The Alan Katz Health Care Reform Blog

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Posts Tagged ‘Gladys Kessler’

Health Care Reform Developments

Posted by Alan on February 23, 2011

Some quick tidbits and news items concerning health care reform you hopefully find useful – or at least interesting:

Judge Upholds PPACA: This time the plaintiffs claimed the individual mandate provisions in the Patient Protection and Affordable Care Act violated their religious freedom. They also argued the financial penalties were too severe. U.S. District Judge Gladys Kessler dismissed their lawsuit, declaring that Congress was “within the bounds” of the Commerce Clause in mandating that all individuals obtain health care coverage. Judge Kessler based her decision on the cost shift that occurs when uninsured individuals obtain medical care and how their lack of coverage results in higher premiums for those with medical policies. The result is “substantially higher insurance premiums for those other individuals who do obtain coverage. Thus, the aggregate effect on interstate commerce of the decisions of individuals to forgo insurance is very substantial.”

This makes three District Court Judges who have upheld the PPACA and two who have opposed it. Most of the reports on this most recent decision note that the three Judges finding the PPACA constitutional were appointed by President Bill Clinton, a Democrat, while the two declaring the individual mandate unconstitutional were appointed to the bench by Republican presidents. This focus on the party affiliation of the appointing president comes up frequently when appellate courts, including the Supreme Court, make a decision. It’s important not to get too caught up in this.

Yes, presidents tend to support judges with similar perspective to the law – and to what constitutes justice –as they have. Which means Democratic appointees tend to be more “liberal” and Republican appointees more “conservative.” (I use the quotes because these terms don’t always mean the same thing in the context of legal decisions. The Supreme Court decision in Citizens United, for example, which overturned decades of precedent to unfetter corporations’ ability to contribute to campaigns, can be cited as an example of judicial activism, something conservatives often decry, yet in this case was a result Republicans applauded). But judges, like people in general, are full of surprises. Chief Justice Earl Warren, generally regarded as a liberal judge, was appointed by President Dwight Eisenhower. Justice Lewis Powell was appointed by President Richard Nixon. And so on. My point here is not that courts are immune from politics or what’s happening in society. I’m simply pointing out that assuming you can predict how other court decisions concerning the PPACA will be resolved by looking at the party of the president appointing the judge or justices is of limited value.

Seeking Clarification: When Federal District Court Judge Roger Vinson found the individual mandate provision of the PPACA exceeded Congress’ authority under the Commerce Clause he further declared that this made the entire law unconstitutional. However, he did not issue an injunction preventing implementation of the law. Which raises an interesting question: should states and the federal government continue to implement the PPACA or not?

The Justice Department has asked Judge Vinson to clarify his ruling. The concern expressed by the DOJ is that stopping state and federal officials from moving forward in implementing the law while various suits against it make their way to the Supreme Court “would pose a risk of substantial disruption and hardship for those who rely on the provisions hat have already been implemented. Others assert that Judge Vinson’s ruling is clear: the government lacks authority to enforce the law in the 26 states connected to the suit decided by Judge Vinson.

Judge Vinson wants to move quickly to clarify the situation. He has given states party to the suit until tomorrow to respond to the Administration’s argument that implementation of the law should proceed in spite of his finding the law unconstitutional.

CLASS CHANGES: Secretary of Health and Human Services Kathleen Sebelius, acknowledging the long-term care provisions of the Patient Protection and Affordable Care Act are “far from perfect” is looking to make some significant changes to this part of the law. The PPACA gives HHS a great deal of latitude in developing and overseeing the Community Living Assistance Service and Supports Act program. Under this program, employees will be automatically enrolled in this long-term care plan without regard to pre-existing conditions. After participating in the program for at least five years enrollees would be eligible for no less than a $50 per day benefit.

According to CQ HealthBeat, Secretary Sebelius has expressed concern about the long-term sustainability of the program unless it can be designed to attract healthy individuals and not just those with health problems. She cited a clear need for a strong educational program.

According to Modern Healthcare, the changes to the CLASS Act program being considered by HHS include indexing premiums to projected benefits; offering a range of payments instead of a $50 daily benefit (indexed to inflation); modifying qualifications; and eliminating loopholes that allow enrollees to receive benefits even if they only sporadically pay premiums.

Be Careful What You Wish For:  I’m frequently asked why the PPACA is written the way it is, why Democrats wanted to insert the federal government so deeply into the health insurance world. Why couldn’t they let the markets handle things? The reason is that they (and many Republicans) don’t think the market was working well. I’ll write more about this in a later post, but it’s important to put the health care reform debate in context. Premiums were skyrocketing. Rescissions, many of which seemed inexcusable, was front-page news. Job-lock due to pre-existing conditions was viewed as dampening the economy. Health insurance company executives were receiving huge sums of money while a rapidly increasing number of middle-class Americans were finding it impossible to afford insurance coverage. Again, more details on this to come, but the response was the PPACA: insurance market reforms coupled with increased subsidies to help more Americans obtain more regulated products. (And yes, a whole lot more, but for now, please allow me to oversimplify).

However, when government engages in managing a segment of the economy no single lawmaker, regulator or party gets to determine where that involvement ends. Democrats may have wanted to assert control over the behavior of what they consider to be irresponsible insurance companies. But they’re getting a whole lot more: conservatives using health care reform to advance their anti-abortion agenda. This in turn has opened the door for broadening the abortion debate beyond government health care programs. Representative Chris Smith has authored a bill that would disallow tax deductions by businesses if their health care plans coverage abortions while employees would have to treat premiums paid on their behalf for such plans as taxable income.

As I wrote over a year ago, it was inevitable that conservatives would use the tools crafted by liberals concerning health care reform to advance their own goals. It’s as if politicians believe the balance of power will never change. Democrats control Congress and the White House so the health care reform law will only be used to advance progressive causes. The reality, however, is that pendulums swing – and political pendulums swing quickly and far. One party may craft the power tools, but the other party will always get a turn at using them.


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