Tag Archives: Health Care

Justice Tells Court Obamacare Unconstitutional, Could Strike Down Entire Law

WASHINGTON, DC – The Trump-Barr Department of Justice (DOJ) informed a federal appeals court on Monday that it agrees with Texas and the other states suing over Obamacare that President Donald Trump’s repealing of the individual mandate renders the entire law unconstitutional, and therefore should be struck down in its entirety.

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(Ken Klukowski) This all turns on the legal doctrine of severability. Much of the time when a statute is unconstitutional it is actually only partially unconstitutional. Typically a court will strike down that part of the law, but sever it from the rest of the statute and uphold the remainder.

Pundits who have never studied or litigated severability will surely show up on television now posing as experts, and criticizing DOJ’s position. But writing as a former law school faculty member who authored the largest academic work on severability doctrine ever published, permit me to describe the argument and why it should be taken seriously.

President Barack Obama signed the Affordable Care Act (ACA) in 2010 when a Democrat-controlled Congress passed that statute without a single Republican vote in either the House or Senate. Various plaintiffs immediately filed suit. In the biggest lawsuit, a majority of states in the nation – along with the National Federation of Independent Businesses (NFIB) and several private individuals – filed suit in Florida, arguing that the ACA was unconstitutional.

The plaintiffs raised multiple constitutional issues. At the heart of the legal challenge is the doctrine of enumerated powers: The Constitution gives the federal government only limited powers, and so every provision of every law Congress passes must be authorized by one of the provisions of Article I, Section 8 of the Constitution.

One constitutional objection to the ACA was that Section 1501 of the ACA – which is the individual mandate that requires Americans to buy health insurance – is unconstitutional, because Congress’s constitutional power to regulate interstate commerce in Article I, Section 8, Clause 3 of the Constitution does not include the power to order human beings to buy something, thereby entering into the commercial realm where the government can regulate them.

Section 1201 of the ACA is the preexisting condition provisions of “guaranteed issue” and “community rating,” which ensures that no person attempting to purchase insurance can be denied coverage, and that a person cannot be charged more because of preexisting conditions. Section 1501 mandates that everyone buy insurance to offset the effect of the multi-billion-dollar costs arising from Section 1201.

Another count of the lawsuit brought by the states and NFIB was that the individual mandate section could not be severed from the other 450 sections of the 1,000-page ACA statute, and therefore that the whole statute must fail with the mandate section.

Judge Roger Vinson of the U.S. District Court for the Northern District of Florida agreed, holding it was unconstitutional. Vinson also held that the individual mandate could not be severed from the remainder of the statute, and therefore struck down the ACA in its entirety. (Disclosure: Vinson quoted this author’s legal brief in the case when he ruled that the individual mandate is nonseverable.)

The U.S. Court of Appeals for the Eleventh Circuit agreed that the individual mandate was unconstitutional, and noted that even the Obama DOJ admitted to the court that Section 1501 could not be severed from the statute, but nonetheless severed that section anyway, and upheld the rest of the law.

The Supreme Court in 2012 took the historic case of NFIB v. Sebelius to decide four issues: (1) whether a different federal statute – the Anti-Injunction Act – even permitted federal courts to decide this case before the individual mandate went into effect in 2014; (2) whether the individual mandate is not authorized by Congress’s authority under Article I, Section 8; (3) whether the ACA’s enormous expansion of Medicaid unconstitutionally coerces the states; and (4) whether the statute can be severed from any sections that are unconstitutional.

The justices unanimously agreed that it had jurisdiction to decide the case immediately. By a 7-2 decision, the Court agreed that the Medicaid expansion was unconstitutional under the Tenth Amendment, but a separate 5-4 lineup held that the expansion would be constitutional if it was optional for the states, and effectively rewrote Section 2001 of the ACA.

Four justices – conservatives Antonin Scalia, Clarence Thomas, and Samuel Alito, joined by moderate Anthony Kennedy – wrote that the individual mandate exceeded Congress’s Commerce Clause power and was therefore unconstitutional. They also wrote that the Medicaid expansion exceeded Congress’s Spending Clause power, and could not be rewritten, and thus those core provisions must both be struck down.

Justice Ruth Bader Ginsburg wrote a dissent for the four liberal justices, claiming what many claim to be unlimited federal power under the Commerce Clause over the lives of American citizens. She and Justice Sonia Sotomayor also insisted that the Medicaid expansion was constitutional.

Justices Scalia, Kennedy, Thomas, and Alito also wrote that both the individual mandate and the Medicaid expansion were critical to the entire ACA. They concluded that the provisions could not be severed from the statute, and that without either one, all of Obamacare must go down.

Breitbart News published a five-part series on “The Great Dissent,” quoting the justices in their own words, explaining through those five articles their reasoning that (1) Obamacare must be struck down, (2) the individual mandate violates the Commerce Clause, (3) the individual mandate is not a tax, (4) the Medicaid expansion violates the Tenth Amendment, and (5) both unconstitutional provisions are nonseverable from the ACA, and so the entire law must be struck down.

Then came a historic surprise. Chief Justice John Roberts agreed that the individual mandate was not authorized by the Constitution’s Commerce Clause. However, he concluded that even though only a couple paragraphs in 980 pages of legal briefs discussing Congress’s power to tax, and even though only a couple minutes was spent on that issue during six hours of oral argument, that the individual mandate was authorized by the Constitution’s Tax Clause, and was therefore constitutional.

Roberts admitted that the individual mandate looked like a commercial regulatory law, and thus would normally need to be authorized by the Commerce Clause. However, he wrote that there were several factors that, taken together, permitted courts to view the mandate as a tax. These included that (1) it was codified in 26 U.S.C. § 5000A, which is part of the Tax Code; (2) it was enforced by the IRS, (3) proof of complying with the mandate is reported along with a person’s annual Form 1040 tax return, and (4) failure to comply results in a tax penalty that goes to the U.S. Treasury along with normal tax money.

Years later, President Trump signed the Tax Cuts and Jobs Act of 2017. Part of that historic tax reform repealed 26 U.S.C. § 5000A in the Tax Code, which is the operative part of the individual mandate.

Texas Attorney General Ken Paxton immediately sued, joined by 19 other states. Their argument is that the factors Roberts relied upon to uphold the individual mandate as a tax no longer existed. As such, the only relevant constitutional provision is the Commerce Clause, and a five-Justice majority already held in NFIB that the individual mandate would be unconstitutional if it relied upon Congress’s commercial regulatory power.

Texas went on to argue that the individual mandate still cannot be severed from the rest of the ACA, and therefore the entire statute must be struck down.

Consider Congress’s findings on the role the individual mandate plays in the entire Obamacare system. Those official findings are found in Section 1501 itself, and those findings from Section 1501(a) were permanently codified in the United States Code in 42 U.S.C. § 18091(a).

Congress said at 42 U.S.C. § 18091(a)(2)(A) that without the individual mandate, “some individuals would make an economic and financial decision to forego health insurance,” and thus would endanger the whole Obamacare system. Paragraph 18091(a)(2)(C) says that “together with other provisions of this Act,” the individual mandate is what will add people to the insurance market. Paragraph 18091(a)(2)(D) says the individual mandate will result in “near-universal coverage.”

Paragraph 18091(a)(2)(H) adds:

The [individual mandate] requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market.

And finally, Paragraph 18091(a)(2)(I) adds that:

… if there were no [individual mandate], many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of the Act, will minimize adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets …..

The Obama administration admitted during the big Supreme Court case that the individual mandate was the essential “linchpin” to keep the entire ACA from imploding due to unsustainable costs. It is a compelling argument against severability.

The Supreme Court has held that courts must look to congressional intent when determining whether part of a statute can be severed to salvage the rest. Courts must ascertain the original “legislative bargain,” and then ask two questions: First, does the remaining statute “function in a manner consistent with the intent of Congress.” And if so, second, would Congress “have enacted them standing alone and without the unconstitutional portion.”

If the answer to either question is “no,” then the unconstitutional provision is nonseverable, and the court must strike down the entire statute.

Paxton’s team representing the 20 states – initially led in the courtroom by Texas Solicitor General Scott Keller and now continued by Keller’s successor, Kyle Hawkins – set forth all this material to Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas.

The defenders of the ACA argued that when Congress amended the Tax Code through President Trump’s new law, that reset the clock as to the point in time a court should look at for legislative intent. They say that a court should ask if Congress meant to repeal the whole Obamacare system when it enacted the Trump tax cuts. If not, they say the individual mandate can now be severed.

But the states’ counter argument is that Congress removed the part of the mandate that was a tax, but did not remove the congressional findings that the individual mandate was still essential to the ACA being able to function as Congress wishes.

Judge O’Connor accepted Paxton’s arguments. The district court held that without taxing power support, the individual mandate is an unconstitutional mandate under the Commerce Clause, and that the rest of the ACA cannot be severed from it.

The case is now on appeal before the U.S. Court of Appeals for the Fifth Circuit. The head of DOJ’s Civil Division, Assistant Attorney General Jody Hunt, filed a notice with the Fifth Circuit on Monday informing the court that the Trump administration agrees with Texas that the individual mandate is unconstitutional and nonseverable, and thus that the entire ACA is unconstitutional. DOJ therefore will be filing briefs in support of the legal challenge. (Liberal states have intervened as the defendants in the case.)

What so many talking heads derided as an absurd lawsuit suddenly looks like a pretty serious case after all.

President Trump has had a major impact on the Fifth Circuit through his judicial appointments. Proven constitutional conservatives like Judges Don Willett, Jim Ho, Andy Oldham, and Kyle Duncan now sit on that court, under the mentoring of the fearless originalist Edith Jones and the libertarian-leaning Jerry Smith.

Regardless of how the Fifth Circuit rules in the case, the fact remains that the fifth vote to win at the Supreme Court is still Roberts. Many believe that his reasoning was such a stretch to save Obamacare the first time that he would find another rationale to do so now.

While that might be true, it does not need to be true. It is possible that the chief justice could play it straight from his 2012 reasoning, in which case the ACA should be struck down without the tax authorization.

It is also possible that President Trump will fill another Supreme Court vacancy before this case is decided by the Supreme Court – a decision that could come in 2020 but is more likely to come in 2021 – in which case Roberts’ vote might not even be necessary.

Suddenly, Obamacare is back in the legal crosshairs. If it falls under this legal challenge, President Trump would have a clean canvas on which to design fundamental market-based reforms to provide healthcare security and freedom for millions of Americans.

The case is Texas v. United States, No. 19-10011 in the U.S. Court of Appeals for the Fifth Circuit.

Source: by Ken Klukowski | Breitbart

China Still Harvesting Organs From Prisoners On A Massive Scale

https://i1.wp.com/i2.cdn.turner.com/cnnnext/dam/assets/160623141334-falun-gong-protesters-hong-kong-exlarge-169.jpgFalun Gong members stage a protest against China’s state forced organ harvesting in Hong Kong.

A new report claims that China is still engaged in the widespread and systematic harvesting of organs from prisoners, and says that people whose views conflict with the ruling Chinese Communist Party are being murdered for their organs.

The report — by former Canadian lawmaker David Kilgour, human rights lawyer David Matas, and journalist Ethan Gutmann — collates publicly reported figures from hospitals across China to show what they claim is a massive discrepancy between official figures for the number of transplants carried out throughout the country.

They blame the Chinese government, the Communist Party, the health system, doctors and hospitals for being complicit.

“The (Communist Party) says the total number of legal transplants is about 10,000 per year. But we can easily surpass the official Chinese figure just by looking at the two or three biggest hospitals,” Matas said in a statement.

The report estimates that 60,000 to 100,000 organs are transplanted each year in Chinese hospitals.

According to the report, that gap is made up of executed prisoners, many of them prisoners of conscience locked up for their religious or political beliefs. China does not report its total number of executions, which it regards as a secret.

The report’s findings stand in stark contrast to Beijing’s claim that, since the beginning of 2015, China has moved from almost completely relying on organs from prisoners to the “largest voluntary organ donation system in Asia.”

At a regular press conference Thursday, Chinese Foreign Ministry spokeswoman Hua Chunying said China has “strict laws and regulations on this issue.”

“As for the testimony and the published report, I want to say that such stories about forced organ harvesting in China are imaginary and baseless — they don’t have any factual foundation,” she said.

The National Health and Family Planning Commission, which oversees organ donations in China, did not respond to a request for comment for this piece.

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Patients queue at a hospital in China. More than 300,000 people require organ transplant operations every year.

Secret transplants

According to the report, thousands of people are being executed in China in secret and their organs harvested for use in transplant operations.

So who is being killed? The authors say mainly imprisoned religious and ethnic minorities, including Uyghurs, Tibetans, underground Christians, and practitioners of the banned Falun Gong spiritual movement.

While much of China’s organ transplant system is kept secret, official figures show that 2,766 volunteers donated organs in 2015, with 7,785 large organs acquired.

Official figures put the number of transplant operations at around 10,000 a year, which the report disputes.

The authors point to publicly available statements and records released by hospitals across China claiming they carried out thousands of transplant annually, and interviews with and official biographies of individual doctors who claim to have carried out thousands of transplant operations during their careers.

“Simply by adding up a handful of the hospitals that have been profiled in this (report), it’s easy to come up with higher annual transplant volume figures than 10,000,” the authors write.

According to official statistics, there are more than 100 hospitals in China approved to carry out organ transplant operations. But the report states the authors have “verified and confirmed 712 hospitals which carry out liver and kidney transplants,” and claims the number of actual transplants could be hundreds of thousands larger than China reports.

‘Ghoulish and inhumane practice’

The apparent gap in official transplant figures, the report claims, is filled by prisoners of conscience.

According to Amnesty International, “tens of thousands of Falun Gong practitioners have been arbitrarily detained” since the government launched a crackdown on the practice in 1999.

China regards Falun Gong as a “cult” and claims followers engage in “anti-China political activities.”

“The government considers Falun Gong a threat to its power, and has detained, imprisoned and tortured its followers,” says Maya Wang, China researcher for Human Rights Watch.

The report says detained Falun Gong practitioners were forced to have blood tests and medical exams. Those test results were placed in a database of living organ sources so quick organ matches could be made, the authors claim.

This massive supply of organs served to benefit hospitals and doctors, making for an ever growing industry.

The report’s authors testified before the U.S. House Foreign Affairs Committee Thursday.

“The Chinese government has been trafficking in organs for profit for far too long and we have strong evidence that Falun Gong practitioners were singled out for organ harvesting,” said Representative Chris Smith, who co-chairs the committee.

In a statement released online, Representative Ileana Ros-Lehtinen, former chair of the U.S. House Foreign Affairs Committee, said the Chinese government’s “ghoulish and inhumane practice of robbing individuals of their freedom, throwing them in labor camps or prisons, and then executing them and harvesting their organs for transplants is beyond the pale of comprehension and must be opposed universally and ended unconditionally.”

‘Good intentions’

For decades, Chinese officials strenuously denied that they harvested organs from prisoners, calling claims to the contrary “vicious slander.”

Finally in 2005, officials admitted that the practice took place and promised to reform it.

Five years later however, Huang Jiefu, director of the China Organ Donation Committee, told medical journal The Lancet that more than 90% of transplant organs still came from executed prisoners.

China carries out more executions annually than the rest of the world put together, at least 2,400 in 2014, according to Death Penalty Worldwide. Official Chinese figures are not reported.

In late 2014, China announced that it would switch to a completely voluntary donation-based system.

This pronouncement was greeted with great skepticism however, given that between 2012 and 2013, only around 1,400 people signed up to donate (compared to the more than 300,000 in need of organ transplants every year).

Since then, the government has seen limited success in getting people to sign up to the national register.

One 86-year-old woman, surnamed Zhou, told CNN she had wanted to donate her organs in 1996 but at the time her local Red Cross chapter had never heard of someone doing so.

“Since I wasn’t able to have a medical career myself, I want to make a contribution after I die,” she said.

Zhou said that while her family was mostly supportive of her decision, “in China, the conventional wisdom is that it’s improper to mutilate a body when someone is dead.”

While people like Zhou have stepped forward to fill the gap left by prisoners, experts warn that there is nothing to stop those condemned to be executed from also “volunteering,” and regulations legalizing the use of prisoners’ organs remain in force.

The 2014 announcement “is only at best a statement of good intentions but has no force of law,” the medical journal BMJ said.

The phasing out of executed prisoners’ organs is a “semantic trick,” Professor Li Huige of Johannes Gutenberg University said in a recent report commissioned by the European Parliament.

Why will China struggle to end organ harvesting from executed prisoners?

He pointed to statements by Huang to Chinese state media that “death row prisoners are also citizens.”

“If (they) are willing to atone for their crime by donating organs, they should be encouraged,” Huang told People’s Daily.

By redefining prisoners as regular citizens, Li says, “China’s national organ donation system may be abused for the whitewashing of organs from both death row prisoners and prisoners of conscience.”

In an open letter to the Lancet, five doctors wrote that “China is still using death row inmates’ organs. The only difference is that these organs are now been classified as citizens’ voluntarily donated organs.”

Huang did not respond to a request for comment. Speaking to the New York Times, he said his comments had been “distorted” and were not in keeping with government policy.

Testifying before the U.S. House Foreign Affairs Committee on Thursday, Francis Delmonico, president of the Transplantation Society, praised Huang as a “principal ally to change the outrageous practice” of using prisoners’ organs.

Shanghai Medical Tourism Products & Promotion Platform

Also read: Prisoners In China Had Their Livers, Kidneys and Corneas Ripped While Alive

Source: China Daily Mail

Thirteen of 23 Co-Ops Created Under Obamacare Have Now Failed

Ohio’s InHealth Mutual co-op announced last week that it is going out of business, making it the 13th co-op to fail out of the 23 that were created under Obamacare.

The Ohio Department of Insurance asked to liquidate the company, saying that the company was in a “hazardous financial condition.” The co-op served nearly 22,000 consumers who now have 60 days to find another policy offered by another company on the federal exchange.

“Our examination of the company’s financials made it clear that the company’s losses would prevent it from paying future claims should its operations continue,” said Ohio Director of Insurance Lt. Gov. Mary Taylor. “Under Ohio law, we acted with certainty to protect the consumers.”

The company recorded an underwriting loss of $80 million in 2015 despite the $129 million in taxpayer-backed loans granted to the co-op by the federal government. InHealth Mutual was also placed under “enhanced oversight,” one of three tools the Department of Health and Human Services has to monitor co-ops in financial distress. When a co-op is placed under enhanced oversight, it means the company is consistently under performing and allows the department to give detailed and more frequent reviews of the loan recipient’s operations and financial status.

According to Columbus Business First, medical claims were coming in at a rate of $3 million per week and the company would have had to raise premiums by 60 percent in 2017 to keep up. If InHealth Mutual were to stay in business through the end of 2016, projections show that the company would have posted losses of $20 million.

Ohio’s failed co-op is added to the list of 12 co-ops that have already failed in Arizona, Michigan, Utah, Kentucky, New York, Nevada, Louisiana, Oregon, Colorado, Tennessee, South Carolina, and a co-op that served both Iowa and Nebraska.

Centers for Medicare and Medicaid Services chief operating officer Mandy Cohen told lawmakers in February that eight of the 11 remaining Obamacare co-ops in operation were selected for “corrective action plans” and “enhanced oversight.” She did not disclose which co-ops were placed on these plans.

A professor who specializes in economics and health insurance told lawmakers in March that closures of the remaining co-ops seem likely.

“The future of the 11 co-ops still providing coverage in 2016 is uncertain, but future closures seem likely,” said Dr. Scott Harrington. “The 10 co-ops still operating with June 30 financials reported a cumulative loss of $202.3 million.”

“Very little, if any, of the $1.24 billion in federal start-up and solvency loans to establish those co-ops will be repaid, and at least several will be unable to meet all of their obligations to policyholders and health care providers,” he said.

The Department of Health and Human Services did not respond to requests for comment by press time.

by Ali Meyer | The Washington Free Beacon

Is This The Beginning Of The End For The Affordable Care Act?

Largest US Health Insurer Ditches ObamaCare

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Tracking the slow motion train wreck of Obamacare has become one of our preferred hobbies: below is just a random sample of headlines covering just the most recent tribulations of the “we have to pass it to find out what’s in it” Unaffordable Care Act:

But the most surprising article we wrote was our explanation from three weeks ago explaining why “Your Health Insurance Premiums Are About To Go Through The Roof” showing that even insurance companies have been unable to earn a profit under Obamacare, as shown in the following chart:

This was a stunning revelation because, after all, the Affordable Care Act was largely drafted by the insurance industry itself, and if for whatever reason, it itself was unable to capitalize on Obamacare, then it has truly been a disaster.

Today we got confirmation of this when none other than the U.S.’s biggest health insurer, UnitedHealth, cut its 2015 earnings forecast with a warning that it was considering pulling out of Obamacare, just one month after saying it would expand its presence in the program.

According to Bloomberg, “UnitedHealth Group would scale back marketing efforts for plans it’s selling this year under the Affordable Care Act, and may quit the business entirely in 2017 because it has proven to be more costly than expected.

This was precisely what we cautioned on November 2.

Fast forward to today when UnitedHealth said in a statement that “the company is evaluating the viability of the insurance exchange product segment and will determine during the first half of 2016 to what extent it can continue to serve the public exchange markets in 2017.”

Needless to say, the implications for Obamacare – which has seen a surge in tangential problems in recent months – are dire: “A pull-back would deal a significant blow to President Barack Obama’s signature domestic policy achievement. While UnitedHealth has been slower than some of its rivals to sell Obamacare policies since new government-run marketplaces for the plans opened in late 2013, the announcement may indicate that other insurers are struggling, said Sheryl Skolnick, an analyst at Mizuho Securities.

“If one of the largest and presumably, by reputation and experience, the most sophisticated of the health plans out there can’t make money on the exchanges, then one has to question whether the exchange as an institution is a viable enterprise,” Skolnick said.

UnitedHealth further said it suspended marketing its individual exchange plans and is cutting or eliminating commissions for brokers who sell the coverage.

What is surprising is that for UnitedHealth, its Obamacare-facing exposure is relatively limited: the company covers fewer than 550,000 people on the Obamacare exchanges. About 9.9 million people had insurance through the U.S.- and state-run insurance markets as of June 30. This means that all other insurance companies must be getting crushed, something which the market also noticed earlier today hitting the stocks of not only hospitals, such as CYH, HCA, LPNT, THC and UHS but also home health care providers as well such as AFAM, AMED, GTIV and LHCG.

What is perhaps even more perplexing is the abrupt shift in posture: just last month, UnitedHealth had struck a more optimistic note. I think we’ll see strikingly better performance on the insurance exchange business” next year, Chief Financial Officer David Wichmann told analysts on an Oct. 15 conference call.”

Perhaps he had not seen the P&L? Oh well, he certainly did in the subsequently 4 weeks.

The rest of the story is well-known and has been covered here extensively in the past: the inability of businesses to turn a profit from Obamacare has meant that about a dozen non-profit “co-op” plans created under the Affordable Care Act have failed, after charging too little to cover the cost of patients’ medical care, and because an Obama administration fund designed to stabilize the market paid out just 12.6 percent of what insurers requested. And Anthem last month said some rivals were offering premiums too low to provide the coverage patients require and book a profit.

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At the end of the day, the worst news is not for the corporations, since Obamacare is not going away any time soon. It simply means that what until now were supposedly Affordable plans under Obamacare, will soon become (even more) Unaffordable as insurer after insurer hikes premiums dramatically in order to make the biggest US governmental intrusion into the private sector in recent decades profitable to shareholders.

Or, as we explained three weeks ago, “Your Health Insurance Premiums Are About To Go Through The Roof


UnitedHealth CEO Regrets Entering ObamaCare

The CEO of UnitedHealthcare on Tuesday said he regretted the decision to enter the ObamaCare marketplace last year, which the company says has resulted in millions of dollars in losses.

“It was for us a bad decision,” UnitedHealth CEO Stephen Hemsley said at an investors’ meeting in New York, according to Bloomberg Business.

UnitedHealth, the country’s largest insurer, announced last month that it would no longer advertise its ObamaCare plans over the next year and may pull out completely in 2016 — a move that sent shock waves across the healthcare industry.

Hemsley’s remarks double down on his earlier warning that the ObamaCare exchanges remain weaker than expected after two years and that it will take far longer for insurers to profit from the millions of new enrollees. 

The company had already eyed ObamaCare’s federal marketplace cautiously since it launched in 2013. UnitedHealth only began selling plans on the exchanges last year.

Now, UnitedHealth officials have said that move will result in a half-billion dollars in losses over two years.

Hemsley said it was smart to sit out of the exchanges for the first year, but that the company should have held out another year.

“In retrospect, we should have stayed out longer,” he said, adding that he believes the marketplace will take more than “a season or two” to develop.

“We did not believe it would form this slowly, be this porous, or become this severe,” he added.

by Sarah Ferris in The Hill


GRUBER: A lack of transparency was how we got this law through.

 

Health Care Costs Are Crippling American Middle Class Workers

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Whiskey Tango Texas Summary:

  • Obamacare is forcing American middle class workers to skip doctor visits, putting off procedures and forcing self rationing or avoidance of necessary prescription drugs.
  • American middle class are forced to pay so much out-of-pocket that it’s as good as not having insurance.
  • When middle class workers are financially forced to skip health care by their government, they’ll enter a downward spiral that imperils their physical and financial health over time.

Authored by Laura Ungar and Jayne O’Donnell for USA TODAY.

Physician Praveen Arla is witnessing a reversal of health care fortunes: Poor, long-uninsured patients are getting Medicaid through Obamacare and finally coming to his office for care. But middle-class workers are increasingly staying away.

“It’s flip-flopped,” says Arla, who helps his father run a family practice in Hillview, Ky. Patients with job-based plans, he says, will say: ” ‘My deductible is so high. I’m trying to come to the doctor as little as possible. … What is the minimum I can get done?’ They’re really worried about cost.”

It’s a deep and common concern across the USA, where employer plans cover 60% of working-age Americans, or about 150 million people. Coverage long considered the gold standard of health insurance now often requires workers to pay so much out-of-pocket that many feel they must skip doctor visits, put off medical procedures, avoid filling prescriptions and ration pills — much as the uninsured have done.

A recent Commonwealth Fund survey found that four in 10 working-age adults skipped some kind of care because of the cost, and other surveys have found much the same. The portion of workers with annual deductibles — what consumers must pay before insurance kicks in — rose from 55% eight years ago to 80% today, according to research by the Kaiser Family Foundation. And a Mercer study showed that 2014 saw the largest one-year increase in enrollment in “high-deductible plans” — from 18% to 23% of all covered employees.

Meanwhile the size of the average deductible more than doubled in eight years, from $584 to $1,217 for individual coverage. Add to this co-pays, co-insurance and the price of drugs or procedures not covered by plans — and it’s all too much for many Americans.

Holly Wilson of Denver, a communications company fraud investigator who has congestive heart failure and high blood pressure, recently went without her blood pressure pills for three months because she couldn’t afford them, given her $2,500 deductible. Her blood pressure shot so high, her doctor told her she risked a stroke.

LaRita Jacobs has severe arthritis and delayed a neckLaRita Jacobs has severe arthritis and delayed a neck surgery until it got so bad she couldn’t lift a fork. Now, she is delaying shoulder surgery that her doctor recommends and opting for less expensive physical therapy and enduring the pain. Here, she readies the needle for her weekly injection of Methotrexate, a type of chemotherapy regularly used for people with autoimmune diseases like rheumatoid arthritis.
(Photo: Melissa Lyttle for USA TODAY)

And LaRita Jacobs of Seminole, Fla., who gets insurance through her husband’s job and has an annual family income of $70,000, says $7,500 a year in out-of-pocket costs kept her from dealing with an arthritis-related neck problem until it got so bad she couldn’t lift a fork. She’s now putting off shoulder surgery.

“How did we get to this crazy life?” asks Jacobs, 54. “We’re struggling to pay our bills like we were struggling when we first got started.”

Why is this happening? Many patients and doctors blame corporate greed — a view insurers and business leaders reject. Some employers in turn blame the Affordable Care Act, saying it has forced them to pare down generous plans so they don’t have to pay a “Cadillac tax” on high-cost coverage in 2018. But health care researchers point to a convergence of trends building for years: the steep rise in deductibles even as premiums stabilize, corporate belt-tightening since the economic downturn and stagnant middle-class wages.

“It’s a case of companies trying to offer workers health insurance and still generate profit,” said Eric Wright, a professor of sociology and public health at Georgia State University. “But whenever costs go up for the consumers across the board … it promotes a delay in care.”

Others disagree, saying that when people pay for their care, they shop more intelligently. Chris Riedl, Aetna’s head of product strategy for its national accounts, says her company’s research does not indicate that insured patients are showing up sick in emergency rooms with long-neglected illnesses — which to her means, “intuitively, they’re not avoiding care.”

But many doctors contend it’s only a matter of time before the middle class begins crowding ERs. They say putting off care can be dangerous, exponentially more costly and, if it continues and spreads, can threaten the health of the nation.

Bullitt County, Ky., family practitioner  Mohana Arla,Bullitt County, Ky., family practitioner Mohana Arla, right, and intern Dominique Rhymes examine Lee Curry, 54. Curry was injured while working to pull a passenger from a wrecked vehicle as a Sheriff’s Department employee when his wrist was slammed in a truck door by a wind gust on Oct. 31, 2014. (Photo: Alton Strupp for USA TODAY)

 Monitoring The Trend

‘Can I stop taking this medication?’

Praveen’s father, Mohana Arla, says being forced to pay so much out-of-pocket “is as good as not having insurance” in an era of ever-rising health care costs. Inpatient care last year averaged $17,553, and insurance plans require people to pay a portion of that even after meeting their deductibles, up to an out-of-pocket maximum that can easily exceed $10,000 a year for families. Median household income in the U.S. is around $53,000, and the average American has less than $6,000 in savings, according to a 2012 report by Pitney-Bowes Software. A quarter have no emergency savings at all, Bankrate.com reported in June.

“Health expenses tend to come up unexpectedly, or if you have a chronic condition, they come up relentlessly,” adds Karen Pollitz, a senior fellow at Kaiser. “People put off care or they split their pills. They do without.”

Mounting evidence backs that up:

• Nearly 30% of privately insured, working-age Americans with deductibles of at least 5% of their income had a medical problem but didn’t go to the doctor, the Commonwealth Fund found. Around the same percentage skipped doctor-recommended medical tests, treatments or follow-ups.

• Nearly half of middle-class workers skipped health care services or fell into financial hardship because of health expenses, according to a survey by the Associated Press and NORC Center for Public Affairs Research.

• Use of hospital care among insured workers has been dropping since 2010, and use of outpatient care, such as doctor visits, dropped slightly for the first time from 2012 to 2013, according to insurance claim data analyzed by the Health Care Cost Institute.

• Medical professionals across the USA see the reality behind the research. The Arlas’ patient load used to be 45% commercially insured and 25% Medicaid; those percentages are now reversed. Stan Brock, founder of Remote Area Medical, which runs free clinics around the nation, says the group’s volunteer workers found that around 7% of patients who came to one of the clinics had job-provided insurance — and some waited for days just to keep a prime spot in line.

Patients often do a sort of medical and financial triage when they get sick. Jacobs, a former college professor, says every time a doctor suggests a new test, procedure or medication for her severe arthritis, she asks herself: ” ‘Is it critical?’ You’re always playing the odds. … And I’m constantly asking my doctor: Can I stop taking this medication?”

When her shoulder started hurting a couple of years ago, she had an X-ray but put off the recommended MRI for two years. It worsened, and she couldn’t move her arm without pain or lift her right hand above her head. She finally got that surgery in October but is now forgoing a shoulder procedure, opting for less expensive physical therapy and planning to “tough out the pain.”

“You don’t want another surgery … another bill,” she says. “It may be more of a problem later, but that’s the risk you take.”

While all out-of-pocket expenses play a role in such decisions, experts say the driving factor is the deductible, which averages $2,000 or more for single coverage for nearly one in five workers and from around $2,000 to $4,500 for families, depending on the type of plan. Companies may help fund health-savings accounts to pay some of these costs, sometimes with only a few hundred dollars.

“I can remember when $1,000 was considered a high-deductible plan. Now that’s become kind of the norm,” Pollitz says. “We’re kind of in high-deductible land.”

The cost shift extends to workers in government jobs, long known for bountiful benefit packages. Lee Curry, a sheriff’s deputy in Bullitt County, Ky., says his county health plan comes with a $1,500 deductible, which keeps him from going to the doctor at all.

“Health insurance doesn’t cover much of anything until you cover your deductible,” says Curry, 54. “It puts a burden on you. You’ve got to have the money to be seen.”

Is Obamacare To Blame?

 Stagnant salaries also skew budgets

Since the ACA took effect, “there’s been an accelerated movement” to these types of health plans, says Brian Marcotte, president and chief executive officer of the Washington, D.C.-based Business Group on Health.

Marcotte, whose group represents 400 large employers, says that the looming Cadillac tax is one factor but acknowledged that managing health care costs is another.

Companies have cited the ACA for cutting medical benefits in other ways. For example, United Parcel Service partly blamed the law when it removed thousands of spouses from its plan because they are eligible for medical coverage elsewhere.

But DeAnn Friedholm, director of health reform for Consumers Union, says she’s skeptical when employers point to the ACA. “This isn’t new,” she says. “Companies have been cutting back on benefits and cutting costs for decades.”

Sara Collins, vice president for Health Care Coverage and Access at the Commonwealth Fund, says two ACA requirements — keeping children under 26 on their parents’ plans and covering preventive care — didn’t add much to companies’ health care tabs, partly because most already covered preventive care such as physicals and mammograms. Pollitz says the ACA actually holds down the consumer burden by capping out-of-pocket expenses at $6,300 a person — which, although that amount is “more than most people have in the bank,” is better than no cap at all.

Experts point out that the ACA requires preventive care to be covered fully and exempt from deductibles — although surveys show many workers still forgo screenings and physicals because they’re unaware of this or know they can’t afford follow-ups if illnesses are found.

Several experts say the consumer crunch has less to do with the health system overhaul than stagnant salaries. The average hourly wage is nearly identical to what it was 50 years ago in today’s dollars: $19.18 in 1964 compared with $20.67 in 2014, according to U.S. Bureau of Labor data analyzed by the Pew Research Center. Meanwhile, U.S. health spending ballooned from 5% of gross domestic product in 1960 to 17% in 2013.

“People are very close to the line in terms of their budgets,” Collins says. “What consumers are really seeing is their incomes have grown even slower than the slower growth in health care costs” in the past few years.

Insurers also blame the cost of care, saying that can’t be absorbed just by premiums. But Wilson and other patients put much of the blame on insurers.

“Insurance is all about the dollar,” Wilson says. The never-ending cost shift to consumers “is something that basically all kinds of people screwed up. … Obamacare is a step in the right direction. But it’s not enough. I expected more out of it than I got.”

The Ugly Side Effects

A spiral of painful debt

When consumers skip care, they enter a downward spiral that imperils their physical and financial health.

Jennifer Ross, an arthritis sufferer in Florida insured through her husband’s job, says she recently made the wrenching decision not to take a medication that might allow her to get around without her wheelchair. The $2,400-a-month medicine would cost her $600 a month out-of-pocket even with insurance, and she simply can’t swing it. To make matters worse, Ross’ 12-year-old daughter was recently diagnosed with arthritis, too.

“It’s a no-win situation,” Ross says.

Surgeon Paul Ruggieri of Fall River, Mass., says his patients with high-deductible plans often blanch at the out-of-pocket cost to electively treat two common ailments he sees regularly — gallstones and hernias — until they become potentially dangerous and costly emergencies.

If the procedures are done electively, patients are required to pay half of the cost upfront; a hernia repair done laparoscopically would cost about $4,000 at a surgery center. That’s often about the amount of some patients’ deductibles, so they would have to pay the full bill out-of-pocket. If the procedure is done at a hospital, even laparoscopically, it can cost as much as $17,000. If patients delay and are rushed to the emergency room for the procedure, the hospital would charge at least two to three times the amount of the surgery, Ruggieri says. It would also mean a two- to three-day hospital stay vs. two hours for the elective procedure, and much longer at-home recuperation.

Paul Ruggieri, with medical assistant Monica DePonte,

Paul Ruggieri, with medical assistant Monica DePonte, is a surgeon who sees a lot of hernia and gall bladder patients who put off care until it becomes an emergency.
(Photo: Josh T. Reynolds for USA TODAY)

‘Skin In The Game’

The push for preventive care

“I’ve worked for 35 years. I never wanted to go on Medicaid,” says Brown, 50. “It’s horrible. I paid for insurance for all those years, and still ended up in this situation.”

But insurers, employers and others say that such stories are the exception and that high deductibles generally encourage consumers to seek the best value for their dollar.

“By having deductibles, it puts skin in the game,” says Divya Cantor, senior clinical director for the insurer Anthem in Kentucky.

Joel Diamond, a Pittsburgh primary care doctor, thinks high-deductible plans are a smart choice for people who can’t afford higher premiums and are generally in good health.

He cites the case of a young woman who couldn’t afford insurance on her own who stopped having periods and went to the emergency room with severe headaches. Diamond discussed doing testing for possible ovarian and endocrine problems. When blood work showed abnormal levels of the hormone prolactin, he recommended an MRI to rule out a pituitary tumor. Her bill for just a few hours in the emergency room was $15,000, something that will take her years to pay off.

If she had had a high-deductible plan, he says, it would have paid for a large chunk of the cost, and her debt could have been a third to half as much.

“We don’t have car insurance for windshield wipers and oil changes, but we need it for the catastrophic stuff, just like our health care,” says Diamond, who is also chief medical officer for the health care IT company dbMotion.

Aetna’s Reidl says her company allows people to compare prices easily on its website. Some tests, for example, could cost hundreds of dollars or less at some hospitals and thousands at others.

Aetna, the first national insurer to move to high-deductible plans — which it coined “consumer-directed plans” — more than a decade ago, says the plans help employees and employers save money.

Reidl says she has heard the criticism that they “may cause some individuals to put off care,” but counters that Aetna members with these plans get routine preventive care and screenings at higher rates than those with other plans. And their employers save an average of $208 per employee per year after they switch to high-deductible plans.

“We’ve seen that over 10 years consistently,” she says.

Aetna recommends companies pair the plans with health reimbursement or savings accounts — which allow employees to set aside tax-free money to use for cost sharing — to ease the burden of out-of-pocket costs on employees.

But Wendell Potter, who used to work in public relations in the insurance industry and has since written a book about the experience called Deadly Spin, says insurers who study high-deductible plans are “not disclosing everything they find.”

“They do these reports based on their populations to try to sell more of these plans to employers,” he says. Population-based reports don’t necessarily reflect the fact that “individuals and families are having to file for bankruptcy because they are in their plans.”

Potter left his public relations job at Cigna in 2008 in part because “I was expected to be a champion” of high-deductible plans. He says these plans are “taking us in the wrong direction … back to a system that we would have thought the ACA prevented.”

The Future

Will time heal all?

There are no signs high deductibles are going away.The Centers for Medicare and Medicaid Services last month cited these plans as one of the reasons health care spending hit a record low in 2013. But CMS statistician Micah Hartman says his office is “not looking forward to what the impact would be going forward” if consumers who delay care need far more expensive emergency care later.

Meanwhile, experts say Americans will need to take further steps to control their health costs.

Wilson, the Denver patient, says that after her doctor scolded her for stopping her blood pressure pills, she now takes them daily. But keeping up with her six medications is a constant struggle given her $33,000-a-year income, so she copes by asking for samples from the doctor, using a prescription discount plan and sometimes buying just a few pills at a time.

Doctors and doctor groups say such individual coping strategies can be helpful, but action is needed on a national level. The American Academy of Pediatrics recently came out with a policy statement saying high-deductible plans “may be a less desirable way to lower health care costs than other means … even if ‘other means’ require more work by government, insurance companies and other health policy participants.”

They say policymakers should consider requiring that the plans cover only adults, not children, as adults may suffer more from reduced care. The group also suggests exempting outpatient care from deductibles and requiring employers to put a lot more money in health-savings accounts that go with the plans.

Oncologist Ezekiel Emanuel, the former special adviser for health care policy to the director of the Office of Management and Budget, says insurers and employers moved to high-deductible plans rather than trying to come up with “a more intelligent plan design.”

Emanuel, who is considered an architect of Obamacare, says that he is “not a fan of high-deductible plans” and that what’s needed are “smart deductibles” that don’t discourage people from using the services they really need to stay healthy. He cites the preventive care visits that aren’t subject to deductibles under the ACA.

Higher deductibles, he says, should apply to “discretionary services” like knee replacements and low or no deductibles should be for important treatment such as for insulin or ophthalmologist visits.

But Wright, the Georgia professor, says he doesn’t see any major changes on the near horizon.

“I wish I could be optimistic, but I’m not sure,” he says. “There’s a lot of reason to be worried about the future.”

American Seniors In Worse Shape Than Those In Other Nations

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by Jason Olivia

The senior population in the U.S. is faring far worse than their counterparts living in other nations in terms of affording health care costs and getting the care they need, says a new international survey.

In the U.S., adults age 65 and older are sicker and more likely to struggle paying medical bills and getting the health care they need compared to their counterparts in 10 other industrialized countries, says the survey from The Commonwealth Fund, a private foundation that provides grants to support independent research focused on improving health care practice and policy.

The 2014 Commonwealth Fund International Health Policy Survey of Older Adults was conducted by phone from March through May of this year. More than 15,000 people age 65 and older participated in Australia, Canada, France, Germany, the Netherlands, New Zealand, Norway, Sweden, Switzerland, the United Kingdom and the U.S.

While the study notes that all of the surveyed countries could do better to improving conditions for their elderly populations, The Commonwealth Fund found that the U.S. was home to the sickest of seniors.

Of the Americans age 65 and older who participated, the survey found 87% have at least one chronic illness, while 68% have two or more—the highest rates among the 11 countries analyzed. 

Additionally, more than half (53%) of U.S. respondents reported taking four or more medications—also the highest among other nations—and 25% of American seniors saw four or more doctors in the past year, second only to Germany (39%). 

The U.S. also stood out for having the most 65 and older adults reporting they skipped needed health care because of costs (19%). Moreover, these older adults were also most likely to report they had trouble paying for their medical bills (11%).

In contrast, only 3% of older adults in France skipped health care due to cost-related struggles, while only 1% in Norway and Sweden said they struggled to pay medical bills. 

U.S. seniors’ cost woes aren’t necessarily unfounded as older Americans spend more than their counterparts in other countries for poorer access to health care.

“Despite the near-universal coverage that Medicare provides, older U.S adults in the survey incurred substantial out-of-pocket costs,” said The Commonwealth Fund.

To further illustrate this point, the survey found that 21% of seniors spend $2,000 or more a year out-of-pocket on health care, a higher rate than any other country except Switzerland, where 22% spent that much. In the U.K., only 2% spent more than $2,000 or more per year, while virtually no one did in France.

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Despite paying more, U.S. adults also were less likely to have timely access to the health care they need compared to the other nations.

Only 57% of older adults in the U.S. reported they could get a same- or next-day doctor’s appointment, compared to 83% in France and New Zealand, and 81% in Germany.

Inaccessibility also led to more emergency room visits for this population, with more than a third (35%) doing so for a condition their primary doctor could have treated had he or she been available.

When it came to coordination of care, people in nearly every country reported experiences with either poorly coordinated care of gaps in communication between providers. 

Countries where older adults experienced the some of the highest rates of care coordination problems were Germany, Norway, and the U.S.—41%, 37% and 35% respectively. Such problems included not having a recommended medical test, receiving conflicting information from different doctors, or having a specialist and primary care doctor not communicating. 

The survey was not entirely all U.S. bashing, as it did spotlight several areas where the nation did better than average, or at least kept pace with the majority of the other countries, especially when it came to management of chronic illness, patient-doctor communication, hospital-to-home transitions and end-of-life planning.

About 58% of chronically ill older adults in the U.S. reported they had discussed their treatment goals with their doctors and had clear instructions about when to seek further care. Fewer than half of chronically ill people in the other nations reported the same, with the exception of the U.K. (59%).

The vast majority of older Americans (86%) also reported that their doctor spent enough time with them.

Furthermore, the U.S. had among the lowest rates of seniors reporting gaps in their discharge-planning when leaving the hospital to return home. Only about 28% of American seniors reported discharge arrangement gaps, such as not having written instructions or not knowing what symptoms to watch out for, or whom to contact with a question when they left the hospital. 

For end-of-life planning, older adults in the U.S. were the most likely to have taken proactive steps to express their care preferences in the event they become unable to make decisions for themselves, with 78% reporting they had discussed this with a family member, friend or health professional.

Additionally, 67% reported having a written plan naming someone to make their health decisions for them, while 55% said they have a written plan describing the treatment they want at the end of life. 

“This new survey shows that there are three areas, such as manning patients who have chronic illnesses and hospital discharge planning, where the U.S. does well compared to other countries,” said Robin Osborn, the study’s lead author and vice president and director for The Commonwealth Fund’s International Program in Health Policy and Practice Innovations. “However, older Americans struggle more to get and afford the health care they need, indicating the need to improve Medicare’s financial protections.”

Although there is still much room for improvement for the U.S., as well as among other nations, it is encouraging to see the U.S. health system doing well for older adults in areas like better managing chronic illness, which have been the focus of concentrated efforts for improvement, said Commonwealth Fund President David Blumenthal, M.D. 

“Monitoring our progress over time and comparing it to other nations will be useful during the ongoing implementation of the Affordable Care Act, as more Americans gain health insurance coverage and further reforms are rolled out to improve how health care is delivered,” Blumenthal said.

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New York State Healthcare = Gun Control

New York’s “No-Gun” List Balloons To 34,500 Names

The State of New York keeps a database of individuals that it considers too mentally ill to own a gun. Recently released figures indicate that the list has grown to a massive size and includes many people who pose no threat to the public.

Figures published last month indicate that the registry includes 34,500 people. Mental health doctors say that this figure far exceeds the number of people who actually have dangerous mental illnesses in the state.

“That seems extraordinarily high to me,” said Sam Tsemberis, the former director of New York City’s involuntary hospitalization program for homeless and dangerous people. “Assumed dangerousness is a far cry from actual dangerousness.”

The state of New York requires doctors, psychologists and social workers to notify county officials about patients who they believe should be prohibited from owning firearms. The decision for who qualifies for gun confiscation appears to be completely up to the doctor.

There have already been at least two cases where guns were confiscated from law-abiding citizens.

In 2013, a college librarian in Amherst, NY was forced to surrender his weapons despite no criminal record or indications of mental instability. Why? Because he had briefly been prescribed anti-anxiety medication.

Another individual, who remains anonymous, also had his pistol permit revoked after the state found out that he was seeing a therapist for anxiety. He had no criminal record or history of violence.

Now it appears that thousands of other peaceful citizens could face similar consequences.

source: Sean Linnane

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