The Legal Crusade to Undermine Obamacare—and Rewrite History

thoughtone

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source: The New Republic


cannon.jpg

Can one very determined libertarian and one very distorted version of history keep millions of people from getting health insurance? We’re about to find out.

The determined libertarian is Michael Cannon of the Cato Institute. He was among the most vocal opponents of the Affordable Care Act, going back to the time when it was still a glint in the eyes of Ted Kennedy. The idea of universal coverage is so antithetical to Cannon’s principles that he actually started an "Anti-Universal Coverage Club." Once the law passed and took on the moniker "Obamacare," Cannon became a leading advocate for its repeal. And since he understood the law might survive both the courts and the 2012 elections, as it eventually did, he also made the case that states should avoid complicity in its implementation—and, if possible, actively thwart it. He made that case in his writing and speeches, sometimes directly to the officials with responsibility for implementing the law.

One of the arguments he’s made is a legal one, the result of a collaboration with Jonathan Adler, a widely cited libertarian law professor at Case Western University. The state of Oklahoma has filed a lawsuit in federal court, making the same essential case. (I haven’t been able to establish to what extent, if any, Oklahoma officials relied on the Adler-Cannon brief, but the arguments are very close. And no single individual has done more to make the case for state resistance to Obamacare than Cannon.) Note that the lawsuit doesn't have to succeed to cause trouble: Merely by emboldening state officials hostile to the law, it could make implementation, already a challenge, even more difficult.

The legal argument focuses on Obamacare’s insurance exchanges—the new marketplaces where people without access to insurance will be able to buy private coverage on their own, regardless of pre-existing medical conditions and with the help of federal subsidies. The law calls upon states to create and operate exchanges, so that coverage is available starting on January 1, 2014. Anytime a state fails to do so, the law says, the federal government should create and run that state’s exchange instead.


About these facts, there is no dispute. The question is whether, when running an exchange in lieu of a state, the federal government can operate it in the same way—in particular, whether the federal government has authority to offer those subsidies. These tax credits, available to people on a sliding scale depending on income, will be worth as much as several thousand dollars a year in some cases. They will enable millions of Americans to get comprehensive health insurance, the kind they cannot now because the coverage is too expensive or simply unavailable. Without the subsidies, these people couldn’t get coverage and, quite possibly, the exchanges as a whole would cease to function because they could not maintain a good actuarial balance.

Cannon and Adler, along with the state of Oklahoma and others embracing this cause, argue that the federal government lacks authority to offer those subsidies. Roughly speaking, their reasoning goes like this: The section of the law describing subsidies specifies that Washington may offer them in state-run exchanges, but has no parallel language specifying that Washington may offer them in federally run substitutes. And this omission, Cannon and Adler insist, was no accident. The Senate wanted the states, not Washington, to run the exchanges. And since the federal government can’t order states to do something—that’s called “commandeering”—it had to offer financial incentives. Withholding subsidies unless states ran the exchanges, Cannon and Adler say, was one of those incentives:
The language, structure, legislative history, and congressional debate over the PPACA demonstrate that its authors preferred state-run Exchanges to federal Exchanges. From the outset, the Act directs states to establish Exchanges and many PPACA’s supporters presumed that all states would create exchanges of their own. While the Act authorizes the federal government to establish Exchanges for states that fail to comply with the PPACA’s direction, these exchanges are intended to serve as a fallback, and were not intended to replace state-run exchanges.
The emphasis is mine, because this is really the heart of the case. According to Cannon and Adler, the Senate wanted a system in which states that failed to create exchanges could deprive their citizens of subsidies.

Not too many legal experts seem to think the lawsuit has merit. (Then again, the legal establishment said the same thing about the original lawsuits challenging the constitutionality of the whole law had merit, and those suits came within one very narrow vote of winning at the Supreme Court.) Among the skeptics is Samuel Bagenstos, a professor at the University of Michgan and a widely respected expert on constitutional law. In a recently posted series of blog posts, Bagenstos says Cannon and Adler are reading the statute in an unusually pinched way. The law may not specify that the federal government may offer subsidies when it operates exchanges, Bagenstos says, but elsewhere it talks about the federal government running exchanges in lieu of recalcitrant states. Clearly, Bagenstos says, the Senate bill’s architects wanted these substitute exchanges to be fully functional, complete with subsidies. The whole point was to have the feds do what the states would not. "It is implausible to think that Congress would have intended to create a statute that was so at war with itself,” Bagenstos concludes, “and that rendered largely useless its crucial backup provision for federally-operated exchanges.”

This is the same point that Timothy Jost, a law professor at Washington University, has been making ever since Cannon first raised this argument. Jost may know more about the fine print of the Affordable Care Act than any person on the planet. Here’s his recollection of the legislative history, as related in a blog post for the policy journal Health Affairs:
Throughout the debate, Senators assumed that tax credits would be available in all 50 states. Thus Senator Bingaman stated on December 4, 2009, that the ACA “includes creation of a new health insurance exchange in each State which will provide Americans a centralized source of meaningful private insurance as well as refundable premium tax credits to ensure that coverage is affordable.” Senator Johnson stated on December 17, “The legislation will also form health insurance exchanges in every State,” which will “provide tax credits to significantly reduce the cost of purchasing that [insurance] coverage.”
If Congress had meant to limit premium subsidies to state-established exchanges, as an incentive to States, one would have expected the Finance Committee report … to have mentioned this, and for at least one Senator to have pointed this out during the debate in November and December 2009.
Most importantly, the Congressional Budget Office (together with the Joint Committee on Taxation) provided Congress on November 30, 2009, an analysis of the impact of the legislation on premiums that assumed that premium tax credits would be available in all states, making no distinction between federal and state exchanges. Over the next few days, this analysis was discussed by Republican Senators Grassley, Enzi, and Coburn. None raised what Cannon and Adler see as an obvious point, that the CBO analysis was flawed because it failed to recognize that premium tax credits would not be available though federally facilitated exchanges.
In responses to Jost and Bagenstos, Cannon has suggested that they cannot back up their inferences about intent. I think they have, but I can add some material, as well.

I covered the debate on health care reform from first stirrings of activity in early 2008 to the day President Obama signed legislation at the White House. The debate over whether to have federal or state exchanges was contentious alright. In fact, it was one of the key divisions between the Senate and the House. But everybody always assumed that, if states chose not to create exchanges, the federal government would step in and do the job completely. The idea that a state could deny its citizens insurance subsidies by choosing not to build an exchange is simply not an option the law’s architects ever contemplated.

And you don’t have to take my word for it. From 2008 through 2010, John McDonough was a senior member of the HELP Committee staff; Kennedy had recruited him from Massachusetts, where he’d worked on that state’s reforms, to help craft the final legislation. McDonough has since returned to Boston, where he’s a professor at the Harvard School of Public Health. And he has written a book, Inside Health Reform, that is among the most thorough guides to the law and its crafting. Yes, McDonough says, the HELP Committee decided to withhold feeral subsidies from states that didn’t set up qualifying exchanges. But the reason, he says, was to prevent states from creating shoddy exchanges that didn’t live up to the law’s standards. And in those cases, McDonough says via e-mail, “the subsidy power would then switch to the feds—just as it does in the ACA.”

Another reliable source on the issue is Liz Fowler, who was Baucus’ senior health care adviser on the Finance Committee. While it was President Obama and Democratic congressional leaders who made the big decisions on health care reform, it was a tiny handful of administration officials and senior congressional staff who actually wrote the bills that became final legislation. Fowler was one of them. In fact, she is probably the single most authoritative judge of what her boss and his committee colleagues intended the law to say.

Fowler, who went on to work at the White House and recently left that position, doesn’t speak to the press much. But she agreed to speak about this. “Of course Congress did not intend to deny anyone in any state access to tax credits to which they are entitled,” she says. “That is not how the law is drafted and that is not how it was scored by the CBO.”

The fate of the case won't rest simply on the debate over congressional intent. Among the other issues is standing—specifically, whether Oklahoma can even bring this lawsuit. (The federal government just filed a brief challenging that.) But it's Cannon's congressional intent argument that I find most baffling. I’ve known Michael for a long time. He is smart and congenial, his belief in libertarian principles utterly sincere. Maybe he simply sees things differently. Or maybe he has convinced himself of this reality, because he wants to believe it, as people have been known to do. I honestly don't know.

Whatever the explanation, he's a private citizen and entitled to his opinion. The public officials who have signed onto this crusade are another story. I can’t read their minds, but I'm skeptical that all, or even most, of them honestly believe the Senate intended to give them this sort of discretion. More likely, they see this as an opportunity to thwart a law they oppose—and, perhaps, curry favor with conservative voters or funders. Either motive would violate the basic oath most of them take, pledging to execute the laws in good faith.

If these officials don't like Obamacare, they can criticize it and campaign for representatives in Washington who would repeal it. But as long as Obamacare remains on the books, these officials also have to implement it—just as surely as they implement the minimum wage, environmental regulations, and any other liberal measures they similarly detest. Their first obligation isn't to their ideology, philosophy, or party. It's to the country and that means to enforce its duly passed laws.
 

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Does Obama Have the Power to Delay His Mandate?

Does Obama Have the Power to Delay His Mandate?
By Evan Soltas Jul 3, 2013
1:57 PM CT

Employers won't be required to purchase health insurance for their employees next year, the Barack Obama administration said in an announcement yesterday. The decision, more specifically, is to defer the tax-reporting requirement in the Affordable Care Act that makes the mandate enforceable.

This raises the question: Can the administration do that?

It isn't altogether clear it has the statutory authority in the health-care law to waive the requirement. If it doesn't, the move could be challenged in court. In either case, it could set a precedent for a level of executive discretion in the law that the administration probably won't like.

Section 1513 of the law, which lays out the employer mandate, states unambiguously that it is set to begin Dec. 31, 2013. However, that isn't technically the part of the law that Mark J. Mazur, an assistant secretary in the Department of the Treasury, said was being deferred.

It's the reporting part. Here, the law begins to get fuzzy -- which might be exactly why the administration is taking this roundabout path. They might think they have authority to suspend reporting but not the mandate.

Section 1514, which governs employer reporting of health-insurance coverage, says: "Every applicable large employer required to meet the requirements of section 4980H with respect to its full-time employees during a calendar year shall, at such time as the Secretary may provide, make a return." The section also sets the same start date for reporting requirements.

One way to read this -- and the way it was probably intended -- was that the secretary of the Department of Health and Human Services, Kathleen Sebelius, would determine when in 2014 employers would file their insurance reports. That's consistent with her discretion under other parts of the law to determine how employers file. Under this interpretation, employers would still be required to insure their employees for all of 2014 even if Sebelius had them file on New Year's Eve.

Another way to read the passage is as a blank check to postpone the mandate by as long as a year. That comes from the key part: "during a calendar year, shall, at such time as the Secretary may provide."

Yet, a third way to read it: If "during a calendar year" is read to modify "employees" and not "at such time" then the Secretary could have the power to defer the mandate indefinitely.

I happen to find the first reading the most plausible. But the only way to know which interpretation is right is for someone to file a lawsuit against the administration. As Forbes' Avik Roy writes, it isn't clear who would do that. Business is pleased the mandate is delayed and that may lead Republicans to keep quiet. Democrats running for re-election are happy to dodge a potential opposition advertisement droning on about how Obamacare caused local business X to fire employees so could escape the mandate (which only applies to large firms).

New York University law professor Richard A. Epstein thinks that a larger problem will be to find someone with standing to sue against the delay. "It's a very strange phenomenon in administrative law. If you imagine there's a direct violation of statute, there should be a party who could sue," Epstein said. "But doctrines of standing don't allow that to happen easily for the non-enforcement of laws."

"Name me someone you think really does have standing," Epstein continued. An employee? No. A competing firm? No. I'm just hard pressed to identify a party who does."

Even if a lawsuit made it through these hurdles, Georgetown University law professor Randy Barnett -- whose writings played a major role in the Supreme Court's opinion on Obamacare last year -- is skeptical that courts would force the Obama administration to comply with the employer mandate. "It's hard to make the executive branch do something. They would have to have a mandamus to make them apply this law," he said. "I don't know if they technically can, but as practical matter, they aren't likely to do that."

The more interesting issue is what precedent the decision sets. If the enforcement of the mandate is indeed discretionary, then a future Republican president will be tempted to pull the same trick.

"So tell me again why a future Republican administration can't just waive Obamacare" said Barnett.

Why not?

http://www.bloomberg.com/news/2013-07-03/does-obama-have-the-power-to-delay-his-mandate-.html
 

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Dem anxiety over ObamaCare shows

With Obamacare entrenched, Democrats feel free to gripe
Dem anxiety over ObamaCare shows
By Elise Viebeck
07/19/13 06:00 AM ET

Vulnerable House Democrats laid low Thursday after voting to delay two key ObamaCare mandates over a White House veto threat.

The hush from centrist Democrats came after a considerable number cast ballots alongside Republicans on Wednesday for bills designed to embarrass the Obama administration.

Measures to delay the healthcare law's employer and individual mandates passed with 35 and 22 Democratic votes, respectively, just after a combative White House blasted the moves as unnecessary and harmful to consumers.

The next day, many of the defectors failed to respond to requests for comment on the votes. Some avoided reporters, while several others declined to speak through spokesmen.

The divisions over healthcare strongly contrasted with a recent pattern of unified votes by House Democrats.

Not a single Democrat voted last week for a stripped down Republican farm bill, and only four voted in May to tie student loan rates to the financial markets.

But ObamaCare's employer and individual mandates proved a different story, highlighting anxiety over the divisive law as lawmakers from swing districts await 2014.

Several Democrats who voted for both delays, including Reps. Mike McIntyre (N.C.) and Ron Barber (Ariz.), are top GOP targets for the midterm elections.

Another two defectors, Reps. Gary Peters (D-Mich.) and Bruce Braley (D-Iowa), are favored to win Senate seats next fall.

Peters voted with the GOP both times on Wednesday, while Braley only voted to delay the employer mandate. Both backed the Affordable Care Act at its inception.

All of these members are already the focus of Republican attacks related to healthcare reform.

The GOP redoubled its messaging against ObamaCare on July 2, when the Treasury Department announced that it would delay until 2015 the requirement that larger employers offer healthcare coverage.

The White House characterized the delay as a show of flexibility toward business. But the GOP smelled blood and said the decision offered proof that ObamaCare isn't viable.

Galvanized Republicans soon argued that the Obama White House favors corporate interests over average people, since individuals will still be required to carry health insurance starting next year.

This populist rhetoric came through in a handful of interviews with Democrats who supported the delays.

Rep. Patrick Murphy (D-Fla.), who was elected in 2012, said deferring the individual mandate would "make sense" because many lower-income people will still struggle to afford coverage next year.

"The Affordable Care Act is not perfect," he said. "I always thought that it could be improved."

The trouble with delaying the individual mandate is that it would cause premiums to spike in the individual and small-group health insurance markets.

Under healthcare reform, insurance companies will be barred from discriminating against people with pre-existing conditions, who make for more expensive patients.

These protections for the sick are possible because of the individual mandate, which will bring millions of younger, healthier people into the market, lowering the price of insurance premiums.

Rep. Ami Bera (D-Calif.) voted with Republicans to delay the employer mandate and against them to keep the individual mandate in place for next year.

He said his decision sprang from a concern for healthcare costs.

"For the health insurance exchanges to work, we've got to get as many young, healthy people in there as possible," said Bera, a physician.

"Delaying the business component doesn't really undermine the exchanges, but in California, [delaying] the individual mandate probably would."

Murphy said he doesn't worry about an initial rise in premiums because the costs will eventually go down.

"What counts is us getting it right in the long term," he said. "I don't worry about a spike. I think the long term is what matters."

The White House puts its allies in a difficult position on Tuesday by threatening to veto both bills, even the measure to enact the administration's own employer delay.

White House spokesman Jay Carney painted the legislation as an attempt to undermine the healthcare law and suggested that voting for either bill would hand a victory to Republicans.

“There are few things more cynical than the House Republicans, who have made it their mission in life to repeal the Affordable Care Act and deny the American people the benefits that they would receive,” Carney told a press conference.

Both Murphy and Bera were elected in hard-fought 2012 races, and both have expressed concerns about ObamaCare while voicing support for the law in general.

In all, 14 Democratic freshmen voted for both delays, including Reps. Kyrsten Sinema (Ariz.), Elizabeth Esty (Conn.) and Pete Gallego (Texas).

Rep. Dan Maffei (D-N.Y.), who won back his seat in 2012, repeated a refrain common to the group — that the Affordable Care Act needs some adjustment.

"I have been clear about my support for making changes to the law," Maffei said in a statement, citing his bill to repeal ObamaCare's medical device tax.

"If businesses are given additional time by the administration, middle class families deserve that same opportunity," he added.

http://thehill.com/blogs/healthwatc...ty-over-obamacare-shows-in-house-mandate-vote
 

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White House floats health care fix for Congress

White House floats health care fix for Congress
By RICARDO ALONSO-ZALDIVAR | Associated Press
56 mins ago

WASHINGTON (AP) — It started out a political "gotcha" — an amendment to President Barack Obama's health care law requiring members of Congress and staffers to get the same coverage offered to uninsured Americans. Wednesday, the administration tossed it back in the lap of Congress.

Proposed rules — issued when the halls of Congress are empty for summer recess — say lawmakers' offices should individually decide whether staffers are subject to a health law provision that would require them to switch their insurance from the federal plan to new coverage coming next year under Obama's overhaul.

The potential impact of the provision, authored by Iowa Republican Sen. Chuck Grassley, has been a huge source of anxiety for congressional staffers accustomed to getting their health insurance just like other feds, from the largest employer health care plan in the world.

The proposal does clarify that the government will continue to pay its standard share of premiums, resolving one of the biggest unknowns about the impact of Grassley's amendment. Many had been warning of a Capitol Hill "brain drain" if staffers were suddenly forced to foot the entire cost of their health insurance premiums.

But questions remain about such matters as retiree coverage and definitions of residency, so the prognosis for the fix is uncertain.

During the drawn-out debate over "Obamacare," Democrats kept insisting that their goal was merely to provide uninsured Americans with the same kinds of coverage and choices that members of Congress have. Grassley, in effect, dared his Democratic counterparts to swallow their rhetoric. A "no" vote on his provision would have undercut the argument that lawmakers supporting the law only wanted regular Americans to enjoy what they themselves had.

Under the amendment, lawmakers themselves and staffers in their personal, or "official," offices would have to exit the federal employee plan and get coverage through new health insurance marketplaces coming under the law. Also known as "exchanges," the marketplaces will offer subsidized private insurance to people who don't have access to a plan on the job.

But the amendment left many key details unclear — including whether the government would keep paying its share of premiums, which works out to around 75 percent.

The Office of Personnel Management, which runs the federal employee health plan, said lawmakers themselves are best equipped to decide which staffers are part of their "official" office. The term was not defined in Grassley's amendment, and the OPM said it turns out that congressional staffers in personal offices often also do part of their work for committees or as leadership aides. Those two categories — committee and leadership staffers — are exempt from Grassley's provision.

A senior congressional staffer familiar with the proposed regulations said several significant issues remain unclear or unresolved. One whole set of questions has to do with residency requirements. Some staffers, for example, may claim residency in their home state while living in Washington, D.C. What if health insurance plans in their home state don't have Washington-area providers in their networks? Other issues could impact coverage for retirees and those nearing retirement.

A spokesman for the federal personnel office refused an interview request, instead supplying prepared questions and answers that detailed aspects of the proposal.

The new insurance markets start will start signing up people on Oct. 1 for coverage that's effective Jan. 1. OPM said lawmakers will have to decide the status of their employees before the end of the year.

That could mean the difference between a routine re-enrollment or venturing into uncharted territory. Staffers waiting to find out might want to be extra nice to the boss in the meantime.

http://news.yahoo.com/white-house-floats-health-care-fix-congress-202730484.html
 

Mrfreddygoodbud

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Re: White House floats health care fix for Congress

so basically the medical establishment mafia got to the democrats.

a lot of money being exchanged and hidden in freezers...
 

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A Limit on Consumer Costs Is Delayed in Health Care Law

A Limit on Consumer Costs Is Delayed in Health Care Law
By ROBERT PEAR
Published: August 12, 2013

WASHINGTON — In another setback for President Obama’s health care initiative, the administration has delayed until 2015 a significant consumer protection in the law that limits how much people may have to spend on their own health care.

The limit on out-of-pocket costs, including deductibles and co-payments, was not supposed to exceed $6,350 for an individual and $12,700 for a family. But under a little-noticed ruling, federal officials have granted a one-year grace period to some insurers, allowing them to set higher limits, or no limit at all on some costs, in 2014.

The grace period has been outlined on the Labor Department’s Web site since February, but was obscured in a maze of legal and bureaucratic language that went largely unnoticed. When asked in recent days about the language — which appeared as an answer to one of 137 “frequently asked questions about Affordable Care Act implementation” — department officials confirmed the policy.

The discovery is likely to fuel continuing Republican efforts this fall to discredit the president’s health care law.

Under the policy, many group health plans will be able to maintain separate out-of-pocket limits for benefits in 2014. As a result, a consumer may be required to pay $6,350 for doctors’ services and hospital care, and an additional $6,350 for prescription drugs under a plan administered by a pharmacy benefit manager.

Some consumers may have to pay even more, as some group health plans will not be required to impose any limit on a patient’s out-of-pocket costs for drugs next year. If a drug plan does not currently have a limit on out-of-pocket costs, it will not have to impose one for 2014, federal officials said Monday.

The health law, signed more than three years ago by Mr. Obama, clearly established a single overall limit on out-of-pocket costs for each individual or family. But federal officials said that many insurers and employers needed more time to comply because they used separate companies to help administer major medical coverage and drug benefits, with separate limits on out-of-pocket costs.

In many cases, the companies have separate computer systems that cannot communicate with one another.

A senior administration official, speaking on condition of anonymity to discuss internal deliberations, said: “We knew this was an important issue. We had to balance the interests of consumers with the concerns of health plan sponsors and carriers, which told us that their computer systems were not set up to aggregate all of a person’s out-of-pocket costs. They asked for more time to comply.”

Health plans are free to set out-of-pocket limits lower than the levels allowed by the administration. But many employers and health plans sought the grace period, saying they needed time to upgrade their computer systems. “Benefit managers using different computer systems often cannot keep track of all the out-of-pocket costs incurred by a particular individual,” said Kathryn Wilber, a lawyer at the American Benefits Council, which represents many Fortune 500 companies that provide coverage to employees.

Last month the White House announced a one-year delay in enforcement of another major provision of the law, which requires larger employers to offer health coverage to full-time employees. Valerie Jarrett, Mr. Obama’s senior adviser, said that the delay of the employer mandate showed “we are listening” to businesses, which had complained about the complexity of federal reporting requirements.

Although the two delays are unrelated, together they underscore the difficulties the Obama administration is facing as it rolls out the health care law.

Advocates for people with chronic illnesses said they were dismayed by the policy decision on out-of-pocket costs.

“The government’s unexpected interpretation of the law will disproportionately harm people with complex chronic conditions and disabilities,” said Myrl Weinberg, the chief executive of the National Health Council, which speaks for more than 50 groups representing patients.

For people with serious illnesses like cancer and multiple sclerosis, Ms. Weinberg said, out-of-pocket costs can total tens of thousands of dollars a year.

Despite the delay, consumers in 2014 will still have many new protections. They cannot be denied health insurance or charged higher premiums because of pre-existing conditions, and many will qualify for subsidies intended to lower their costs.

In promoting his health care plan in 2009, Mr. Obama cited the limit on out-of-pocket costs as one of its chief virtues. “We will place a limit on how much you can be charged for out-of-pocket expenses, because in the United States of America, no one should go broke because they get sick,” Mr. Obama told a joint session of Congress in September 2009.

Advocates for patients said the promise of the law was being deferred. “We have wonderful new drugs, the biologics, to treat rheumatoid arthritis, but they are extremely expensive,” said Dr. Patience H. White, a vice president of the Arthritis Foundation. “In the past, patients had to live in constant pain, often became disabled and had to leave their jobs. The new drugs can make a huge difference, and we were hoping that the cap on out-of-pocket costs would make them affordable. But now many patients will have to wait another year.”

The American Cancer Society shares the concern and noted that some new cancer drugs cost $100,000 a year or more.

“If a prescription drug plan does not currently have a limit, then it will not have to have one in 2014,” said Molly Daniels, deputy president of the lobbying arm of the American Cancer Society. “Patients who require expensive drugs could continue to have enormous financial exposure, despite the clear intent of the law to limit a patient’s total out-of-pocket exposure.”

Federal officials said they were offering transition relief to certain health plans in 2014. But, they said, by 2015, health plans must comply with the law and must have an overall limit on out-of-pocket costs for medical, drug and other benefits combined.

Theodore M. Thompson, a vice president of the National Multiple Sclerosis Society, said: “The promise of out-of-pocket limits was one of the main reasons we supported health care reform. So we are disappointed that some plans will be allowed to have multiple out-of-pocket limits in 2014.”

The law also requires coverage of dental care for children, but these benefits can be offered in a separate health plan with its own limit on out-of-pocket costs.

Federal rules say that a free-standing dental plan must have “a reasonable annual limitation on cost-sharing.” In states where the new health insurance marketplace will be run by the federal government, the limit on out-of-pocket costs for pediatric dental benefits can be no more than $700 for coverage of one child and $1,400 for a plan covering two or more children in the same family.

http://www.nytimes.com/2013/08/13/u...d-in-health-care-law.html?pagewanted=all&_r=0
 

thoughtone

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source: Salon

Right-wing push poll accidentally finds Obamacare popular

Heritage's new poll oversamples Republicans and asks misleading questions -- but finds most want to keep Obamacare

obamacare_rally-620x412.jpg


Heritage Action, the activist wing of the conservative Heritage Foundation, is out with a new poll today that’s getting some favorable coverage in the mainstream political press. According to Heritage, the survey shows that the GOP shouldn’t fear a government shutdown over Obamacare defunding. But there’s a catch.

The background here is that a group of conservative senators, including Ted Cruz, Mike Lee and Marco Rubio, are trying to push Republican leaders to demand that Congress defund Obamacare in upcoming appropriations battles , even if it means forcing the government to shut down. Heritage supports the effort, so it took the poll to try to steel the spines of Republican leaders.

“Americans — including 57 percent of independents in ten critical congressional districts — favor defunding Obamacare,” said Michael Needham, the CEO of Heritage Action. “House Republicans should be much more concerned with the fallout of failing to defund Obamacare than with the imaginary fallout of doing so.”

What Needham fails to mention, however, is that even this push poll that dramatically oversamples Republicans (more on that in a minute) finds respondents are more likely to say that the Affordable Care Act should be kept than scrapped — and that a plurality would blame Republicans if the government were to shut down.

Only 44.5 percent “oppose the health care law and think it should be repealed,” while 52 percent either support the law as is or have some concerns, but say they think implementation should move forward. And asked whom they would blame if “there was an impasse between president Obama and Congress on whether to continue to fund the health care law, and that impasse resulted in a partial government shutdown,” the top response (28 percent) was Republicans in Congress. The next option, Obama, got 21 percent of respondents.

As for Heritage’s sample, which NBC calls voters from “10 relatively competitive congressional districts,” and Heritage says represents “the American people” as a whole — not so much.

Josh Dorner of the Center for American Progress Action Fund — Heritage Action’s ideological rival — cries foul. He sent over the partisan breakdown of each of the 10 districts and noted that every single one leans Republican:

o FL-2 Southerland R+5
o GA-12 Barrow R+9
o IL-18 Schock R+10
o NJ-7 Lance R+6
o NC-2 Ellmers R+11
o NC-7 McIntyre R+11
o OH-12 Tiberi R+8
o OR-2 Walden R+10
o UT-4 Matheson R+14
o WV-3 Rahall R+14

The poll even asked respondents directly for their party affiliation. Not surprisingly, there were almost 10 percentage points more Republicans (41.8 percent) than Democrats (33 percent). That looks even worse when you consider that more people identify as Democrats than Republicans nationwide, and by a margin of 7 percentage points, according to the latest Gallup survey. That means that Heritage’s poll is arguably oversampling Republicans by around 15 percent.

One could further take issue with a poll that asks respondents leading questions like, do you think Congress should “halt funding for the health care law before provisions take effect, to make sure they do not do more harm than good?”

And the key question of the survey — would you support a government shutdown to defund Obamacare? — is comically euphemistic, calling a hypothetical shutdown a “temporary slowdown in non-essential federal government operations, which still left all essential government services running.”

And yet, despite oversampling Republicans and asking misleading questions, the poll still finds that pluralities favor keeping Obamacare and that Republicans would bear the brunt of the public’s wrath if the government shuts down.
 

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Is Obama Backing Away From Obamacare?

Is Obama Backing Away From Obamacare?
Bill George - Professor of Management Practice, Harvard Business School
Posted: 12/23/2013 9:34 am

The latest announcement from the White House on Thursday, December 19, seems to indicate that even President Obama is backing away from Obamacare.

At the very least, he is bobbing and weaving like an exhausted prize fighter trying to avoid a knockout punch. For the President, that punch would be a disastrous rollout of Obamacare that leaves Americans so angry that the Democrats lose their five-seat majority in the Senate in 2014. That could happen with the never-ending fallout from the new plans. Not surprisingly, the latest White House retreat just before the December 23rd enrollment deadline was triggered by pressure from moderate Senate Democrats like Mark Warner (D-VA) and Mary Landrieu (D-LA). Landrieu faces a tough 2014 election campaign.

Thursday's announcement said that six million Americans who have had their insurance plans cancelled are eligible to buy catastrophic policies and are exempt from penalties if they go without insurance in 2014. Not that the new catastrophic plans are cheap. In California the pre-Obamacare median cost for a 25-year old non-smoking male was $92 per month on eHealthInsurance.com. This compares to $205 per month for a bronze plan and $184 per month for a catastrophic plan. Tacitly admitting that for many Americans the cost of buying insurance on the federal exchange exceeds their current insurance cost, Health and Human Services Secretary Katherine Sebelius offered them the opportunity to apply for a "hardship exemption."

This is the fourth major pullback by the White House from the Affordable Care Act. In July the employer mandate to provide health care to all their employees was delayed one year until January 1, 2015. That followed the prior year's scrapping of long-term insurance plans which were deemed too expensive. Then in November President Obama, facing massive criticism for not upholding his promise that all Americans could keep their insurance plans, told insurers to reinstate the cancelled plans, provided their state insurance commissioners agreed. (Several did not.) On November 27, the White House withdrew the opportunity for small businesses to buy insurance on federal exchanges in 2014.

All these changes are causing mass confusion and consternation for the insurers. Already, two of the four largest insurers - United Health and Cigna - have elected not to participate in the exchange, a decision that appears fortuitous. The remaining participants in the federal exchange are preparing for massive adverse selection that raises their costs far beyond the projections they used in bidding on these plans, especially the bronze plans. As the healthy young opt to go without insurance and pay the modest penalty or take the catastrophic plans, the insurers are left with the least healthy people in their plans. The latter comprise the vast majority of people enrolled to date.

All these changes are exposing the flawed premise on which Obamacare is based: that the healthy young are willing to pay much more for insurance in order to support the unhealthy elderly. This policy marks the first time in U.S. history that we are asking the young to pay for the old; historically, it has always been the other way around. Altruism would not have motivated the young to assume this new cost, so the Democrats used the mandate to force the young into the pools--subsidizing care of the elderly at much higher costs to themselves. The mandate eked through the U.S. Supreme Court on a 5-4 decision, thanks to the tortured logic of Chief Justice John Roberts who deemed it wasn't mandate after all, but rather a tax. All this comes at a time when youth unemployment is still in double digits and many more young people are stuck in low-paying jobs that barely enable them to make ends meet.

To compound the problem, the law has a key provision that no one can be asked to pay more because they are in ill health. The converse of that clause is that insurers cannot offer incentives to people for remaining in good health through diet, exercise, stress reduction, and limiting consumption of cigarettes, alcohol and drugs. That forms a sharp contrast with self-insured employers who are racing to offer employees massive incentives for staying healthy. These employers understand the reality that Washington seems to deny: health care costs can only come down when people start taking responsibility to live healthier lives. Pragmatic employers who bear the cost of their employees' health care, know that lifestyle accounts for more than 50% of total health care costs. Therefore, they offer incentives to improve employees' lifestyles.

The impact of this provision will become highly visible in early 2014 when insurers announce increased prices for their 2015 plans. That will trigger another round of consumer reactions, and responses from the Obama administration shortly before the November 2014 mid-term elections. Will the administration extend opportunities for people to go without coverage or shift to catastrophic plans? Or will the administration try to offset the rising costs by further reducing reimbursement to hospitals and physicians for Medicare and Medicaid? If the latter, we are likely to see a stampede of providers that refuse to take new Medicare/Medicaid patients, even those within five years of becoming eligible.

Given this looming disaster, I support the Obama administration's "go slow" approach, and offering the option of catastrophic plans for all Americans. This is something I argued for unsuccessfully back in 2009-2010 before the law was enacted. To make Obamacare viable, however, two further changes will be required: 1) reducing the minimum requirements in the plans to enable people to select plans tailored to their needs, and 2) permitting insurers to offer incentives to their enrollees for staying healthy. The consequence of these two actions will be that unhealthy Americans will have to pay more, regardless of their age, and the healthy will not be required by law to subsidize the unhealthy. These changes are certain to raise the hackles of liberal Democrats, but they are the only to avoid the looming disaster in rapidly rising health care costs that could bankrupt Medicare/Medicaid.

In early 2014 the President will be faced with a stark choice, as the shortfall of healthy Americans signing up through healthcare.gov becomes reality, and the consequences of adverse selection cause insurers to reprice their 2015 plans. He can cling to the original liberal provisions of Obamacare and face massive political fallout. Or he can take a more gradual approach to universal health care that provides people with incentives to stay healthy. For the sake of our country, I hope he chooses the latter option.

http://www.huffingtonpost.com/bill-george/is-obama-backing-away-fro_b_4492796.html
 

thoughtone

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source: Huffington Post

Kathleen Sebelius: Darrell Issa Attempting To 'Stifle, Intimidate' Obamacare Navigators


Secretary of Health and Human Services Kathleen Sebelius is accusing Rep. Darrell Issa (R-Calif.), who chairs the House oversight committee, of attempting to "stifle, intimidate and impugn the reputation" of Obamacare navigators, the individuals tasked with helping others sign up for coverage under the Affordable Care Act.

In an op-ed in the Dallas Morning News, Sebelius said a House Oversight and Government Reform Committee hearing on the Affordable Care Act set to be held in Texas on Monday was "designed" to derail the work of the navigators.

"What opponents of the new law could not do legislatively, at the ballot box, or even by shutting down the federal government, they’re now trying to do through other means," Sebelius writes. "Case in point is Monday’s congressional hearing in Dallas, designed to stifle, intimidate and impugn the reputation of people who have been working hard to help their fellow Texans get covered."

She continues, "With so many Texans lacking affordable coverage, now is not the time to be putting up roadblocks. We should be helping navigators and other assisters in their important work, not demonizing, demoralizing or deterring them."

Monday's hearing will focus on "recent reports of fraudulent activity related to the ObamaCare navigators program," according to a press release issued by the committee last week.

Issa and Rep. Pete Sessions (R-Texas) defended the hearing in a separate op-ed appearing in the Morning News.

"While President Barack Obama and other allies of Obamacare continue to publicly tout the law, they have done too little to address serious problems that come with it," the congressmen write. "This hearing, one of a series of hearings investigating the flawed implementation of Obamacare, strives to get the answers that the American people deserve about Obamacare’s navigator program."
 

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White House delays health insurance mandate for medium-sized employers until 2016

White House delays health insurance mandate for medium-sized employers until 2016
By Juliet Eilperin and Amy Goldstein,
Published: February 10

For the second time in a year, the Obama administration is giving certain employers extra time before they must offer health insurance to almost all their full-time workers.

Under new rules announced Monday by Treasury Department officials, employers with 50 to 99 workers will be given until 2016 — two years longer than originally envisioned under the Affordable Care Act — before they risk a federal penalty for not complying.

Companies with 100 workers or more are getting a different kind of one-year grace period. Instead of being required in 2015 to offer coverage to 95 percent of full-time workers, these bigger employers can avoid a fine by offering insurance to 70 percent of them next year.

How the administration would define employer requirements has been one of the biggest remaining questions about the way the 2010 health-care law will work in practice — and has sparked considerable lobbying. By providing the dual phase-ins for employers of different sizes, administration officials have sought to lighten the burden on the small share of affected employers that have not offered insurance in the past.

As word of the delays spread Monday, many across the ideological spectrum viewed them as an effort by the White House to defuse another health-care controversy before the fall midterm elections. The new postponements won over part, but not all, of the business community. And they caught consumer advocates, usually reliable White House allies, by surprise, particularly because administration officials had already announced in July that the employer requirements would be postponed from this year until 2015.

Congressional Republicans seized on the announcement as the latest justification for scrapping the health-care law. In particular, they renewed their opposition to the law’s requirement that most Americans have insurance, saying it is unfair to delay rules for businesses and not for individuals.

“If unilateral delays were an Olympic sport, the White House would sweep the gold, silver, and bronze,” House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) said in a statement. “The White House is in full panic mode, and rather than putting politics ahead of the public, it is time for fairness for all.”

Originally, the employer mandate — which affects companies employing 72 percent of all Americans — was to have gone into effect Jan. 1, at the same time the law began requiring most Americans to have health insurance.

A senior administration official, who briefed reporters on the proposal on the condition of anonymity shortly before the rule became public, said the Treasury Department decided to allow medium-size businesses more latitude because they “need a little more time to adjust to providing coverage.”

The law says that anyone who works 30 hours or more is a full-time employee, and it compels many employers to offer affordable insurance to those workers and their dependents. It defines affordable as premiums of no more than 9.5 percent of an employee’s income, and employers must pay for the equivalent of 60 percent of the actuarial value of a worker’s coverage. Businesses that fail to do so will eventually face a fine of up to $2,000 for each employee not offered coverage, though workers are not required to sign up for the benefits.

Under the health-care law, small employers — those with fewer than 50 workers — do not have to offer insurance. Instead, they will be allowed to buy health plans through new marketplaces created under the law. Because of hardware and software problems, the federal small-business marketplace, which was supposed to open in October, will not become available until the fall.

But until now, the government had not spelled out important details. Nor had it defined exactly what insurance benefits must be covered by employer-sponsored health plans.

Administration officials said Monday that they will issue a separate set of rules in coming weeks that will cover related questions about how employers must report their workers’ insurance status to the government.

Trade associations — which represent many of the U.S. businesses affected by the new requirements — had a mixed reaction to the rule.

The National Restaurant Association, whose nearly 500,000 members were concerned because many industry employees work odd schedules and do not receive benefits, lauded the phase-in. “It’s welcome news, as is anything that helps employers figure this out and gives them time to comply,” said the group’s director of labor and workforce policy, Michelle Neblett, who noted that many members do not yet have systems in place to keep track of worker hours.

But Joe Trauger, the National Association of Manufacturers’ vice president of human resources policy, said businesses will still face massive new compliance costs under the law. “What they’ve released is doing what they can to make some things that are not great policy more livable,” Trauger said. “But at the end of the day, it’s not great policy.”

Ron Pollack, executive director of the consumer lobby Families USA and an ally of the administration, said he was “very surprised” by the new postponements. He contended that, because most large employers already offer insurance, the law’s requirements are not that burdensome. But Pollack added that for workers at large companies that do not provide coverage, “it’s very unfortunate . . . that they don’t have a guarantee it will be extended to them for quite some time.”

Senior administration officials said the latest postponement will have little real-world impact, because the vast majority of employers have fewer than 50 workers.

But employees of bigger companies represent a much larger fraction of the U.S. workforce, with more than seven in 10 at companies and other organizations that employ 100 or more people.

The extra time before certain employers must offer insurance is among a variety of specifics that Treasury Department officials spelled out for the first time in the final rule they issued late Monday afternoon. Each addressed an issue that, while narrow, had become controversial among certain constituencies.

For instance, the rule pleased fire companies, which had feared that the government might have required them to offer insurance to volunteer firefighters and other first responders. The rule also said that educators who have summers off are nonetheless to be treated as full-time workers entitled to be offered coverage. Adjunct faculty members will be counted as working 2.25 hours for ever hour in the classroom. And the rule said that seasonal workers — such as farm workers or extra department-store hires around Christmastime — are considered full time only if they work for at least half the year.

http://www.washingtonpost.com/natio...e6b344-9279-11e3-84e1-27626c5ef5fb_story.html
 

thoughtone

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source: Raw Story


Arkansas lawmaker promotes bill to keep uninsured in the dark about healthcare options

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Republican lawmaker in Arkansas is attempting to insert an amendment into a Medicaid expansion bill that is designed to prevent the state from using federal funds to promote Obamacare, explaining that he doesn’t want uninsured Arkansans to know about their healthcare options.

According to ThinkProgress, State Rep. Nate Bell (R) admitted that, by denying the state of Arkansas the ability to use federal funds allocated for advertising the Affordable Care Act (ACA), he is “trying to create a barrier to enrollment.”

“We’re trying to create a barrier to enrollment,” Bell explained, noting that lower enrollment ultimately translates to lower costs. “In general, as a conservative, if I have the opportunity to reduce government spending in a program from what’s projected… I’m probably going to take that deal.”


Bell’s amendment would prohibit the state of Arkansas from advertising plans offered through the ACA using television, radio, print, or online ads.

It would also prevent the state from using federal funds to send out direct mail pieces which have proven to be effective in getting out the word about the state’s Medicaid expansion and healthcare options.

Because Arkansas is pursuing a “private option” for Medicaid, which provides residents with a subsidy to purchase private insurance, the process for enrolling in a Medicaid plan is similar to the process for signing up for a plan with the ACA’s new state-level exchange.

As of 2011, Arkansas was home to close to one-half million uninsured citizens, including over 39,000 uninsured children under the age of eighteen.

Rep. Bell last made national news following the Boston bombing in April, 2013 when he tweeted: “I wonder how many Boston liberals spent the night cowering in their homes wishing they had an AR-15 with a hi-capacity magazine? #2A.”

Bell later backtracked from his comment, explaining that he was just expressing his ‘frustration’, adding: “”I really didn’t think about it going to Boston and was generally expressing my personal view of how I would have felt in that situation myself.”
 

thoughtone

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source: Think Progress

Federal Judge Temporarily Blocks Missouri’s Restrictions On Obamacare Navigators


A federal district court judge in Jefferson City, Missouri has temporarily blocked enforcement of a state law that puts restrictions on individuals and organizations trying to help people sign up for health coverage under Obamacare.

Obamacare uses so-called state navigators and enrollment counselors to assist Americans who are looking to buy health plans. These navigators include doctors, nonprofit organizations, social workers, and community groups. They’re required by federal law to reach out to uninsured residents about different marketplace plans, spread the word about potential premium subsidies or Medicaid eligibility, and explain other pertinent enrollment details.

Although navigators have to be federally certified, the health law allows states to impose additional requirements they must comply with. At least 19 states generally opposed to the Affordable Care Act have passed such laws — and some states’ navigator requirements are so stringent that advocates say they prevent counselors from fulfilling their very purpose and speaking candidly with Americans seeking assistance.

For instance, Missouri’s navigator law, the Health Insurance Marketplace Innovation Act (HIMIA), prohibits federally certified navigators from discussing specific marketplace plans unless they also become state-licensed insurance brokers. Any organization found violating that rule would be subject to thousands of dollars in fines, and the burden of those requirements spurred Missouri nonprofit groups like St. Louis Effort for AIDS and Planned Parenthood of St. Louis to file suit against the state.

“Missouri has placed groups like St. Louis Effort for AIDS in an untenable situation,” said plaintiff’s counsel and former Missouri insurance commissioner Jay Angoff when he filed the lawsuit last winter. “If they comply with the Missouri statutes, they can’t perform the duties the Affordable Care Act requires them to perform, but if they comply with the ACA and do perform those duties, they violate the Missouri law and are subject to thousands of dollars in penalties for doing so. Those conflicts have created a culture of fear among the very people charged with helping Missourians comply with the new law.”

Judge Ortrie Smith agreed with that assessment. “The Court concludes HIMIA’s requirement that federally approved/licensed individuals and entities must also comply with additional licensing requirements constitutes an impermissible obstacle,” wrote Smith in his ruling. “[T]he suggestion that those designated to operate the [Obamacare marketplace] can do so only if they are also licensed as insurance agents demonstrates that the state law obstructs the federal purpose.”

A federal judge in Tennessee temporarily blocked a similar law in that state in October.

Missouri is likely to appeal the new ruling, which may eventually have broad ramifications for how well states can sign up residents for Obamacare. A recent study by George Washington University found that patients who go to clinics in states with strict navigator laws are significantly less likely to get information about the health law or find an insurance plan that’s right for them.
 

thoughtone

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source: msn News

Florida restaurant chain adds Obamacare surcharge to meal bills

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ORLANDO (Reuters) — Diners at a Florida restaurant chain are being asked to pay a health insurance surcharge on their meal tabs to cover the cost for business owners of the Obama administration's new healthcare program.

Customers at eight Gator's Dockside restaurants dotted around central and north Florida are finding a 1 percent surcharge on their bills listed as "ACA," the letters standing for the Affordable Care Act, popularly known as Obamacare.

Lengthy signs on the front door and a plastic-coated letter delivered to tables with the menu warn diners of the fee. "The costs associated with ACA compliance could ultimately close our doors," the letter reads under the company letterhead.

A $14.56 lunch tab for Asian salad and iced tea ordered by a reporter at a Dockside restaurant in the town of Clermont, a short drive west of Orlando, included a 13-cent ACA surcharge.

Dockside said it wants to continue to offer full-time employment so its employees don't have to work multiple jobs to make a living.

"Therefore, instead of raising prices on our products to generate the additional revenue needed to cover the cost of ACA compliance, Gator's Dockside has implemented a 1 percent surcharge on all food and beverage purchases only," the notice adds.

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President Barack Obama stops at the Gator's Dockside restaurant to talk with families while campaigning in Orlando, Fla., on Sept. 8, 2012.

"People gotta do what they gotta do to obey the law," said local business owner Sean Gumbert, 40, a lunchtime customer at Gator's Dockside in Clermont who opposes Obamacare.

But other diners, including several who didn't like Obamacare, were less sympathetic to the restaurant's dilemma, saying insurance was just another cost of doing business, similar to other business taxes, and had no place on a meal tab.

"It's a game. If you want to play the game, customers can play the game, too. Instead of 20 percent tip, he (the waiter) gets 18 percent," said Joe Lee, a retired federal worker.

"We didn't do this for any, any, any, any, any political reasons," said a company official who answered the phone at the company's Orlando headquarters, but asked not to be named.

"It was done in all the greatest intentions. It was done to give everybody full healthcare without knocking their hours down and not charging ridiculous amounts of money to do it," he said.

The Affordable Care Act requires all businesses with more than 50 full-time employees to provide health insurance for their staff, or to make a shared payment on their federal tax return. Originally due to go into effect in January, the requirement has been postponed until the end of the year.

A dozen other independently owned restaurants in the Gator's Dockside franchise are not imposing the surcharge.
"It's clearly political," said Hank Fishkind, an Orlando-based economic consultant, noting that the company could have increased its meal prices to cover the extra healthcare cost without advertising it.

"If they want to display their politics in this way, that's their right. Some customers, depending on their politics, might like it. Others will not," he said.

Fishkind said he was unaware of any other company making a similar move, though some Florida hospitality firms have complained about the requirement under Obamacare to provide health insurance for part-time labor.

"It is a real issue, particularly in a state like Florida, because we have a concentration of restaurants and lodging companies," he said.
 

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Obama awaits another court ruling that could deal blow to health law

Obama awaits another court ruling that could deal blow to health law
Tribune Washington Bureau
20 hours ago

WASHINGTON • The Affordable Care Act could be dealt a severe blow this week if a U.S. appeals court rules that some low- and middle-income residents no longer qualify to receive promised government subsidies to pay for their health insurance.

The case revolves around a legal glitch in the wording of the health care law, which as written says that such subsidies may be paid only if the insurance is purchased through an “exchange established by the state.” That would seem to leave out the 36 states in which the exchanges are operated by the federal government.

A ruling could come as early as today.

President Barack Obama’s administration has argued that Congress intended to offer the subsidies nationwide to low- and middle-income people who bought insurance through an exchange, without making a distinction.

Lawyers and congressional staffers who worked on the 2010 law have described the problem as a classic wording glitch in a long and complicated piece of legislation.

In one part of the law, it says that states, which normally regulate insurance, could create exchanges that would help consumers and small businesses shop for coverage. The law also said if a state failed to establish an exchange, the federal government could step in.

A second part of the law described the subsidies that could be offered to low- and middle-income people to cover the cost of the insurance. This part of the law said these subsidies — or tax credits — would be offered for insurance bought on an exchange “established by the state.”

Apparently no one noticed the problem until the law was passed. Then, because of fierce political opposition, supporters of the law could not fix the wording through an amendment. Moreover, the administration did not anticipate most Republican-led states would refuse even to create an insurance exchange for their residents.

The Internal Revenue Service adopted a regulation in 2012 that said individuals who qualify for subsidized insurance that is purchased on a government-run exchange may receive a tax credit, “regardless of whether the exchange is established and operated by a state.”

But the libertarian Competitive Enterprise Institute filed a suit, Halbig vs. Burwell, on behalf of several plaintiffs, contending this regulation is illegal.

They lost in January before a federal judge who decided Congress intended to offer the insurance subsidies to everyone who qualified.

If a panel of the U.S. Circuit Court of Appeals for the District of Columbia rules against Obama — and the tone of oral arguments suggested it might — the administration could ask the full 11-member appeals court to weigh the issue.

In the past year, Obama has added four new judges to the D.C. circuit court, giving Democratic appointees a majority for the first time since the mid-1980s.

http://www.stltoday.com/news/specia...cle_1d22f1e7-5c10-5e4d-ac5c-30c9894fe774.html
 

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Re: Obama awaits another court ruling that could deal blow to health law


In the past year, Obama has added four new judges to the D.C. circuit court, giving Democratic appointees a majority for the first time since the mid-1980s.

Yep :yes: :yes: :yes:, that's since the so-called "Bork Court" . . .


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led by Robert Bork whom Ronald Reagan unsuccessfully nominated to the U.S. Supreme Court. Bork's nomination to the Supreme Court was hotly contested by civil rights groups. Bork was opposed to the authority claimed by the federal government to impose standards of voting fairness upon the states while supporting the rights of Southern states to impose a poll tax. Bork also wanted to overturn civil rights decisions of the Warren and Burger courts.



 

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Obama admin. says health subsidies will continue

Obama admin. says health subsidies will continue
July 22, 2014 11:41 AM

WASHINGTON (AP) — A federal appeals court delivered a potentially serious setback to President Barack Obama's health care law Tuesday, imperiling billions of dollars in subsidies for many low- and middle-income people who bought policies.

The Obama administration immediately declared that those policyholders will keep getting financial aid for their premiums as it seeks review of the ruling. White House spokesman Josh Earnest said the decision would have "no practical impact" on tax credits as the case works its way through further court appeals.

In the case, decided by the U.S. Court of Appeals for the District of Columbia Circuit, a group of small business owners argued that the law authorizes subsidies only for people who buy insurance through markets established by the states — not by the federal government.

A divided court agreed, in a 2-1 decision that could mean premium increases for more than half the 8 million Americans who have purchased taxpayer-subsidized coverage under the law. The ruling affects consumers who bought coverage in the 36 states served by the federal insurance marketplace, or exchange.

The majority opinion concluded that the law, as written, "unambiguously" restricts subsides to consumers in exchanges established by a state. That would invalidate an Internal Revenue Service regulation that tried to sort out confusing wording in the law by concluding that Congress intended for consumers in all 50 states to have subsidized coverage.

In reaction, Justice Department spokeswoman Emily Pierce said the decision was incorrect, inconsistent with the intent of Congress, and at odds with the goals of the health care law.

The administration is expected to seek a hearing from the full 11-member appeals court.

Is ACA legislation slowly being dismantled?Play Video
The issue is crucial to the success of the health law because most states have been unable or unwilling to set up their own exchanges. The inaction stems in many instances from opposition by Republican governors to the Affordable Care Act.

The small business owners filing the lawsuit say the tax credits enacted by Congress were intended to encourage states to set up their own health benefit exchanges and that the penalty for not doing so was withdrawal of tax credits for lower-income residents.

Supporters of the act say the purpose of the tax credit was not to promote the establishment of state exchanges, but rather to achieve Congress's fundamental purpose of making insurance affordable for all Americans.

The case revolves around four words in the Affordable Care Act, which says the tax credits are available to people who enroll through an exchange "established by the state."

The challengers to the law say a literal reading of that language invalidates the IRS subsidy to people in the federal exchanges. The opponents say that people who would otherwise qualify for the tax credits should be denied that benefit if they buy insurance on a federally facilitated exchange.

"It is implausible to believe that Congress gave the IRS discretion to authorize $150 billion per year in federal spending, particularly when Congress had directly spoken to this issue," the challengers to the IRS subsidy said in a court filing. "Major economic decisions like these — indeed, any decisions granting tax credits — must be made unambiguously by Congress itself."

The Obama administration and congressional and state legislative supporters of the Affordable Care Act say the challengers are failing to consider the words of the statute in its entirety.

"Congress did not provide that the tax credits would only be available to citizens whose states set up their own exchanges," says an appeals court filing by congressional and state legislative supporters of the Affordable Care Act. Congressional lawmakers and state legislators supporting the act said that limiting the subsidies to state exchanges could destabilize important aspects of the law, such as the individual mandate requiring most people to buy insurance.

The judges on the case were Thomas Griffith, an appointee of President George W. Bush; A. Raymond Randolph, an appointee of Bush's father; and Harry Edwards, an appointee of President Jimmy Carter, who dissented.

A lower court had ruled that the law's text, structure, purpose, and legislative history make "clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges."

But the appeals court concluded the opposite — that the letter of the law "unambiguously restricts" the law's subsidies to policies sold through exchanges established by the state.

http://news.yahoo.com/obama-admin-says-health-subsidies-continue-154110825--finance.html
 

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The Surprise Obamacare Ruling That Wasn't

The Surprise Obamacare Ruling That Wasn't
836 JUL 25, 2014 6:33 AM EDT
By Megan McArdle

Since the Halbig v. Burwell decision came down from the U.S. Court of Appeals for the District of Columbia Circuit -- which ruled that insurance subsidies could only legally be provided on state exchanges -- there has been a lot of outrage from the liberal commentariat. The thrust of this outrage is that obviously no one ever intended to restrict subsidies only to state exchanges, because that is now endangering the whole program, and obviously, the law’s architects did not mean to endanger the whole program.

The response to this has been twofold. First, everyone at the time assumed that all the states would establish exchanges. Second, there was indeed a method to this madness: By limiting subsidies to the state exchanges, the government was providing the incentive needed to get all 50 states and the District of Columbia to go ahead and create those exchanges.

Michael Cannon and Jonathan Adler offered the most persuasive summary of this argument in a 2013 law review article:

The language in Sections 1401 and 1402 restricting credits and subsidies to state-created Exchanges is more than just consistent with the rest of the Act. It is integral to Section 1311’s directive that states ‘‘shall’’ create an Exchange. Because it likely creates a larger financial incentive than the Medicaid ‘‘maintenance of effort’’ requirement, it is the primary sanction imposed on states that do not establish Exchanges. It thus animates Section 1311’s ‘‘shall.’’ To ignore it as the IRS has would sap that directive of most of its force.

As noted above, the federal government cannot actually force states to create Exchanges, as this would constitute unconstitutional commandeering. The federal government can, however, utilize a combination of positive and negative incentives to induce state cooperation -- in this case, subsidies for creating Exchanges and the threat of a federally run Exchange if a state does not create its own.

Such incentives are common. Various federal programs, including Medicaid, condition the receipt of federal funding on state acceptance of the federal government’s conditions. In this context, limiting the availability of tax credits to insurance purchased in state-run Exchanges can be seen as just one more inducement for state cooperation: the PPACA threatens states with the loss of tax credits for state residents if they do not create an Exchange.

This idea of using conditional tax credits to avoid the commandeering problem was also part of the health care reform debate well before PPACA supporters first introduced any legislation. In early 2009, Professor Jost wrote:

Congress cannot require the states to participate in a federal insurance exchange program by simple fiat. This limitation, however, would not necessarily block Congress from establishing insurance exchanges. Congress could invite state participation in a federal program, and provide a federal fallback program to administer exchanges in states that refused to establish complying exchanges. Alternatively it could exercise its Constitutional authority to spend money for the public welfare (the ‘‘spending power’’), either by offering tax subsidies for insurance only in states that complied with federal requirements (as it has done with respect to tax subsidies for health savings accounts) or by offering explicit payments to states that establish exchanges conforming to federal requirements.

Both the Finance bill and the HELP bill withheld subsidies from taxpayers whose state governments failed to establish an Exchange or otherwise failed to implement the bills’ requirements.

The PPACA’s closest antecedent was the Finance Committee-reported ‘‘America’s Healthy Future Act of 2009’’ (S. 1796). The relevant language in the PPACA is nearly identical to that of the Finance bill. Indeed, the four ways Section 1401 confines tax credits to state-run Exchanges appear almost verbatim in the Finance bill.

The HELP bill even more explicitly withheld credits in states that failed to implement its requirements, and it employed that strategy to encourage state cooperation even if the federal government created the Exchange.

Unfortunately, the record of congressional deliberation on this matter has been thin, perhaps because in the rush to get something passed, there wasn’t much congressional deliberation; many of the members of Congress who voted on the final bill undoubtedly had little idea what was in it other than “health care!” That has left room for both sides to claim they’re right.

Until now: Ryan Radia at the Competitive Enterprise Institute1 seems to have uncovered the closest thing we’re going to get to a smoking gun.

Jonathan Gruber, an economics professor at the Massachusetts Institute of Technology, is widely known as one of the architects of both Romneycare and Obamacare. He was paid almost $300,000 (no wait, $400,000) by the Barack Obama administration for “special studies and analysis” of the various health-care bills. His models of the economic effects of the bill were frequently cited by journalists and the administration. He claims to have helped write the part of the bill that deals with small-business tax credits. He was, in short, intimately involved in these efforts.

In January 2012, Gruber apparently gave a talk at some sort of conference at Noblis Inc., which, according to its webpage, is a "nonprofit science, technology, and strategy organization.” At that talk, Gruber made the following observation:

What’s important to remember politically about this is if you're a state and you don’t set up an exchange, that means your citizens don't get their tax credits -- but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that's a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this.

Why is this so important? Because Gruber made this argument in January 2012. This was after the filing of Pruitt v. Sebelius (a Halbig-like case brought by Oklahoma’s state attorney general) but before the U.S. Supreme Court’s ruling on the constitutionality of the Affordable Care Act, and before all the other related cases were filed. At the time he gave this talk, Halbig’s argument was barely on the radar. Yet Gruber, one of the law’s architects, clearly had an understanding of the provision that liberals now say no one shared.

I’ve listened to Gruber’s whole presentation to make sure this wasn’t a poorly phrased snippet unfairly clipped out of context. It’s not. Gruber is succinctly stating the argument made by the plaintiffs in Halbig: that premium subsidies will not be available on federal exchanges, and that this is supposed to incentivize states to build their own exchanges.

To be sure, this was still two years after the law passed, and my understanding is that the court is not supposed to pay attention to post-facto statements about the law’s effect or intent. But unless this is some sort of elaborate hoax, I think this definitively puts to rest the notion that none of the bill’s architects could possibly have thought or intended that the law would have this effect. Gruber thought the law would have this effect -- and if anyone would know, he would.

http://www.bloombergview.com/articles/2014-07-25/the-surprise-obamacare-ruling-that-wasn-t
 

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Supreme Court is asked to take up major challenge to Obamacare

Supreme Court is asked to take up major challenge to Obamacare
The petition to the Supreme Court centers on text in the Obamacare law that appears to sharply restrict the provision of federal tax credits. Federal appeals courts issued opposing rulings on the issue last week.
By Warren Richey
July 31, 2014 9:37 PM

Lawyers challenging a central provision of President Obama’s health-care reform law asked the US Supreme Court Thursday to examine an issue that led last week to a judicial oddity: opposing, and nearly simultaneous, rulings by two federal appeals court panels.

The case marks the most significant threat to the future of the Affordable Care Act (ACA), also known as Obamacare, since the high court upheld the constitutionality of the law’s individual mandate in a 5-to-4 decision in 2012.

At issue is whether the administration acted properly when it enacted an IRS rule to negate a problematic section of text within the ACA.

Recommended: How much do you know about health-care reform? Take our quiz!

The appeal stems from one of the two federal appeals court decisions issued last week. In one decision, a three-judge panel in Washington voted 2 to 1 to invalidate the IRS rule. In a second decision issued hours later, a three-judge panel in Richmond, Va., agreed with the administration and upheld the IRS rule.

An administration defeat in the new case would essentially gut the ACA and prevent millions of low-income Americans from receiving tax credits to help pay for promised health insurance premiums.

Defenders of the statute say the problematic text is merely a typo.

Opponents say the law’s text is clear and that the courts should enforce it as written.

Specifically, the case, if accepted by the justices, would test the authority of a federal agency to interpret US law when the statute as written by Congress is considered ambiguous by the executive branch.

At the center of the litigation are two passages that appear to sharply restrict the provision of federal tax credits under the ACA.

The problematic text suggests that federal tax credits to support health insurance policies for low-income Americans can only be provided through health-care exchanges that were set up by participating states.

The ACA says the credits are to be administered through “an exchange established by the State under section 1311 of [the ACA].” The provision makes no mention of exchanges set up and administered by the federal government.

That would not be an issue if all 50 states had agreed to participate in Obamacare and set up their own health-care exchanges.

But the ACA has not been as popular as its supporters expected. Only 16 states went ahead and set up exchanges. The federal government moved to fill the vacuum in non-participating jurisdictions by setting up federal health-care exchanges in the remaining 34 states.

At some point officials recognized a discrepancy in the ACA. The IRS enacted a rule that sought to clarify that tax credits were available through both state and federal health-care exchanges.

Opponents of the health-care reform effort sued. Their lawyers argued that that the IRS could not use a rule to rewrite an unambiguous statute. The lawyers also argued that since their clients lived in states with federally administered health-care exchanges, the ACA’s mandates could not be enforced against them.

Since the two appeals courts reached different decisions it is up to the losing party in each case to decide whether to seek review at the Supreme Court.

Thursday’s appeal is from the Virginia decision handed down by the Fourth US Circuit Court of Appeals.

The plaintiffs in both cases were represented by the same appellate lawyer, Michael Carvin. And both cases are being coordinated and funded by the conservative Competitive Enterprises Institute.

“From the time these cases were first filed, we’ve tried to get this issue resolved as quickly as possible for the plaintiffs and the millions of individuals like them,” Sam Kazman, CEI general counsel, said in a statement.

“A fast resolution is also vitally important to the states that chose not to set up exchanges, to the employers in those states who face either major compliance costs or huge penalties, and to employees who face possible layoffs or reductions in their work hours as a result of this illegal IRS rule,” he said.

“Our petition today to the Supreme Court represents the next step in that process,” he said.

http://news.yahoo.com/supreme-court-asked-major-challenge-obamacare-013757797.html
 

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Obamacare begins to unravel

Obamacare begins to unravel
By Rick Newman
November 11, 2014 12:08 PM
Yahoo Finance

There was strong opposition to Medicare before it went in to effect in 1965, but after that, the health program for seniors quickly became an accepted and even popular part of the U.S. medical system.

Supporters of the Affordable Care Act, President Obama’s bold health reform law, often highlight the similarity to Medicare in terms of initial opposition. But Obamacare, as the ACA is known, is hardly catching on like Medicare did (at least not yet). In fact, the law suddenly seems more threatened than at any time since it was passed in 2010, and it’s now possible the whole unwieldy program could collapse.

Three things happened during the first 10 days of November that amount to a major downgrade in the prognosis for Obamacare. First, Republicans won a majority of seats in the Senate, giving them control of both houses of Congress. Second, the Obama administration sharply lowered its estimate for how many people will enroll in Obamacare in 2015. Third and probably most important, the Supreme Court agreed to hear a sleeper legal case that could have devastating consequences for Obamacare if the justices side with the plaintiffs.

The legal case, King v. Burwell, hinges on a linguistic technicality in the original ACA legislation that has become more important than anybody imagined at the time. The law says that federal subsidies meant to help many lower-income people pay for policies can only be issued through a healthcare exchange “established by the state.” But only 16 states have built such exchanges, with the rest relying on the federal exchange. When legislators drafted the law, they anticipated most states would set up their own exchanges, and the plaintiffs in the suit now contend that federal subsidies are not permitted in the 34 states that haven’t.

The whole issue will boil down to whether the justices think the technicality matters enough to upend the entire law. The odds seem tilted against the law. In the court’s other big decision on Obamacare, in 2012, a narrow 5-4 majority voted to uphold the law, with Chief Justice John Roberts unexpectedly siding with the majority. The issue is different this time, but the mere fact that the Supreme Court chose to accept the case indicates an interest among the justices in settling the matter definitively. Meanwhile, the law is no more popular now than it was two years ago, which could limit the societal repercussions of a vote against the law.

Huge implications

Fixing that linguistic seam in the law with new legislation would be easy—if Democrats still controlled both houses of Congress, as they did in 2010. But they don’t, so it’s hard to see how Republicans--who are united on no issue more than their opposition to Obamacare—would fix legislation they have pledged to repeal from the start. It’s possible there could be some kind of compromise law that keeps the ACA in place, but it would probably include so many Republican rollbacks that Obamacare would end up a different program entirely.

If the Supreme Court rules with the King plaintiffs and subsides are suddenly disallowed in 34 states, Obamacare could enter a “premium death spiral” in which the law’s economic underpinnings collapse and the law becomes unviable. The ACA is an elaborate system of economic levers and pulleys that will stop working if key cogs seize up. About 70% of the 7.1 million Americans currently enrolled in Obamacre live in one of the 34 states that use the federal exchange, and more than 80% of those folks receive subsidies. Overall, that’s about 4 million people, or 56% of those in Obamacare, who would lose subsidized healthcare if the high court rules against the federal exchange. And the raw number will be higher in 2015 as more consumers enroll in the program.

The Rand Corp. estimates that premiums would rise 43% for people who lost subsidies. Many of those people would probably forego insurance if the cost spiked, with low-risk patients bailing first. As the pool of people covered skewed toward riskier patients with costlier medical needs, the premiums for everybody left in the program would rise, too. The individual and employer mandates would crumble in the 34 states, since skyrocketing insurance costs would allow more people to claim an exemption for financial reasons, which the law allows. “The loss of these subsidies would make insurance unaffordable for many, if not all, of these newly insured individuals,” the nonprofit Commonwealth Fund notes in a new analysis. “The potential implications … could be huge.”

Further erosion of support

The Supreme Court is expected to issue a ruling in the first half of 2015, and if it rules against the ACA, there will be one vital unanswered question: Will there be a shift in political pressure once Congress has the power to effectively ax or prolong healthcare coverage for several million Americans? No doubt, there would be an uproar among people affected directly, but the broadest failure of Obamacare so far has been its lack of support among the middle class, including some who would probably be better off if they took advantage of the law.

The administration’s downgrade of estimated enrollees in 2015 highlights the problem. Until recently, the best estimate of 2015 enrollment came from the Congressional Budget Office, which predicted that 13.1 million Americans would be covered by the ACA in 2015. The White House now says the number will only be about 9.1 million, as new people sign up but some who had coverage in 2014 drop out.

That’s still a lot of people covered by Obamacare, but the law, on its own, faces another big challenge this year, as the IRS begins to enforce the “individual mandate” requiring most people to have health insurance. If enforcement is aggressive and publicity lousy, support for the law will erode even further, strengthening the hand of Republicans and others who want to kill it.

Some powerful interest groups will fight to keep the law intact. The insurance industry, for instance, has gained millions of new customers under the ACA and would lose money if consumers abandoned their policies. Some states reliant upon the federal exchange could lobby to keep that access open, or set up their own exchanges. And labor unions and other left-leaning groups could mobilize if healthcare for the masses is directly threatened. The only thing that seems sure is that Obamacare will be an issue in the next election, and the one after that, and probably the one after that. Medicare was a cakewalk, by comparison.

http://finance.yahoo.com/news/obamacare-begins-to-unravel-170824756.html
 

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source: Think Progress

Missouri Bill Would Punish Insurers Who Participate In Obamacare



A bill introduced Monday by a Missouri lawmaker appears designed to terrorize insurers into no longer providing insurance coverage under the Affordable Care Act. Should it be enacted, it could potentially impose crippling financial sanctions on any insurer who does sell Obamacare plans in Missouri. The bill closely tracks a proposal by a staffer at a conservative think tank who is heavily involved in efforts to push state lawmakers and the courts to undermine or even rewrite segments of the Affordable Care Act.

Though the bill’s key provisions are unlikely to have much effect at all under the Affordable Care Act as drafted, they could potentially impose enormous financial costs on insurers who sold plans in health marketplaces authorized by Obamacare if a Supreme Court case seeking to gut much of the Affordable Care Act succeeds. One of the leading advocates behind that lawsuit is the same think tank staffer who proposed state legislation mirroring this bill.

The Affordable Care Act gives each state a choice, it can either set up its own health exchange where consumers can purchase insurance and receive subsidies if they qualify, or the state can opt to have the federal government set up this exchange. In either event, the law provides that consumers will receive subsidies from the exchange in their state, regardless of whether it is set up by a state or by the federal government.

A lawsuit called King v. Burwell seeks to change this equation, however. The plaintiffs in this case fixate on six words of the law that, if read out of context, seem to suggest that only state-operated exchanges are permitted to provide subsidies to help people pay for insurance. The Supreme Court, however, has held that “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” Thus, if the justices, who have agreed to hear the King case, read the Affordable Care Act the same way that they read every other federal law, they will reject the plaintiffs’ claims. Although a handful of judges — all Republicans — sided with the plaintiffs in King, most judges sided against this attempt to deny subsidies under the law.

Which brings us back to the Missouri bill. The bill closely resembles a 2013 proposal by Michael Cannon, a health policy staffer at the Cato Institute who is also one of the architects of the King litigation. Cannon’s proposal calls for states to enact legislation providing that “if any insurance carrier licensed by the state accepts” subsidized premium payments under the Affordable Care Act, then “the state will partially suspend the insurer’s license immediately and until the insurer returns that remuneration to its source and represents that it will decline any such remuneration in the future.” In essence, Cannon seeks to cut off the subsidies by forcing insurers to return them to the federal government or else they lose their ability to do business in the state.

Under normal circumstances, this proposal would have little, if any, effect. Under the Constitution and longstanding Supreme Court precedents, federal law overrides state laws that “stand . . . as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” The whole purpose of Cannon’s plan is to erect a massive obstacle in front of the Affordable Care Act, and therefore state law adopting his plan is void for as long as Obamacare remains law.

But what if Obamacare were not law? Or, more on point, what if the Supreme Court drastically altered the Affordable Care Act so that it no longer paid out many of the subsidies authorized by the law. If the justices effectively rewrite Obamacare in King, the rewritten federal law would no longer stand as an obstacle to the implementation of Cannon’s policy. A law that was once “preempted,” to use the proper legal term for when a federal law trumps a state law, would suddenly become entirely enforceable.

By the time the Supreme Court gets around to handing down its decision in King, however, many insurers will have received subsidized premium payments for a year and a half. This is what makes Cannon’s proposal, and the Missouri bill, so dangerous for the health insurance market. Say that Missouri were to enact this bill on January 1. When the Supreme Court decides King, which is likely to come in late June, Missouri insurers would have collected half-a-year’s worth of subsidies. If King adopts Cannon’s reading of Obamacare, however, that would mean that each insurer would immediately have to pay back all of those subsidies or they would lose their license to do business in the state (although Cannon’s proposal says that the insurer will “partially” have their license suspended, the Missouri bill says that the license “shall be suspended” in its entirety).

In practice, the mere possibility that this scenario could play out is likely to drive many insurers from the market in fear should the bill become law. Insurers who behaved in a manner that was entirely lawful, even encouraged, under federal law could suddenly be hit with a massive new cost as the price of continuing to do business in Missouri.

Of course, this does not change the fact that the plaintiffs’ arguments in King are weak as a matter of law. At least one prominent attorney, however, has suggested that the merits of this case could not matter. In an interview with Talking Points Memo’s Sahil Kapur, Michael Carvin, the lead attorney representing the plaintiffs in King, indicated that he believes that politics will trump the law in this case. While the case was still awaiting a decision from a lower court, Carvin predicted that he was “not going to lose any Republican-appointed judges’ votes” in that court, and that he expected the Republican members of the Supreme Court to follow their lead.
 

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<iframe src="http://www.politifact.com/truth-o-meter/statements/2014/dec/04/charles-schumer/uninsured-vote-low-rates-charles-schumer/" width=800 height=1000></iframe>
 

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If the Supreme Court Breaks Obamacare, Will Republicans Fix It?

If the Supreme Court Breaks Obamacare, Will Republicans Fix It?
If the justices strike down the law’s subsidies, voters will demand a fix. But who in Congress is going to give?
By Sam Baker and Sophie Novack
December 14, 2014

Republicans want the Supreme Court to blow a major hole in Obamacare next year, but they are still debating whether they would help repair it—and what they should ask for in return.

There's a very real chance the high court will invalidate Obamacare's insurance subsidies in most of the country, which would be devastating for the health care law. It would become almost entirely unworkable in most states, and the cost of coverage would skyrocket.

That loss for the Affordable Care Act might seem like a clear-cut political win for the GOP, but the reality would be far messier.

Such a ruling would weaken the law's individual mandate and make coverage unaffordable for millions of people. And because many of those people live in Republican-run states or 2016 battlegrounds, they'll be asking for a solution.

That would leave Republicans with a difficult choice: Do they continue to push for an all-out repeal of the law—creating a standoff with Democrats who will dig in in the hopes of legislation undoing the Supreme Court's decision—or do they seek a deal that alleviates the law's burden on those who've lost their subsidies? Such a deal would likely include pullbacks of major parts of the law, but it would also require Republicans to give up on a full "root-and-branch" repeal.

A ruling isn't expected until June. Key GOP lawmakers are just beginning to weigh their options if the Court does invalidate the law's subsidies. Those conversations are still preliminary, and the party hasn't settled on a strategy yet. "I've had a lot of conversations about it," said Sen. Orrin Hatch, who will soon take over as the chairman of the powerful Finance Committee. "I'm just in the beginning [stages] of that."

But by the summer, both parties will need a plan. "We've got to consider everything, from a substitution for the bill to amending the bill to working with President Obama to try to get him to work in good faith with us," Hatch said.

The case before the Supreme Court argues that subsidies should not be available to people who live in states that didn't set up their own exchanges. At least for now, that's 36 states. If the challenge succeeds, coverage would become unaffordable for as many as 99 percent of enrollees in those states, according to a court brief from liberal economists. Some 4 to 5 million people would likely drop their coverage.

States that rely on the federal government to run their exchanges would also see new turmoil in their insurance markets. The subsidies that make coverage affordable would disappear, and most people who lost their subsidies would become exempt from the individual mandate—but new rules requiring insurers to cover people with preexisting conditions would remain on the books. Insurers would be stuck with only the sickest customers, and the insurance "death spiral" Obamacare strained so hard to avoid would become a real possibility.

And again, that would all happen only in states that refused to set up their own insurance exchanges—just about every red state in the country. In big, solidly Democratic states like California, Maryland, and New York, Obamacare would still work basically the same, and residents would still get financial help to cover their premiums.

That double standard, along with dramatic price increases and coverage losses in 2016 battlegrounds like Florida, North Carolina, and Ohio, would likely make the new status quo unsustainable both substantively and politically. Doing nothing may not be an option.

The question for Republicans, who will control both the House and Senate next year, is whether they can muster a political consensus to clean up the mess the Supreme Court might create—and what such a solution would look like.

The easiest option would simply be a small edit to the Affordable Care Act, to ensure that subsidies are available nationwide. The Supreme Court challenge centers on one phrase—a reference to subsidies being available in "an exchange established by the State." Congress could easily add the words "or the federal government" and this would all go away.

But that might be too simple for Republicans, especially conservatives and presidential contenders who would recoil at giving the Obama administration such an easy out. "Some will say, 'Well, all you gotta do is just file a little bill to let the federal exchanges handle matters, too.' That flies in the face of what many, many believe is an unconstitutional approach to health care. It could be simply fixed, except it doesn't fix the bill as a whole," Hatch said Thursday.

Hatch said he had discussed the issue that morning with Sen. Lamar Alexander, the incoming chairman of the Senate Health, Education, Labor, and Pensions Committee. Hatch and Alexander's committees would have the primary responsibility for writing a potential fix.

A more palatable approach could be to restore at least some of the law's subsidies in exchange for other changes. "Dealing with the subsidy issue may give us a chance to deal with a lot of other things…. You might want to fix that, but at the same time you fix that, you might want to do a lot of other things that need to be done to Obamacare," Sen. Chuck Grassley said.

The scope of those changes could vary wildly, from simple horse-trading on provisions like the medical-device tax and employer mandate to a more aggressive restructuring of the law's benefit structure.

"A lot depends on whether we'd have presidential help on it. I can see some modest changes, but it will not solve the myriad problems with Obamacare," Hatch said. I can see a substitute that would be a bill that really would work and save money and bring the best health care to people."

Conservative economist Douglas Holtz-Eakin, a former Congressional Budget Office director, said he could see Congress restoring the full subsidies for one or two years, while lawmakers figure out a new structure for financial assistance—something more along the lines of the health care proposal from Hatch and Sens. Richard Burr and Tom Coburn.

But even in exchange for other Obamacare concessions, Holtz-Eakin said he doubts that a GOP-led Congress would permanently restore Obamacare's subsidies in full. "I think Republicans know the current subsidy structure is too rich … they can't lock that in permanently," he said.

If Congress doesn't act, or can't reach an agreement with the White House, each state would have to come up with its own solution—an extremely difficult task.

The states that haven't set up exchanges yet might not be able to set up a marketplace in time for next year's enrollment period, and would not be able to take advantage of the federal grants that helped establish the first state-run exchanges. And those obstacles only come into play if governors and state legislators can agree to move forward on an exchange.

"If the [subsidies are] invalidated—and absent effective contingency planning—a state that has declined to create its own exchange probably won't be able to stave off the immediate destabilization of its insurance market," University of Michigan law professor Nicholas Bagley wrote this week in The New England Journal of Medicine.

For now, Republican plans for a possible Congressional fix remain vague, and a solution that relies on popular "repeal and replace" talking points aren't likely to fly with the administration.

"I've already been in discussions with House leadership to address the House plan should the outcome be that way," Rep. Cory Gardner said. "We want to make sure people have opportunities for quality health care and quality insurance—affordable insurance—and that would be part of the Republican plan, should that be [the court outcome]."

"Repealing and replacing the law is a good idea, we should do that today," he said.

http://www.nationaljournal.com/heal...ks-obamacare-will-republicans-fix-it-20141214
 

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source: The Root

Medicaid Fight: Why So Many Black Folks Are Stlll Uninsured

Despite the widespread success of the Affordable Care Act in signing up the uninsured, a few stubborn states that refuse to expand Medicaid house large populations of African Americans.

464114199-supporters-of-the-affordable-care-act-march-in-the-29th.jpg.CROP.rtstory-large.jpg

Supporters of the Affordable Care Act march in the 29th annual Kingdom Day Parade on Jan. 20, 2014, in Los Angeles.

It’s no secret that we’re witnessing a reverse black exodus to the South, forced by recession, gentrification, reconnected family ties and hipster racism. Yet while three-quarters of black population growth in the U.S. is happening in the heart of Dixie, the health care numbers show a different story: It’s also home to the highest rates of uninsured African Americans in the Affordable Care Act era.

There’s little doubt that the Affordable Care Act—permanently Etch A Sketch’d into “Obamacare” by Republican messaging wizards—has done what it set out to do. In terms of pure numbers, fewer folks are uninsured, and even fewer critics who danced around the rollout fail can point to actual flaws in coverage. In 2014, half of those newly insured secured insurance through an exchange, according to Gallup. And rather than fight over whether or not the health care law is a success, the New England Journal of Medicine and the Commonwealth Fund quibble over whether it was 9 million or 10 million people who got insured in 2013.

But even though they’ve been among the biggest supporters and beneficiaries of Obamacare, a newly dropped Urban Institute (pdf) study suggests that African Americans are still the least likely to enjoy the shrinking uninsurance gap. Why? Because blacks are concentrated in the states least friendly to the ACA, places where stubborn Republican governors have pretty much flipped their finger at a sorely needed Medicaid expansion.

That’s a big problem, since nearly 55 percent of African Americans are living in (and eagerly moving to) five key states that still won’t expand Medicaid: Florida, Georgia, Louisiana, North Carolina and Texas. That’s not even including other non-Medicaid-expansion states, like Alabama and Virginia, for example, where blacks constitute anywhere from 20 to nearly 30 percent of the population.

It’s a political wrinkle that finds 11 percent of all African Americans still uninsured—even when they’re 14 percent of the total U.S. population. Bad enough that 20 percent of all blacks nationwide were uninsured before the ACA took effect.

“Everybody’s rates are going to go down, especially for blacks,” Lisa Clemans-Cope, an author of the Urban Institute study, points out to The Root. “But the gains are trending differentially. There is a disproportionate share of blacks that are in the eligibility gap. If we went the full way [toward full Medicaid expansion], the gap between blacks and whites would drop to a 2.5 percent point gap.”

Clemans-Cope is quick to note that black coverage has risen by 5.2 percentage points from 2013 to 2014. But if all 50 states and the territories expanded Medicaid, there would be a massive 21 percent increase in the number of African Americans covered by 2016. Right now, 11 percent of blacks are uninsured—but expand Medicaid in every state and that number drops to only 7 percent of the black population.

While Florida Republicans are showing signs of buckling in favor of a Medicaid expansion—perhaps in large part because of Gov. Rick Scott’s (R-Fla.) uncomfortable, skin-of-his-teeth re-election win—other Southern cradles, like Alabama and Tennessee, are slowly expanding. Virginia’s Democratic governor, Terry McAuliffe, wants an expansion, too. But that’s a tough sell when pitched against Republican majorities in both the state’s House and Senate. And with Virginia Republicans poised to ride another anti-Obamacare wave during 2015 state legislative elections, there’s no chance Medicaid expansion will see the light of day.

Ultimately, Republican politics will determine how many more black folks get health coverage. The five big states named above are all dominated by Republican governors and solid GOP statehouse majorities. Two of the states—Louisiana and Texas—are currently run by ambitious Republican pols Govs. Bobby Jindal and Rick Perry, respectively, who famously flirt with 2016 presidential runs. They will reject Medicaid expansion at all costs if it gives them a ticket into the GOP’s very red-meat presidential primary process.

Others quietly want the 100 percent federal reimbursement money if they expand, yet publicly whistle a different tune when stumping in front of largely confused white conservative audiences who need health care just as much as their black neighbors. Think about it: The five states above are among the most egregious voting-rights violators in the country. If they’re already taking away your right to vote, what makes you think they’re ready to give you health care?

Some states could come around, depending on what kind of clout black political communities can leverage in future election cycles. But with voters of color barely paying any attention to critical state-level races, that’s becoming a hard ask. Who is up for re-election and who wants to be a player in 2016 will help predict whether a non-Medicaid state eventually flips.
 

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Anxiety over Supreme Court's latest dive into health care

Anxiety over Supreme Court's latest dive into health care
Associated Press
By RICARDO ALONSO-ZALDIVAR
10 minutes ago

WASHINGTON (AP) — Nearly five years after President Barack Obama signed his health care overhaul into law, its fate is yet again in the hands of the Supreme Court.

This time it's not just the White House and Democrats who have reason to be anxious. Republican lawmakers and governors won't escape the political fallout if the court invalidates insurance subsidies worth billions of dollars to people in more than 30 states.

Obama's law offers subsidized private insurance to people who don't have access to it on the job. Without financial assistance with their premiums, millions of those consumers would drop coverage.

And disruptions in the affected states don't end there. If droves of healthy people bail out of HealthCare.gov, residents buying individual policies outside the government market would face a jump in premiums. That's because self-pay customers are in the same insurance pool as the subsidized ones.

Health insurers spent millions to defeat the law as it was being debated. But the industry told the court last month that the subsidies are a key to making the insurance overhaul work. Withdrawing them would "make the situation worse than it was before" Congress passed the Affordable Care Act.

The debate over "Obamacare" was messy enough when just politics and ideology were involved. It gets really dicey with the well-being of millions of people in the balance. "It is not simply a function of law or ideology; there are practical impacts on high numbers of people," said Republican Mike Leavitt, a former federal health secretary.

The legal issues involve the leeway accorded to federal agencies in applying complex legislation. Opponents argue that the precise wording of the law only allows subsidies in states that have set up their own insurance markets, or exchanges. That would leave out most beneficiaries, who live in states where the federal government runs the exchanges. The administration and Democratic lawmakers who wrote the law say Congress' clear intent was to provide subsidies to people in every state.

While predicting a victory, the White House has not prepared consumers for the consequences of a reversal. Health and Human Services Secretary Sylvia M. Burwell repeatedly said that "nothing has changed," even as other supporters of the law grew alarmed when the Supreme Court unexpectedly took the case. Burwell has dodged questions about contingency planning.

With oral arguments set for March 4 and a decision expected early in the summer, here's what's at stake:

RED STATES IN THE PATH

Insurance losses would be concentrated in Republican-led states, many of which have resisted "Obamacare."

Florida, Texas, North Carolina, Georgia, Michigan, and New Jersey are among those with the most to lose. Residents of blue states that are running their own markets, including California and New York, would continue to receive benefits.

Because the health law's 2015 sign-up season is still underway, it's unclear how many millions of people could become uninsured. Two independent studies put the number at around 8 million. That includes consumers who bought individual policies outside of HealthCare.gov, but would drop coverage if premiums jump.

The federal government is currently running the insurance markets in 37 states, but not all may be affected. Some states have made progress toward setting up their own exchanges.

INSURER ESCAPE CLAUSE?

Even if the Obama administration has no Plan B, insurers appear to have been thinking ahead.

The federal government acknowledges in contract language that insurers "could have cause to terminate" their agreements with HealthCare.gov if the subsidies cease.

TIME TO SCRAMBLE

If the Supreme Court rules in late June, that would leave about three months before the start of the next sign-up season for coverage.

If the ruling goes against the subsidies, it's unclear whether the courts can delay the effects for more than a few weeks, and most state legislatures are not in session during the summer. Meanwhile, insurers are supposed to have their rates for 2016 locked down.

There's speculation that the White House could quickly roll out an administrative fix, but Obama could also toss the whole mess into the lap of the GOP-led Congress.

Technically, a few tweaks from Congress would fix the problem. But after repeated votes to repeal "Obamacare," would any Republicans be willing to facilitate its rescue?

"We don't see fixes the administration can make and we don't see Congress acting to fix this," said Neera Tanden, president of the Center for American Progress, a public policy center aligned with the White House.

REPUBLICAN vs. REPUBLICAN?

Faced with constituents at risk of losing coverage, some congressional Republicans may be willing to make fixes to the subsidies in exchange for concessions from Obama. Republicans have a long hit list of health law provisions, including employer requirements to cover workers, a tax on medical devices and a Medicare cost-control board.

But other Republicans will not want to lift a finger to bail out the program they've railed against.

"The president will say, 'With one line of legislation, you could save 5 million people from losing their health insurance,' and the Republicans need to have a unified response," said Leavitt, the former HHS secretary. "If they don't, then it creates a problem for them."

Yet in the five years since the health law passed, Republicans have failed to find consensus on an alternative, and remain hard-pressed to do so. The GOP's 2016 presidential hopefuls will be hounded for answers.

To complicate matters, budget experts say a congressional fix restoring some or all of the subsidies would have to be paid for with either spending cuts or tax increases.

The last time the Supreme Court ruled on the health care law, the result was a 5-4 decision upholding its central requirement that virtually all Americans must carry health insurance. This time, it won't just be political junkies holding their breath before the announcement, but many consumers as well.

http://news.yahoo.com/anxiety-over-supreme-courts-latest-dive-health-care-083755400--politics.html
 

Greed

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Obamacare rescue ruled out by some states, others weigh options

Obamacare rescue ruled out by some states, others weigh options
Reuters
By David Morgan
February 17, 2015 1:03 AM

WASHINGTON (Reuters) - Five Republican state governors say they will not rescue a crucial part of Obamacare if it is struck down by the Supreme Court, underlining the prospect for a chaotic aftermath to a ruling that could force millions of Americans to pay much more for coverage or lose their health insurance.

The Supreme Court is due to hear opening arguments in the case known as King v. Burwell on March 4, marking the second major challenge to President Barack Obama’s Affordable Care Act (ACA) after the justices ruled in 2012 against a claim that it was unconstitutional. The latest case tests the tax-credit subsidies at the core of Obamacare.

In its ruling expected by June, the high court could bar the federally run insurance marketplace from providing the subsidies in at least 34 states. That could throw the insurance system into turmoil as states respond in starkly different ways.

In response to Reuters' queries, spokespeople for the Republican governors of Louisiana, Mississippi, Nebraska, South Carolina and Wisconsin said the states were not willing to create a local exchange to keep subsidies flowing. Republicans argue that Obamacare is unacceptable government intervention that raises costs for consumers and businesses.

“State exchanges are the federal government’s way of sticking states with the cost and responsibility of a massive new bureaucratic program," said Chaney Adams, a spokeswoman for South Carolina Governor Nikki Haley.

"The right decision was made for South Carolina, and Governor Haley would make it again today.”

State government officials in Georgia, Missouri, Montana and Tennessee – a mix of Republicans and Democrats - said that opposition by majority Republican state legislators could make it all but impossible to set up a new exchange.

Those nine states combined are home to 1.4 million people who have signed up for subsidized coverage in 2015, according to government data. The fate of 5.1 million residents in the remaining 25 states that have signed up for subsidized benefits on the HealthCare.gov exchange is also unclear.

Six states - Delaware, Maine, Ohio, Pennsylvania, South Dakota and Virginia – are discussing contingency plans to keep the subsidies but each faces substantial logistical or political barriers, according to officials.

Ten states did not respond to Reuters queries, while three others had no comment. Iowa, Wyoming, Oklahoma and West Virginia said they were not currently considering setting up exchanges; Alaska said it has not ruled it out; and Arkansas said it was moving toward creating a state exchange in 2017.

Republicans are opposed to Obamacare, but such a ruling could have a political cost in their states if hundreds of thousands of low-to-middle-income people are priced out of health coverage. Even if states say they don't plan to set up exchanges, that could change closer to the ruling or afterwards as they come under pressure to avert spiraling insurance costs.

“We can say with some confidence that the insurance markets are likely to melt down, because only the sick people will stay in them and the others will find it unaffordable,” said Drew Altman, who heads the non-partisan Kaiser Family Foundation.

STATES WEIGH WORKAROUNDS

The plaintiffs in King v. Burwell contend that the Affordable Care Act allows subsidies to be distributed only through state-based exchanges. Thirteen states and the District of Columbia set up their own exchanges from October 2013.

The remainder of states either opposed the law or could not find ways to make their own exchanges work, so the federal government stepped in. Insurers including Aetna Inc, Cigna Corp and Humana Inc are major players in the HealthCare.gov markets.

About 87 percent of enrollees in those states qualify for Obamacare subsidies, which can reduce a family’s healthcare bill by thousands of dollars annually. A Milwaukee family of four earning the median U.S. household income of $53,000, for example, could receive $7,800 a year in subsidies, according to the Kaiser Family Foundation. A ruling against Obamacare would raise their monthly premium payments by at least $652.

Congress could respond to a negative ruling with legislation to keep subsidies in place. But partisan gridlock would make any action a challenge.

Health policy experts say the most likely fix to a ruling against the administration would involve a new type of partnership with the federal government or between states.

Maine and Delaware have considered a model in which the state creates the exchange in name but still relies on the federal government’s technology systems to run it. Marketplaces for Nevada, New Mexico and Oregon have operated in that fashion.

But experts say this model could be rejected by the Supreme Court, because the ACA does not list the federal government as an entity with which states can contract for exchange services.

Other workarounds that have been discussed include setting up regional exchanges that cover multiple states, or keeping the HealthCare.gov website operating as a place to sign up for insurance but allowing states to disburse the federal subsidies.

At the very least, states that are open to setting up their own exchange hope the Supreme Court allows for a transition period if it rules against the administration.

“A state-based exchange from scratch in six months is probably not doable. We’re trying to see what other states are doing and what may work and may not work,” said Eric Cioppa, Maine's leading insurance official.

https://news.yahoo.com/obamacare-rescue-ruled-states-others-weigh-options-060351006--finance.html
 

Greed

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Constitution Check: Does anybody in Washington have a duty to save Obamacare?

Constitution Check: Does anybody in Washington have a duty to save Obamacare?
National Constitution Center
By Lyle Denniston
February 26, 2015 11:00 AM

THE STATEMENT AT ISSUE:

“We know of no administrative action that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision.”

Health and Human Services Secretary Sylvia M. Burwell, in a letter February 24 to a member of Congress who had asked her about the impact on the federal health care law if the Supreme Court were to strike down the law’s system of subsidies to help consumers buy health insurance. The court holds a hearing on that issue next Wednesday in the case of King v. Burwell.

WE CHECKED THE CONSTITUTION, AND…

Much of the American Constitution is about process, not outcomes. So, if the Supreme Court strikes down a federal law, it is not the court’s duty to find a way to ease the impact of such a ruling. Congress or the Executive Branch might react with a remedy, but – if they are willing to pay the political price – they need not cover for what the court has done that may have harmful consequences.

Similarly, if Congress were to let the government go into a shutdown for lack of money, the White House and the Supreme Court don’t need to reopen the doors of government agencies and put them back to work. In fact, they probably don’t have the power to do that.

Indeed, none of the national government’s branches has a roving mandate to clean up after any other branch that causes some disruption of the civic order. If there is a clear public need to do so, the Founders tended to assume that the system they were designing would take care of it, but they generally did not require that as a constitutional duty.

Those thoughts come to mind as official Washington grows increasingly anxious about the prospect that millions of Americans – many of them poor – probably will lose their health insurance if the Supreme Court rules against the government in the new case now before it.

The case of King v. Burwell involves a strong challenge to the system of subsidies that Congress wrote into the Affordable Care Act, to help lower-income consumers afford to buy health insurance. If the court upholds the challenge, subsidies will be ended for consumers in 34 of the 50 states, and there will be a cascading effect on others as premiums for health insurance shoot up. The result will be what sponsors of the Act call the “death spiral” – there won’t be enough healthy people left in the health insurance market to support the ACA’s system of affordable premium policies, the insurance industry will give up on it or jack up premiums, and the system may well collapse.

In late January, the leaders of a House of Representatives committee wrote to Health and Human Services Secretary Sylvia M. Burwell, saying that the panel was “examining the extent to which the Department of Health and Human Services, and other relevant agencies of the federal government, are preparing for the possible consequences of the Supreme Court’s decision in the case of King v. Burwell.”

The lawmakers made no suggestion that the House or Senate would help rescue the health care law if the decision did go against the government. (Indeed, the House has voted some 60 times in recent years to repeal the Affordable Care Act entirely, and the law clearly does not have sturdy majority support in either the current House or current Senate.)

The clear implication of the committee members’ letter was that it would be the job of the Executive Branch to find a remedy if the decision went against the law’s subsidy system.

Secretary Burwell wrote back, declaring flatly that there was no backup plan, and left the clear impression that her department was not even trying to think up a fallback approach. She did express confidence that the court would not rule against the government, but, of course, she cannot depend upon that outcome occurring.

Her response at least implied that, if the government does lose the case, there is going to be mounting political pressure on Congress to step in to rescue the law. She may also have hoped that the Supreme Court would be thinking about “the massive damage” that she perceived a loss for the government would mean to the country, and hoped that such information might influence the court to be more sympathetic to the law.

Even if the court did not see the Burwell letter, and it is most unlikely that it did or that it was even aware of it (it was not part of the record in the King case), the court has been told a good deal about the dire effects of a ruling against the government; that has come in a series of friend-of-the-court briefs filed as part of the record in the case. Whether the court would feel a need to shape its decision to head off such effects cannot be known at this stage.

The court more likely would be inclined to assume that, if the country would be harmed by such a decision, Congress would step up and deal with it. As an institution, the court does seem to have greater faith in the capacity of Congress to do its work that many of the critics of the national legislature now do.

Even so, there is a device available to the court – it has used it at least once before – that could actually put significant pressure on Congress to react to such a decision. In June 1982, the Supreme Court struck down a sweeping new federal bankruptcy law that had completely altered the way federal courts handle debtors’ cases. That was the decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.

But, anticipating that judicial chaos might follow that decision, the court chose to delay the effective date of its ruling for more than three months, to “afford Congress an opportunity to reconstitute the bankruptcy courts” or to adopt other means of correcting the constitutional flaw the court had found. Congress did exactly that, and the bankruptcy system went on, uninterrupted.

In a Congress so often deadlocked, and with so many members who are hostile to the Affordable Care Act, would a three-month delay of an “adverse ruling” by the Supreme Court be enough to stir action?

http://news.yahoo.com/constitution-check-does-anybody-washington-duty-save-obamacare-110207061.html
 

Greed

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Twist in Obamacare Supreme Court case: Weak plaintiffs

Twist in Obamacare Supreme Court case: Weak plaintiffs
Justices may ask whether the four Virginians have right to bring suit
By Liz Goodwin
4 hours ago
Yahoo News

New revelations about the four plaintiffs fighting President Barack Obama’s health care law may dramatically shift the course of the case Wednesday, when the Supreme Court will hear both sides present their arguments for the first time.

In recent weeks, media reports have raised questions about whether the four men and women from Virginia who were recruited by a libertarian think tank to challenge the law have the right to do so. The plaintiffs’ shaky footing could prove a mark against them on Wednesday — if any of the justices decide to pursue it.

Petitioners must show they are suffering direct harm from a law in order to sue, which is referred to as standing. In this case, all four plaintiffs said the federal subsidies available to them from Obamacare pushed them over the law’s income threshold and forced them to buy health insurance or pay a penalty. They want those subsidies struck down, based on their literal interpretation of the Affordable Care Act, which suggests tax credits should have gone only to people who live in states that set up their own health care exchanges.

But two of the plaintiffs, David King and Douglas Hurst, are Vietnam veterans, which means it’s likely they qualify for insurance through the Department of Veterans Affairs and would thus not be required to buy insurance on the exchange, The Wall Street Journal recently reported. A third, Rose Luck, listed a motel as her permanent address in court papers and no longer lives there, raising questions about whether she’s in the same economic and geographic circumstances that she was when she decided to sue. And it’s possible that the fourth plaintiff, Brenda Levy, may actually qualify for the income exemption under the health care law, which would mean she does not have to purchase insurance and is not harmed by subsidies.

Luckily for the challengers, only one of the plaintiffs has to show that the federal tax credits in Virginia harmed him or her in order for the case to go forward. And so far the government has been entirely silent on the issue, suggesting the Justice Department would rather the justices side with them on the merits of the case than dismiss it on a standing issue.

Assuming at least one of the four has standing and the case can go forward, it’s still possible that the doubts and questions swirling around them will hurt their cause, according to some legal experts.

Justices are supposed to look purely at the facts at hand, weighing the legal questions dispassionately. But lawyers and interest groups have long hedged their bets by handpicking the very best, most sympathetic plaintiffs around — especially in big test cases.

“I think it absolutely does affect justices what the individual plaintiffs’ grievance looks like,” said Amanda Frost, a law professor at American University. “Very sympathetic plaintiffs tend to do better.”

Interest groups backing same-sex marriage, for example, have carefully selected the best possible couples to headline their cases. In April, the justices will hear a challenge brought by two Michigan nurses who are asking for the right to marry each other so they can adopt each other’s disabled children. In another sympathetic example, the landmark case in 2008 that struck down Washington, D.C.’s gun ban was brought by a police officer, Dick Heller, who wasn’t allowed to have a handgun in his home next to a housing project for protection.

That the four clients in the health care case were presumably the best the opposition could find might raise questions among the justices about whether tax credits to buy insurance are actually harming people.

But on the other hand, imperfect plaintiffs routinely win over the Supreme Court. The Westboro Baptist Church won its First Amendment right to protest soldiers’ funerals with offensive and hateful signs in 2011. In criminal justice cases, successful plaintiffs can be hardened criminals who nonetheless were denied due process by the system. And Norma McCorvey, the “Jane Roe” plaintiff in the case that legalized abortion in all 50 states, was a drug user who later said she had invented a story about a rape having led to her pregnancy, and then joined the antiabortion movement.

Some legal experts say plaintiffs’ stories and backgrounds matter even less in a case like this one, a dry legal dispute that boils down to how literally four words in the 906-page Affordable Care Act should be interpreted. Even though a decision against the government could dismantle one of the most politically charged pieces of legislation in modern history, the legal questions at hand are technical and lusterless.

“Who the plaintiffs are just doesn’t matter,” said Erwin Chemerinsky, dean of the University of California-Irvine law school. “It depends on the case — in some cases it matters enormously, but in this case the plaintiffs are just names to bring the challenge.”

The petitioners are also helped by the government’s total silence on the issue. Standing is not mentioned in a single brief in front of the court.

But the justices read the newspapers and are most likely aware of the standing controversy even though it’s conspicuously absent from the briefs.

“I would be surprised if somebody doesn’t raise it,” said David Levine, professor at UC Hastings College of Law.

“Roberts has always been very strict on standing,” said Chemerinsky, referring to Chief Justice John Roberts. “The conservatives tend to be stricter on standing than the liberals.”

If the justices decide the plaintiffs lacked standing, they would most likely dismiss the case as improvidently granted, which means King v. Burwell would be over for now, and opponents of the health care law would need to come up with a new challenge.

Such a finding would be a way for justices to dodge or at least delay wading into a politicized issue. Two years ago, the justices decided not to rule on California’s same-sex marriage ban on a standing issue, which allowed each state to continue to decide whether or not it wanted to allow same-sex marriage.

“When they want standing to be an impediment, they will use it, but when they don’t want it to get in their way, they find ways around it,” Levine said.

If the justices do find that the petitioners have the right to bring the case, then they will decide whether four words in the Affordable Care Act should be interpreted literally, resulting in millions of Americans losing their insurance.

In the original bill, lawmakers wrote that poor and middle-class Americans could access tax credits to buy insurance through marketplaces “established by the state.” Most states didn’t form their own insurance marketplaces, so millions of Americans bought insurance on the federal exchange with the help of the tax credits. If the plaintiffs prevail, tax credits will no longer be available to people who live in at least 32 states without exchanges, and millions will no longer be able to afford their insurance.

The plaintiffs, who all live in Virginia, argue that if the IRS didn’t provide subsidies to people in their state, they wouldn’t have to buy health insurance under the law’s affordability exemption. With the subsidies, insurance fell to just below 8 percent of their incomes, requiring them to either buy insurance or pay a tax. That’s the injury that gives them standing to bring the case.

It’s unclear how many people who do not want to buy insurance fall into the specific and narrow income range where federal subsidies push them out of the affordability exemption they would otherwise qualify for. The number is most likely fairly small, which might help explain why the plaintiffs do not appear to be perfect test cases.

Sam Kazman, general counsel of the Competitive Enterprise Institute think tank, which is backing the challenge, said in a statement that standing is a “nonissue” for his clients. “At the Supreme Court stage, the government expressly conceded the standing issue,” Kazman said, referring to the Justice Department’s silence on the topic.

Still, government lawyers no doubt are hoping the justices might take note of the shaky standing when they are considering the merits of the case.

“It’s remarkable to me that you couldn’t find people with more compelling stories than these four,” Levine said.

https://news.yahoo.com/twist-in-obamacare-supreme-court-case--weak-plaintiffs-161925430.html
 

thoughtone

Rising Star
BGOL Investor
source: Fox News

Supreme Court justices divided over ObamaCare subsidies

<script type="text/javascript" src="http://video.foxnews.com/v/embed.js?id=4093559144001&w=466&h=263"></script><iframe src="//video.foxnews.com/v/video-embed.html?video_id=4093559144001&loc=bgol.us&ref=http%3A%2F%2Fwww.bgol.us%2Fboard%2Fnewreply.php" marginwidth="0" marginheight="0" scrolling="no" frameborder="0" height="263" width="466"></iframe><iframe src="//video.foxnews.com/v/video-embed.html?video_id=4093559144001&loc=bgol.us&ref=http%3A%2F%2Fwww.bgol.us%2Fboard%2Fnewreply.php" marginwidth="0" marginheight="0" scrolling="no" frameborder="0" height="263" width="466"></iframe><noscript>Watch the latest video at video.foxnews.com</noscript>

The Supreme Court appeared divided Wednesday along ideological lines after hearing a challenge of ObamaCare tax subsidies that, if struck down, could affect up to 8 million policy holders.

The liberal justices peppered Michael Carvin, the lawyer for the health law challengers, with skeptical questions almost from the outset over his argument to limit the subsidies.

When Solicitor General Donald Verrilli Jr. -- who represents the Obama administration -- stepped to the lectern, the liberal justices fell silent, and Justices Samuel Alito and Antonin Scalia took over.

But Chief Justice John Roberts, who was the deciding factor in the last major ObamaCare case in 2012, said almost nothing in nearly 90 minutes of back-and-forth. And the questions posed by Justice Anthony Kennedy, often a key swing vote on the bench, did not make clear how he will come out. During the hearing, Kennedy posed tough questions to both sides.

The justices met Wednesday to determine whether the law makes people in all 50 states eligible for federal tax subsidies -- or just those who live in states that created their own health insurance marketplaces. This question matters because roughly three dozen states opted against their own marketplace, or exchange, and instead rely on the U.S. Health and Human Services Department's Healthcare.gov. If the court rules against the Obama administration, insurance subsidies for people in those states would be in jeopardy.

Justice Ruth Bader Ginsburg said the law set up flexibility for states to either set up their own markets or rely on the federal Healthcare.gov. Giving subsidies only to people in some states would be "disastrous," Ginsburg said.

Scalia later challenged Verrilli.

"It may not be the statute Congress intended, but it may be the statute Congress wrote," Scalia said of the provision in question. The case focuses on four words in the law, "established by the state." The challengers say those words are clear and conclusive evidence that Congress wanted to limit subsidies to those consumers who get their insurance through a marketplace, or exchange, that was established by a state.

Verrilli argued that the law can only be read more broadly and noted that millions of people would lose health insurance if the court rules against the administration.

Alito wondered if the justices could delay the effect of such a ruling to allow states and perhaps the federal government to act. Scalia said he believes Congress would act.

"This Congress, Your Honor?" Verrilli said to widespread laughter in a packed courtroom that included leading congressional Democrats and Republicans.

Kennedy voted to strike down the health law in 2012, but on Wednesday he asked questions of both sides that made it hard to tell where he might come out this time. He suggested that challenger Carvin's argument raised a "serious" constitutional problem affecting the relationship between states and the federal government.

He reportedly said throwing out the subsidies would cause a "death spiral."

On the other hand, he seemed less than convinced by Verrilli's reading of the law to allow the subsidies nationwide. Reuters reports that Kennedy said the lawyer for ObamaCare challengers could win anyway based on the reading of the law.

After arguments ended, Carvin told reporters they still believe their case is "very compelling."

The "IRS pulled a bait and switch," Carvin said, suggesting they ignored the statute.

Independent studies estimate that 8 million people could lose insurance coverage if the subsidies were to be struck down.

This could have dramatic consequences on the new health care system, and put pressure on Washington to respond. Obama administration officials have suggested they have no alternative plan if the subsidies are struck down, while some Republican lawmakers have begun crafting their own alternatives, just in case.

One option would be to provide financial assistance for families that have already picked coverage, while a longer-term "fix" is crafted.

A recent analysis by the health care firm Avalere found that, if the court, rules against the administration, those who would lose their subsidies as a result would see premiums increase an average 225 percent.

Of the judges who have ruled on lawsuits over the subsidies, Democratic appointees have sided with the administration and Republican appointees have been with the challengers.

The last time such a fundamental ObamaCare matter was before the court, in 2012, Roberts was the only justice to essentially cross party lines with his vote in 2012. His fellow conservatives on the court voted to strike down ObamaCare in its entirety.

The lawyers arguing the case Wednesday also squared off three years ago. Carvin argued part of the broad challenge to the health care law in 2012. Verrilli, the administration's chief Supreme Court lawyer, successfully defended it.

A decision in King v. Burwell, 14-114, is expected by late June.
 

QueEx

Rising Star
Super Moderator
Trump blows up Obamacare, leaves millions uninsured



920x920.jpg



The Republican majority in Congress couldn't agree on how to repeal and replace Obamacare, so President Donald Trump has destroyed the program from within.

The president's decisions:

• to stop marketing the health care program;

• to allow substandard plans across state lines; and

•to cut off subsidies for the working poor

will leave millions of Americans unable to afford insurance next year. Unless Congress acts quickly.



Trump promised that the Affordable Care Act would fail, and he's ensured that will happen on Nov. 1, when open enrollment begins for 2018, and those who rely on the federal exchange discover that plans cost too much, if there are any available at all.


Fewer insured Americans, though, doesn't mean fewer people will get sick. More uninsured Americans means more misery as people miss work because they can't get treatment. More uninsured means more people using emergency rooms and then not paying their bills.

More uninsured means higher premiums for those of us with insurance, and we will pay higher local taxes to cover those unpaid bills.

Many readers will rejoice at Obamacare's financial collapse. They repeatedly inform me that health care is not a right guaranteed under the constitution, and that if someone can't afford insurance or health care, that's their tough luck.

Such cruelty, ironically, often comes from senior citizens whose health insurance is guaranteed under a federal socialized medicine program called Medicare. In any case, they are also half-right. The constitution may not guarantee health insurance for all, but federal law requires emergency rooms to accept patients whether they can pay or not.

In America, we do not deny health care to people and let them suffer and die on the sidewalk outside of hospitals. The challenge for our elected officials, then, is to find the most cost-efficient method of providing health care to those who cannot obtain it through their employer.

Everyone knows that an ounce of prevention is worth a pound of cure. Everyone knows that obtaining treatment in a hospital's emergency department is the most expensive care. When the working poor don't have routine access to a doctor who can help prevent illness, or treat a problem early, people end up extremely ill in the emergency room.

If the Republican majority in Congress were more concerned about spending tax dollars efficiently than worrying about whether poor people pay their fair share, the solution to our spiraling federal health care spending would be obvious. Spend a few dollars now to provide lpeople with insurance rather than spend many dollars later for emergency care.

That's why former Massachusetts Gov. Mitt Romney, a Republican, launched a program in 2006 to enroll every citizen in a health insurance plan. That Republican-backed program was the model for the Affordable Care Act. The system only works, though, by forcing everyone to sign up for health insurance to spread the risk, including the young and healthy.


Full story: http://m.chron.com/business/columni...e-leaves-millions-12276882.php#photo-13163313



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