What Happens If Conservatives Succeed in Undermining The Affordable Care Act?
The legal theory currently in vogue in conservative circles holds that the Constitution’s vision of “a central government with limited power” — to use Judge Vinson’s phrase — permits the government to establish a single-payer health-care system that every American pays into through payroll taxes and that wipes out the private insurance industry but forbids the government from administering a regulated market in which individuals purchase private insurance plans and pay a penalty if they can afford coverage but choose to delay buying it until they’re sick.
There’s a chance conservatives will come to seriously regret this stratagem. I think it’s vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process — as that would sidestep both legal attacks and the supermajority requirement.
The resulting policy isn’t too hard to imagine. Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy (which is how the House originally wanted to fund health-care reform). That won’t get us quite to universal health care, but it’ll get us pretty close. And it’ll be a big step towards squeezing out private insurers, particularly if Medicaid and Medicare are given more power to control their costs.
By: Ezra Klein-The Washington Post, January 31, 2011
Judge Rules Against Reform, Ignores Facts
Federal Judge Roger Vinson has ruled against the Affordable Care Act, striking down not just the individual mandate but the rest of the law, as well. Vinson had made his skepticism of the law very clear during oral argument, so the ruling isn’t surprising, although his decision to invalidate the entire statute goes farther than the decision by Judge Henry Hudson, the federal judge who invalidated the law last last year.
Vinson did not halt implementation of the law. (That would have been surprising.) And, to be clear, two other federal judges have ruled the law is constitutional while about a dozen more have dismissed lawsuits without even hearing. The final word, almost certainly, will come from the Supreme Court. And it could be two years before a case reaches that far.
I’ve only skimmed the decision very quickly. Once I’ve read it more carefully, I’ll (hopefully) have more intelligent things to say. But, at first glance, two things leap out at me.
Defenders of the Affordable Care Act (myself among them) argue that the power to impose the mandate lies in two parts of the Constitution: the power to levy taxes and the power to regulate interstate commerce. Vinson rejects the tax argument and, in explaining his rationale, suggests that even the two judges who upheld the mandate agreed with him on this. But this is incorrect. Judge George Steeh, the federal judge from Michigan, declared that the tax argument was “without merit.”
The other striking thing about Vinson’s ruling is his reasoning on interstate commerce–and its apparent ignorance of policy reality. Vinson says the mandate is unconstitutional because, in effect, the link between insurance status and interstate commerce is too weak:
…the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not “slight,” “trivial,” or “indirect,” but no impact whatsoever) — at least not any more so than the status of being without any particular good or service. [Emphasis in original]
Again, this is just wrong, as anybody who understands the health care market will tell you. From my January article on the case:
When doctors and hospitals give uncompensated care to people without insurance, these providers of care pass along higher prices to everybody else who pays, and those higher prices show up as either larger taxes, larger insurance premiums, or larger out-of-pocket expenses. In addition, if people know they can get insurance even if they have pre-existing conditions, some will wait until getting sick before buying insurance. That upsets the delicate actuarial balance of insurance plans, which depend on premiums from healthy people to offset the costs of the sick. Premiums end up rising even more.
Researchers at the nonpartisan Urban Institute, which has developed its own mathematical model of the health care market, have run simulations on how the Affordable Care Act would play out without the individual mandate. They found that an additional 18 million people would end up without insurance. Jonathan Gruber, an MIT economist and respected authority in his own right, determined that without a mandate, premiums for people buying coverage on their own would be 27 percent higher. Gruber has advised health care reformers, including the architects of the Affordable Care Act. But the nonpartisan Congressional Budget Office got similar results from its calculations. And while economic models can certainly be wrong, these results are consistent with real-world experience: In those states where laws already require insurers to sell to anybody but insurance enrollment is not compulsory, premiums have gone way up.
Again, I’ll have more to say soon. In the meantime, keep in mind that the plaintiffs got the results they wanted in part because they got the judge they wanted. Bill McCollum, Florida’s attorney general, and his allies didn’t file the case before the federal court in Tallahassee. They filed the case in nearby Pensacola. I assume (although I can’t be sure) that’s because it increased their chances of getting a conservative judge, like Vinson.
In any event, it’s just one decision among several. And it ultimately matters only insofar as the Supreme Court decides to embrace it.
By: Jonathan Cohn-The New Republic, January 31, 2011
Remember The Uninsured?
In February 2007, Deamonte Driver died of an infected tooth. But he didn’t really die of an infected tooth. He died because he didn’t have consistent insurance. If he’d had an Aetna card, a dentist would’ve removed the tooth earlier, and the bacteria that filled the abscess would never have spread to his brain.
Deamonte Driver was 12. His insurance status wasn’t his fault.
If all you knew about the Affordable Care Act was what you gleaned from watching the Republicans make their case against it, you probably would not know that the legislation means health-care coverage for more than 30 million Americans. Or, if you did know that, you’d be forgiven for not realizing it’s relevant: It almost never gets mentioned (see this congressman’s rundown of the bill’s contents, for instance), and the repeal legislation the Republicans are pushing does nothing to replace the coverage the Affordable Care Act would give to those people.
The lack of concern for how more than 30 million Americans will get their health-care coverage makes for an ugly contrast with the intense concern that Rep. Andy Harris — a proponent of repeal — found when he heard that his congressional health-care coverage wouldn’t begin until a month after he took the oath of office. “He stood up and asked the two ladies who were answering questions why it had to take so long, what he would do without 28 days of health care,” recalled one of the session’s attendees. He knows his taxpayer-subsidized insurance is important. But what about Driver’s?
We have a tendency to let the conversation over health-care reform become a bloodless, abstract discussion over cost curves and CBO models. We do that for two reasons: First, cost is important. Second, it’s important to the people who have political power, which is, by and large, not the same group who doesn’t have health-care insurance. Someone involved in the 2008 campaign once told me he’d seen numbers showing that 95 percent of Obama’s voters were insured. The numbers for McCain were, presumably, similarly high, or even higher. These are the people the political system is responsive too.
But that doesn’t make the plight of the uninsured any less wrenching. The Urban Institute estimated that 22,000 people died in 2006 because they didn’t have health-care insurance. John Ayanian, a professor of medicine and health-care policy at Harvard Medical School, testified before Congress on this issue. “Uninsured adults are 25 percent more likely to die prematurely than insured adults overall,” he said, “and with serious conditions such as heart disease, diabetes or cancer, their risk of premature death can be 40 to 50 percent higher.” And none of that takes into account the unnecessary suffering and physical damage that flourishes in the absence of effective medical care. Nor does it speak to the economic devastation that illness unleashes on uninsured families.
These numbers shouldn’t surprise us: We pay a lot of money for health-care insurance. We’ve directed the government to spend even more money subsidizing that insurance for the elderly, the disabled, some of the poor and everyone who gets health-care coverage through their employer. We value this product so highly for a reason: Most of us would agree that being able to afford to see a doctor isn’t a luxury. It’s a necessity. Rep. Harris certainly feels that way.
The same goes for the uninsured. In fact, it’s often more true for them, as many haven’t received reliable care for some time and have multiple health problems that haven’t been effectively treated. That’s why, when a temporary free clinic set up shop in Los Angeles, 3,000 people lined up for treatment. It’s why the famed RAND health insurance experiment found the people who benefited from insurance most clearly were the poor, as they were often plagued by easy-to-treat conditions like hypertension.
The Affordable Care Act covers the vast majority of the uninsured. It covers everyone who makes less than the poverty line, and almost everyone who makes less than 300 percent of the poverty line. It does all this while spending about 4 percent of what our health-care system currently spends in a year, and it offsets that spending — and more — to make sure the deficit doesn’t bear the burden of society’s compassion. Perhaps there’s a better way to achieve those goals that can pass Congress. If so, I’m open to hearing about it. But to repeal the bill without another solution for the Deamonte Drivers of the world? And to do it while barely mentioning them? We’re a better country than that. Or so I like to think.
By: Ezra Klein, The Washington Post, January 19, 2011
The Importance of the Individual Mandate — Evidence from Massachusetts
The most contentious aspect of the Patient Protection and Affordable Care Act (ACA) is the individual mandate requiring that most documented U.S. residents obtain health insurance or pay a tax penalty. Many experts have long advocated a mandate as a central pillar of private-sector–based health care reform. Others, however, have argued that a mandate is not necessary for successful reform.
Proponents of the mandate argue that it is necessary to reduce adverse selection in a reformed nongroup insurance market. Adverse selection occurs when a larger fraction of relatively unhealthy people than healthy people purchase health insurance. It is analogous to the purchase of car insurance only by high-risk drivers (or worse, only by drivers who have just had an accident). However, one of the most popular aspects of the ACA may encourage such adverse selection, since the law prohibits health insurers from discriminating against applicants on the basis of health, either by charging higher premiums for sick people or by excluding preexisting conditions from coverage. Absent other reforms, such regulations would theoretically increase premiums for healthy people and lead them to exit the nongroup insurance market, which would cause premiums to rise even more. Informal support for this hypothesis comes from the fact that the five U.S. states with such regulations (known as “community rating”) are among the states with the highest nongroup insurance premiums.1
Opponents of the mandate counter that community rating may work as long as there are large subsidies that attract healthier enrollees to the insurance pool. Such subsidies include the tax credits that the ACA authorizes for people with incomes between 133 and 400% of the federal poverty level. (The federal poverty level for a family of four is about $22,000 per year.) States with community rating do not generally offer such large subsidies, so we can’t use their experience to predict the effects of national reform minus the mandate. But understanding whether the mandate matters, even with large subsidies in place, is critical for assessing its role in reform.
The early experience with health care reform efforts in Massachusetts may offer some lessons. Massachusetts made heavily subsidized insurance available to residents with incomes below 300% of the federal poverty level for nearly a year before mandating insurance coverage. By examining the characteristics of the subsidized insurance pool before and after the mandate went into effect, we assessed how much of an additive effect the mandate had over that of simply offering subsidized, community-rated insurance.
As part of the Massachusetts reform, the Commonwealth Care program provided free insurance to people with incomes below the federal poverty level from October 2006 onward and for those with incomes below 150% of the federal poverty level from July 2007 onward. In both cases, the state automatically enrolled people who were eligible for free coverage; people in higher income groups could enroll but had to pay premiums. We therefore examined the behavior of Massachusetts residents with incomes between 150 and 300% of the poverty level, who were eligible for subsidies and had to pay insurance premiums that were meaningful but much smaller than those mandated by the ACA.
Using claims data from the Massachusetts Commonwealth Connector, we measured the health mix of the population enrolling in Commonwealth Care according to average age, average monthly health care expenditures, and the proportion of enrollees with a chronic illness. We identified enrollees as having a chronic illness if within the first 12 months after enrollment they had an office visit at which a diagnosis of hypertension, high cholesterol level, diabetes, asthma, arthritis, an affective disorder, or gastritis was recorded.2 Relying on only the first 12 months of claims ensured that our estimates of rates of chronic illness for earlier enrollees, whose claims data covered a longer period, were similar to estimates for later enrollees.
We examined these data for the period from March 2007 (the date of the first available reliable information on people with incomes in the relevant range) through June 2008 (the last month for which we could calculate our 12-month measure of chronic illness). In each month, we measured the health of the enrollees who joined the program.
We assessed the characteristics of these enrollees before, during, and after the phasing in of the mandate. Technically, the mandate went into effect on July 1, 2007. The Connector began a massive public outreach campaign in May 2007, and the number of hits on its Web site peaked around July 1. The penalty, however, was assessed on the basis of insurance coverage as of December 31, 2007. That is, people who purchased insurance in November that began in December did not have to pay the penalty, even if they had been uninsured beyond July 1. The penalty for 2007 was the loss of the individual state income tax exemption, a relatively modest $219. It increased to about $900 in 2008 and was prorated on the basis of the number of months of coverage during the year.
Characteristics of New Enrollees in Commonwealth Care, According to Enrollment Period
Number of Enrollees in Commonwealth Care, According to Chronic-Illness Status
It seems possible that even without the mandate, people with the highest health care costs would enroll first and healthier people would enroll over time. But data on the health status of new enrollees suggest that that was not the case (see graph). At the beginning of the mandate’s phase-in in mid-2007, there was a greater increase in the number of healthy enrollees than in the number of enrollees with chronic illness. When the mandate became fully effective at the end of 2007, there was an enormous increase in the number of healthy enrollees and a far smaller bump in the enrollment of people with chronic illness. The gap then shrank to premandate levels as the remaining uninsured residents complied with the mandate, but clearly the mandate brought many more healthy people than nonhealthy ones into the risk pool. The large jump in healthy enrollees that occurred when the program became fully effective suggests that enrollment by the healthy was not simply slower than enrollment by the unhealthy, but rather that the mandate had a causal role in improving risk selection.
Whether the Massachusetts experience can be generalized to the rest of the country depends in part on the relative sizes of the subsidies provided: the higher the subsidies, the smaller the role for an individual mandate. Under Commonwealth Care, adults with incomes between 150 and 200% of the poverty level were asked to contribute $35 per month. Under the ACA, their monthly contribution would be $51 to $107. At 200 to 250% of the poverty level, the monthly contributions are $70 in Massachusetts and $107 to $171 under the ACA; at 250 to 300% of the poverty level, the contributions are $105 in Massachusetts and $171 to $242 under the ACA. The larger subsidies in Massachusetts would be expected to have a greater effect in inducing healthy people to obtain insurance than the ACA’s smaller subsidies — which suggests that mandating coverage might well play an even larger role in encouraging the healthy to participate in health insurance markets nationally than it has in Massachusetts.
By: Amitabh Chandra, Ph.D., Jonathan Gruber, Ph.D., and Robin McKnight, Ph.D.-New England Journal of Medicine | This article (10.1056/NEJMp1013067) was published on January 12, 2011, at NEJM.org.
Source Information
From the John F. Kennedy School of Government, Harvard University (A.C.), and the Massachusetts Institute of Technology (J.G.) — both in Cambridge, MA; and Wellesley College, Wellesley, MA (R.M.).
References
- Rosenbaum S, Gruber J. Buying health care, the individual mandate, and the Constitution. N Engl J Med 2010;363:401-403Full Text | Web of Science | Medline
- Goldman DP, Joyce GF, Escarce JJ, et al. Pharmacy benefits and the use of drugs by the chronically ill. JAMA 2004;291:2344-2350CrossRef | Web of Science | Medline
Pool Fools: Republicans Denounce Republican Health Care Plan
As pointed out by Jonathan Chait in his recent article in The New Republic on January 12, 2011, “When you combine the GOP’s intense opposition to Obama with its very weak commitment to any alternative policy architecture, you get this kind of wild, opportunistic flip-flopping”. Reference the following enlightening article by Timothy Noah:
Of all the arguments Republicans have been waging against Obamacare as the House of Representatives prepares to vote for its repeal, none is harder to take than their criticism of the federally subsidized high-risk pools the law created to provide immediate relief to the uninsured. In May, the House Republican Conference complained that these high-risk pools would be unfair to people currently enrolled in existing state-run risk pools because the latter group was paying higher premiums. In July, the House Republican Conference complained that implementation of this unfair federal program was being delayed. By January, the House Republican leadership was grousing (in a report titled Obamacare: A Budget-Busting, Job-Killing Health Care Law) that costs for this unfair-but-wrongly-delayed program were higher than expected even as participation in this unfair-but-wrongly-delayed-but-too-costly program was lower than it should be.
Republican health care policies, I noted not quite one year ago (“Pool Party“), typically segregate the healthy majority from the unhealthy minority in order to lower insurance premiums for the healthy. Never mind that that raises insurance premiums sky-high for the unhealthy. High-risk pools are the most efficient way to achieve such segregation and about the least efficient way to pay medical bills here on planet Earth. A health insurance pool consisting entirely of people too sick to qualify for private insurance is like a fire-insurance pool consisting entirely of pyromaniacs. The best that can be said for such groupings is that the hospitalizations (or the fires) probably won’t all happen in the same month. Health insurance high-risk-pool premiums are typically 125 percent to 200 percent above normal premiums, but even so, a government subsidy is typically required to cover costs.
Conservatives claim the problem is not the inherent contradiction in insurance pools consisting entirely of people who need lots and lots of health care, but rather in poor management by the Obama administration. The American Enterprise Institute’s Thomas P. Miller and the Ethics and Public Policy Center’s James Capretta have argued that the administration ought to narrow eligibility; increase the subsidy; and introduce “more effective incentives and tools for both patients and providers to make higher-value health care decisions,” i.e., pressure doctors and hospitals to lower costs and eliminate unnecessary procedures. But the first solution is preposterous in light of weak enrollment (in fairness, Miller and Capretta wrote before that became apparent); the second solution is perhaps necessary but expensive; and the third is a laudable goal that’s much more difficult to achieve with a sick population than with a healthy one. Taken together, these three solutions betray an extreme myopia about the inherent limitations on high-risk pools to begin with.
The poor performance of Obamacare’s high-risk pools aren’t an argument against Obamacare. They’re an argument in favor of it. High-risk pools are a Band-Aid to stanch a hemorrhage. Democrats don’t kid themselves that the Band-Aid will do much to stop the bleeding, which is why they don’t embrace it as a long-term solution. Republicans ought to stop pretending it can be one.
Original Article By: Timothy Noah-Slate, January 11, 2011
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