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Posts in category Health reform

Could a Romney Administration Really Dismantle the ACA “On Day One”?

Nov02
2012 Leave a Comment Written by O’Neill Institute

This post was written by Madhu Chugh. Ms. Chugh is a scholar at the O’Neill Institute at Georgetown University Law Center and an attorney at Wilmer Cutler Pickering Hale and Dorr LLP.  The views expressed in this post are the author’s alone and do not reflect the views of WilmerHale or the O’Neill Institute.

Mitt Romney has promised that one of his first orders of business, if elected President, would be to dismantle the Affordable Care Act (ACA), President Barack Obama’s signature health reform law enacted in March 2010.  In order to repeal the ACA, a President Romney would need Congress’s cooperation.  If Congress (perhaps the Senate in particular) refused to back repeal, the question would arise: What could a Romney Administration do, based solely on executive authority, to slow or undermine the implementation of the ACA?  If elected, Mr. Romney would have a few options at his disposal to impede how the law is carried out.  Commentators elsewhere have discussed how Mr. Romney could curtail implementation through rulemaking and other avenues.  This post analyzes two other potential tools in a President’s arsenal—namely “waiving” state compliance with the ACA and defunding the programs created by the law. READ MORE »

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Three Ominous Moments During the Affordable Care Act Severability Hearing – Could They Actually Save the Mandate?

Apr03
2012 Leave a Comment Written by O’Neill Institute

This post was written by former O’Neill Institute Research Assistant and current Georgetown Law 2L Dinesh Kumar, who attended day three’s morning session of the Supreme Court’s hearing on the Affordable Care Act.

Every aspect of the Affordable Care Act (ACA) Supreme Court oral arguments has been dissected in the days following the historic hearings, including the “severability” issue (dealing with the question of what, if any, provisions of the law are valid if the Court finds the “individual mandate” to purchase insurance to be unconstitutional).  Professor Lawrence Gostin of the O’Neill Institute at Georgetown Law also gave his comprehensive take on the previous day’s individual mandate hearing here.  As I reviewed the many perceptive blog posts reacting to the severability argument (good examples of which are here, here, and here), I wondered what I could add from the perspective of a law student lucky enough to score a seat inside the courtroom.  As a supporter of the mandate – on constitutional, economic, and public health grounds – I’ll briefly highlight three aspects of the proceedings I found troubling.

 Justice Kennedy and judicial “restraint”

Severability has always been a concept tied to the ideal of judicial restraint ever since Chief Justice Marshall implored following Marbury v. Madison that while a provision deemed unconstitutional must fall, all other parts of a law should be given “full effect” as long as they are “not repugnant to the Constitution.” Several justices urged restraint on the part of the Court during the severability hearing; Justice Ginsburg called a “salvage job” preferable to a “wrecking operation,” and others repeated that a “half a loaf of bread” was better than no loaf at all.  But at one point Justice Kennedy, whose vote will perhaps decide the case, echoed a paradoxical notion of “restraint” put forth by Justice Scalia: That striking down the entire law would actually show more restraint than allowing some portion to stand while killing the mandate.  If Congress were allowed to start anew rather than being returned a law that spoiled its intended effect on the insurance industry, his thinking went, the Court would at once be deferential to Congress and true to its own constitutional ideals.  Justice Kennedy’s definition of restraint displays a kind of logic that makes it unclear whether he believes the most restrained thing to do would be to uphold or strike down the entire law.  READ MORE »

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HHS Releases Final Rules that Apply Affordable Care Act Provisions to College Health Plans

Apr02
2012 Leave a Comment Written by O’Neill Institute

This post was authored by Rory O’Sullivan, Policy Director, from the Young Invincibles. 

The Department of Health and Human Services recently released final rules that apply the Affordable Care Act’s (ACA) consumer protections to college health plans starting in Fall 2012. College students will now receive the same basic consumer protections and benefits as all Americans.  

Historically, student health plans have exhibited many of the worst practices in the health insurance industry. Some plans cover no more than $1,500 a year in benefits.  Others have medical loss ratios as low as 35%, meaning they spend only 35 cents of every dollar in premiums on actual medical care, with the rest going toward administrative expenses and profits. As a result, profit margins on certain college health plans reach 5 times the industry average.  READ MORE »

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Health Care Reform Hangs in the Balance

Mar28
2012 Leave a Comment Written by Lawrence Gostin

Protestors in front of the U.S. Supreme Court (image from Politico)

Prior to Tuesday’s arguments before the Supreme Court, I believed that the Court would uphold the health insurance purchase mandate by a comfortable margin. Unlike the Rehnquist Court, the Roberts Court has not made federalism a signature issue, and justices such as Antonin Scalia seemed amenable to the exercise of federal powers consistent with commerce clause precedents. My reasoning, discussed in my earlier blog posting, was that the health care market is the most encompassing national commercial market in America, consuming some 17% of GDP, and with pharmaceuticals, medical equipment, electronic medical records, and insurance claims all moving widely across the nation. The Court’s precedents all pointed toward a broad scope for the commerce authority.

Having heard the arguments on Tuesday, I now believe that health care reform hangs in the balance. Although the tenor of the arguments cannot necessarily predict the result, the Court’s conservative bloc expressed skepticism about the constitutionality of the mandate. Justice Kennedy, often the pivotal vote in close cases, expressed the view that the mandate fundamentally changed the relationship between the individual and the state. Health care reform does do that, but only in the best possible way: by creating a social contract whereby everyone is entitled to access affordable care. And the Affordable Care Act (ACA) establishes this social contract in a way that is in my view clearly constitutional.  READ MORE »

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Why the Affordable Care Act’s Individual Purchase Mandate is Both Constitutional and Indispensable to the Public Welfare

Mar05
2012 Leave a Comment Written by Lawrence Gostin

Florida v. HHS – a suit brought on behalf of 26 states challenging the constitutionality of the Affordable Care Act (ACA) – represents a rare moment in America’s history. The Supreme Court will determine whether the United States coalesces behind an historical health system reform providing near-universal coverage, or retreats from it.

Although Florida v. HHS raises four constitutional questions – the individual purchase mandate, Medicaid expansion, severability, and the Anti-Injunction Act – undoubtedly the mandate presents the most novel and consequential issue, with constitutional and social policy implications that are far reaching. Why is the constitutional question so original and meaningful in understanding the scope of Congress’ powers? Why is the social policy question indispensable to the future of health care reform? And what is the inter-play between the constitutional and social policy questions?

Novel Constitutional Questions

Integral to the ACA’s conceptual design is the individual purchase mandate, which requires most individuals to pay an annual tax penalty if they do not have health insurance by 2014. Despite the vociferous opposition, the mandate is the most “market-friendly” financing device because it relies on the private sector. Ironically, less market-oriented reforms such as a single-payer system clearly would have been constitutional. READ MORE »

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Prevention Politics—Congress Reduces Funding for Health Prevention Fund

Feb22
2012 Leave a Comment Written by Kelli K. Garcia

On Feb. 17th, in an extremely shortsighted move, Congress voted to cut $5 billion from the Affordable Care Act’s health prevention fund to offset the cost of delaying (by 10-months) scheduled cuts to Medicare physician payments, known colloquially as the “doc fix.”  This represents a one-third reduction in the fund’s current budget.  The prevention fund, which has been lauded as one of the most important contributions to the advancement of public health, began with $500 million in 2010 and was scheduled to reach $2 billion by 2014.  Now, the prevention fund will not reach $2 billion until 2022, at the earliest.  The Secretary of Health and Human Services may transfer money from the fund to any program authorized by the Public Health Service Act for “prevention, wellness, and public health activities including prevention research and health screenings, such as the Community Transformation grant program, the Education and Outreach Campaign for Preventive Benefits, and immunization programs.”

This decision was penny wise and pound foolish.  Chronic diseases, which many of the fund’s programs target, cause approximately 80% of deaths in the United States and account for 75% of the nation’s health spending.  If we have any hope of bending the cost curve, we must take prevention seriously and spend accordingly.  Annual spending related to type 2 diabetes, a mostly preventable disease, is expected to reach $336 billion by 2034 up from $113 billion in 2009.  At the same time, a mere 3 percent of national health expenditures in 2009 went to “government public health activities.” READ MORE »

Medicaid Before the Supreme Court Today

Oct04
2011 Leave a Comment Written by Lorian Hardcastle

With Starbucks Venti in hand to ease the pain of waking up at 6:00 a.m. and the 45 degree weather, I eagerly lined up this morning to hear oral arguments at the Supreme Court with fellow health law fans, associates too far down the food chain to earn a seat at the counsel table, Mormon missionaries, a jury consultant, the Supreme Court’s biggest fan, and a (seemingly less eager) high school group.  Before the Court was Douglas v. Independent Living Center.  This case arose after the California government responded to the state’s 2008 “fiscal crisis” by cutting Medicaid provider reimbursement rates by 10%.  Providers and beneficiaries claimed that the rate cut contravened the equal access provision, which states that Medicaid provider payments “must be sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” 

At issue before the Supreme Court is whether Medicaid beneficiaries and providers have a private right of action to challenge state budget cuts affecting access to health services.  The 9th Circuit Court found that the plaintiffs could challenge the rate cut under the Supremacy Clause, granting an injunction to enjoin the rate reduction pending the resolution of the litigation.  More broadly, this case raises several significant policy issues including the protection of vulnerable Medicaid beneficiaries, governmental health sector accountability, federalism and the status of co-operative funding programs, and institutional competence to adjudicate matters of complex social policy.     READ MORE »

Posted in National Healthcare

After Several Other Circuits Split on the Constitutionality of Health Reform, Which Way Will the D.C. Circuit Go?

Sep27
2011 Leave a Comment Written by O’Neill Institute

This post was authored by O’Neill Institute research assistant and second-year Georgetown University Law Center student Dinesh Kumar.

For more information on all of the pending challenges to the Affordable Care Act, visit http://www.healthlawandlitigation.com.  The website, a joint effort by the O’Neill Institute and the National Health Law Program, tracks the progress of litigation through the federal courts and provides a compendium of related academic literature.   

On the morning of September 23, 2011, a crowd of about 150 members of the press and public filed steadily into the E. Barrett Prettyman Federal Courthouse to hear oral arguments for Seven-Sky v. Holder, the latest challenge to the Affordable Care Act (ACA) to be heard at the circuit level.  

As with the other ACA cases, Seven-Sky focused on the constitutionality of the ACA’s minimum coverage provision (a.k.a. the “individual mandate”), which requires all U.S. citizens and legal residents to purchase health insurance or, beginning in 2014, pay a fine to the IRS that increases annually.  Three appellate courts had previously ruled in three different ways.  The Sixth Circuit upheld the individual mandate in Thomas More Law Center v. Obama, the Eleventh Circuit struck it down in Florida v. HHS, and the Fourth Circuit rejected the challenge outright in Liberty University v. Geithner, saying the court had no jurisdiction to hear the case under the Anti-Injunction Act (more on the AIA later).  In a fourth case, Virginia v. Sebelius, the Fourth Circuit said the state of Virginia had no standing to bring suit.  READ MORE »

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Hunger breeds discontent

Sep24
2011 Leave a Comment Written by Di Wu

The direct translation of an old Chinese saying is “people regard food as their heaven” (min yi shi wei tian, or food is what matters to people). However, the average person’s heaven seems broken in the Middle Kingdom. Chinese people still feel insecure about what they eat on a daily basis because nowadays food safety incidents are more frequent than ever.

Recently, the main character on the stage is refined trench oil. It is used as industrial oil in developed countries, yet in China, it hides in restaurant dishes. News media discover that small restaurants in different provinces mix cooking oil with refined trench oil, which contains tens of carcinogens as a way to reduce costs.  A professor said that the chance of encountering refined trench oil when you dine out is 10%.

Chinese government agencies started another special campaign against refined trench oil. As usual, several suspects were put into jail. However, it is hard to find refined trench oil through normal lab tests under the national standard for cooking oil, which does not include indicators referring to any illegal substance. READ MORE »

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