200,000 range would be hit if they have spouses that work or if they have investment income that pushes their overall income into the president’s punishment range.
Raising taxes on doctors would damage the economy because doctors will work less and they will have less money to reinvest in their practices. Doctors are exactly the type of workers who have large behavioral responses to tax increases. Facing higher marginal tax rates, a substantial number of doctors will reduce their hours worked or they will retire earlier. In the long run, fewer people will want to go into this difficult profession if the government reduces the after-tax rewards.
The Washington Post story focused on the expected shortages of doctors in coming years. Raising taxes on doctors will make such shortages worse. Just at a time when the nation needs more doctors because of the aging of the population, liberal punish-the-productive policies threaten to exacerbate doctor shortages in our health care system.
Cato’s Final Obamacare Brief — on the Individual Mandate — Joined by 16 Other Groups and 333 State Legislators
With the scheduled three days of oral argument six weeks away, Cato filed its fourth and final Supreme Court amicus brief in the Obamacare saga, this time on the most critical issue: the constitutionality of the individual mandate. Alongside Pacific Legal Foundation, Competitive Enterprise Institute, 14 other organizations, and a bipartisan group of 333 state legislators, we urge the Court to affirm the Eleventh Circuit’s ruling that the mandate exceeds Congress’s power to regulate interstate commerce.
Under modern doctrine, regulating intrastate economic activity can be a “necessary” means of carrying out Congress’s regulatory authority (as that term is understood under the Necessary and Proper Clause) if, in the aggregate, it has a substantial effect on interstate commerce. But the obvious corollary is that regulating non-economic activity cannot be “necessary,” regardless of its economic effects. And a power to regulate inactivity — to compel activity — is even more remote from Congress’s commerce power.
The government characterizes not being insured as the activity of making an “economic decision” of how to finance health care services, but the notion that probable future participation in the marketplace constitutes economic activity now pushes far beyond existing precedent. Further, that definition of “activity” leaves people with no way of avoiding federal regulation; at any moment, we are all not engaged in an infinite set of activities. Retaining the categorical distinction between economic and non-economic activity limits Congress to regulating intrastate activities closely connected to interstate commerce — thus preserving the proper role of states and preventing Congress from using the Commerce Clause as a federal police power. The categorical distinction also provides a judicially administrable standard that obviates fact-based inquiries into the purported economic effects and the relative necessity of any one regulation, an exercise for which courts are ill-suited.
Finally, the mandate violates the “proper” prong of the Necessary and Proper Clause in that it unconstitutionally commandeers the people — and in doing so, circumvents the Constitution’s preference for political accountability. The Constitution permits Congress to intrude on state and popular sovereignty only in certain limited circumstances: when doing so is textually based or when it relates to the duties of citizenship. For example, Congress may require people to respond to the census or serve on juries. In forcing people to engage in transactions with private companies, the individual mandate allows Congress and the president to evade being held accountable for what would otherwise be a tax increase. In improperly commandeering citizens to engage in economic activity, the mandate obscures Obamacare’s true costs and thus avoids the political accountability and transparent budgeting that the Constitution demands.
The mandate is thus neither a necessary nor proper means for carrying into execution Congress’s power to regulate interstate commerce. Upholding it would fundamentally alter the relationship of the federal government to the states and the people; nobody would ever again be able to claim plausibly that the Constitution limits federal power.
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