"In an effort to deny more than 30 million uninsured Americans health care coverage, 26 states have filed legal action against the Affordable Care Act which passed last year. But Republican demagoguery costs money and “the [lawsuit's] cost the states have split so far amounts to $46,000.” But Florida Republican Attorney General Pam Bondi has “paid less than $6,000″ for its lawsuit. Why? Because an anti-health care lobbying group is picking up the 26-state tab"
While dubbing itself “the Voice of Small Business,” NFIB has spent the past two years “yoking itself to the GOP” while simultaneously “jeopardizing billions of dollars in credit, tax benefits and other federal subsidies” at the expense of small businesses. Affiliated with both the U.S. Chamber of Commerce and the GOP “since the Reagan era,” NFIB “is run mostly by and for Republicans” and spent 93 percent of its campaign contributions on GOP candidates. It is no wonder, then, that NFIB is happy to pay to secure the top GOP priority and equally “delighted” to see the pay off.
"U.S. District Judge Gladys Kessler didn't just endorse the constitutional legitimacy of the Patient Protection and Affordable Care Act on Tuesday evening. She used her 64-page ruling to answer some of the most basic criticisms of the new federal health care law. And she was as blunt in its defense as two of her colleagues on the federal trial bench, in Florida and Virginia, have been in striking down the contentious measure."
[...]
In a footnote, Judge Kessler wrote: "To put it less analytically, and less charitably, those who choose -- and Plaintiffs have made such a deliberate choice -- not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep. In short, those who choose not to purchase health insurance will ultimately get a 'free ride' on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives."
By playing the "free ride" card, and by suggesting that those who do not purchase health insurance are making irresponsible choices that eventually harm others, Judge Kessler is reminding her readers that the dense legal issues involved in all of these cases have as their backdrop the nation's colossal health-care mess. The quote is a very pointed and unusual expression of official frustration (no wonder it's in a footnote) and it speaks not to the lawyers and the judges who will ultimately determine the fate of the new law, or to the politicians who created it in the first place, but to all the Americans out there who refuse to buy health insurance in the name of federalism and the 10th Amendment.
Then, later in her ruling, as if her initial point were not clear enough, Judge Kessler wrote: "It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting,' especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality."
Here we have a direct shot across the bow of the good ship Vinson, as in U.S. District Judge Roger Vinson, the Reagan appointee who last month tossed out the health-care law in its entirety. At the time, Judge Vinson wrote (PDF): "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be 'difficult to perceive any limitation on federal power.' and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended"
Expanded Medicare for All - Single Payer, would have been so much easier - and cheaper....
Peter Shumlin, the newly elected governor of Vermont, has a plan for health-care reform: Rather than repeal it, he wants to supercharge it. His state will set up an exchange, and then, as soon as possible, apply for a waiver that allows it to turn the program into a single-payer system. You can read a summary of the plan here (Word file). I spoke with Shumlin this morning, and a lightly edited transcript of our conversation follows.
Ezra Klein: The report (PDF) prepared by Dr. William Hsiao offered three options for Vermont: single payer, a strong public option and a form of private-public single payer. My understanding is that you're backing the third option. What separates it from a traditional single-payer system?
Peter Shumlin: Single payer means something different to everyone. The way I define it is that health care is a right and not a privilege. It follows the individual and not the employer. And it’s publicly financed. The only difference between single-payer one and single-payer three in Hsiao's report is that in single-payer three, the actual adjudication of payment is contracted to an existing insurance entity. So the state doesn't have to set up a new bureaucracy to run it. His modeling suggests that’d be more economical. It's a minute difference.
EK: And why go to a single-payer system at all?
PS: In Vermont, this is all about cost containment. There are 625,000 people in Vermont. We were spending $2.5 billion on health care a decade ago. Now we’re above $5 billion. And we project we’ll be spending a billion dollars more in 2014. This is where everyone has failed in health-care reform. And this will go after three of our main drivers of costs.
First, Vermont spends 8 cents on every dollar on administrative costs, just chasing the money around. That’s a huge waste of money. Second, we’ll use technology to conquer waste. You'll get a Vermont medical card, and everyone’s medical records will be on that card, so you’ll go into a doctor’s office and they’ll know what the last doctor did to you. That helps avoid duplication of services. And the last piece, the most challenging, is remaking the payment system so providers are paid for making you healthy, not for doing the most procedures.
EK: Single-payer systems often lose on the ballot and in the legislature. No state has successfully managed to pass one into law, much less implement it. And the objection that usually stands in the way of these projects is that I'm happy with my health-care insurance, and I don't trust the government to create something new and put me into it. How do you answer that?
PS: I suspect I’m the only politician in America who won an election in this last cycle with TV ads saying I was going to try to pass the first single-payer system in America. This election was a confirmation of my judgment that Vermonters are tired of enriching pharmaceutical companies and insurers and medical equipment makers at the expense of their family members. The reality in Vermont is that there are not very many Vermonters who are happy with the current system. We’re losing our rural providers. Our small hospitals are struggling. And Vermonters are lowering their coverage and paying more and more for it.
EK: How will the funding work? Right now, a lot of money comes from employers. What happens to their share?
PS: Where health care has failed is in designing a cost containment mechanism that works. That’s the really hard part of our job. So I’m asking us to spend the next 12 months designing the tools for cost containment. Once we do, we'll figure out how to structure the way we pay for it.
EK: One of the things you asked of Dr. Hsiao was to preserve provider incomes. How can you do that while cutting costs? At some point, doesn't lower spending also mean fewer doctors or hospitals or lower incomes?
PS: The reason Vermont has the opportunity to be the lab for a different kind of change is that we don’t have a lot of high-paid physicians in Vermont. We have a lot of low-paid physicians. We have rural providers who’re making less than they did when they graduated from medical school. Our cost driver is not that we have a lot of physicians running around in Mercedes-Benzes. It’s waste in the system.
EK: How will this interact with other systems? Let's say I have Kaiser Permanente. I come to Vermont and break my leg. What happens?
PS: Nothing different than what happens right now. You’d go to one of our providers' offices, and they’d bill Kaiser for that one. No different than if you break a leg in France or Switzerland. Radical as this seems to Americans, the rest of the world has figured this out and gotten it right. We keep getting it wrong, and we’re paying for it.
An effort spearheaded by Republicans to repeal the new health care law collapsed Wednesday evening after the Senate refused to ignore its adverse impact on the deficit.
By a vote of 47-51, the Senate sustained an objection to the legislation on the grounds that it does not comply with congressional budget rules. Because a full repeal of the law is projected to increase the deficit, waiving that point of order would have required 60 votes.
But even if Democrats had allowed a straight up or down vote on the amendment, it likely would have failed. No Democrats voted with the GOP to remove the objection, giving them fewer than the 51 they'd need to successfully repeal it. Republicans -- and, really, everyone else -- have been expecting this outcome for months. And while this blunts their head-on efforts at repeal, they've always expected that their best chances to destroy or chip away at the law will come either via the courts, spending bills or amendments to the law meant to weaken it.
One such effort, driven by Sens. Lindsey Graham (R-SC) and John Barrasso (R-WY) would allow states to opt out of the law's key provisions, which, they say, would cause the overall policy to collapse.
Top Democrats have suggested that if Republicans keep forcing votes on full repeal, they'll put the legislation on the floor, and during the debate, force votes on amendments to exempt popular aspects of the law.
Two days after a Republican Florida federal court judge voided the entire health care law, the multi-front Republican war against it continues in the Senate, where members will vote today on whether or not to just repeal it, full stop.
Simultaneously, Republican members are trying to sneak grenades into the heart of the law, crafting modifications which they admit are meant to destroy it.
But that presents them with a conundrum when they head back to their states and districts and face constituents who stand to benefit from the law right now -- seniors who are entitled to free checkups, and young adults, who can now stay on their parents' insurance until they turn 26, for example. Republicans can chose to help those constituents navigate the law -- answer their questions constructively, encourage them to seek those benefits -- or they can let their political agendas interfere.
On Monday, Judge Roger Vinson issued a ruling in a case challenging the constitutionality of the Affordable Care Act. The ruling comes after legal action in cases regarding the law in courts across the country. Twelve federal judges have already dismissed challenges to the constitutionality of the health reform law. Two federal judges – in the Eastern District of Michigan and Western District of Virginia – have fully upheld the law, and one federal judge in the Eastern District of Virginia ruled against the individual responsibility provision but declined to bar full, continuing implementation.
The decision issued on Monday is one district court decision, and we believe it to be very wrong. The Department of Justice has made clear that it is reviewing all of its options in responding to this case, as it does in all cases. Implementation will continue.
Legal experts agree with our assessment of Judge Vinson’s ruling. Here’s what they are saying about the ruling and the case:
“The ACA and its accompanying incentives to buy insurance overcome a collective action problem among states. Thus, the ACA is easily distinguished from the court's parade of broccoli horribles; even if one thought that the federal government should deal only with uniquely national problems, the ACA easily meets that standard.”
“The issue that the court has ruled on has been specifically contradicted by two other district courts. So, the idea that the Obama administration should somehow stand down from implementing the act, based on a fourth district court, doesn't have any basis in law.”
“Consider the following train wreck of Necessary & Proper reasoning contained in Judge Vinson's opinion striking down the individual mandate:
• It is a legitimate end for Congress to regulate the insurance industry to prevent "insurers from excluding or charging higher rates to people with pre-existing conditions" (pages 60-61);
• The Individual Mandate in the ACA is "necessary" to enable Congress to regulate the insurance industry in this manner (page 63). Yet...
• "[T]he individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."
Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end? Judge Vinson never presents even the simulacrum of an argument: Instead, he engages in hand-waving.”
“I think Judge Vinson’s argument on the Necessary and Proper Clause is not persuasive…Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.”
“Judge Vjavascript:void(0)inson appeared to base the total nonseverability decision partly on what he took to be Congressional intent.… Judge Vinson's approach ought to be especially unappealing to the Supreme Court's “textualists,” who don't even like to speculate about what Congress subjectively intended by the language it enacted. How much worse it should be to speculate about what Congress might have done if it had known that a provision it enacted would subsequently be found invalid.”
Steve Benen takes a look at some of the media coverage of the four key rulings on the Affordable Care Act, and finds that the two rulings pronouncing the law unconstitutional received far more attention than the two upholding it.
Four federal district courts have heard challenges testing the constitutionality of the Affordable Care Act. Two judges concluded the law is legally permissible, two came to the opposite conclusion.
But it occurs to me the public has heard quite a bit more about the latter than the former. Indeed, it seems as if the media largely ignored court rulings that bolstered the arguments of health care reform proponents, while making a very big deal about rulings celebrated by conservatives.
Washington Post
* Steeh ruling (pro-reform): A2, 607 words
* Moon ruling (pro-reform): B5, 507 words
* Hudson ruling (anti-reform): A1, 1624 words
* Vinson ruling (anti-reform): A1, 1176 words
New York Times
* Steeh ruling (pro-reform): A15, 416 words
* Moon ruling (pro-reform): A24, 335 words
* Hudson ruling (anti-reform): A1, 1320 words
* Vinson ruling (anti-reform): A1, 1192 words
Associated Press
* Steeh ruling (pro-reform): one story, 474 words
* Moon ruling (pro-reform): one story, 375 words
* Hudson ruling (anti-reform): one story, 915 words
* Vinson ruling (anti-reform): one story, 1164 words
Politico
* Steeh ruling (pro-reform): one story, 830 words
* Moon ruling (pro-reform): one story, 535 words
* Hudson ruling (anti-reform): three stories, 2734 words
* Vinson ruling (anti-reform): four stories, 3437 words
NYU law professor Rick Hills finds what looks like another gaping hole in Judge Vinson's ruling yesterday that the individual mandate -- and by extension the entire Affordable Care Act -- is unconstitutional.
Judge Vinson writes on page 62 of the ruling that the goal of "excluding or charging higher rates to people with pre-existing conditions" is clearly "legitimate" and "within the scope of the Constitution." He clarifies this by indicating that the means to that end must not be inconsistent with the "spirit" of the Constitution. But that end, he says, is valid.
Then, on page 63, Vinson writes that the defendants are right to assert that the individual mandate is "necessary" and "essential" to realizing that same end.
And yet, Vinson then goes on to conclude that "the individual mandate falls outside the boundary of Congress' Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."
Which prompts this rejoinder from Professor Hill:
Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end?
Now, in case you're tempted to dismiss this argument as coming from a pointy-headed east coast liberal professor, please note that conservative legal writer Orin Kerr has reached a similar conclusion about this part of Vinson's decision.
Kerr argues that there's nothing in Supreme Court caselaw that justifies Vinson's conclusion that the individual mandate falls "outside the boundary" of the commerce clause, and bluntly characterizes Vinson's argument here as the "weak link" in his decision.
UPDATE, 3:03 p.m.: Let me try to be a bit clearer about Kerr's argument. He's saying that Vinson's contention that the means (the mandate) to a legitimate end is outside the boundary of the commerce clause, and therefore not legitimate, is based on "first principles," and not on existing Supreme Court caselaw.
That seems to dovetail with Professor Hill's argument: That Vinson's contention that the mandate is not legitimate, even though it's necessary to accomplish a constitutionally legitimate end, is wholly arbitrary.
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.
"Despite spending more than twice as much as other developed countries, the United States still lags behind in terms of access and quality, an international survey said Wednesday," Agence France-Presse reports. The Health Affairs study, which was based on survey responses from thousands of primary care physicians, also found that people in the United States were more likely to struggle to gain access to or pay for treatment than patients in 10 other countries evaluated because of insurance restrictions and high health care costs. "The United States is the only industrialized democracy that does not ensure that all of its citizens have health care coverage, with an estimated 36 million Americans uninsured," the French news agency reports (11/5).
The Seattle Post Intelligencer's travel writer shares the views of some residents of other developed countries on their native health systems. A person from Sweden – one of the countries covered in the Health Affairs survey – says, "The health and medical services have an obligation to strengthen the situation of the patient, for example, by providing individually tailored information, freedom to choose between treatment options, and the right to a second opinion in cases of life-threatening or other particularly serious diseases or injuries. Having lived here all my life and raised my family here in Stockholm, I honestly do not see anything bad with our health care system" (Steves, 11/4).
By taking anti-AIDS medicine after a rape, Christina Turner discovered that she had made herself all but uninsurable.
Christina Turner feared that she might have been sexually assaulted after two men slipped her a knockout drug. She thought she was taking proper precautions when her doctor prescribed a month's worth of anti-AIDS medicine.
Only later did she learn that she had made herself all but uninsurable.
Canadian Health Care, Even With Queues, Bests U.S.
Opponents of overhauling U.S. health care argue that Canada shows what happens when government gets involved in medicine, saying the country is plagued by inferior treatment, rationing and months-long queues.
The allegations are wrong by almost every measure, according to research by the Organization for Economic Cooperation and Development and other independent studies published during the past five years. While delays do occur for non-emergency procedures, data indicate that Canada’s system of universal health coverage provides care as good as in the U.S., at a cost 47 percent less for each person.
“There is an image of Canadians flooding across the border to get care,” said Donald Berwick, a Harvard University health- policy specialist and pediatrician who heads the Boston-based nonprofit Institute for Healthcare Improvement. “That’s just not the case. The public in Canada is far more satisfied with the system than they are in the U.S. and health care is at least as good, with much more contained costs.”
Canadians live two to three years longer than Americans and are as likely to survive heart attacks, childhood leukemia, and breast and cervical cancer, according to the OECD, the Paris- based coalition of 30 industrialized nations.
Deaths considered preventable through health care are less frequent in Canada than in the U.S., according to a January 2008 report in the journal Health Affairs. In the study by British researchers, Canada placed sixth among 19 countries surveyed, with 77 deaths for every 100,000 people. That compared with the last-place finish of the U.S., with 110 deaths.
Representative Dennis Kucinich ask executives from six of the largest health insurance companies if denial of insurance claims can be fatal. Watch them answer:
From the academic side, here's the most common diagnosis for the high price of U.S. health care: a highly complex and fragmented payment system that weakens the demand for health care and has high administrative costs that don't improve anyone's health.
No. 37 is where the United States' health status was ranked by the World Health Organization. Here's how U.S. health care stacks up in other ways (in most recent statistics available):
No. 1 in total health costs as a percentage of gross domestic product.
$878 per person spent on pharmaceuticals -- the most among the world's 30 largest economies.
2.4 practicing physicians per 1,000 people in the United States. Countries with fewer physicians per 1,000 are Canada, Japan, Mexico, New Zealand, Poland, South Korea and Turkey.
3.1 hospital beds per 1,000 people -- the fewest beds per 1,000 among the world's 30 largest economies, except for Mexico, where there are 1.7 beds per 1,000.
34.3 percent of Americans are obese (with a body mass index of 30 or higher), the most of any developed country.
25.9 magnetic resonance imaging units per million people makes the United States No. 1 among the world's largest economies. The United Kingdom, in contrast, has about one third the number of the U.S.
84.5 coronary bypasses per 100,000 people makes the U.S. the second most bypassed among developed nations, topped by Germany which has 131.8 bypasses for every 100,000 people.
15.4 percent of the U.S. population are daily smokers -- the second smallest percentage among the world's 30 largest economies (only the Swedes smoke less).
The most important health-care document released this week was not Sen. Max Baucus's Healthy Future Act. It was the Kaiser Family Foundation's 2009 Employer Benefits Survey.
While the proposal by Baucus, chairman of the Senate Finance Committee, outlines a direction for policy, the survey, which polls employers about health benefits to assemble a detailed look at the actual cost of health care, fits it squarely in our pocketbooks.
The truth is we all pay, and much more than we recognize, for health care.
For many, it's among the largest investments we'll make, on par, even, with the money we spend on a house or tuck away for retirement. But while it's easy to track our stock portfolios as they tank along with the market, our outlay for health care is less obvious. Employers pay some, and so do individuals, and taxpayers. And some even hides behind the deficit. As such, few of us see the full picture. But to make sense of the proposals for reform, getting a grasp of the cost is critical.
The average health-care coverage for the average family now costs $13,375, according to Kaiser. Over the past decade, premiums have increased by 138 percent. And if the trend continues, by 2019 the average family plan will cost $30,083.
Three years of slightly above-average health insurance will cost a solid six figures.
Those are numbers to marvel at. Those are numbers to fear. But they are not the numbers that loom in the minds of most Americans. And therein lies the problem for health-care reform.
About 160 million Americans receive health coverage through their employers. In general, the employer picks up 73 percent of the tab. This seems like a good deal. In reality, that money comes out of wages.
As Ezekiel Emanuel, who advises Office of Management and Budget Director Peter Orszag on health-care policy, has pointed out, health-care premiums have risen by 300 percent over the past 30 years (and that's after adjusting for inflation). Corporate profit per employee has soared by 200 percent. Hourly earnings for workers, adjusted for inflation, have fallen. The wage increases have been consumed by health-care costs.
Another 80 million Americans are on public plans, mainly Medicare and Medicaid. Those costs are paid by taxpayers. And about 46 million Americans are uninsured. The costs for their care are shifted to the insured: This raises premiums for the average family by $1,100 each year, according to an analysis by Ben Furnas and Peter Harbage of the Center for American Progress.
Imagine if people who touched a hot stove felt only a small fraction of the pain from the burn. That's pretty much what's happening in our health-care system. It hurts enough that we would prefer it to stop, but the urgency is lost.
For people like me, who see universal coverage as a moral and economic imperative, and who think nuance, detail, and pragmatics matter, T. R. Reid’s "the Healing of America" is required reading, imo. In analyzing the different health systems of the world, Reid digs below the rhetoric and into the substance. In the process, he obliterates common myths held by Americans about other delivery systems, while also showing that all models carry unique problems. The big takeaway is that the U.S. should learn from this reality and adopt an approach that’s consistent with our needs.
So it’s clear there’s a lot of variety out there, and the blanket "socialist" label neglects the fact that typical systems include a mix of public and private entities. Further, we shouldn’t arrogantly assume that nothing works in other countries; the truth is that other industrialized systems cover everybody for much less than we spend, and their populations are healthier overall as a result. That doesn’t mean the U.S. should emulate entire frameworks -- it’s more that we should learn about what works, and make smart decisions here with that knowledge.
For instance, we spend 30 for 40% on healthcare administration, while France and Taiwan keep it near 5%, largely through standardized electronic record-keeping and "smart" cards that centralize patient history. Why wouldn't we want to mimic that (assuming privacy is protected)? Great Britain religiously focuses on prevention to keep costs down. Why shouldn't we create a public option based on the "medical home" model to do the same (rewarding quality, not quantity and churn)? If it works -- there are already smaller-scale success stories in the U.S. -- Medicare will also adopt it, generating massive cost savings. And private insurers might follow suit as well.
Republicans in Congress have raised the specter of a bloated, "socialized," bureaucrat-run nightmare of a health care system as a means of undermining the White House's effort at a systematic overhaul. And yet, as Democratic sources are now pointing out, when medical crisis hit close to home, many of these same officials turned to a government-run hospital for their own intensive care and difficult surgeries.
Also known as Bethesda Naval Hospital, the National Naval Medical Center is the premier branch of the United States Navy's system of medical centers -- as in, the government runs it. It's also the place where elected officials of all ideological stripes and political branches often go get surgery performed. Indeed, members of Congress pay an annual fee for the privilege of getting treatment at Bethesda Naval Hospital or, for that matter, Walter Reed Army Medical Center. It is, as longtime Democrat Martin Frost wrote for Politico, "like belonging to an HMO." Only, in these cases, the surgery is conducted at a public facility.
None of this has stopped some of the same officials who have taken advantage of this congressional perk from railing against the intrusiveness and inefficiencies of a health care system with greater government involvement.
But conservatives have long used the notion of "socialized medicine" to defeat health care reform efforts -- even though when it comes to the flagship Naval Hospital just miles away, the worries about bureaucratic nightmares, low quality care, and long lines seem to be wiped away.
In the spirit of truth, my friend Matte Black (@Shoq on Twitter) and his brother took their video camera to Canada on vacation to interview Canadians about their health care system. When we talked about it, I asked him to try to get negative views with specifics for balance. Here is the result. It has been edited for brevity, but the negative views were not removed, because there were none. He could not find one Canadian who thought they should kill the system. These are everyday people. They have no agenda at all other than being patriotic Canadians.
