High-Deductible Plans Not More Risky for Medically Vulnerable

Tuesday, April 19, 2011

Medically vulnerable individuals enrolled in high-deductible health plans are not at a greater risk for cutting back on necessary health services than non-vulnerable enrollees in high-deductible plans, according to a new study by RAND Corporation, Modern Healthcare reports (Vesely, Modern Healthcare, 4/18).

The California HealthCare Foundation provided support for the study. CHCF publishes California Healthline (RAND release, 4/18).

For the study, researchers analyzed data on more than 360,000 U.S. families enrolled in high-deductible health plans through 59 large employers between 2003 and 2007.

In particular, researchers examined how high-deductible plans affected families living in low-income areas and families that had a member with a serious chronic condition.

Key Findings

Some health advocates have expressed concern that high-deductible plans could spur low-income families and people with chronic illnesses to forgo necessary medical care.

However, Amelia Haviland — lead author of the study and a statistician at RAND — said researchers “did not find greater cutbacks for medically vulnerable families.”

The study found that some high-deductible plan enrollees with chronic illnesses were more likely to obtain certain preventive services than low-income and non-vulnerable enrollees (Tocknell, HealthLeaders Media, 4/19).

Researchers noted that policyholders of all income levels tended to use recommended preventive services less frequently after switching to a high-deductible plan (Hobson, “Health Blog,” Wall Street Journal, 4/18).

In addition, the study found that the size of the deductible affected spending on health services among non-vulnerable families. According to Haviland, medically vulnerable families reduced spending on prescription drugs only when deductibles were at least $1,000 per person.


Haviland said the study “suggests that non-vulnerable families, low-income families and high-risk families are equally affected under high-deductible plans.”

Researchers noted that the findings could become more pertinent over the next few years because the state health insurance exchanges mandated under the federal health reform law could start offering high-deductible health plans in 2014 (HealthLeaders Media, 4/19).



Associated Press –

Apr. 3: Every year, thousands of people make a deal with their doctor: I’ll pay you a fixed annual fee, whether or not I need your services, and in return you’ll see me the day I call, remember who I am and what ails me, and give me your undivided attention.

But this arrangement potentially poses a big threat to Medicare and to the new world of medical care envisioned under President Barack Obama’s health overhaul.

The spread of “concierge medicine,” where doctors limit their practice to patients who pay a fee of about $1,500 a year, could drive a wedge among the insured. Eventually, people unable to afford the retainer might find themselves stuck on a lower tier, facing less time with doctors and longer waits.

Medicare recipients, who account for a big share of patients in doctors’ offices, are the most vulnerable. The program’s financial troubles are causing doctors to reassess their participation. But the impact could be broader because primary care doctors are in short supply and the health law will bring in more than 30 million newly insured patients.

If concierge medicine goes beyond just a thriving niche, it could lead to a kind of insurance caste system. “What we are looking at is the prospect of a more explicitly tiered system where people with money have a different kind of insurance relationship than most of the middle class, and where Medicare is no longer as universal as we would like it to be,” said John Rother, policy director for AARP.

Concierge doctors say they’re not out to exclude anyone, but are trying to recapture the personal connection shredded by modern medicine. Instead of juggling 2,000 or more patients, they can concentrate on a few hundred, stressing prevention and acting as advocates with specialists and hospitals.

“I don’t have to be looking at patient mix and how many are booked per hour,” said Dr. Lewis Weiner, a primary care physician in Providence, R.I., who’s been in a concierge practice since 2005.

“I get to know the individual,” Weiner said. “I see their color. I see their moods. I pick up changes in their lives, new stressors that I would not have found as easily before. It’s been a very positive shift.”

Making the switch can also be economically rewarding. If 500 patients pay $1,500 apiece, that’s gross revenue of $750,000 for the practice. Many concierge doctors also bill Medicare and private insurance for services not covered by their retainer.

For now, there may be fewer than 2,000 doctors in all types of retainer practice nationally. Most are primary care physicians, a sliver of the estimated 300,000 generalists.

The trend caught the eye of MedPAC, a commission created by Congress that advises lawmakers on Medicare and watches for problems with access. It hired consultants to investigate.

Their report, delivered last fall, found listings for 756 concierge doctors nationally, a five-fold increase from the number identified in a 2005 survey by the Government Accountability Office.

The transcript of a meeting last September at which the report was discussed reveals concerns among commission members that Medicare beneficiaries could face sharply reduced access if the trend accelerates.

“My worst fear and I don’t know how realistic it is is that this is a harbinger of our approaching a tipping point,” said MedPAC chairman Glenn Hackbarth, noting that “there’s too much money” for doctors to pass up.

Hackbarth continued: “The nightmare I have and, again, I don’t know how realistic it is that a couple of these things come together, and you could have a quite dramatic erosion in access in a very short time.”

Another commissioner at the meeting, Robert Berenson, called concierge medicine a “canary in the coal mine.” Several members said it appears to be fulfilling a central goal of Obama’s overhaul, enhancing the role of primary care and restoring the doctor-patient relationship.

Yet the approach envisioned under the law is different from the one-on-one attention in concierge medicine. It calls for a team strategy where the doctor is helped by nurses and physician assistants, who handle much of the contact with patients.

John Goodman, a conservative health policy expert, predicts the health care law will drive more patients to try concierge medicine. “Seniors who can pay for it will go outside the system,” he said.

MedPAC’s Hackbarth declined to be interviewed. But Berenson, a physician and policy expert, said “the fact that excellent doctors are doing this suggests we’ve got a problem.”

“The lesson is, if we don’t attend to what is now a relatively small phenomenon, it’s going to blow up,” he added. When a primary care doctor switches to concierge practice, it means several hundred Medicare beneficiaries must find another provider.

Medicare declined an interview on potential consequences. “There are no policy changes in the works at this time,” said spokeswoman Ellen Griffith.



Los Angeles Times –

Apr. 4: Thousands of employers in California and across the country are slashing expensive doctors and hospitals from their insurance rosters in a move to hold down rising healthcare costs a trend that is gaining favor with corporate bosses, if not the rank and file.

The savings on insurance premiums nearly 25% in some cases are gained when companies switch their health plans to “narrow network” HMOs that offer fewer choices of medical providers.

California, with nearly 21 million people in health maintenance organizations, is driving the rapid expansion of these networks. More than 10,000 California employers and public agencies have enrolled, mostly since the recession struck in 2008.

While many workers welcome the cheaper HMOs, the savings come at the price of fewer healthcare choices.

Beverly Prange chose a slimmed-down network in January offered through her employer, the San Diego County Office of Education. The change cut her insurance premiums but meant switching physicians, something she was reluctant to do.

“I have less flexibility now than I had in the past,” said Prange, a migrant education specialist. “I liked the doctor where I was.”

The narrow networks have attracted some of California’s largest employers. Two of the biggest users the University of California and the California Public Employees’ Retirement System have offered their members the option of slimmer plans sold by Health Net Inc. and Blue Shield of California, and say the cost-cutting alternatives have found wide acceptance.

“It’s a better use of healthcare dollars for our members,” said Kathleen Billingsley, a CalPERS benefits official.

Insurers and employer groups say the networks have grown fastest among small businesses, allowing them to save money and still get high-quality medical care for their employees.

California Furniture Galleries, a small home furnishings store in Canoga Park, chose the “Silver” network from Health Net last year rather than asking 14 employees to pay more for their health insurance. The change roughly cut in half an expected 13% increase in premiums, and most employees were able to keep their doctors, who were part of the smaller network.

“It was a no-brainer,” manager Mike Katz said of the decision to switch.

The availability of doctors varies by each narrow network. Woodland Hills-based Health Net, one of the first to promote the strategy in California, features 47,000 doctors in its full HMO network but just 7,000 physicians in its Silver plan.

That network available in 10 counties, including Los Angeles, Orange, San Bernardino and Riverside can save businesses as much as 14% on insurance premiums, a spokesman said.

An even smaller network, Bronze, has 1,600 doctors in Los Angeles, San Diego and San Bernardino counties, and can shave as much as 24% off insurance bills.

“We know we have a popular, growing concept,” said Health Net spokesman Brad Kieffer, who noted the company’s plans to expand beyond California.

Other insurance companies, seeing a trend in the making, are eagerly promoting their own versions of narrow networks nationwide. Three of the largest national providers in particular WellPoint Inc., Aetna Inc. and UnitedHealth Group Inc. are quickly expanding the niche to capture millions of new customers.

UnitedHealthcare alone has signed up about 75,000 employer groups nationwide, the bulk of them in the last two years, including more than two dozen Southern California school districts that joined in January.

“We are revving up that engine,” said Dr. Sam Ho, UnitedHealthcare’s chief medical officer. “There is an aggressive appetite for new solutions and new opportunities to manage healthcare costs.”

California regulators said consumers were protected from potential abuses by a state law that requires narrow networks to abide by the same rules set for broader HMO systems — for example, providing access to doctors and hospitals close to patients’ homes.

Healthcare experts and consumer advocates warn that eliminating doctors and hospitals from insurance lists could harm patients, particularly those who depend on specific providers to treat chronic or life-threatening conditions.

They note that HMO patients who seek care from doctors outside their networks typically must foot the entire cost of their treatments.

“The real question is, can people who are really sick and need high-end specialty care … still get the care they need in these narrower networks?” asked Drew Altman, president of the Kaiser Family Foundation, a nonprofit research organization in Northern California. “That will depend on the details of how they work.”

Insurers say they have designed the smaller networks with healthcare quality in mind, relying on clinical benchmarks from outside organizations to ensure that customers receive high-quality care.

In California, for instance, insurers say they often look to the state’s Office of the Patient Advocate for quality guidelines. Every year, the state agency issues a report card on HMOs to help consumers evaluate health coverage.

Insurers also say these narrow networks don’t dramatically cut people’s choices, and that the slimmed-down lists of doctors and hospitals often feature many of the providers in the broader HMO systems.


Health law cost still a wild card

By DAVID NATHER | 3/29/11 4:42 AM EDT

Anyone who claims to know how much the health care law will cost is missing one big piece of information: the exact cost of the benefits.

They can’t know it, because the benefits package is still being worked out, and its final shape will determine whether the Congressional Budget Office estimate was in the ballpark or not even close.

Starting in 2014, all health plans offered through the state health insurance exchanges will have to offer the “essential health benefits package” — a set of minimum services all individuals and small businesses are supposed to have in their coverage. That package will have a direct impact on the cost of the law, because people will get subsidies to help them buy coverage if they can’t afford it on their own.

Make the benefits package too stingy, and consumer advocates will say the law failed in its goal of protecting people from big gaps in coverage. Make it too generous, though, and the premiums for those plans will go up — and the federal government will have to spend that much more on the subsidies.

If that happens, the CBO projections that the law will pay for itself — and actually reduce the deficit by $143 billion over 10 years — might underestimate the actual costs. That’s critical, because Democrats are making so much of the CBO’s estimate that the law will reduce the deficit while Republicans suggest it will actually drown the nation in red ink.

Or the higher premiums could just scare people away from buying coverage and make them decide the fines under the individual mandate would be cheaper. In that scenario, there wouldn’t be as many subsidies to pay — but not as many newly insured people, either.

“If you make the benefit package rich, you make the premiums high, and that makes it more likely that people will skip health insurance altogether,” said Mark Pauly, a health care economist at the Wharton School of the University of Pennsylvania. “From my point of view, it’s more important to get takeup.”

The law doesn’t try to spell out the exact package. Instead, it lists several categories of benefits and leaves it to the Department of Health and Human Services to figure out exactly what to cover within those categories and what kind of limits the coverage should have. So the exact cost of the package won’t be known until HHS makes those decisions.

The department is getting some help. The Institute of Medicine, an independent, nonprofit health care analysis group, has put together a committee of health care analysts, consumer advocates and other experts to look at how the package should be designed. They held a conference call to discuss draft recommendations on March 21. The final report is expected in September.

But even though the committee is keeping a tight lid on its deliberations — with strict orders to members not to make even general comments about the trade-offs they face — the institute’s report won’t actually recommend what should be in the package. All it will do is suggest what HHS officials should think about when they design the package.

The committee members are gathering important information to pass along to HHS, though. Jonathan Gruber, an economist at MIT, told the committee that for every 10 percent increase in the cost of the essential benefits package, the cost of the government subsidies would rise by 14.5 percent — or $67 billion over 10 years. It would also cause the number of insured people to fall by 1.5 million, he said.

The law says the benefits package should be roughly equal to the coverage in “a typical employer plan.” HHS would define that, too, though most health economists believe it’s going to be based on what’s covered in typical large employer health plans.

The problem is that there is no good data available on what a typical large employer plan covers and what the limits are, according to Gary Claxton, director of the Henry J. Kaiser Family Foundation’s Health Care Marketplace Project. The law requires that the Department of Labor conduct a survey to find out.

The CBO cost estimate doesn’t actually say how its analysts figured out what the benefit package would cost and how it would affect the federal spending on subsidies. And the budget office wouldn’t make any of its analysts available to talk about its assumptions on the record or even on a not-for-attribution basis.

“It’s a guess, like a lot of things,” said Joseph Antos, a health care analyst at the American Enterprise Institute and a former CBO analyst.

But Kenneth Thorpe, an expert on health care costs at Emory University, said there are plenty of surveys that would have given CBO a key piece of information: the average premiums for large employer plans. For firms with 200 or more employees, the average premiums in 2010 were $5,050 for single coverage and $14,038 for family coverage, according to an annual survey by the Henry J. Kaiser Family Foundation and the Health Research & Educational Trust.

The other issue is that the kind of coverage usually available only at large companies will now be extended to small group and individual coverage — many of which would have to add entire categories of benefits that they haven’t previously offered.

Some of the benefits categories required by the law are fairly standard: doctor visits, emergency care, other hospital coverage and pediatric care. But as CBO pointed out, the law also requires the package to include services that aren’t always covered by individual policies, including prescription drug coverage, maternity care, and mental health and substance abuse services.

And mental health is one of the classic benefits that can be open-ended if an insurance plan doesn’t limit it. Gruber said, however, the package can place limits on certain benefits that could become too costly, for example, capping the number of outpatient mental health visits or physical therapy sessions.

“You’re going to see benefits covered now that typically have not been covered in this market,” said Claxton. “It doesn’t mean they can’t be managed.”

It would be easy for HHS to avoid mandating the kinds of services that would most boost costs, such as chiropractic services and fertility treatments at https://www.advancedfertility.com/choose.htm, according to Paul Van de Water, a senior fellow at the Center on Budget and Policy Priorities. Neither one is required under the law, though the law doesn’t restrict HHS from adding other benefits.

“If you sort of found all of these marginal things and pushed them to the max, I suppose you could affect the costs,” Van de Water said. But it’s more likely that HHS would resist those calls, he said, leaving federal officials with “a fairly small range” of benefit decisions to make.

Antos said that even though HHS could affect the cost of the law by throwing too much into the benefit package, the Institute of Medicine probably will advise the department against getting too specific — and HHS probably will take that advice.

“How deep do you go? I think the answer is, not very deep,” Antos said.


Goodbye to Healthcare Benefits?

A recent survey finds about one-third of employers are unsure whether their organizations will offer healthcare benefits to employees in a decade. Indeed, as future elements of the healthcare-reform law kick in, HR and benefits professionals may need to totally rethink what it means to be an employer of choice at a time when employers do not offer healthcare benefits.

By Mark McGraw

A combination of factors — a still-sluggish economy, rising healthcare costs and the projected impact of healthcare reform — have already led many employers to take bold steps to overhaul the design of their current employee-healthcare plans.

If findings from the 16th annual Towers Watson/National Business Group on Health Employer Survey on Purchasing Value in Health Care are any indication, that trend is likely to continue in the future — to the point where they may not be offering healthcare benefits at all.

The survey, which polled HR managers and employee-benefits managers from 588 U.S. companies with 1,000-plus employees, found that only about one-third (38 percent) of respondents are confident their organizations will offer healthcare benefits directly to employees 10 years from now.

That percentage is notably lower than in past surveys conducted by the organizations, says Helen Darling, president and CEO of the Washington, D.C.-based National Business Group on Health, who attributes it to the current business and economic climate.

“[The survey findings] don’t surprise me,” Darling says. “The predominant feeling right now is one of uncertainty.”

It is an uncertainty that is well-founded, says Randall Abbott, senior consultant and North American leader of health and group benefits at New York-based Towers Watson.

“This decline in confidence reflects the convergence of a slow economy, the outlook for continually rising healthcare costs, and the effects — real and perceived — of healthcare reform and its potential impact on business conditions,” Abbott says.

“Given this uncertain environment, it’s not surprising that employers are examining their alternatives while we wait for clarification of many of the details of healthcare reform,” he says.

Historically, HR leaders have taken an incremental approach to plan-design modifications, Abbott says. The post-reform healthcare landscape, however, finds many employers considering sweeping changes to employee-health strategies, and seeking options that move costs outside their organizations.

With an eye on 2012 and beyond, the trend toward consumer-driven benefit plans — which encourage employee engagement and accountability for costs — is bound to continue, and HR professionals are likely to find “the health benefits picture to be very different in years ahead,” says Dallas Salisbury, president and chief executive officer of the Washington-based Employee Benefit Research Institute.

Potentially shaping that picture are the opening of insurance exchanges in 2014, and a possible excise tax on healthcare benefits that is planned to go into effect in 2018.

The proposed insurance exchanges, which are designed to create more competition among providers and subsequently bring down the price of health insurance, would “simply facilitate change and accelerate the pace,” Salisbury says.

“Most of the attributes of health insurance that could be achieved by employers — but were not available in the individual market — would now be available through exchanges,” he says.”And, if and when the tax advantage of employment-based coverage goes away, the acceleration [of employers not offering healthcare benefits] will be even more pronounced.”

Indeed, 70 percent of respondents to the Towers Watson/NBGH survey say the opening of insurance exchanges would have some effect on their active medical programs, and 78 percent say the exchanges would impact their retiree programs.

The implementation of the excise tax is expected to affect both active and retiree medical programs as well, with 24 percent and 20 percent of employers, respectively, anticipating an extensive impact on their benefit offerings.

These potentially significant changes due to healthcare reform will likely impact recruitment and retention efforts — a scenario that HR professionals should prepare for, Darling says.

“Employers feel very strongly that a good benefits package is a competitive asset, and a competitive benefit,” she says. “The recession notwithstanding, we still have a war for talent going on. A talent strategy is foremost in everyone’s mind right now. [Employers] are trying to hang on to people with rare skills and talents.”

The elimination of employer-provided benefits, Abbot says, would require HR leaders and benefits managers to shift their attention to “other elements of total rewards and potentially prompt an evaluation of which rewards programs result in increased levels of attraction, engagement and retention of talent.”

“The elimination of healthcare benefits would likely result in an even more intense focus on workforce health and productivity, as well as focusing efforts more globally,” he says.

As a growing number of companies look to exchanges and other options to defray escalating costs and achieve compliance with new and pending healthcare regulations, an organization’s commitment to the wellness of its workforce should remain the same, Darling says.

“With the evolution of healthcare benefits — or at least the financial side of it — and employers moving on to some other way of providing them, employers will focus on making sure their employees are healthy and productive,” Darling says.

“The importance of ensuring that the organization’s talent is healthy, productive, engaged and able to serve customers is not going to just go away,” she says.

Even before these elements of the reform law become effective, organizations are continuing to refine their healthcare benefits, including redesigning plans to incorporate enhanced point-of-care consumerism, reposition incentives to improve employee engagement, redefine financial commitment to dependent and retiree coverage, and emphasize the use of high-value providers, the survey finds.

For instance, about two-thirds (68 percent) of respondents say their organizations are moving to increase employee contributions for any plans that include dependent coverage.

In addition, 19 percent say they are increasing employee contributions for each new dependent added to a plan, and about one-third (35 percent) of respondents say their organizations are using or planning to implement spousal waivers or surcharges.

One-third of respondents say their companies plan to reward or penalize employees based on biometric outcomes (such as for weight and cholesterol), compared with just 7 percent in 2011 and 6 percent in 2010.

About one-quarter of employers plan to cease employer sponsorship of retiree-medical coverage (26 percent) plan to convert a current subsidy to a retiree-health account (25 percent) or plan to eliminate employer-managed drug coverage for post-65 retirees and rely on Medicare Part D plans (23 percent).

Compared to years past, the survey also finds a significant increase in the adoption of account-based health plans. ABHPs are plans that have deductibles offered together with a personal account (such as a health-savings account or health-reimbursement arrangement) that can be used to pay a portion of the medical expenses that are not paid by the plan.

ABHPs typically include decision-support tools that help consumers better manage their health, healthcare and medical spending.

In 2002, the survey found just 2 percent of all employers offered ABHPs. By 2011, that number had ballooned to 53 percent, and another 13 percent say their organizations plan to add an ABHP by 2012.

March 23, 2011

Copyright 2011© LRP Publications


Warning: Dependent Care Mandate Can Cause Tax Headaches

Christian Schappel

The healthcare reform law’s dependent coverage rule doesn’t extend to health savings accounts (HSAs) – and it’s bound to cause some problems.

The new law changes the definition of a dependent child, resulting in a requirement that group health plans that offer dependent coverage to children allow young adults up to age 26 to remain on their parent’s insurance plan.

The problem: While the new definition of a dependent applies to most employer health coverage, it does not extend to HSAs. HSAs must still operate using the old definitions of a qualifying child or qualifying relative.

Pre-health reform definitions

Under the pre-reform definition, a qualifying child is someone who has not attained age 19 (or age 24 if a full-time student).

And a qualifying relative under the old definition is a child of the employee, other relative or member of the employee’s household, for whom the employee provides over half of the individual’s financial support.

Older children don’t qualify

These definitions now cause a problem when an employee tries to enroll a 25-year-old child in a group health plan that uses an HSA.

Because of the expansion of dependent care under the new reform law, the child is allowed into the plan. But the employee can’t submit the child’s uninsured expenses for reimbursement under the HSA because the child is too old to qualify under the rules of an HSA.

In addition, the child won’t be a qualifying relative if he/she doesn’t depend on the employee for the majority of his/her financial support.

So if the employee takes an HSA distribution to reimburse the child’s expenses, it’ll be taxed and could be subject to the 20% HSA penalty on early withdraws.


Starbucks CEO rethinks health law position


Starbucks chief executive Howard Schultz says the health overhaul law’s employer requirements will impose “too great” a pressure on small businesses.

Schultz supported the law as he watched his company’s health insurance tab — $250 million as of last year — surmount its coffee bill. But he told The Seattle Times in an interview published Tuesday that he’s now worried about what happens when it takes full effect in 2014:

We have faced double-digit increases for almost five consecutive years with no end in sight. So, when I was invited to the White House prior to health care being reformed, I was very supportive of the president’s plan, primarily because I felt it was literally a fracturing of humanity for almost 50 million Americans not to have health insurance.

There’s no plan that would be a perfect plan, but the intent of the bill and the heartfelt commitment to insure the uninsured is the right approach. I think as the bill is currently written and if it was going to land in 2014 under the current guidelines, the pressure on small businesses, because of the mandate, is too great.



Associated Press –

Mar. 11: A federal appeals court has agreed to act swiftly in considering a Florida judge’s ruling that President Obama’s health care overhaul is unconstitutional.

The 11th Circuit Court of Appeals in Atlanta said Friday that it had agreed to expedite the appeal, setting a faster timetable than even the federal government had requested.

The decision means the federal government must file its first set of court papers on the issues in the case by April 4, and the state of Florida has until May 4 to file its papers. The federal government would file additional papers by May 18.

The appeals court said it had not made a decision on a request that the initial review be held before all 10 federal judges.

The Justice Department said in a filing this week that expedited treatment of the case was warranted because of the far-reaching nature of the decision by a federal judge who declared the entire law unconstitutional.

U.S. District Judge Roger Vinson ruled against the Obama administration’s health care overhaul on grounds that Congress exceeded its authority by requiring nearly all Americans to carry health insurance.

Twenty-six states challenged the law in the Florida case. Another federal judge ruled against the law, while three other federal judges upheld the law.

A spokesman for South Carolina Attorney General Alan Wilson said he was “pleased with today’s 11th Circuit Court of Appeal’s order fast tracking the appeal of the Health Care Act. South Carolina and the nation need this important legal challenge answered sooner rather than later.”


The Supreme Court and the health-care mandate muddle

By George F. Will
Sunday, March 13, 2011

When the Supreme Court considers whether Congress has the constitutional power to compel individuals to buy health insurance, the argument supporting Congress may rest on a non sequitur and a semantic fiat. A judge’s recent ruling argues that the insurance mandate must be constitutional because Obamacare would collapse without it. A forthcoming law review article agrees with this and with the judge’s idea that, regarding commerce, being inactive is an activity.

Obamacare does indeed require the mandate: Because the law requires insurance companies to sell coverage to people regardless of their preexisting conditions, many people might delay buying insurance until they become sick. But is the fact that the mandate is crucial to the law’s functioning dispositive?

U.S. District Judge Gladys Kessler’s ruling that the mandate is constitutional conflates moral, policy and constitutional considerations. She says that people who choose “not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep.” So “those who choose not to purchase health insurance will ultimately get a ‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face.”

Her disapproval is neither a legal argument nor pertinent to one. The question remains: Does Congress’s power to regulate interstate commerce entitle it to create a health-care regime that requires the mandate?

Mark Hall of Wake Forest University, in an article for the University of Pennsylvania Law Review, says there would be constitutional “uncertainty over the mandate in isolation.” But it is “inextricably intertwined” with Obamacare’s “other insurance regulations” – e.g., those pertaining to preexisting conditions – “which indisputably are constitutional.” So the “strongest defense” of Congress’s power to enact the mandate is “the acknowledged undesirability, if not impossibility” of the regulations regarding preexisting conditions, absent the mandate.

Hall says that the mandate “meets a high threshold of necessity to accomplish the overall reform scheme, clearly within congressional power, to create a market structure in which no one is ever again medically uninsurable.” But unless we postulate that Congress has whatever power is required to create such a market structure, this question remains: Does the fact that Congress has the constitutional power to do X – say, guarantee universal access to insurance – make Y constitutional merely because Y is necessary for doing X?

Congress has the constitutional power to combat political corruption, the “appearance” thereof and the “circumvention” of laws for this purpose. But suppose Congress, exercising this power by regulating campaign finances, decides that abridging freedom of speech is necessary for its anti-corruption measures. This necessity, defined by this preference, does not make such abridgement constitutional. The Supreme Court said as much concerning McCain-Feingold.

The mandate’s defenders note that the Constitution says Congress has the power to “make all laws which shall be necessary and proper for carrying into execution” its enumerated powers, one of which is to regulate interstate commerce. “Necessary and proper.” An unconstitutional law is improper.

Does the mandate acquire derivative constitutionality merely by Congress making the mandate necessary for something Congress wants to do in the exercise of the enumerated power of regulating interstate commerce? If so, what would not acquire such constitutionality?

Madison’s constitutional architecture for limited government will be vitiated unless the court places some limits on what constitutes commerce eligible for regulation. So the question becomes: Is the inactivity of not buying insurance a commercial activity Congress can proscribe because it has economic consequences?

Hall says it is unclear what constitutes “pure inaction.” But virtually nothing qualifies as “pure” inactivity if, as he says, “the passivity of non-purchasing decisions does not rob them of their inherently economic nature.” Judge Kessler disdains the distinction between activity and inactivity as “of little significance.” Her Orwellian theory is that government can regulate the activity – the mental activity – of choosing not to participate in a commercial activity.

Hall perfunctorily says that “some limit” on Congress’s commerce power “is necessary” but then says “democratic electoral constraint” – trusting “the political process itself to set limits” – will suffice to restrain government.

The question about the mandate is, however, whether a political institution has traduced constitutional limits placed on it. Because the Framers prudently doubted the sufficiency of “democratic electoral constraint” – because they were wary about “the political process” policing itself – the Constitution was written.



HealthDay News – Mar. 7:

Half of U.S. adults still oppose the “individual mandate” clause in the new health care reform law that requires all Americans not already insured to purchase health insurance, while only 22 percent support it, a new Harris Interactive/HealthDay poll finds.

But certain arguments in favor of the mandate seem to sway opinion back toward support for it. For example, 71 percent of the more than 3,000 adults polled in mid-February agreed with the suggestion that “for health insurance to work, it is necessary to include people who are healthy in order to help pay for those who are sick.”

That seems to indicate that “while the individual mandate is still widely unpopular, indeed by far the most unpopular part of the Affordable Care Act [ACA], some arguments in favor of it are supported by most people,” said Humphrey Taylor, chairman of The Harris Poll, a service of Harris Interactive.

Prior Harris Interactive/HealthDay polls have consistently shown that the individual mandate is the only part of the Affordable Care Act that is unpopular with a majority of Americans.

Half of those interviewed for the new poll felt the individual mandate was unconstitutional, while 20 percent thought it was constitutional, and 30 percent weren’t sure. Among Republicans, 78 percent said the mandate was unconstitutional, compared with 31 percent of Democrats.

Most experts now believe that the constitutionality of the individual mandate will only be settled by the U.S. Supreme Court. However, only slightly more than a third (36 percent) of those polled believe that the nation’s highest court would be able to decide the issue in a non-political, non-partisan way.

Thirty-nine percent felt that any Supreme Court decision would be colored by the justices’ political leanings. “Most people do not feel that the Court is above politics,” Taylor said.

In recent lower court rulings on the Affordable Care Act, three judges appointed by Democratic administrations have so far supported the law, while two judges appointed by Republican administrations have ruled it unconstitutional.

Devon M. Herrick is a senior fellow at the National Center for Policy Analysis, a nonpartisan, nonprofit think tank focused on free-market approaches to public policy. He believes that the Supreme Court will largely look to the letter of the law when making any decision.

“I do not believe federal judges will rule for or against the Affordable Care Act based solely on their political affiliation,” he said. “However, differing political views can undoubtedly influence a judge’s interpretation of whether the ACA’s individual mandate violates the Constitution.”

The new poll found that the nation as a whole is still split on how it feels about the Affordable Care Act overall, with 39 percent of respondents opposed to the reform package, 34 percent in favor and 27 percent still undecided.

Most of this division cleaves along party lines, with 72 percent of Republicans wanting to repeal all or most of the legislation, compared to 15 percent of Democrats.

Smaller majorities agreed in the new poll with other arguments that would support the individual mandate. For instance, 56 percent agreed with the statement, “If everyone is required to have health insurance, including healthy people, it will make the average cost of insurance less expensive.”

And 51 percent agreed with the contention that “requiring insurance companies to provide health insurance to people with preexisting conditions will not work unless everyone is required to have insurance” a major argument often put forward as to why the individual mandate is necessary.

The AARP said it agrees with that reasoning. “Our members have been telling us for decades about the problems they’ve had getting or keeping access to health insurance because of their age or health history,” said Nancy LeaMond, executive vice president of AARP’s State and National Group. “The implementation of the ACA, which includes the individual mandate, is necessary to keep insurance companies from blocking coverage due to a person’s age or pre-existing conditions, or dropping coverage when someone gets sick.”

Other arguments in favor of the individual mandate didn’t get majority support in the new poll. For example, more people (54 percent) disagreed than agreed (46 percent) with this statement: “If it is constitutional for the states to require people to buy car insurance or wear seat belts, it should be constitutional for the federal government to require people to buy health insurance if they do not already have it.”

There are parts of the Affordable Care Act that still garner widespread support among Americans. For example, a majority of both Republicans and Democrats like the provision that bars insurance companies from refusing to cover people with pre-existing conditions.

“The individual mandate is the most controversial portion of the Affordable Care Act. Less than one-quarter of those surveyed support it,” Herrick noted. “Yet, there is strong public support that people with pre-existing conditions should not face discrimination when purchasing coverage. The problem for policymakers is how to reconcile these two conflicting views.”

The Harris Interactive poll of 3,419 Americans over the age of 18 was conducted online within the United States between Feb. 16-18