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On Health Care, Stop, and Then Start Over!

By | Health Care | No Comments

Leaders of the Start Over! Coalition, including the National Association of Manufacturers, wrote Sen. Kay Bailey Hutchison (R-TX) to express support for her amendment (S.Amdt.197) to the pending small business bill, S. 493, that would suspend further implementation of the Patient Protection and Affordable Care Act.

From the letter:

As you know, the constitutionality of the Affordable Care Act (ACA) is now the subject of considerable litigation before the Federal courts. To date, the U.S. District Court for the Eastern District of Virginia, ruling in Virginia v. Sebelius, and the U.S. District Court for the Northern District of Florida, ruling in Florida et al v. U.S. Department of Health and Human Services, have ruled the “individual mandate” in the ACA unconstitutional, and the latter went on to rule that the “individual mandate” is not severable from the rest of the ACA thus voiding the entire statute. Three other Federal district courts in the District of Columbia, Michigan and Virginia have upheld the constitutionality of the ACA. It is a virtual certainty that the constitutional issues in controversy in the ACA will ultimately be resolved by the U.S. Supreme Court.

The timing and outcome of the legal process in this matter is speculative at best. What is currently certain, however, is that the Federal government is continuing to implement the ACA at considerable cost to the taxpayers. If the Northern District of Florida court’s decision is upheld, State governments which have proceeded with implementation facing considerable risks if they do not do so, will have needlessly expended considerable sums of their taxpayers’ money. It is no small matter that employers find themselves similarly and expensively caught between a judicial ruling that invalidates the ACA and an Administration in Washington, DC that insists on plowing ahead with implementation as though this matter had never arisen.

Under the present circumstances we believe it is simply prudent to impose a moratorium on further implementation of the ACA until such time as the pending litigation is brought to its conclusion. This is exactly what the Hutchison Amendment would accomplish.

Earlier Shopfloor posts on Start Over!

At One Year: The Patently Political Additional Costs Act

By | Health Care | No Comments

The most puzzling of all the decisions that went into the legislative maneuvering that gave us the benighted Patient Protection and Affordable Care Act a year ago today was, why no acronym-inviting title? You would have thought if Congress was going to so dramatically expand the federal government’s control of health care and insurance, it would embrace a grandiose, if forced, title that would give us an acronym for the ages.

You know, like the PATRIOT Act, or RICO, or last year’s SPEECH Act (Securing the Protection of our Enduring and Established Constitutional Heritage Act). Give the law a name to remember it by.

No such luck. Democrats and other supporters usually drop the “Patient Protection” part to refer to the law as simply by the anodyne Affordable Care Act. Republicans deride it as Obamacare.

Such a missed opportunity for truth in acronymization. Is it too late? If not …

  • The HEALTH Act — Helping Eliminate Affordable, Life-extending Treatments, Hospitalization Act
  • The NANNY Act — The Not Affordable, Nope, Not Yet Act
  • ABCDE Act — A Bill that Cost Democrats Election Act

Oh well. Some good commentary as the anniversary festivities subside…

Never Letting a Good Deed (Device) Go Unpunished (Untaxed)

By | Health Care, Taxation, Technology | No Comments

NAM President John Engler mentioned the medical device industry in remarks at the Managing Automation Summit in Palm Beach, Fla., yesterday, remarking that it was one of the industries where U.S. industry is an indisputable global leader. And how does Congress treat this center of competitiveness and innovation? By taxing it to pay for an expansion of health care?

Here’s the inevitable response, via The Boston Herald, “Mass. device firms see health law as burden“:

Massachusetts medical-device companies say they’ll cut back on operational costs – and jobs – after a planned 2.3 percent tax on their products is implemented in 2013, according to a new survey.

The Massachusetts Medical Device Industry Council, which held its annual meeting yesterday in Boston, said about 90 percent of the 100 medical-device firms said they would reduce costs due to the new tax tucked into the recently passed health-care reform bill.

The tax – imposed to help pay for the massive health-care industry overhaul and expansion – is “of the greatest concern” to a majority of its members, the survey found.

MassDevice, an online trade publication, also covers the survey, “Survey: Device tax could force job cuts, higher prices.”

Bending the Health Care Curve Over, Under, Sideways, Down

By | Health Care, Taxation | One Comment

From Kaiser Health News, a roundup of the big health care news from last week, “CMS Actuary: Health Reform Will Cover More People, Cost More Than Orginally Projected,” starting with a paragraph from AP:

Economic experts at the Health and Human Services Department concluded in a report issued Thursday that the health care remake will achieve Obama’s aim of expanding health insurance — adding 34 million to the coverage rolls. But the analysis also found that the law falls short of the president’s twin goal of controlling runaway costs, raising projected spending by about 1 percent over 10 years. That increase could get bigger, since Medicare cuts in the law may be unrealistic and unsustainable, the report warned.

In an April 1 blog post at OMB, Office of Management and Budget Director Peter Orszag took strenuous issue with critics of the health care bill who argued it would not “bend the cost curve downward.” Excerpt:

[In] response to some of the recent skepticism, OMB’s staff went back through the document that the Congressional Budget Office released last June entitled “Health Care Reform and the Federal Budget.” In this analysis, CBO discussed the potential effects of health reform on Federal government expenditures, and identified policy options that could increase efficiency in the health care system.

If you look at the policy options CBO assessed as having the biggest potential for reducing long-term health care cost-growth, you will see that a vast majority of these proposals are, in some form, part of the historic health care reform legislation the President signed into law…

More …

Says Lots about the D.C.-Area Economy

By | Economy, Health Care, Media Relations | No Comments

The Washington Post today unveils its new weekly business supplement, Capital Business, inserted in a trial run in home-delivery copies and available online in a digital version. MediaDailyNews.com summarizes:

Headed by editor Dan Beyers, the new business title will offer a mix of enterprise reporting, analysis and commentary, industry trend-watching, and profiles of local entrepreneurs and businesses, with coverage of government contracting, tech, finance, real estate and legal issues. Beyers said: “Capital Business is intended to help the business community navigate the region’s dynamic economy at a time of great change and opportunity.”

Noting the “extraordinary emergence” of the capital-area business scene, Steve Hills, The Washington Post‘s president and general manager, promised: “Every issue should produce a potential lead to a business opportunity or tell our business audience something they didn’t know.”

Good luck. The Post dropped its separate business section a while ago, and it’s good to see coverage coming back in another form.

Today’s lead story does say lots about the local economy, that is, its reliance on government, “The pieces are in place for the next great burst of business across the region“:

The pieces are now in place for the next great burst of business in Washington. There is a new wave of government activism underway, and with it, new opportunities for the private sector: Cutting down on paperwork in the health-care system, developing greener energy supplies, making information more secure, overhauling education. And following the last three booms, Washington has more skilled workers and capacity for businesses to grow than ever — including hundreds of now-seasoned executives who have built companies, and are ready to do it again.

Makes you wonder whether there was a piece in the Post or Star or other Washington newspapers in early 1942, “Boom Time: Local businesses to expand to serve overseas activism.”

In other Washington Post specials, Politico reports, “Health care reform: The book!“:

A few weeks back, publisher PublicAffairs and the Washington Post announced they were teaming up for an “instant” book on the recent passage of health care reform.

“Landmark: The Inside Story of America’s New Health-Care Law and What It Means For Us All” will come out April 26, earlier than expected since “the project has moved exceptionally quickly,” according to PublicAffairs publicity director Jaime Leifer. “[T]his book will be the first book on the new health care law, and will answer our most pressing questions about the legislation’s impact on individuals, small businesses, and the health-care industry.”


Defensive Medicine: NOW It’s an Issue

By | Briefly Legal, Health Care | No Comments

From AP, “Study: Malpractice worries help drive health costs“:

NEW YORK — A substantial number of heart doctors — about one in four — say they order medical tests that might not be needed out of fear of getting sued, according to a new study.

Nearly 600 doctors were surveyed for the study to determine how aggressively they treat their patients and whether non-medical issues have influenced their decisions to order invasive heart tests.

Most said they weren’t swayed by such things as financial gain or a patient’s expectations. But about 24 percent of the doctors said they had recommended the test in the previous year because they were worried about malpractice lawsuits.

That would be a good issue to address in federal health care legislation, don’t you think?

Hat tip: Bob McCarty Writes

CPSC Commissioner Northup on CPSIA, Lead

By | Health Care, Regulations | No Comments

Hugh Hewitt, the radio talk show host, blogger, law professor and all-around good guy, on Monday interviewed Commissioner Anne Northup of the Consumer Product Safety Commission, and the transcript of the conversation is now up at HughHewitt.com.

Hugh accurately expresses the astonishment and frustration of business people in trying to figure out and respond to the Consumer Product Safety Improvement Act (CPSIA), and Northup, a former Republican member of Congress, confirms that the law is excessive, complicated and disconnected from reality. The discussion of lead content is good, and we appreciate her reaction to efforts now under way in Congress to “fix” the CPSIA.

HH: And the regulatory burden, I know, because many of them are our clients, people don’t know how to interpret this. They write in, they have to hire expensive lawyers to go get exemptions from you. It must be a morass at the building.

AN: Well, and we’re not giving any exemptions. So far, there hasn’t been a vote to give exemptions. And so they’re trapped in figuring out how they’re going to make this. And you know, I think there’s the ATV, the bicycle people, I mean, who sucks on their bicycle handlebars at six years old? And you know, even if you did, you couldn’t swallow enough lead that it would register a change in your blood lead level.

HH: And Congress won’t fix it. I saw Chairman Waxman has proposed an amendment on your blog, and your blog has dissected it. It’s not really that helpful. In fact, it might make things worse.

AN: It really isn’t helpful. It’s really meant to solve the political problem he has from the ATV people. They obviously are very organized. It’s very serious for them. They have children’s, smaller ones that are safer for children, and they’ve had to take them off the market. But you know, I mean, it has all these hoops you have to jump through. You have to prove that you can’t make it officially, you can’t make it, that it’s not practical, that there’s no substitute material, you have to say how you’re going to get into compliance over the next few years, you have to prove…here’s what’s funny. I think the third qualification is you have to prove that it doesn’t harm the health or safety of a child. Well Hugh, if it doesn’t harm the health or safety of a child, why are we even regulating it? What else do we have to prove?

The conversation occurred at a meeting of the Sporting Goods Manufacturers Association. Hewitt also addresses a topic we’ve broached before: If Congress can’t get the CPSIA right, how can it expect to restructure the entire U.S. health care and insurance system?

Trial Lawyers Celebrate Health Care Laws: We Won!

By | Briefly Legal, Health Care | No Comments

An editorial in The Washington Times today notes President Obama’s prominent pledges of being open to adopt Republican-supported plans for medical liability reform in the health care bill. From “Trial lawyers love Obamacare“:

Those pledges – which Mr. Obama made twice in major public forums – were worthless. The final version of Obamacare, as signed into law, is a dream come true for big-money plaintiffs’ lawyers.

That was the message in a letter the president of the American Association for Justice wrote to his membership and posted on the group’s Web site. The misnamed AAJ – which was formerly and more accurately called the Association of Trial Lawyers of America – is the house organ for the national plaintiffs’ bar and a major source of campaign cash for congressional Democrats.

Reporting on reformers’ efforts to protect doctors and hospitals from predatory lawsuits, AAJ President Anthony Tarricone wrote, “I am very pleased to report that the health care bill is clear of any [such] provisions. … While there is a provision for demonstration projects, it provides an absolute opt-out clause for plaintiffs at any time.”

Tarricone’s tone is boastful and his claims dishonest. From his e-mail message, posted at the AAJ website.

Whether reading the newspaper or watching C-SPAN, all of you saw the constant assault against trial lawyers and injured patients. Many opponents of these health care bills had no substantive solutions of their own, and in turn, levied attacks on our clients. It was distressing, but at the same time, it was our call-to-action.

Who attacked injured patients? Who levied attacks on the AAJ’s clients? No one we ever saw. The charge is  just big lie buncombe. As for “no substantive solutions of their own,” we direct you to the National Association of Manufacturers’ health care principles, which highlights substantive solutions to the failures of U.S. health care, it should go without saying, do not attack injured patients. Separately, Republican members of Congress proposed detailed alternatives to the President’s plan, including medical liability reform.

We do not yet find the final statutory language on the state demonstration projects, but the Kaiser Family Foundation has summarized the provision:

Medical malpractice * Award five-year demonstration grants to states to develop, implement, and evaluate alternatives to current tort litigations. Preference will be given to states that have developed alternatives in consultation with relevant stakeholders and that have proposals that are likely to enhance patient safety by reducing medical errors and adverse events and are likely to improve access to liability insurance. (Funding appropriated for five years beginning in fiscal year 2011)

What’s missing? Any provisions addressing cost control. And for that, the trial lawyers are celebrating.

More …

A note about media coverage: The Point of Law post was written by this blogger, and Legal NewsLine is a web publication backed by the U.S. Chamber of Commerce. The Washington Times piece is an editorial.

So the only major media outlet to cover as news the trial lawyers’ boasting about blocking health care reform is The Wall Street Journal. A salute to the WSJ, but where are the other reporters who are usually so quick to decry the role of special interests and lobbyists in the health care debate?

Company Accounting Charges Will Reach $14 Billion

By | Health Care, Taxation | No Comments

From the American Benefits Council, which represents large U.S. corporations, a news release, “Exorbitant accounting hit to businesses will continue unless health law’s retiree drug subsidy provision is reversed“:

“For months, the American Benefits Council, along with several employers and labor unions, warned that the retiree drug subsidy tax in the health care legislation would impose an enormous hit on company financial statements as soon as the bill was signed into law,” Council President James A. Klein said today. “The recent announcements by major U.S. companies have captured Wall Street’s attention, while the Obama Administration fails to acknowledge their significance. Since the president has made clear that job creation is his top priority, we urge the Administration and Congress to remove this obstacle to economic recovery.

And …

“Over the next several days, many companies will be compelled to either take a hit on their earnings or decide to move retirees into the Medicare Part D program.” Klein said. “As our recent research report clearly shows, as more retirees are moved from employer plans to Medicare Part D, government outlays will increase, and the shift from employer retiree drug subsidy programs to Medicare Part D is likely to be significant. In the end, this so-called revenue raising provision may actually cost the government money.” A separate study, conducted by the Towers Watson consulting firm, reported that unless companies change their benefit plans, the aggregate accounting charge would be nearly $14 billion.

Safe prediction, Mr. Klein. Today’s news is: “Boeing Expects $150 Million Charge In 1Q For Health-Revamp Impact.” More …

A Week’s Review of Labor’s Power

By | Health Care, Human Resources, Labor Unions | No Comments

Mark Hemingway of The Washington Examiner embarked Monday on a weeklong series of columns about the political power of organized labor, commenting that, “Whatever wants, labor gets.”  It’s hard to argue with the thesis when talking about the Obama Administration, but it’s not entirely true when elective representative bodies like the U.S. Senate are involved: Labor has not gotten the Employee Free Choice Act…so far.

Today’s column is “Big Labor fills the ranks of Big Government,” discussing the recess appointments to the National Labor Relations Board, the confirmation of Patricia Smith to be the Department of Labor’s solicitor, and Secretary of Labor Hilda Solis herself.

On Monday, Hemingway wrote, “Stuffing union coffers with taxpayer cash,” leading with the example of the anti-democratic unionization of daycare workers in Michigan.

One day last fall, approximately 40,000 private day care owners in Michigan woke up to discover they had become members of a public sector union. Most had no idea what was coming.

Here’s how it happened: The United Auto Workers and the American Federation of State, County and Municipal Employees worked with the Michigan Employment Relations Commission to conduct a vote-by-mail union election.

Of the 40,000 day care workers in the state, only 6,000 responded to the ballot they received in the mail. But that was enough for the state to declare all of the day care owners would henceforth be represented by the newly organized Child Care Providers Together Michigan union.

Governor Ted Kulongoski of Oregon and former Governor Eliot Spitzer of New York also signed executive orders to promote the unionization of private sector daycare workers in their respective states. (See Fordham Urban Law Journal.)

The actions by these governors, heavily supported by organized labor, seems even more economically ominous given a program included in the new health care law. Jeffrey Birnbaum in The Washington Times reports on the issue in a column, “The not-so-Class Act“:

The health legislation signed into law last week by President Obama includes a provision called the CLASS Act, which provides long-term care at home. Few people know about it, but experts agree that it could well explode the federal budget deficit down the road.

The Community Living Services and Support (CLASS) Act was designed to assist people who need help with basic daily tasks and are willing to pay for in-home assistance. The plan, which was long championed by the late Sen. Edward M. Kennedy, would, in effect, enable elderly and disabled people to stay out of nursing homes.

People who paid into the program for five years could qualify for federal subsidies to purchase in-home care. As Birnbaum argues, laudable goals but fiscally unsustainable. We predict when the rules are written, the only in-home care providers eligible for the program will be subject to (forced into) union membership. The SEIU smiles.