Tag: Kathleen Sebelius

Health Care: The Constitution Says Eat Your Vegetables

Writing at National Review’s The Corner blog, Yuval Levin dissects the op-ed response from Attorney General Eric Holder and Secretary of Health and Human Services Kathleen Sebelius to the federal judge striking down the individual mandate in the federal health care law. Like us, Levin can find no legal or constitutional argument in their Washington Post column, “Health reform will survive its legal fight,” just a weak case made on policy grounds.

Levin writes:

Their argument, in essence, is that the government has the right to do anything it wants to in the health-care arena because all human beings get sick, and their getting sick can have economic consequences. The choice of some not to purchase insurance means that when they get sick they might incur some costs that would have to be shouldered by others. “For decades,” Holder and Sebelius write, “Supreme Court decisions have made clear that the Constitution allows Congress to adopt rules to deal with such harmful economic effects.” And the way the new health-care law would “deal with” such harmful effects is to make it illegal to make the choice not to purchase insurance. Simple.
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The Limits of Congress on Health Care and Individual Autonomy

U.S. District Court Judge Henry Hudson of the Eastern District of Virginia ruled against the Patient Protection and Affordable Care Act on Monday, rejecting the attempt by Congress to force people to buy a product, in this case, health insurance. The core paragraph in his ruling:

The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, this dispute is not simply about regulating the business of insurance – or crafting a scheme of universal health insurance coverage – it’s about an individual’s right to choose to participate.

Virginia Attorney General Ken Cuccinelli, who brought the suit, emphasized constitutional principles in his comments on the court’s ruling: “This is only round one. This lawsuit is not about health-care, it’s about liberty.”

In an interview on WMAL this morning and other comments, the Republican Attorney General responded to questions about expedited review by the Supreme Court by noting the economic consequences of continued undertainty: “With this ongoing court battle, there is a great deal of uncertainty for states, individuals, and businesses as to whether this law will be around two years from now or not. We need this resolved as quickly as possible – for the good of our people and our economy.”

In a Washington Post op-ed — they must have anticipated a defeat — Attorney General Eric Holder and Secretary of Health and Human Services Kathleen Sebelius argued that the health care law brings many goods thing to people and would not be possible without the individual mandate. After leading with an anecdote about the benefits of the law, they argue:

As these lawsuits continue, Americans should be clear about what the opponents of reform are asking the courts to do. Striking down the individual responsibility provision means slamming the door on millions of Americans like Gail O’Brien, who’ve been locked out of our health insurance markets, and shifting more costs onto families who’ve acted responsibly.

It’s not surprising that opponents, having lost in Congress, have taken to the courts. We saw similar challenges to laws that created Social Security and established new civil rights protections. Those challenges ultimately failed, and so will this one.

Thus, the Administration’s argument is a political, not a constitutional one, foreshadowing the 112th Congress and 2012 elections. There appear to be no limits on the federal government’s mandates in this view. And if you oppose their view on health care, you oppose Social Security and civil rights. Clear?

Washington Post, “Cantor, McDonnell call for expedited Supreme Court review of health-care law
Cuccinelli news release, “Virginia wins federal court challenge over constitutionality of federal health care act: Health insurance mandate is unconstitutional

Two brief profiles of Cuccinelli:

The NAM is not a party to any of the litigation against the federal health care law.

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Upton, Shimkus on Oversight of EPA, Browner, ‘Czars’

Byron York examines the plans by House Republicans to use their newly acquired committee chairmanships to hold Executive Branch agencies accountable, in particular Health and Human Services and the Environmental Protection Agency. The House Energy and Commerce Committee — now headed by Rep. Henry Waxman (D-CA) — is the key player in this oversight, York writes in “GOP watchdogs promise fight over EPA, Obamcare..”

Two of the three Republican House members seeking the chairmanship appeared on Hugh Hewitt’s radio show this week, Rep. Fred Upton of Michigan and Rep. John Shimkus of Illinois. The third is Rep. Joe Barton of Texas, who as ranking member on the committee has already reached the Republicans’ self-imposed three-term limit for the leadership position; Barton is seeking a waiver.

Hewitt asked both Upton and Shimkus about oversight, not just of the EPA but also the White House advisor, Carol Browner, and “regulatory czars” — powerful officials appointed by the President but not confirmed by the U.S. Senate.

Upton: (continue reading…)

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Impact of Health Care Law: Less Innovation in Medical Devices

It’s hard to imagine the discussions that went into the writing of the legislation to expand the federal government’s role in health care, the Patient Protection and Affordable Care Act:

But how do we pay for all this?

Well, our medical device industry is the global leader, innovating and really stimulating economic growth.

Good, let’s tax it!

Which leads us to this entry in the new report from Sens. Tom Coburn (R-OK) and John Barrasso (R-WY), both doctors, “Grim Diagnosis – A check-up on the federal health law.”

Companies that innovate, create, and develop life-saving, life-improving devices will likely lose jobs too. Manufacturers of medical devices are reeling from a provision of the law that will levy a $20 billion excise tax on their industry. The Boston Globe reported that the 2.3 percent excise tax on companies that supply medical devices like heart defibrillators and surgical tools to hospitals, health centers and ambulance services, will force industry leaders to lay off workers and curb the research and development of new medical tools. One CEO said the new tax threatens his business‘ sustainability because it has relegated his company‘s profitability to merely a break-even position.

The basic problem with the tax is one of math. Many small to midsize medical device companies will owe more to the federal government in taxes than they make in profits, according to Mark Leahy, head of the Medical Device Manufacturers Association. “We’re talking about a 2.3 percent tax on total sales, irrespective of whether a company is making a profit.” The device tax will hamper innovation, since the amount of money available for a company to reinvest in its business development will be reduced. Some companies are already contemplating moving jobs overseas to avoid losing their competitive edge. Outsourcing is just one of many adverse unintended consequences of the new law.

The news release is, “Drs. Coburn and Barrasso Release New Health Care Report.” Jobs will be lost.

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Sen. Coburn: Keeping the Floodgates of Health Care Closed

Sen. Tom Coburn (R-OK), a medical doctor, spoke via telephone to the weekly bloggers’ briefing hosted by the Heritage Foundation today, discussing the new report from Sen. John Barrasso (R-WY), also an M.D., “GRIM DIAGNOSIS — A check-up on the federal health law.”

An attendee alluded to McDonalds winning a waiver from the Department of Health and Human Services so it wouldn’t have to raise the minimum annual benefit in its low-cost health care plan offered to some employees. He asked if this kind of waiver invited partisan favoritism. Sen. Coburn responded:

I wouldn’t see it so much in partisan light. If in fact we’re going to have a different set of standards for McDonalds than we have for everybody else, and for Arby’s and everybody else, and then the next company that comes up and says, “We can’t do this, we need a waiver.: Then pretty soon you don’t have a program, what you have a mish mash, and nobody knows what it is. So it’s very dangerous.

What they’re trying to do is keep the first big company from saying, “We give up. We’re not offering health care anymore.” Because the first time, the first large company that does that, then the floodgates are going to open. And tons of companies are just going to say, “We’re paying the fine. We’re not offering health care any more. We’re going to pay our employees more money, plus the fine, and let them find out what they want to get in health care themselves.”… (continue reading…)

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Notice How ‘Patient’ Has Been Dropped from Health Care Law’s Title?

John Engler, president of the National Association of Manufacturers, on Thursday spoke at the Integrated Care Summit in Washington, a conference sponsored by the Care Continuum Alliance.

The Alliance recently changed its name from the Disease Management Association of America, a fact that Engler played off on as he introduced the afternoon plenary session. From his (edited) remarks:

I observe there’s another high profile name change that’s actually been under way since President Obama signed the health care bill back in March. The law, the official name is “The Patient Protection and Affordable Care Act.”

I don’t know if you’ve noticed, maybe you have, but it has not escaped our attention that the Administration rarely now refers to the law by its full title.

At the White House website and actually in the materials from Health and Human Services, the law is called just, “The Affordable Care Act.” Some of us are a little concerned, and the jury’s still out on that: Will it be more affordable or less affordable? I think the work that we’re doing needs to be fought for and defended, because that’s how we do make it more affordable.

We certainly don’t think that we can drop the emphasis on “patient” from the policy discussion, because that prospective patient in the manufacturing world is our employee, and you want to be very focused with that employee. That prospective patient – hopefully they don’t become patient – you want them to be the priority, front and center.

At the same time, I can say for our manufacturers there is the suspicion – and I think through the provider community – that if we simply stand aside and say, well, somehow government or agencies of the government, they’re going to be the leaders in innovation or implementing integrated care, we’re bound for disappointment.

You’ve got to have the innovation, the ideas, the experience, the wisdom, if you will, from public and private employers and the health care experts who have worked with them – people who have actually put programs to work, actually run something on the ground, interacted with people on a daily basis.

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You Will Be Punished for Questioning Health Care Law

At Overlawyered.com, Walter Olson beats us to a round-up of reaction to Secretary Sebelius’ attempt to squelch criticism of the new health law for raising health care costs. From “Sebelius and health insurers: shut up, she explained”:

Eugene Volokh, Michael Cannon and Ed Morrissey react to the Secretary’s announcement that her Department of Health and Human Services will show “zero tolerance” for regulated health insurers who inflict “misinformation” on the public in the course of blaming ObamaCare for rate increases. More: Monday WSJ editorial (”Zero tolerance for expressing an opinion, or offering an explanation to policyholders? They’re more subtle than this in Caracas.”)

Michael Cannon’s post at Cato’s blog, Cato@Liberty, is especially good.

UPDATE (8:53 a.m.): More from Michael Barone at The Washington Examiner, “Gangster government stifles criticism of Obamacare”: “The threat to use government regulation to destroy or harm someone’s business because they disagree with government officials is thuggery. Like the Obama administration’s transfer of money from Chrysler bondholders to its political allies in the United Auto Workers, it is a form of gangster government.” Barone is becoming increasingly sharp in his criticisms of the Administration.

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Like Your Health Care Plan? You Can’t Keep It

During the consideration of health reform, we were assured repeatedly by President Obama and proponents of the behemoth euphemistically called the Patient Protection and Affordable Care Act (PPACA) that if we liked our health insurance we could keep it.  Many opponents of the bill, including the National Association of Manufacturers, never bought that talking point and now we know for a fact the promise will not be kept.

Ostensibly, the intent of health reform was to insure the uninsured and protect the coverage of those who get health insurance from their employer.  Instead, what we got is a looming crisis for as many as 170 million Americans who could lose their coverage because their employer can’t afford to provide it anymore or inadvertently runs afoul of the government.  Now that’s reform.

The “grandfather rule” issued by the Department of Health and Humans Services (HHS) in June essentially read like a cynical attempt to make good on a promise never intended to be kept.  (HHS news release, fact sheet, rule.) In a technical sense, if your plan doesn’t change at all from what it looked like on March 23, 2010, you can keep it – but how realistic is that?  Not very, and they know it.

In fact, the HHS itself acknowledges that up to 70 percent of all employers will either lose their health plan by violating the new federal regulations or forgo grandfather status on their own within the first three years.

Under the rules for so-called “grandfathered plans,” small businesses that purchase health insurance for their employees have been stripped of the single most important tool they have to keep their rates in line – the ability to shop around and negotiate with multiple health insurance companies to get the best coverage they can afford.  If an employer switches insurance companies now, they lose their grandfather status.

If employers decide to stick it out with their current plan, other tools to keep costs in check have been taken away as well.  Increase co-payments beyond limits set in the regulation?  Lose your grandfathering.  Increase employee cost-sharing for premiums beyond what the government tells you?  Lose your grandfathering.  And the HHS isn’t done yet.

HHS has asked for comments on whether a plan should lose its grandfather status if it changes their prescription drug coverage or the network of physicians and hospitals beneficiaries can see.  These are common alterations insurers and employers look to for cost control so their employees can afford the coverage.  The NAM will be submitting comments to the HHS today on these and other issues raised by the rule. [UPDATE: Here are the NAM's comments.]

Unless significant changes are made, it seems clear what the end goal is with the so-called “grandfather rule” – design it to effectively ensure that within three years all current employer-based plans will go the way of the Dodo.

 Joe Trauger is the NAM’s Vice President for Human Resources Policy.

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The Studies May Be OK, but They’re Not Really Medical Tort Reform

Secretary of Health and Human Services Kathleen Sebelius on Friday announced the recipients of a total of $25 million in federal grants to study patient safety and medical liability, a program the Administration cites to claim its health care initiatives include medical liability reform.

At the White House blog, Dr. Ezekiel J. Emanuel, a special adviser for health policy in the Office of Management and Budget, described the thrust of the grants. From “An Important Step on Medical Malpractice Reform“:

The 20 grants awarded today by the Agency for Healthcare Research and Quality (AHRQ) are an important step in the right direction. They will fund programs that aim to reduce avoidable injuries. For instance, one program in Massachusetts aims to reduce errors in primary care physician offices, particularly concerning medications and referrals. Another in Minnesota targets patient safety around childbirth by instituting best practices at 16 hospitals statewide and determining if there is a correlation between fewer complications in childbirth and malpractice suits targeted at obstetricians. A third, in Oregon, will develop and work to implement a “safe harbor” system in which physicians who prove they adhered to evidence based guidelines are protected from frivolous lawsuits.

Best practices, improved sharing of information, additional data collection — all fine. But in most cases, doctors are already doing their best to provide good care to their patients and avoid getting sued. There’s little if anything in these grants that will change that.

Philip K. Howard, chairman of the legal reform coalition Common Good, explained the problems in a statement following the announcement.

While some of these projects might improve the process when patients are injured by medical error, none of them protects doctors from lawsuits where there were no errors. This unreliability drives defensive medicine. The Department of Health and Human Services is avoiding the reality that a new reliable system of medical justice is needed to end defensive medicine, a practice which contributes to the unsustainable growth in health care costs. The trial lawyers, a major contributor to Congressional campaign coffers, are the only beneficiary of the current system, and Washington appears unwilling to take them on, especially in an election year. We’ll see in the fall elections if voters are still happy to have special interests put ahead of the public interest.

From HHS:

UPDATE (1:10 p.m.): Should have noted that Common Good’s reform of choice is health courts.

Also, background from the White House in September 2009 when the President unveiled his initiative:

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Health Care: It’s a Big Law, So Reasonable Leeway, Please

The National Association of Manufacturers has joined a dozen other business associations in asking Administration agencies to apply reasonable standards as they establish rules and compliance requirements under the Patient Protection and Affordable Care Act.

On April 30, the group sent a letter to Treasury Secretary Timothy Geithner, Health and Human Services Secretary Kathleen Sebelius, and Labor Secretary Hilda Solis making the request.

As Neil Trautwein of the National Retail Federation told Bloomberg: ““We’ve got a lot of existing and new costs to manage and face a lot of uncertainty over whether the health-care law will actually lower health-care costs. It’s not really a good idea to swamp the business community when we’re still struggling to get off the mat from the last recession.”

From the letter:

We recognize that the appropriate federal agencies are working diligently to quickly issue rules on many of the reforms in advance of their effective dates. However, given the September effective dates for the near-term requirements (e.g., no lifetime or annual limits, bans on cost-sharing for preventive services, dependent coverage changes, etc.) employers and health plans will be making coverage and policy decisions either in the absence of final regulations or with little time between the issuance of rules and the effective date of the new law. These changes include policy and contract revisions, IT system upgrades, modifications to employee benefit and marketing materials and development of employee and customer communications, just to name a few.

Given the amount of changes required, the uncertainty regarding the content of many pending rules, and the short time frame, we respectfully request that the applicable federal agencies provide affected entities with a good faith compliance standard as proposed in the attached document entitled, “Transition Period and Good Faith Compliance Standard under the PPACA Regulations.” We feel this standard, similar to those issued in the past, will provide the compliance environment to allow us to move forward in a spirit of partnership while we implement the numerous provisions of the law.

The full attachment is available here.

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