Health Care Reform Update

Posted: April 9, 2012 in Uncategorized
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The House of Representatives in House Resolution 591 voted 223-181 to repeal the Independent Payment Advisory Board (IPAB) for Medicare, and to restrict medical malpractice lawsuits. The measure is known as H.R.5, the Protecting Access to Healthcare Act, and is sponsored by Rep. Phil Gingrey, MD (R-GA). It would eliminate the IPAB, the 15-member independent panel created under the Affordable Care Act (ACA). If ultimately left in place starting in 2015, the IPAB would be tasked with making binding recommendations on how to reduce Medicare spending. If Congress doesn't agree with the recommended cuts, it would be required to pass its own cuts of the same size. But Republicans, along with some Democrats, oppose the concept, saying it would lead to rationing of medical care. The Obama Administration has noted that under the law, the IPAB is prohibited from recommending changes to Medicare that ration health care, restrict benefits, modify eligibility, increase cost-sharing, or raise premiums or revenues. A review of the IPAB powers makes it clear that Americans should be most concerned. Some of these powers include
 Rationing health care. IPAB is required to achieve specified savings in years where Medicare spending is deemed “too high. The Board is also specifically tasked with cutting provider rates even further than the current proposed annual cuts which will reduce the number of providers willing to participate in Medicare and subsequently make it harder for seniors to obtain care.
 Medicare Trust Fund foots the bill for the IPAB. This means that IPAB’s member salaries ($165,300 for members and $179,700 for IPAB’s chairperson in 2012) will be paid directly out of the trust funds used to pay Medicare beneficiaries’ health care claims. IPAB staff will also be paid out of the Medicare trust funds (up to $145,700 per employee in 2012). So will all travel expenses and stipends.
 Ability to operate in secret. There is no requirement in the 2,200+ page health care law that requires IPAB to hold public meetings or hearings, consider public input on its proposals, or make its deliberations open to the public.
 The authority to accept, use, and dispose of gifts or donations of services or property. This provides a not so subtle invitation for lobbyists to lavish the unelected and unaccountable IPAB members with cash, meals, cars, vacations, or even houses.
Several prominent Democrats voiced support for the IPAB repeal earlier in the month, including Rep. Frank Pallone of New Jersey and Rep. Allyson Schwartz of Pennsylvania, who also authored legislation to repeal the sustainable growth rate (SGR) formula for physician reimbursement under Medicare. However, after House Republicans added a provision to the IPAB bill that limited the amounts of damages awarded in medical malpractice lawsuits to $250,000, Democratic support appeared to disappear. Historically, Democrats (including President Obama) oppose caps on medical malpractice lawsuits. Republicans said the malpractice cap would discourage frivolous lawsuits against doctors and hospitals. The American Medical Association (AMA), which supports the ACA as a whole but opposes the IPAB, praised the House vote.
Ways and Means Committee Chairman Dave Camp’s remarks to the House on 21 MAR prior to the vote pointed out that IPAB, as it is commonly known, is a dangerous new government agency made up of unelected bureaucrats who can meet in total secrecy to decide what seniors will pay and what health care services will be available to seniors. This unaccountable board has but one objective – to save money by restricting access to health care for Medicare beneficiaries. Nearly two years since its passage, the PPACA remains deeply unpopular, with an Associated Press poll recently revealing that nearly half of the American people oppose the law. IPAB, which is a critical component of the law, illustrates why those concerns are still so strong. A separate poll confirms that opposition far outweighs support with:
 Seventy-three percent expressed concern that Medicare cuts recommended by IPAB could go into effect without Congressional approval, even if IPAB's recommendations overturn a law previously passed by Congress;
 Seventy-one percent expressed concern that changes made to Medicare based on IPAB's recommendations cannot be challenged in court; and
 •Sixty-seven percent worry that IPAB could choose to limit which specific health services are covered by Medicare.
Camp said The American people have every reason to be worried. We should be protecting and empowering our seniors, not jeopardizing their access to health care. Yet IPAB removes seniors, physicians and families from the decision-making process about how to best meet their health care needs. Instead of giving seniors more choices, these unelected bureaucrats will take away choices from patients, doctors and families. This “government knows best” approach is why Americans across the country support repeal – and it is also why there is strong bipartisan support here in Congress to repeal IPAB. When the Ways and Means Committee considered this legislation, we received numerous letters from groups across the nation representing employers, patients, doctors and health care professionals who voiced strong support for IPAB repeal. The groups span across the political spectrum and include Easter Seals, the Alliance of Specialty Medicine, the Veterans Health Council, Freedomworks and Americans for Tax Reform. In total, over 390 groups have signed letters asking that Congress repeal IPAB and I ask unanimous consent that these letters be submitted into the record. America’s seniors deserve better. Without reform, the Medicare Trustees have said that Medicare will soon go broke and not be able to provide the benefits seniors rely on. With more and more Americans becoming eligible for Medicare each day, no time is more urgent than now to secure the future of beneficiaries’ access to care. IPAB does just the opposite – it threatens seniors’ access to health care – and that is why it must be repealed.
Unfortunately, the bill is likely dead on arrival in the Senate, and the White House threatened to veto the bill if it does pass the Senate. Obama has called the IPAB a crucial component for restraining the growing cost of Medicare. [Source: MedPage Today Take Posttest & NAUS Action alert articles 22 Mar 2012 ++]

 

The Supreme Court scheduled three days of hearings on the landmark healthcare reform law. On 25 MAR it heard arguments on the Anti-Injunction Act, which prohibits a lawsuit from being brought over a particular tax until that tax actually takes effect. The second day of oral arguments centered on the minimum coverage provision — commonly known as the individual mandate. Conservative justices hurled sharp questions at the government lawyer defending the Affordable Care Act (ACA). Oral arguments centered on the minimum coverage provision which is the ACA's requirement that nearly every U.S. citizen have health insurance or else pay a penalty. It's the most contentious and arguably the most important provision in the entire law. Opponents of the law — including the 26 states who are suing the Obama administration over the ACA — say it's a violation of the Commerce Clause of the Constitution to require people to engage in the commerce of healthcare, especially because they are penalized for not participating in commerce. That penalty, opponents say, amounts to regulating inactivity rather than activity. Penalizing someone for inactivity in a particular stream of commerce would be unprecedented, Paul Clement, former George W. Bush administration solicitor general, argued on behalf of the 26 states.
U.S. Solicitor General Donald B. Verrilli argued on behalf of the government that U.S. citizens can never truly stay out of the commerce of healthcare because, at some point, everyone is going to need medical treatment. Thus, not purchasing insurance isn't inactivity, because everyone will participate in the commerce of healthcare eventually. And when that time comes, if the person in question is uninsured and can't pay for his or her treatment, others will absorb the cost of their care in the form of higher premiums. But some justices didn't seem to accept that idea. “It may well be that everybody needs healthcare sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant,” said Justice Antonin Scalia, who's expected to be a reliable vote against the law. He was referring to a provision in the law that sets a minimum for what insurance plans must cover. Under that minimum coverage template a young healthy person who currently doesn't have insurance would be forced to buy a plan that covers organ transplants, prenatal care, and other medical services that person may never use. Chief Justice John Roberts seemed to agree with that point, adding that: “Not everyone is going to need pediatric or maternity care, but you're requiring them to purchase that.”
Scalia also said that if Congress could tell people it had to buy insurance, then it could essentially tell them they had to buy anything, including broccoli or gym memberships.
Verrilli argued that the law doesn't make people buy health insurance for the sake of buying something and spurring commerce (as forcing everyone to buy broccoli would). That would be illegal because Congress cannot pass a law to force commerce, only to regulate existing commerce. Rather, the law is a means of financing something that everyone already uses — healthcare. “You're not regulating healthcare,” Scalia responded. “You're regulating insurance. It's the insurance market that you're addressing and you're saying that some people who are not in it must be in it, and that's — that's different from regulating in any manner commerce that already exists out there.” The more left-leaning justices — Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg — largely asked questions that indicated their support of the law. Ginsburg even seemed to try and guide Verrilli back to the administration's main arguments several times. “I thought what was unique about this is it's not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don't buy the product sooner rather than later,” Ginsburg said. Without the mandate, many people would not buy insurance (as happens now) or would wait to buy insurance until they are sick, mandate supporters argue.
Supreme Court observers have generally predicted that the final vote will be 5-4 in favor of the law, with Justice Anthony Kennedy siding with the court's four most liberal justices. However, Kennedy asked questions to both sides Tuesday that indicated he was perhaps undecided, including asking repeated questions about how requiring the purchase of health insurance differs from requiring people to purchase other goods. “I'd say this morning he looked like he had serious questions, maybe not on the whole law, but at least on the constitutionality of the mandate,” said Rep. Michael Burgess, MD (R-Texas), who was in the courtroom for Tuesday's arguments. On the other hand, Burgess also said he was a “little startled” by some of the questions asked by Roberts, who he figured would come down solidly against the individual mandate. Roberts pointed out several times that the healthcare market differs from other markets because everyone will need healthcare at some point. Walter Dellinger, who was solicitor general under President Bill Clinton said that he didn't think Kennedy or Roberts gave a strong indication of how they were going to vote. “It's going to be a little closer than I thought,” Dellinger said. But he added, “I think the government's going to win.” [Source: MedPage Today Emily P. Walker article 27 Mar 2012 ++]

The Supreme Court justices seemed to be at odds over whether the entire Affordable Care Act (ACA) would have to be scrapped if the court rules that the law's individual mandate provision is unconstitutional. The last day of oral arguments on the healthcare reform law centered on what should happen if the law's provision that requires everyone to have health insurance starting in 2014 is found to violate the Constitution — a question often referred to as the "severability" of the mandate.
The Obama administration argues that if the mandate were struck down, the bulk of the law should be allowed to stand. "Isn't a half of loaf [of bread] better than no loaf?" asked Justice Elena Kagan, questioning whether it would be wise to ditch the sweeping healthcare reform law wholesale — including the law's noncontroversial provisions — just because one piece may have to be removed. No, said Paul Clement, the lawyer for the 26 states that are suing the federal government over the law. Sometimes no loaf is indeed better than a half of loaf, he said. In the case of the ACA, the mandate is too integral to the overall survival of the whole law. "If individual mandate is unconstitutional, then the rest of the law cannot stand," Clement argued to the justices Wednesday morning. "If you don't have the individual mandate to force people into the market, premiums will skyrocket." Clement suggested if the mandate is struck down, the whole law should be overturned and Congress can then work to rebuild the parts it wants, piece by piece. Keeping bits and pieces of the law intact is politically complicated and it takes too much work to try and meld the remaining pieces into a policy that works, he argued. The line of questions from left-leaning justices seemed to indicate they disagreed that no part of the law could function absent a requirement that everyone is insured.
 "It's a choice between a wrecking operation and a salvage job," said Justice Ruth Bader Ginsburg. "Wouldn't a salvage job be better?"
 Justice Stephen Breyer agreed and said his "totally off-the-cuff impression" was that it didn't seem necessary to scrap provisions in the ACA that related to disease prevention, biosimilars, or giving doctors incentives to practice in underserved areas, for instance.
Deputy Solicitor General Edwin Kneedler, arguing on behalf of the Obama administration, argued that two key provisions of the law – requiring insurance companies to cover all patients, including those with preexisting medical conditions and not charging higher premiums based on a person's medical history – could not work without the mandate, but that the rest of the law should stand.
 Kneedler argued that if the mandate is found to be unconstitutional, the law should remain largely intact, and Congress could decide how it wanted to change the existing law.
 Justice Anthony Kennedy said it would be "an extreme exercise of judicial power" if "one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended." He suggested it would be less extreme to strike the whole law.
 Justice Antonin Scalia pointed out the political ramifications of sending a law with its "guts" cut out back to Congress. Many provisions in the law were added by congressional leadership in order to gain votes of individual members of Congress. Without the main part of the law — the individual mandate — "who knows which of them were really desired by Congress … and which ones weren't," he said.
Because no side took the position that just the mandate should be severed, the Supreme Court appointed an outside lawyer — H. Bartow Farr — to argue that position. Farr said there are enough other incentives in the ACA to get insurance that every other provision in the law could stand if the mandate is struck down. The court is expected to rule on the case in June. The court closed out its 3 days' oral arguments on the healthcare reform law on Wednesday afternoon, when it heard arguments on the ACA's expansion of Medicaid. Wednesday's arguments were notably less feisty than Tuesday's arguments, which centered on the most contentious issue of the case: the individual mandate. On Monday the court heard arguments on whether a tax law called the Anti-Injunction Act should prevent the Supreme Court from issuing a decision on the case this year. [Source: MedPage Today Emily P. Walker article 28 Mar 2012 ++]

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