Tag Archives: Affordable Care Act

Health Care 2019

Barring something unexpected, as discussed in Doc Jess’s post, the major action for the rest of this Congress on health care is likely to be at the administrative level with Tom Price doing his best to undermine the Affordable Care Act.  However, there have been some unanticipated holes that have developed over the past seven years that do need to be fixed.  As such, if Democrats regain control of the House and Senate in 2019 what issues should they be looking to address.

At the top of my list is the Medicaid expansion hole.  Back in 2012, the Supreme Court ruled that states did not have to participate in the Medicaid expansion.  The Affordable Care Act assumed that every state was going to participate in the expansion and only provided for subsidies for those who did not qualify for Medicaid.   When a significant number of states opted to not expand Medicaid coverage, this created a group who earned to much to sign up for Medicaid, but too little to get subsidies to purchase insurance.  The obvious fix is to expand the subsidies to cover this gap group.

The second issue concerns the exchanges.  Again, the Affordable Care Act assumed that most (if not all) states would opt to set up exchanges just on principles of state autonomy.  (Why would Republicans who complain about the feds taking over the insurance market let the feds take over the insurance market in their states?)  It turned out that Republicans in the state wanted the symbolism of resisting more than actual local control.  This problem offers a chance to offer the Republicans a two-edged sword.  The Republicans complain that one of the problems with health insurance is that companies are unable to offer policies that cross state lines.  (Placing the blame on regulations is not accurate, and the biggest restraint on such policies is the need of insurance companies to have deals with the local hospitals.)  So I would offer up for discussion an exemption for policies offered on the federal exchange.  If a state does not have its own exchange, policies on the federal exchange will be exempt from state regulations and will only be subject to federal regulations.   If a state wants to regulate those policies, it can take over the exchange.  If not, a state will not be permitted to sues state regulations to obstruct the federal exchange.  My hunch says that the states will not opt to set up their own exchanges and that the exemption of insurance companies from state regulations will not increase the number of policies that cross state lines.

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The Week in Review

There is an old saying that a week is a lifetime in politics.  In most weeks, there is a lot happening either behind the scenes or at lower levels (e.g., committee hearings and markups on bills that nobody is watching).  It is the rare week, however, that so much is taking place front and center competing for the attention of the American public.

The big story of the week was the non-vote on and the collapse of the Republican effort at major health care reform — the so-called Affordable Health Care Act (a name that in itself was an attack on the bill that it was trying to “repeal and replace,” the Affordable Care Act.   There are several significant aspects to this non-event.

First, despite their efforts, Donald Trump and Paul Ryan could not get the sizable Republican majority in the House to pass a bill (forget the exact details of the last version of the bill, they could not get a majority behind any version) on one of the top Republican priorities of the past seven years.  While Trump may have been a great negotiator, it is very easy to reach a two-sided deal.  (Of course, it’s possible that Trump’s belief in his negotiating skill may be one of his great delusions.  He may have just been offering the right deal at the right time and actually have been taken to the cleaners in his business negotiations.)When you have three or more sides to a deal, however, it becomes very difficult to keep everybody on board.  This problem is particularly true in politics — when one faction thinks that a bill is too conservative and the other faction thinks that the bill is too liberal, there really isn’t any change that could make both sides happy.  At that point, it’s not really about negotiating but selling.

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A Divided Court(?)

This week at the United States Supreme Court saw eight opinions in the argued cases (leaving 28 cases still to be decided).  The actual opinions raise questions about the ability of the Supreme Court to function with only eight justices.   Since the actual discussions between justices occur in private, it is hard to tell whether the decisions reflect divisions on the merits or just a tendency to only decide what absolutely needs to be decided.  However, in several cases this week, the Supreme Court — having taken review on a broad issue — issued a very narrow decision sending the case back to the lower court to re-examine the broad issue.

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Affordable Care Act — The Next Challenge

While still having to deal with the current attempt to derail the Affordable Care Act (round two of the battles over the contraceptive mandate in the Supreme Court), the next challenge is working through the lower courts.  On Thursday, a Bush appointee to the U.S. District Court for the District of Columbia found that one part of the Affordable Care Act required annual appropriations.  In particular, the part involved requires insurer’s to reduce deductibles and co-payments for certain low-income persons.  In return, the federal government reimburses the insurer’s for those reductions.  While the insurer’s have a right to those payments, the District Court found that this entitlement still requires Congress to appropriate the money.  In the absence of an appropriation, an insurer only obtains payment upon filing a lawsuit (adding additional costs to the process).

The next step in this case will be an appeal to the D.C. Circuit.  At that stage, besides challenging the merits of this ruling, there will almost certainly be a claim that members of the House lack standing to pursue this challenge.  However, the one thing that this case makes clear is that — as long as Republicans have hopes of having the courts gut the Affordable Care Act — they will continue to file challenges to every section of the act.  Of course, given the current balance on the Supreme Court, voters can put this version of shopping for judicial activism to rest by electing a Democratic President and a Democratic Senate.  Maybe then, we will be able to turn our focus to making the health care system work better rather than fighting in court over the last reform.

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Religion and the Contraceptive Mandate

In the Spring of 1990, when Justice Scalia had only been on the Supreme Court for four years, he wrote an opinion that offended both sides of the political spectrum — Employment Division vs. Smith.  For fifty years prior to Smith — in cases dealing with unemployment benefits for Jews and Seventh Day Adventists who would not work on Saturday for religious reasons, with Jehovah Witnesses who objected to their children having to say the pledge of allegiance, with Amish who declined to send their children to school, and with conscientious objections — the Supreme Court had applied a version of compelling interest test to  claims that a law infringed on practices of individual religions.  In Justice Scalia’s view of the free exercise clause, the constitution only protected the right to believe in a religion, not to actually follow the dictates of a religion in one’s daily life.  (Of the other four justices in the majority, only Justice Anthony Kennedy is still on the Supreme Court.)  In response, Congress practically unanimously passed the Religious Freedom Restoration Act (RFRA) which, as a matter of statutory law, enacted an exemption from federal law based on religious belief containing an enhanced version of the compelling interest test.

On Wednesday, for the second time since the passage of the Affordable Care Act, employers will be seeking an RFRA exemption from the regulations implementing the Affordable Care Act, specifically the regulations which include coverage for contraceptives as part of the mandatory coverage that large employers must offer to their employees or pay a fine.  Unlike the employers in the first case, which were for-profit private employers, the employers in this case are religiously affiliated non-profits (including universities and charities).  This case also revolves around the steps that employers must take to claim the exemption recognized in the first case, with the employers claiming that even these steps implicate them in aiding their employees sinful desires.

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Supreme Court Midterm Report

When people think about key dates in the Supreme Court calendar, the day that most comes to mind is the First Monday in October (the official start of the annual term) — probably because it is the only date that is set in stone.  The first argument day of each term is always the first Monday in October.  There are other key points in the term, but they float a bit.  One of those floating dates is the Monday after the last January argument.  That date (which was earlier this week) is key because of the effective time table created by the Supreme Court’s rules.   Under those rules, barring emergencies required rushed briefing and argument (United States vs. Nixon, Bush vs. Gore), the soonest that a case can be argued is approximately three months after the Supreme Court decides to grant full argument on a case.  Because the last argument session is always in late April/Early May, any case accepted for argument after January will not be heard before the next term begins in October.  That makes this point of the year the first time that it is possible to say with absolute certainty what cases will be heard and decided by June.  With this being an election year, the politically explosive cases on the Supreme Court’s argument calendars are even more explosive.

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Pro-business Conservatives and the Affordable Care Act

For the third time in four years, the fate of the Affordable Care Act rested with the United States Supreme Court.  Early this morning, by a 6-3 vote, the United States Supreme Court kept the Affordable Care Act (and the health insurance industry) alive.  If you look at all three case over the past four years, the key votes on the Supreme Court have belonged to the two pro-business conservatives (Justice Kennedy and Chief Justice Roberts).  The remaining justices have been predictable — the liberals supporting the Affordable Care Act and the three ultra-conservatives opposing.  If the past is any predictor for the future, any remaining challenges to the Affordable Care Act may rise or fall on what’s good for business.

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