And What Happens If The Individual Mandate is Struck Down

Roger Collier

First posted 8/22/11 on Health Care Reform Update

An alarming article in Politico.com looks at what could happen if the Supreme Court determines that the Affordable Care Act’s individual mandate provision is unconstitutional—something that the current conservative leaning of the Court seems to indicate is somewhat more likely than not.

Assuming that such a possible decision by the Court follows that of the Eleventh Circuit Court of Appeals in ruling that the mandate is unconstitutional but the remainder of the ACA may stand, the Politico.com article anticipates some potentially disastrous consequences.

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Attacks on IPAB Gather Strength – And Waste Energy

Roger Collier

First posted 8/15/11 on Health Care Reform Update

The Washington Post reports that the Affordable Care Act’s Independent Payment Advisory Board, intended to constrain Medicare spending increases, is under increasing pressure from Republicans, health care lobbyists—and a significant number of Democrats.

As specified by the ACA, the IPAB will consist of fifteen health care “experts” to be appointed by the president and confirmed by the Senate, with authority to make cuts to Medicare if spending exceeds specified targets, starting in 2015. Congress could overrule the panel, but only by mustering a super-majority in the Senate or by creating an alternate plan to save the same amount.

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Interpreting the Draft Health Insurance Exchange Regulations

Roger Collier

First posted 7/31/11 on Health Care Reform Update

The Obama administration’s progress—with just a few stumbles—towards health care reform implementation took another major step this month. In a carefully chosen small business setting—a Washington DC hardware store—HHS Secretary Kathleen Sibelius released draft regulations for the health benefit exchanges called for by the Affordable Care Act.

The exchanges, required to be established for every state, are predicted to serve some 24 million consumers by 2019 (provided that the ACA is neither significantly changed nor found unconstitutional), with the majority receiving federal subsidies to help pay for coverage. So far, a dozen states have enacted bills to create exchanges, while in nine states such legislation has failed.

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Letting Go of Employer-Based Health Insurance

Jeff Goldsmith

First posted 7/22/11 on the Health Affairs Blog

Copyright ©2011 Health Affairs by Project HOPE – The People-to-People Health Foundation, Inc.

Other than the egg-laying exercise surrounding the ACO regulations, 2011 was a quiet year among Washington health policy experts until June 6 when McKinsey released the results ofa survey of employer plans under the Affordable Care Act. The McKinsey study found that roughly 30 percent of employers were considering dropping their employee insurance coverage and encouraging their employees to receive federally subsidized health insurance through the Exchanges created in the Affordable Care Act. This compared to low- to mid-single digit estimated drop rates based upon economic modeling by the Urban InstituteLewin and, importantly, the Congressional Budget Office (CBO).

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It’s Not Just About The Money: Cost Control in Cancer Care

Harold Pollack

First published 7/17/11 on Kaiser Health News

Health reform raises central ideological questions about the size and scope of government, about progressive taxation, about the individual mandate and more. It’s easy to forget that cost control will be a huge challenge, no matter how these ideological matters are resolved, indeed under any health system. Finding the right combination of humanity and restraint will be particularly hard in addressing life-threatening or life-ending illness. Economic incentives, American culture, a changing doctor-patient relationship and fundamental uncertainties at the boundaries of clinical care conspire against our efforts to provide more humane, more financially prudent care.

Health Insurance Exchange Regs Are Out, And They Make Me Feel Like A Visitor From The Future

David Harlow

First posted 7/12/11 on Health Blawg

Health Insurance Exchange regulations were released by HHS yesterday — in a DC hardware store, for local color and homespun truths — with a go-live date of January 1, 2014, per the Affordable Care Act, and a key interim approval deadline of January 1, 2013, by which date each state needs to demonstrate that it has its act together and are on a glide path to the go-live date.  Despite the rancorous opposition to the ACA (consider, for example, the views of the Virginia Attorney General — who is leading a multi-state charge against the individual mandate — expressed at the American Health Lawyers Association Annual Meeting last month, where he was an invited keynote speaker, and later tweeted a tone-deaf assessment of the audience and an unkind skewering of a questioner who didn’t share his perspective), 49 states, D.C. and four territories have accepted health insurance exchange planning grants.  Thus, it seems unlikely (for now) that the federales will have to make use of the “Do I have to do everything for you?” clause which would allow HHS to step in and set up an exchange for a state.

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Obama Administration Wins First ACA Appeals Round

Roger Collier

First posted 6/30/11 on Health Care Reform Update.

The first of three anticipated federal Courts of Appeals decisions on the constitutionality of the Affordable Care Act was handed down yesterday by a Sixth Circuit panel in Cincinnati—and it was a win for the Obama administration.

The three judge panel ruled two to one against an appeal by the conservative Thomas More Law Center of an earlier federal District Court finding that the ACA does not violate the Constitution. The ruling was especially notable as the first in which a Republican judicial appointee supported the constitutionality of the ACA’s individual mandate.
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The Appeals Court’s Decision

Allen Bradford

From the start, I have believed and have said, publicly and privately, that the U.S. Supreme Court’s eventual ruling on the constitutionality of the Affordable Care Act’s individual mandate could be forecast with an eye on political leanings at least as much as legal analyses.  Specifically, I have predicted that because 5 members of the 9 member Supreme Court were Republican appointees, it is more likely than not that the individual mandate would be nullified as an unconstitutional exercise of Congressional power.

The 6th Circuit U.S. Court of Appeals yesterday issued a decision that throws my presumption and therefore my prediction into serious doubt. Not only because 2 or the 3 Appellate judges upheld the individual mandate.  But because of the powerful concurring opinion written by Judge Jeffrey Sutton, a once controversial appointee of President George W. Bush.

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About That McKinsey Report…The Critics Were Right

Jonathan Cohn

First published 6/23/11 on Kaiser Health News

McKinsey and Company has finally released the details of its controversial paper on the likely effects of health care reform. And it looks like the paper’s critics (including yours truly) were right to raise questions about it. Based on what the company has said, the paper offers no new reason to think Americans with employer-sponsored insurance will lose that coverage because of the Affordable Care Act.

Politically, that’s good news for President Barack Obama, since he told insured Americans that the law wouldn’t take away the coverage they already had. But what does it mean in terms of policy? Should we be happy that health care reform is unlikely to reduce substantially the current system’s dependence on employer-based insurance? That’s another, much more complicated question.

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The FDA Should Add A Comparative Effectiveness Arm To Its Final Trials

Merrill Goozner

First published 6/16/11 on Gooz News

The Food and Drug Administration’s Prescription Drug User Fee Act is up for reauthorization next year, and so is the consumer and drug industry face-off over the contentious issue of comparative effectiveness research (CER). Consumers, patients and some physicians are demanding that CER be required of all new drugs coming to market when there are already FDA-approved therapies for the same condition. They say it will give payers and patients immediate feedback on the relative worth of the latest drugs, which are always more pricey than what preceded them, especially if the older drugs are coming off patent.

Industry opposes including CER arms in final efficacy trials. The companies claim it will place additional costs on the already expensive new drug development process; provide inadequate information for actually divining the relative worth of two competing therapies; and dissuade companies from investing in follow-on drug research, which can turn up drugs that are significantly better than older drugs.

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Another Legal Round – With A Major Mis-Step?

Roger Collier

First published 6/13/11 on Health Care Reform Update

The past week’s appellate court hearing in Atlanta on the constitutionality of the Affordable Care Act, one of a series along the inevitable road to the Supreme Court, showed that the opposing legal arguments are beginning to be firmly established—with each seeming to confuse the purchase of health insurance with the purchase of health care.

The Atlanta panel of three judges, with both Republican and Democratic appointees, heard arguments for and against the earlier ruling by Judge Roger Vinson in Pensacola that the individual mandate was unconstitutional and so central to the ACA that the entire act should be invalidated, and specifically that while the Commerce Clause of the Constitution gave the government authority to regulate interstate commerce, it did not allow Congress to penalize people for the “inactivity” of declining to buy a commercial product.

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Why Health Care Reform Is Here To Stay

Joe Paduda

First published 6/10/11 on Managed Care Matters

It’s pretty simple, really.

Once people gain actual real-life experience with a government program, they abandon their fear of the unknown, see its benefits more clearly, and become invested in its future.

We’ve seen that with Medicare, which consistently pleases its beneficiaries. Part D has similar traction, and now we’ve learned that the citizens of Massachusetts are increasingly happy with that state’s health reform.

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Is the Mandate Penalty a Penalty?

Jim Hufford

First published 5/26/11 on Organon

Neal KatyalArguments for the constitutionality of the individual mandate as an exercise of the taxing power often start by noting that the penalty is reported on income tax returns, calculated as a percentage of income (with a flat minimum and a cap), and codified in the Internal Revenue Code. They go on to detail the ways the ACA’s penalty differs from typical penalties: there is no scienter requirement (one’s state of mind is irrelevant to assessment of the penalty); criminal punishments are not available to enforce payment; the amount of the penalty is reasonable, not exorbitant, and limited to the actual cost of qualifying coverage; and it is imposed in proportion to the frequency of noncompliance, month by month. These points have been fixtures of the United States’ briefs throughout the ACA litigation.

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Why ACO’s Won’t Work

Robert Laszewski

First published 4/7/11 on Health Policy and Marketplace Review

First, I think Accountable Care Organizations (ACOs) are a great idea. Just like I thought HMOs were a good idea in 1988 and I thought IPAs were a good idea in 1994.

The whole notion of making providers accountable for balancing cost, medical necessity, appropriateness of care, and quality just has to be the answer.

But here’s the problem with ACOs: They are a tool in a big tool box of care and cost management tools but, like all of the other tools over the years like HMOs and IPAs, they won’t be used as they were intended because everybody—providers and insurers—can make more money in the existing so far limitless fee-for-service system.

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FAQs on Accountable Care Organizations

Jenny Gold

First published 3/31/11 on Kaiser Health News

Accountable care organizations take up only seven pages of the massive new health law yet have become one of the most talked about provisions. This latest model for delivering services offers doctors and hospitals financial incentives to provide good quality care to Medicare beneficiaries while keeping down costs. A cottage industry of consultants has sprung up to help even ordinary hospitals become the first ACOs on the block.