It’s Not Just Entitlements, The Real Issue: Controlling All Health Care Costs
The current cry to reduce Federal deficits and debt growth by reducing Medicare and Medicaid entitlements is totally missing the key issue: the need to moderate all health care inflation. This should be the time for a national debate on how to best tackle the underlying cost problem, for the sake of our future, the economy, and access to health care.
The June 13-19, 2009 Economist editorialized: “America has the most wasteful [health] system on the planet. Its fiscal future would be transformed if Congress passed reforms that emphasized control of costs as much as the expansion of coverage that Barack Obama rightly wants.”
Health reform failed to get an adequate handle on all health care costs. Now there are constant calls by various expert commissions and many in Congress for entitlement spending reductions. Such cuts will create enormous new problems by failing to address the underlying, real problem of health costs and inflation.
Cutting just Medicare and Medicaid without addressing the whole problem is like squeezing a balloon—the balloon starts looking very strange very fast. While it is difficult to tell how much cost-shifting may occur and it will vary from market-to-market, some Medicare and Medicaid cuts probably get passed through in higher costs to the private sector—hardly a helpful action. (Congressional Budget Office, December 2008, Key Issues in Analyzing Major Health Insurance Proposals, p. 116) Cuts that are too deep in Medicare will also end up causing providers to be reluctant to see seniors and people with disabilities—as happens all too often today in Medicaid. In time, quality may be threatened.
And Medicare and Medicaid are not particularly driving the problem of soaring health care costs. As various studies have shown, over the long haul, Medicare has probably inflated slightly less rapidly for a comparable package of services than the private sector has. Recent reports by the Medicare Payment Advisory Commission (MedPAC) show that high quality, efficient hospitals have made a little money on Medicare, while private insurers have often failed to control costs, and have paid less effective hospitals 132 percent of the costs of running an efficient hospital. (See, for example, MedPAC’s March 2009 Report to Congress, Section 2A.)
A Comprehensive Approach To Health Care Cost Containment
It is past time for a comprehensive solution to ensure the affordability of a fundamental need: access to health care. We should say that access to reasonably affordable health care is a basic national need, like access to clean water and air, and treat it like a regulated utility—like your water–where cost growth is kept within a reasonable range and where a reasonable quality service is widely available (but if you want to go buy Perrier, you can).
Instead of squeezing one part of the health care cost balloon (Medicare and Medicaid), we need an “all saver” system. Under this system, any provider in the health care sector which inflates its billings faster than the growth in the CPI plus, say, one percent (adjusted for changes in population, new technologies, increased productivity, and changes in the severity of the cases that provider treats) would owe a rebate of the excess amount to its customers—both private and public. If the rebate were not provided, that excess income would face a 100 percent tax. The Federal government could do this under the Commerce clause, or, to enable providers and patients to opt out, could require participation by those accepting payment from Medicare, Medicaid, and payers claiming tax-deductible medical expenses.
How would the plan work? Complicated? Yes, but soon very doable with today’s health information technology systems and the coding systems developed by Medicare and others. It would take several years to set the system up, but it would work like this. Let’s say a hospital in a base year of 2013 had $100 million worth of billings. If consumer inflation were 4 percent and if the system allowed another 1 percent (just because we do highly value health care and some extra growth is a reasonable choice), then in 2014, the hospital could bill $105 million. (Let’s assume that an expensive new technology is available that costs an extra $1 million, but let’s also assume that increase is coincidentally offset by a national increase in productivity of 1 percent that saves about $1 million.)
If the hospital bills its customers $110 million in 2014, yet those customers are no sicker or more complicated to treat than in 2013 (as proven by the audited billing codes or adjusted for coding creep), the hospital will owe its customers $5 million in rebates. If Medicare paid 40 percent of the bills ($44 million), it would receive back 40 percent of the $5 million excessive inflation ($2 million). If a large employer’s health plan paid 20 percent of the provider’s bills, it would get $1 million back, and so forth.
If a provider did not want to participate, they could insist on only after-tax cash customers, and individuals would be free to use such doctors and hospitals.
Changing The Debate
Instead of focusing on Medicare/Medicaid cuts, Congress should be debating ideas of how to moderate all health care spending while minimizing interference in the practice of medicine. The plan I’ve described is just one option, and of course it would have to be adjusted to deal with many complexities. For example:
- How could the plan be made fair to new doctors and facilities with one-time extra start-up costs and no history of billings?
- How could the plan use quarterly payments or rolling averages to avoid many providers shutting down in December?
- How could society encourage further innovation, perhaps by offering more inflation for drugs certified as breakthroughs by the Food and Drug Administration?
- What cosmetic-type services could or should be exempt?
- What MedPAC-like advice and constitutional governance would be best?
Of course, if over the next decade reforms such as electronic medical records, comparative effectiveness research, and new bundling of the way we pay for services sufficiently ‘bends’ the spending curve downward, this system could be suspended. But it is doubtful those changes will do enough, and it is time to act on a comprehensive solution.
Incidentally, slowing all health care inflation would not only save enormous amounts in Medicare and Medicaid; over time it should achieve huge extra CBO/Joint Tax scorable savings, because the private sector and individuals will claim less in tax-deductible expenses for health care.
Budget reform that gets a handle on all health care inflation will solve most—or at least the toughest–of the ‘entitlement and future debt problems facing the nation. The entitlement problem is overwhelmingly a Medicare problem, driven not so much by more seniors or an aging population as by constantly soaring per capita costs of care. If we try to solve the entitlement problem just by cutting Medicare and Medicaid, we will destroy those programs. We need a total solution, because soaring health care costs are distorting the economy and our future as a successful nation.
Now is the time for this debate.
By: William Vaughan, Health Affairs Blog, Originally published March 3, 2011
Put-up-Or-Shut-up Time For Republicans On Health-Care Reform
It’s put-up-or-shut-up time for Republicans. They managed to make it through the health-care debate without offering serious solutions of their own, and — perhaps more impressive — through the election by promising to tell us their solutions after they’d won. But the jig is up. They need a health-care plan — and quickly.
The GOP knew this day would come. In May 2009, Republican message-maestro Frank Luntz released a polling memo warning that “if the dynamic becomes ‘President Obama is on the side of reform and Republicans are against it,’ then the battle is lost.” Repeal, Luntz argued, wouldn’t be good enough. It would have to be “repeal and replace.” And so it was.
That, however, is easier said than done.
To understand the trouble the Republicans find themselves in, you need to understand the party’s history with health-care reform. For much of the 20th century, Democrats fought for a single-payer system, and Republicans countered with calls for an employer-based system. In February 1974, President Richard Nixon made it official. “Comprehensive health insurance is an idea whose time has come in America,” he said, announcing a plan in which “every employer would be required to offer all full-time employees the Comprehensive Health Insurance Plan.”
In a moment of historically bad judgment — Ted Kennedy later called it his greatest political regret — Democrats turned him down. They thought they could still get single payer. They were wrong.
By the 1990s, they had learned from their mistake. Bill Clinton took office and, after a wrenching year of negotiations, announced legislation similar to Nixon’s.
”Under this health-care security plan,” Clinton said, “every employer and every individual will be asked to contribute something to health care.”
But Republicans again balked, calling instead for a system of “individual responsibility.” Senate Republicans quickly offered two bills — the horribly named Health Equity and Access Reform Act and the Consumer Choice Health Security Act — based on the idea that every person who has the means to buy health insurance should have to do so. We now call that concept “the individual mandate.”
Both bills attracted 20 or more co-sponsors. Neither passed, as Republicans yanked their compromise legislation the moment Democrats became desperate enough to consider it. The individual mandate, however, didn’t go away. It kicked around conservative health-care policy circles, racking up endorsements from the conservative Heritage Foundation and the libertarian magazine Reason. A year later, the mandate showed up in a law that then-Gov. Mitt Romney signed in Massachusetts. And then it was in the bipartisan proposal that Utah Republican Bob Bennett and Oregon Democrat Ron Wyden introduced in the Senate. And next, it was the centerpiece of the Democrats’ health-care reform push. Consensus, it seemed, was at hand.
Or not. Republicans turned on the individual mandate again. Senators who’d had their names on a bill that included an individual mandate — Orrin Hatch, Chuck Grassley, Bob Bennett, Mike Crapo, Bob Corker, Lamar Alexander, Olympia Snowe and Kit Bond, to name a few — voted to object, calling the policy “unconstitutional.” Romney had to explain away his signature accomplishment as governor of Massachusetts. And Republicans found themselves without a fallback.
The party’s current mood on health-care policy is perhaps best expressed by the efforts that Michael Cannon, an influential health-care wonk at the libertarian Cato Institute, has made to enlist members in his “anti-universal coverage club.”
Enter Wyden-Brown, an Affordable Care Act amendment that the White House has made a big show of endorsing: It says that any state that can produce a credible plan to cover as many people, with as comprehensive insurance, at as low a cost as the Affordable Care Act can wriggle out of all the law’s mandates but still receive all the law’s money. Vermont’s governor, for one, is stoked: He wants to try a single-payer proposal.
Most conservatives have been actively hostile. They make some fair technical points. The law envisions the secretary of Health and Human Services handing out the waivers, while the Heritage Foundation’s Stuart Butler would prefer to see a bipartisan commission in charge. But most take aim at the proposal’s basic goals: that care has to be as universal, as good and as cheap.
Cannon, for instance, frets that there’s no conservative policy that “would cover as many people as a law that forces them to buy coverage under penalty of law.” Butler worries that it “locks the states into guaranteeing a generous and costly level of benefits.”
But as the New Republic’s Jonathan Cohn points out, under the Affordable Care Act, a family of four could shell out $12,500 out of pocket for medical costs. How much stingier should the insurance be?
And Cannon is right that conservatives don’t have solutions to provide coverage as universal as what the Affordable Care Act would. But whose fault is that?
Conservatives once offered solutions competitive with what the Democrats were proposing, but over the past 30 years, they’ve abandoned each and every one of them to stymie Democratic presidents. Confronted with a challenge to provide broader access to better health care at a lower cost, they’re reduced to complaining that those aren’t the right goals for health-care reform. But we’ve yet to see how “less comprehensive insurance for fewer people” would play in Peoria. My hunch is it wouldn’t play very well.
For decades, Republicans have chosen stopping Democratic presidents over reforming the American health-care system. Now that reform has passed, the solution for members of the GOP is to press the rewind button. They’re about to find out that it’s not enough.
On that much, Luntz and I agree: If the public comes to see the GOP as opposed to reform, “the battle is lost” — at least if you believe “the battle” is to beat the Democrats rather than provide quality health insurance to every American.
By: Ezra Klein, Columnist, The Washington Post, March 8, 2011
Commerce Clause Challenges To Health Care Reform
The following article, forthcoming in U. Penn. L. Rev., pinpoints the strongest arguments for and against federal power under the Commerce Clause to mandate the purchase of health insurance: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747189
Among the key points I make in defense of this federal law are:
1. The “commerce” in question is simply health insurance, and not the non-purchase of insurance as challengers have framed it. Because “regulate” clearly allows both prohibitions and mandates of behavior, mandating purchase is lexically just as valid an application of the clause as is prohibiting purchase or mandating the sale of insurance.
2. Although existing precedent might allow a line to be drawn between economic activity and inactivity, there is no reason in principle or theory why such a line should be drawn in order to preserve state sovereignty. Purchase mandates, after all, are as rare under state law as under federal law.
3. Challengers do not seriously dispute the constitutional validity of the ACA’s regulation of insurers or the economic necessity of the mandate in order for that regulation to be effective. In fact, they essentially concede the mandate’s necessity by asking to strike the entire law if it is declared invalid. Accordingly, the mandate would pass the tests for constitutional necessity articulated by at least seven of the Justices in the Comstock opinion last year, and might even pass the necessity test embraced by Justices Thomas and Scalia.
4. An important challenge, not yet clearly discussed by court opinions to date, is that the mandate does not, strictly speaking, simply “carry into execution” Congress’ other regulatory powers, but is the exercise of a distinct power. However, both modern and historical precedents under the Necessary and Proper Clause are not limited narrowly to merely implementation measures. Both Comstock and a series of decisions under the Postal Power are good examples to the contrary since they authorize independent federal powers that expand the range of purposes and measures permitted by express Congressional powers.
5. There is no coherent basis for declaring a purchase mandate to be constitutionally “improper,” and a categorical ban on regulating inactivity would contradict the implicit reasoning underlying several other established precedents — such as those upholding the draft and the Congressional subpoena power. Also, federal eminent domain allows compelled transactions justified in part by the Necessary and Proper clause’s expansion of the commerce power, when applied, for instance, to citizen’s refusal to sell land for use in constructing highways, bridges, and canals.
6. Using the 10th Amendment to justify a categorical prohibition of purchase mandates (as Randy Barnett has argued) would be no more convincing than using the 9th or 5th Amendments (substantive due process). Instead, such a move would, for the first time and contrary to precedent, make the 10th a protector of individual liberties rather than just federalism concerns, and would radically enforce an absolute right to economic liberty, regardless of level of legislative justification or judicial scrutiny (see point 9).
7. Slippery slope concerns are no greater here than for any other of a range of expansive federal powers. Instead, the novelty of the mandate subjects it to greater political constraint, and so “parade of horribles” concerns may be even more unrealistic than similar settings where the Court has rejected them.
8. Grounding the mandate in the Necessary and Proper clause helps to confine its precedential effect by emphasizing it’s necessary role in the ACA’s particular regulatory scheme that, in other respects, clearly resides within the core of the conventional commerce power. This essential supportive and interconnected role is not shared by free-standing mandates to purchase American cars or broccoli, for instance.
9. Counteracting imaginary slippery slope concerns about absurd hypothetical laws are the legitimate concerns about insurmountable barriers that a prohibition of purchase mandates would erect. Forbidding Congress from any purchase mandate could cripple necessary efforts, for instance, to require preventive measures in the face of a massive pandemic that threatened tens of millions of lives.
By: Mark Hall, Professor of Law, Wake Forest University School of Law: Originally published in Health Reform Law, January 26, 2011.
The Fight Over The Individual Mandate Is Not About Liberty
Whatever the legal argument about the individual mandate is about, it’s not, as some of its detractors would have it, a question of liberty. Charles Fried, Ronald Reagan’s former solicitor general, put this well at Wednesday’s Senate Judiciary Committee hearing.
“As I recall,” he said, “the great debate was between this device and the government option. And the government option was described as being akin to socialism, and there was a point to that. But what’s striking is that nobody in the world could’ve argued that the government option or single-payer could’ve been unconstitutional. It could’ve been deplorable. It could’ve been regrettable. It could’ve been Eastern rather than Western European. But it would’ve been constitutional.”
I’d disagree slightly with Fried’s characterization of the policy debate — the individual mandate and the public option do very different things, and a bill with a public option would still have had an individual mandate — but on the law, even the panel’s anti-mandate witnesses agreed with his characterization of the single payer’s legality. So, too, does Daniel Foster, a conservative at the National Review, who wrote, “All conservatives, I’d imagine, think single-payer is unwise, but I’m sure plenty of them think it’s also constitutional (I’m probably one of them, as well).”
There is little doubt that the individual mandate, which preserves a private insurance market and the right to opt out of purchasing coverage, accords more closely with most conservative definitions of liberty than a single-payer system, which wipes out private insurers and coerces every American to pay for the government’s coverage. That doesn’t make it more constitutional, of course. But it does suggest that the dividing point isn’t liberty.
When it comes to the legislation itself, the key question actually comes down to semantics. It’s broadly agreed that tax breaks are constitutional. The individual mandate could’ve been called the “personal responsibility tax.” If you can show the IRS proof of insurance coverage, you then get a “personal responsibility tax credit” for exactly the same amount. This implies that what makes the mandate unconstitutional in the eyes of some conservatives is its wording: It’s called a “penalty” rather than a “tax.” As Judge Henry Hudson put it in his ruling, “In the final version of the [Affordable Care Act] enacted by the Senate on December 24th, 2009, the term ‘penalty’ was substituted for the term ‘tax’ in Section 1501(b)(1). A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress.” And it was: Taxes are more politically toxic than penalties, or so the authors of the bill thought. But they’re not more damaging to liberty than taxes.
Despite the overheated rhetoric that’s been tossed around in this debate, I don’t believe our forefathers risked their lives to make sure the word “penalty” was eschewed in favor of the word “tax.” This is not a country built upon semantics. And I don’t think semantics underly the principle conservatives are fighting for here, either. After all, before Barack Obama adopted the individual mandate — and I mean mere months before — Sen. Chuck Grassley (R-Iowa) said there was “bipartisan consensus” around the need for an individual mandate. Sen. Olympia Snowe (R-Maine) voted for the individual mandate in the Senate Finance Committee. Sen. Bob Bennett (R-Utah) had his name on a bill that included an individual mandate. Sen. Bob Dole (Kan.), back when he led the Senate’s Republicans, co-sponsored a bill that included an individual mandate. None of these legislators takes the Constitution lightly. They didn’t see the individual mandate as a threat to liberty, and they weren’t constantly emphasizing that it was a tax rather than a penalty.
The principle conservatives are fighting for is that they don’t like the Affordable Care Act. And having failed to win that fight in Congress, they’ve moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn’t. That’s fair enough, of course. But they didn’t see the individual mandate as a question of liberty or constitutionality until Democrats passed it into law in a bill Republicans opposed, and they have no interest in changing its name to the “personal responsibility tax,” nor would they be mollified if it was called the “personal responsibility tax.” The hope here is that they’ll get the bill overturned on a technicality. And perhaps they will. But no one should be confused by what’s going on.
By: Ezra Klein, The Washington Post, Posted February 2, 2011
Congress Passes Socialized Medicine and Mandates Health Insurance -In 1798
The ink was barely dry on the PPACA when the first of many lawsuits to block the mandated health insurance provisions of the law was filed in a Florida District Court.
The pleadings, in part, read –
The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.
It turns out, the Founding Fathers would beg to disagree.
In July of 1798, Congress passed – and President John Adams signed – “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.
Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.
And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.
Here’s how it happened.
During the early years of our union, the nation’s leaders realized that foreign trade would be essential to the young country’s ability to create a viable economy. To make it work, they relied on the nation’s private merchant ships – and the sailors that made them go – to be the instruments of this trade.
The problem was that a merchant mariner’s job was a difficult and dangerous undertaking in those days. Sailors were constantly hurting themselves, picking up weird tropical diseases, etc.
The troublesome reductions in manpower caused by back strains, twisted ankles and strange diseases often left a ship’s captain without enough sailors to get underway – a problem both bad for business and a strain on the nation’s economy.
But those were the days when members of Congress still used their collective heads to solve problems – not create them.
Realizing that a healthy maritime workforce was essential to the ability of our private merchant ships to engage in foreign trade, Congress and the President resolved to do something about it.
Enter “An Act for The Relief of Sick and Disabled Seamen”.
I encourage you to read the law as, in those days, legislation was short, to the point and fairly easy to understand.
The law did a number of fascinating things.
First, it created the Marine Hospital Service, a series of hospitals built and operated by the federal government to treat injured and ailing privately employed sailors. This government provided healthcare service was to be paid for by a mandatory tax on the maritime sailors (a little more than 1% of a sailor’s wages), the same to be withheld from a sailor’s pay and turned over to the government by the ship’s owner. The payment of this tax for health care was not optional. If a sailor wanted to work, he had to pay up.
This is pretty much how it works today in the European nations that conduct socialized medical programs for its citizens – although 1% of wages doesn’t quite cut it any longer.
The law was not only the first time the United States created a socialized medical program (The Marine Hospital Service) but was also the first to mandate that privately employed citizens be legally required to make payments to pay for health care services. Upon passage of the law, ships were no longer permitted to sail in and out of our ports if the health care tax had not been collected by the ship owners and paid over to the government – thus the creation of the first payroll tax in our nation’s history.
When a sick or injured sailor needed medical assistance, the government would confirm that his payments had been collected and turned over by his employer and would then give the sailor a voucher entitling him to admission to the hospital where he would be treated for whatever ailed him.
While a few of the healthcare facilities accepting the government voucher were privately operated, the majority of the treatment was given out at the federal maritime hospitals that were built and operated by the government in the nation’s largest ports.
As the nation grew and expanded, the system was also expanded to cover sailors working the private vessels sailing the Mississippi and Ohio rivers.
The program eventually became the Public Health Service, a government operated health service that exists to this day under the supervision of the Surgeon General.
So much for the claim that “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty….”
As for Congress’ understanding of the limits of the Constitution at the time the Act was passed, it is worth noting that Thomas Jefferson was the President of the Senate during the 5th Congress while Jonathan Dayton, the youngest man to sign the United States Constitution, was the Speaker of the House.
While I’m sure a number of readers are scratching their heads in the effort to find the distinction between the circumstances of 1798 and today, I think you’ll find it difficult.
Yes, the law at that time required only merchant sailors to purchase health care coverage. Thus, one could argue that nobody was forcing anyone to become a merchant sailor and, therefore, they were not required to purchase health care coverage unless they chose to pursue a career at sea.
However, this is no different than what we are looking at today.
Each of us has the option to turn down employment that would require us to purchase private health insurance under the health care reform law.
Would that be practical? Of course not – just as it would have been impractical for a man seeking employment as a merchant sailor in 1798 to turn down a job on a ship because he would be required by law to purchase health care coverage.
What’s more, a constitutional challenge to the legality of mandated health care cannot exist based on the number of people who are required to purchase the coverage – it must necessarily be based on whether any American can be so required.
Clearly, the nation’s founders serving in the 5th Congress, and there were many of them, believed that mandated health insurance coverage was permitted within the limits established by our Constitution.
The moral to the story is that the political right-wing has to stop pretending they have the blessings of the Founding Fathers as their excuse to oppose whatever this president has to offer.
History makes it abundantly clear that they do not.
By: Rick Ungar, The Policy Page, Forbes-Originally Posted January 17, 2011
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 