Archive | Health Care

D.C. District Court Judge Friedman (Clinton Appointee) Rejects Challenge to Obamacare Federal Exchange Subsidies

There’s a lot to absorb in Wednesday’s opinion, but I can’t get past this analysis:

Why would Congress have inserted the phrase “established by the State under [42 U.S.C. § 18031]” if it intended to refer to Exchanges created by a state or by HHS? But defendants [the government] provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. See 42 U.S.C. §§ 18031(b)–(d), 18041(c). In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state.

I’m certainly no expert at this point on the relevant provisions, and maybe if I went back and read all the cited language this would make more sense to me. But for now, the idea that “an exchange established by a state” can in practice be “an exchange established by the Federal Government on behalf of a state” seems to me to do violence to the English language. Of course, after C.J. Roberts’ opinion in NFIB, such concerns may no longer be decisive. Or maybe this is why the Democrats were so intent on getting three new nominees on to the D.C. Circuit?

UPDATE: This, from the comments, seems right to me: “A s1321 Fed Exchange is a s1311 Exchange. But it still isn’t a s1311 exchange established by the state, which is what is necessary to get the tax relief. It’s a s1311 exchange established by the Feds, because the state has failed to … establish an exchange.” [...]

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Senator Johnson’s ObamaCare Lawsuit

In tomorrow’s WSJ, Senator Ron Johnson (R-WI) has an op-ed explaining a new lawsuit he is filing against the Obama Administration’s implementation of the PPACA.  Specifically, this lawsuit targets a rule by the federal Office of Personnel Management that allows the federal government to subsidize health insurance for members of Congress and some legislative staff.  According to Senator Johnson, this is contrary to the text and intent of the PPACA.

The law states that as of Jan. 1, 2014, the only health-insurance plans that members of Congress and their staffs can be offered by the federal government are plans “created under” ObamaCare or “offered through an Exchange” established under ObamaCare.

Furthermore, allowing the federal government to make an employer contribution to help pay for insurance coverage was explicitly considered, debated and rejected. In doing so, Congress established that the only subsidy available to them would be the same income-based subsidy available to every other eligible American accessing insurance through an exchange. This was the confidence-building covenant supporters of the law made to reassure skeptics that ObamaCare would live up to its billing. They wanted to appear eager to avail themselves of the law’s benefits and be more than willing to subject themselves to the exact same rules, regulations and requirements as their constituents.

Eager, that is, until they began to understand what they had actually done to themselves. For instance, by agreeing to go through an exchange they cut themselves off from the option of paying for health care with pretax dollars, the way many Americans will continue to do through employer-supplied plans. That’s when they went running to President Obama for relief. The president supplied it via the Office of Personnel Management (OPM), which issued a convoluted ruling in October 2013 that ignores the clear intent and language

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Open Thread on Personal Experiences With the Affordable Care Act (Obamacare)

Before posting about my experiences trying to get health insurance for a family member for whom I have a power of attorney, I want to ask VC readers about their personal experiences (and those of their family members). I want to hear both positive and negative experiences.

For example, who had no health insurance before but now has it? Who had insurance before but doesn’t have it now? Why?

Who had a big increase or decrease in coverage, deductibles, or premium cost? Are your existing doctors included in your insurance company’s new network?

What experiences have you had on or the state sites? Have you had trouble having your identity verified? Has the chat function worked for you? How payment worked for you? Have you gotten your insurance card?

Are any of you too rich for Medicaid but too poor for subsidies on the exchange? Has the site informed you that you are enrolled in Medicaid when you have never been in Medicaid and have never applied for it (this happened to someone writing online and to my family member)? Have you experienced the website saying that a state Medicaid official would call you, and if so, did a Medicaid official call you? Has anyone appealed a determination, and on what basis?

Please be as specific as possible in telling your personal stories. [...]

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The Oregon Medicaid Experiment and New Possibilities for Quasi-Experiments

Jonathan Adler has already noted the new article in Science using data from Oregon’s Medicaid experiment. It found that expanding Medicaid led to a 41% increase in visits to the emergency room, including increases in visits for conditions that would be better treated in a primary care setting. Here is the abstract:

In 2008, Oregon initiated a limited expansion of a Medicaid program for uninsured, low-income adults, drawing names from a waiting list by lottery. This lottery created a rare opportunity to study the effects of Medicaid coverage using a randomized controlled design. Using the randomization provided by the lottery and emergency-department records from Portland-area hospitals, we study the emergency-department use of about 25,000 lottery participants over approximately 18 months after the lottery. We find that Medicaid coverage significantly increases overall emergency use by 0.41 visits per person, or 40 percent relative to an average of 1.02 visits per person in the control group. We find increases in emergency-department visits across a broad range of types of visits, conditions, and subgroups, including increases in visits for conditions that may be most readily treatable in primary care settings.

Like Adler, Sabrina Tavernise at the New York Times explains one reason this study might be important:

Supporters of President Obama’s health care law had predicted that expanding insurance coverage for the poor would reduce costly emergency room visits as people sought care from primary care doctors. But a rigorous new study conducted in Oregon has flipped that assumption on its head, finding that the newly insured actually went to the emergency room more often.

As some have noted, greater use of the emergency room is not necessarily a bad thing; one would want to look at health outcomes, as well as the modest increase in costs.

I wanted here to [...]

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Medicaid Expansion Increases Emergency Room Visits

One of the arguments made in favor of measures to expand health insurance coverage, including the Medicaid expansion, was that the lack of insurance coverage leads many individuals to seek medical treatment in emergency rooms, and that this results both in higher health care costs and in cost-shifting, as the uninsured may be unable to pay for the cost of the care they receive.  Some health care wonks were always skeptical of the first argument, however, noting that insurance coverage is not a particularly good predictor of emergency room utilization.  Indeed, there were reasons to believe that increasing insurance coverage would actually increase emergency room utilization.  If so, a consequence of increasing coverage would be to increase overall health care expenditures and, insofar as expanded coverage is achieved through Medicaid, increase the cost-shifting (a point I made here).  Sure enough, a new study finds that one effect of expanding Medicaid coverage is to increase emergency room visits by covered populations.  This does not necessarily mccean expanding coverage is a bad idea, or that it’s not worth the cost — just that some of the arguments made in favor of expanding coverage were based upon wishful thinking.

For more on the study, and its implications, see Wonkblog, Reason, and TIE.

UPDATE: Harold Pollack comments:

We can’t say from this paper whether the extra ED visits were valuable or cost-effective. We can say that these results will embarrass some liberal advocates who argued that expanded coverage would reduce overall rates of ED use.

It should. This talking point was never properly evidence-based or even particularly plausible given prior research. It’s not obvious that reducing the rate of ED use is even a sensible policy goal. Advocates across the political spectrum should stop using the ED for cheap

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Wonkblog’s “Policy Lie of the Year”

Wonkblog has published it’s third annual “Wonky” awards, which “outstanding achievements — and spectacular disasters — in policy wonkery.”   Some of the awards may surprise, but the “Wonky” for “policy lie of the year” was somewhat predictable: “Obama’s “If you like your plan, you can keep it” line.   Here’s the explanation:

President Obama promised repeatedly that if Americans like their health insurance plans, under Obamacare, they could keep them. In 2013, millions of Americans found out that wasn’t quite right, and that the health-care law would eliminate their plans, which didn’t cover a minimum set of required benefits. This wasn’t a glitch in the health-care law; it was a key feature. Obamacare’s drafters wanted insurance to cover more benefits than the plans on the individual market right now. And that meant, for those who liked their skimpier benefit packages, they would not have the opportunity to keep those old policies. (emphasis added)

The key point here was that the provisions in the PPACA which have prevented some people from keeping the health insurance plans they like were not an accident, but a deliberate design feature — a point that some (e.g. the folks at Politifact) seem not to understand. [...]

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Brain dead is dead

The recent case of Jahi McMath, a 13-year-old declared dead after a routine operation went wrong, raises the issue whether family members can mandate care when their relative is brain dead. The simple answer is No.

In the US, brain death is usually treated conclusively as death. Thus, a family member of a dead person has no right to insist on treatment or to reject the withdrawal of a ventilator keeping the heart and lungs working. Generally, if the evidence is clear, the family need not even be consulted.

While I think it reasonable in some cases for the family to insist on a second opinion on brain death (because doctors can make mistakes), if the facts are clearly established, then the family’s role should be limited to handling the disposition of the body. (I offer no opinion on the strength of the evidence of brain death in McMath, but, a priori, I think it far more likely that the doctors are right than the family.)

Further, comparing brain death in McMath to cases involving coma or a persistent vegetative state (PVS) is not appropriate. People in a PVS or in other forms of comas are alive, while people who are brain-dead are dead. [...]

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Justice Sotomayor Enjoins Enforcement of Contraception Mandate

Last night, before heading to Times Square for the New Year’s festivities, Justice Sonia Sotomayor granted a request for a stay of enforcement of the “contraception mandate” against several Catholic organizations. Here’s the order and more from SCOTUSBlog and the AP.  In other pending cases, injunctions pending appeal were granted by split panels of the D.C. Circuit and the Sixth Circuit (see also here).  The U.S. Supreme Court will hear two challenges to the “contraception mandate” later this term. [...]

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Upcoming Heritage Foundation Event on Our Book A Conspiracy Against Obamacare

On January 7, co-bloggers Randy Barnett, Orin Kerr, and I will be speaking at an upcoming event at the Heritage Foundation in Washington, DC on our recently published book A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, which details ours and the VC’s role in developing the arguments in the Supreme Court’s Obamacare decision (the book is also coauthored with Jonathan Adler, David Bernstein, and David Kopel). The book’s editor, Trevor Burrus of the Cato Institute, will also speak at Heritage.

The event will be held on from 12 to 1 PM. More information, including how to RSVP is available here.

NOTE: This event has been rescheduled from December 10, when it was wiped out by a “snowstorm” that shut down most of the DC area, despite the fact that there was only about 1 inch of snow. We hope to avoid a repeat on January 7! [...]

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Politifact’s “Lie of the Year” – Part Deux

Avik Roy writes on how Politifact’s assessment of the “if you like your plan, you can keep it” promise went from 100% true to half-true to a “pants on fire” lie to the “lie of the year.”  The column is fairly devastating by itself, but then Politifact’s Angie Holan, who authored some of the relevant evaluations, tried to defend Politifact with a tweet:

The mind reels.  Then-Senator Obama’s 2008 health care plan had numerous elements that were sure to disrupt health insurance markets, as Roy noted in the column.  (If, on the other hand, Politifact wants to argue that the initial promise was “true” because it represented then-candidate Obama’s honest intent in 2008, then there was no point in fact-checking it at all.)  More importantly, insofar as one wants to argue that the 2008 plan and the PPACA are sufficiently different to justify different assessments of the claim, the individual mandate is largely irrelevant — and this is the first time someone from Politifact has tried to suggest otherwise.  (For instance, there’s no mention of the mandate in Ms. Holan’s “Lie of the Year” post.)  The individual mandate is not what is causing individuals to lose their health insurance.  If anything, it has the opposite effect by reducing the effect of other PPACA requirements.  It’s as if Politifact “fact-checkers” don’t know very much about the subjects of their “fact checks.”

If any further proof were needed of the absurdity of our self-appointed political “fact-checkers” this is it. [...]

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Ohio Supreme Court Upholds Medicaid Expansion

Shortly before the holiday the Ohio Supreme Court rejected a challenge to Governor John Kasich’s decision to accept Medicaid expansion under the PPACA.  This was a controversial decision within the Governor’s party, and prompted a lawsuit.  The plaintiffs, six state legislators and two anti-abortion groups, argued that the state could not accept Medicaid expansion without express legislative authorization.  Under Ohio law, however, an entity called the Controlling Board may authorize state agencies to accept and spend federal funds, and the Controlling Board voted to approve the Medicaid expansion which, at least initially, is fully funded by the federal government.   According to the Ohio Supreme Court, the Controlling Board could take this step.

Chief Justice Maureen O’Connor wrote the majority opinion in State ex rel. Cleveland Right to Life v. State of Ohio Controlling Board, joined by Justices Pfeifer and O’Neill.  Justice O’Donnell, joined by Justices Kennedy and French, dissented on the grounds that the case presented a non-justiciable “political question” that was not fit for resolution by the courts.  Justice Lanzinger concurred in the judgment without opinion.  So while the case was decided 4-3 (or 3-1-3), not a single justice voted to invalidate Ohio’s acceptance of Medicaid expansion under the PPACA.

In my opinion, the Court reached the correct outcome, though I am torn on the rationale.  Whether the case presented a non-justiciable political question is a close call.  The dissent is correct that the state legislature retains “both the incentive to protect its prerogatives and the institutional mechanisms to do so.”  Courts need not sully themselves by inserting themselves into intra-branch political disputes, particularly where individual rights are not at stake.  Here, however, the controlling statute does seem to provide a sufficiently clear standard for resolving the case.  The relevant statutory provision provides that “The controlling board shall [...]

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Yet Another ObamaCare Delay (Again)

The Washington Post reports:

At midnight Monday, the official deadline arrives for Americans to sign up through the new federal health insurance exchange for health plans that begin Jan. 1. But, without any public announcement, Obama administration officials have changed the rules so that people will have an extra day to enroll, according to two individuals with knowledge of the switch.

UPDATE: Here’s more on the implications of the last announced delay.

X-MAS UPDATE: A further extension. [...]

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Yet Another ObamaCare Delay

This week, HHS Secretary Kathleen Sebelius announced yet another delay in ObamaCare implementation. This time the Administration is delaying enforcement of the individual mandate (i.e. not assessing the mandate penalty) on those who had health insurance plans canceled for failure to meet the minimum coverage requirements of the law.  As Nicholas Bagley explains, there is more legal authority for this move than the prior delays.  The statute provides for hardship exemptions from the mandate penalty, whereas there is no clear authority for either the employer mandate delay or the “if like it you can keep it” fix.

UPDATE: Avik Roy has more.  As he notes: “this most recent announcement from the Obama Administration is the first time it has publicly admitted that Obamacare is making health insurance less affordable, not more so, for millions of Americans.” [...]

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ObamaCare and the Silence of the Liberals

The Hudson Institute’s Christopher DeMuth writes in the Weekly Standard on the practical reality of ObamaCare as it is being implemented.

Obamacare will never achieve its promise of affordable health care for all paid for with improved efficiencies in health insurance and medical care. The initial troubles and compromises have revealed that the program improves “access” mainly by herding millions of people and firms into insurance they do not want or need. A great many will simply refuse, having little to fear for the time being, with the result that government expenditures will be far higher than projected. It is equally clear that the variety and quality of medical care will be seriously restricted for all concerned.

Collaterally, Obamacare is introducing a new form of government—improvisational government, characterized by continuous ad hoc revisions of statutory law by executive decree. This is a reversion to a primitive form that long antedates our Constitution and rule-of-law traditions. Transported to the modern world, it leaves the private sector in a state of constant uncertainty and subjection.

He notes that most of the response to the statute has been reflexively partisan — unified, unyielding and unthinking Republican opposition and near-unanimous Democratic support. As DeMuth sees it, the former is predictable; the latter lamentable. As each day passes, and more about the actual operation of the PPACA is revealed, it becomes increasingly clear that the PPACA itself challenges core liberal values, and yet few liberals raise any real concerns. (And, no, I don’t consider pre-election posturing about insurance renewals to be an expression of genuine concern about the operation of the statute.)


Serious liberals are those for whom the primary purpose of politics is to protect personal liberty and advance social equality. Their liberalism has been the motive force of America’s political history—which is

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Politifact’s “Lie of the Year”

“If you like your plan, you can keep your plan” is Politifact’s 2013 “Lie of the Year.” That’s interesting, especially because Politifact previously rated this promise as “true” (when made during the 2008 campaign) and “half-true” (when made in 2009), and claimed challenges to this pledge in 2012 were “false” (here and here). Now, of course, we know that the initial promise was false — and that the White House knew this was the case even as Administration officials (and Politifact) were claiming otherwise. Only in 2013 did Politifact finally acknowledge the “pants on fire” aspect of the Administration’s pledge (here and here).  If a statement Politifact rated as partially true could nonetheless be the “Lie of the Year,” perhaps Politifact needs to reconsider its standards for fact-checking.

Meanwhile, the Administration is once again delaying some of the statute’s implementation deadlines, and “urging” insurers to provide retroactive coverage to individuals who enroll in, but fail to pay for, insurance coverage beginning January 1. [...]

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