“The recent decision of a three-judge panel in the Halbig case, if it prevails, would have a direct effect on the availability of subsidies under the Affordable Care Act (ACA). People buying coverage on their own in insurance exchanges run by the federal government would be ineligible for income-based subsidies. Depending on how you count, that would take premium subsidies away from 4.6 million people in 34 states, or 4.7 million people in 36 states if you count New Mexico and Idaho (which have signaled their intention to operate their own exchanges but are still using the federal marketplace).
Many more people are eligible for subsidies but haven’t yet signed up. We estimate (using the approach described here that a total of 9.5 million uninsured people are eligible for subsidies in federal marketplace states (or, 9.7 million people if you include New Mexico and Idaho).
Since many low and moderate income people would have difficulty affording insurance without the subsidies, this would no doubt alter the extent to which the ACA is reducing the number of Americans who are uninsured, which recent surveys peg at about 8 to 10 million.
But, there would also be two important side effects of the Halbig case.”
“Better access to data about real world patient experience holds enormous potential to help achieve many of the goals of health reform, including improving the quality and delivery of medical care, reducing costs, and improving safety and outcomes by accelerating the knowledge base upon which the development of new treatments and cures relies.
Capturing data about the actual experience of patients outside of the carefully controlled clinical trial setting – Real World Data – can help fill the knowledge gap between clinical trials and clinical practice. RWD offers a treasure-trove of information that could allow providers, innovators, health plans, researchers, and others in the scientific and medical communities to make faster, more efficient, and less costly advances in medical research and clinical treatment. Life sciences companies can use this data to explore the benefits and risks of treatment options including their effectiveness in patient subpopulations, expedite enrollment in clinical trials, identify new targets for research and development, and transform the value equation in medical care.”
Words mean what they say. That’s the basis for the decision of the U.S. Court of Appeals for the D.C. Circuit in Halbig v. Burwell invalidating the Internal Revenue Service regulation approving subsidies for Obamacare consumers in states with federal health insurance exchanges.
The law passed by Congress, Judge Thomas Griffith explained, provided for subsidies in states with state-created exchanges, but not in states with federal exchanges. That’s factually correct, and under the Constitution, the government can’t spend money not authorized by Congress.
This has not prevented Democrats from calling the decision “judicial activism,” which makes as much sense as the claims that the Supreme Court decision overturning the Obamacare contraception mandate cuts off all access to contraception.
“We reach this conclusion,” wrote Judge Griffith, “with reluctance.” Judge Roger Ferguson, writing for the Fourth Circuit whose King v. Burwell decision upholding the IRS was announced the same day, wrote that those challenging the government “have the better of the statutory construction arguments.”
One has a certain sympathy with both judges. They’re being asked to overturn a regulation that has paid most of the cost for health insurance for some 4.7 million Americans. But the problem arose not from sloppy legislative draftsmanship.
Under previous court decisions, Congress can’t force state governments to administer federal laws. So congressional Democrats, seeking to muscle states into creating their own health insurance exchanges, chose to provide subsidies only for those states. Those opting for the federal exchange would have to explain to voters why they weren’t getting subsidies.
“The decision in the Halbig v. Burwell case this week was an unexpected legal boon to opponents of Obamacare. Spearheaded by the Cato Institute’s Michael Cannon and law professor Jonathan Adler, the case will almost certainly lead this debate about the text of the Affordable Care Act back to the Supreme Court. My colleague Sean Davis has written a comprehensive piece on the case, particularly on the nature of the supposed “drafting error” at its core.
But whatever the ultimate outcome for Halbig, the case serves as a reminder of the uneven ground on which Obama’s health care law is likely to be standing over the next two years. Whether facing challenges in the courts, or in implementation, as we saw in the GAO’s security report this week, or simply as a matter of political approval, Obamacare is going to be a subject of uncertainty in 2016, and its survival will depend on who wins the election, as I wrote here last month.
This raises an interesting question about how the presidential candidates will interact with the law. The law’s continued instability and problems will have to be answered – but the odd circumstance likely to result from the political frame of the issue is that Republicans will put forward a plan to replace Obamacare, but Democrats won’t.
One of the lazier memes of Democratic politicians and a few too many members of the media over the past several years has been the myth that Republicans have no alternative to Obamacare. This is the sort of thing that doesn’t pass even the most basic assessment of accuracy in reporting – here is a list of the health care reforms introduced by Republican House members in 2012, and here’s one for 2013. While their plans vary in scope, there are eight things Republicans generally agree about when it comes to health care reform:
•They want to end the tax bias in favor of employer-sponsored health insurance to create full portability, either through a tax credit, deductibility, or another method;
•They want to incentivize the reform of medical malpractice laws, likely through carrot incentives to the states;
•They want to allow for insurance purchases across state lines;
•They want to support state-level pre-existing condition pools;
•They want to fully block grant Medicaid;
•They want to shift Medicare to premium support;
•They want to speed up the FDA device and drug approval process; and
•They want to maximize the consumer driven health insurance model, making high deductible + health savings account plans larger and more attractive.”
“A lot of attention is being paid to the dueling decisions in two U.S. appeals courts about whether the U.S. government can provide tax credits to people in federal- as well as state-run insurance exchanges. In human terms, the stakes are high: Millions of moderate-income people will not be able to afford health coverage without a subsidy, and a court ruling could gut coverage expansion in the 36 states with federally run insurance exchanges, unless states decide to set up their own exchanges. One of the cases, Halbig v. Burwell, also adds uncertainty to the enrollment process set to begin this fall, when millions more people are expecting to get tax credits–and wondering if they may be taken away.
Amid the reaction, little attention has been paid to whether Americans will perceive Halbig as a legitimate legal question or as more inside-Washington politics. The plaintiffs paint this as a case about statutory language and intent. The health-care law said that tax credits would be provided only in state-run exchanges, they argue, and it is executive overreach to provide credits in federal exchanges. Proponents of the Affordable Care Act see this as a thinly veiled game of gotcha being played over imperfect legislative language despite clear legislative intent. They believe that providing tax credits in the exchanges was always a central element of the Affordable Care Act’s strategy to expand coverage whether in state or federal exchanges–and that everybody knows it.”
“The U.S. Circuit Court of Appeals has upheld the rule of law in its decision that the health law does not allow tax subsidies to be distributed through the federal government’s health insurance exchange.
The Obama administration’s Internal Revenue Service issued regulations in 2012 authorizing the flow of funds after two-thirds of the states opted not to create their own exchanges, thereby defaulting to the federal exchange.
In a 2-1 decision, the appeals court ruled that the law plainly states that tax credits to subsidize health insurance are to be available only through an “Exchange established by the State.”
Shortly after the DC Circuit decision was announced, the Richmond-based Fourth Circuit Court of Appeals ruled in a separate case that the law’s language does allow the subsidies to be distributed through the federal exchanges.
This sets up a very likely Supreme Court challenge.”
“The Affordable Care Act’s success meeting its initial enrollment goals and the repair of HealthCare.gov seem to have calmed the political waters for Obamacare. But the job of enrolling the uninsured gets harder, not easier, because the remaining uninsured will generally be tougher to reach.
Recent surveys show, roughly in line with expectations, that 8 million to 9.5 million fewer adults are uninsured compared with last year before the Affordable Care Act went into effect. Specific data are not yet available for uninsured children who probably got covered as well, and an earlier provision of the health-care law that allowed people to stay on their parents’ insurance up to age 26 is thought to have lowered the number of uninsured young adults by as many as 3 million.
But tens of millions of Americans are not yet covered.
Those who enrolled last year during the first open-enrollment season were more likely to want coverage and were best able to navigate the process to get it. After open enrollment this fall and the one after that, the uninsured will gradually become a smaller and different group. Increasingly, they will be people who have been without insurance for a long time or who have never had it; people who are even less familiar with insurance choices and components such as premiums and deductibles, as well as unfamiliar with the tax credits offered under the ACA. These people are more likely to be men, and minorities, and have limited education or language barriers. Increasingly they will fall into harder-to-reach high-risk groups, such as the homeless, who require very targeted outreach, and Hispanics who fear that seeking coverage could endanger undocumented relatives despite assurances from government that it will not.”
“Medicare spending growth will be slow again in 2014 relative to historical standards, and some of the usual suspects are now crediting the Affordable Care Act — Obamacare — for the good news. For instance, a recent post at Vox suggests that the slowdown in Medicare spending can be attributed, in part, to the ACA’s provision penalizing hospitals for excessive readmissions of previously treated patients.
This is nonsense.
At the time of the ACA’s enactment in March 2010, the Congressional Budget Office estimated that the readmission provision would reduce Medicare spending by $0.3 billion in 2014, and only $7.1 billion over a decade. That’s about one tenth of 1 percent of total Medicare spending over that time period. There has been no information from any source since 2010 suggesting that the savings from the readmission provision has escalated into a major cost-cutting reform. In the context of overall Medicare spending, the readmissions provision is simply inconsequential.
The same can be said for the other supposed “delivery system” reforms driven through Medicare and contained in the ACA, such as Accountable Care Organizations and efforts to promote more “bundled” payments to providers of services. These reforms were all assessed by the CBO at the time of enactment and found to be insignificant items in budgetary terms. Moreover, the early experience with these changes indicates they are unlikely to dramatically alter the way health care is delivered to Medicare patients.”
“1.) AEI’s Joseph Antos and James Capretta present “A health reform framework: Breaking out of the Medicaid model.” Here’s a peek:
The Congressional Budget Office (CBO) projects that about one-third of the additional insurance coverage expected to occur because of the law will come from expansion of the existing, unreformed Medicaid program. The rest of the coverage expansion will come from enrolling millions of people into subsidized insurance offerings on the ACA exchanges — offerings that have strong similarities to Medicaid insurance. Unfortunately, ample evidence demonstrates that this kind of insurance model leaves the poor and lower-income households with inadequate access to health care….
2.) “Some still lack coverage under health law,” notes The Wall Street Journal:
Months after the sign-up deadline, thousands of Americans who purchased health insurance through the Affordable Care Act still don’t have coverage due to problems in enrollment systems. In states including California, Nevada and Massachusetts, which are running their own online insurance exchanges, some consumers picked a private health plan and paid their premiums only to learn recently that they aren’t insured.
3.) “Brace for the next round of Obamacare rate shock,” comments Philip Klein at The Washington Examiner:
As insurance companies begin to propose premiums for 2015, it’s time for Americans to brace themselves for the next round of rate shock in the wake of President Obama’s health care law. There are several ways in which Obamacare drives up the cost of health insurance. The primary way is that it requires insurance plans to offer a certain raft of benefits specified by the government and to cover everybody who applies, regardless of pre-existing conditions. It then limits the amount that insurers can charge older and sicker patients relative to younger and healthier patients, driving the costs up for the latter group.
4.) “Automatic Obamacare enrollment is anti-patient,” according to Diana Furchtgott-Roth:
With a new Avalere study showing that many Obamacare participants will face premium increases in the fall, the administration’s proposed rule that would automatically reenroll Americans in their existing federal health exchange plan is likely to leave many people paying higher premiums than necessary. Plus, Uncle Sam will be unable to verify correct amounts of health insurance premium subsidies. America is not yet ready for auto enrollment in Obamacare.
“Conservative criticism of the Affordable Care Act has created the impression that liberal, “big government” ideas are driving the health-care system. But plenty of ideas that conservatives like are taking hold in health care as well. To wit:
*The number of Medicare beneficiaries in private Medicare Advantage plans reached nearly 16 million this year, a record, and the Congressional Budget Office projects that it will hit 22 million by 2020. This partial privatization of Medicare is happening despite concerns that reductions in payments to private plans (what some call over-payments) would curtail enrollment.
*More than half of people on Medicaid are enrolled in managed-care plans, which are typically run by private insurers that contract with states on a capitated, or risk, basis. More than 30 million low-income Medicaid beneficiaries are in private plans. The number is growing as states move sicker and disabled populations covered by both Medicaid and Medicare to managed care and as many states expand their Medicaid programs under the ACA, putting newly covered beneficiaries into managed care.
About 50 million Americans covered by Medicare and Medicaid at some point in the year are in private insurance arrangements. Now, this is not the block grant of Medicaid or voucherization of Medicare that some conservatives ultimately seek–just as the ACA is not the single-payer system that some liberals want–but it’s a substantial privatization, and one that has occurred largely incrementally and under the radar.”