HealthLawProf Blog

A Call out to the "Invicible" Young Adults--What You Don't Know About Childhood Diseases Could Prevent You From Having Any Children

 

One thing we’ve all heard during the discussion of the affordable care act is that young people don’t worry a lot about their health.  It’s therefore likely that few young adults ever think about whether or not they received adequate vaccination.

Perhaps if they better understood the consequences, they would do so.  What you've heard is true many childhood diseases are much more serious for adults than for children.    For a general overview look here.  Here’s some information about chickenpox.

Outbreaks of Mumps are being reported all over the country.  This week there are 116 cases in and near Ohio State University in Columbus. Fordham University in New York reported 11 in late February.   Just today, the NYC Board of Health reported 21 cases of Measels and Rubella (German Measels) isn't likely to be far behind.  These numbers may seem small—until you appreciate that Mumps used to be a very common childhood disease in the United States but is now very rare because of a highly effective vaccine. Unfortunately, many parents have chosen not to vaccinate their child against Mumps because of concerns about the MMR vaccine—that now turn out to be the result of fraudulent scientific data.       This piece put out by the Center for American Progress explains how states responding to political pressure from parents have been remarkably lax in enforcing mandatory vaccination laws for school children.  At this point, almost anyone with a concern to claim an exemption.  

So back to Mumps.  Few had heard of it, and no one knew what should really be the main attention grabber.   It can impair fertility—even to the extent of causing sterility.  There hasn't been a lot of research done recently and permanent sterility is rare- probably no more than 10%.  But why chance it when it can be prevented?  

And  that’s not the worst of it.   Measels and Rubella carry even greater risks for young adults.   A case of Rubella early in pregnancy caries with a 20% chance of serious birth defects.   The risk of permanent hearing loss after measels is highest in children under 5 and adults over 20. 

The good news on the public health front is that it’s never too late to be vaccinated.   And preventive vaccination (even for childhood diseases) is covered under the Affordable Act.  Young adults would be wise to look into their own vaccination status.  If pediatric records aren’t available, a blood test can measure antibodies that show the presence (or absence) of vaccination against many serious childhood diseases that are coming back to infect young adults.  But if vaccination laws continue to be lax, long after the reason for so many people's misgivings has turned out to be a fraud, we will not be able to get ahead of what should to everyone be a very frightening trend

Contraception, Corporations and Conscience

Do corporations have a right to religious expression? As the U.S. Supreme Court considers whether Hobby Lobby is exempted from the Affordable Care Act’s contraception mandate because of its religious beliefs, the Court first must decide whether for-profit corporations even have rights of religious freedom.

While the Supreme Court should impose appropriate limits on the First Amendment rights of corporations, there are important reasons to recognize corporate claims of religious freedom. We often call on corporations to act in ethically and socially responsible ways, and it is important that they do so. If we want corporations to inculcate an ethos of ethics, then we undercut that goal when we deny corporations their ability to act on the basis of conscience.

To be sure, there are nuances. It is much easier to speak of the religious freedom of a family-owned business such as Hobby Lobby than of a publicly-owned business such as General Electric. Moreover, we must draw a good balance between corporate rights and the public welfare (as I’ve argued about corporate speech and public health here).

Recognizing corporate rights of religious expression would not settle the Hobby Lobby case. We still would have to balance the public’s interest in access to contraception with the corporation’s interest in religious freedom. But that is where the debate should lie.

[cross-posted at orentlicher.tumblr.com]

Halbig, King, Coercion, and the ACA Tax Credit Ligitation

Tomorrow, the D.C. Circuit will hear oral arguments in Halbig v. Sebelius.  This is the litigation in which parties hostile to the ACA are challenging the IRS rule that makes tax subsidies available in federally run health insurance exchanges.  Abbe Gluck has posted a deconstruction of the challengers' legislative and historical arguments at Balkinization, including a new post this morning discussing factual and historical inaccuracies in the appellants brief.  I want to address one of those arguments here: the analogy that the health insurance exchanges are somehow like the Medicaid expansion ruled unconstitutionally coercive in NFIB v. Sebelius. This comparison is so far off the mark, it reveals the underlying goal, which is to test the breadth of NFIB's coercion holding at every opportunity and to challenge federal power writ large.

The ACA expanded Medicaid eligibility to everyone up to 133% of the federal poverty level, and the states challenged that expansion in NFIB on the theory that they could lose all of their funding under the terms of the Medicaid Act if states refused to expand. The Court found that the expansion of Medicaid was a change in "kind" rather than "degree" and that the funding for the "old Medicaid" program could not be jeopardized for state refusal to comply with the "new Medicaid" program as envisioned in the ACA. As I have written elsewhere, the Court's unconstitutional coercion analysis was full of holes. One of those holes was nonsensical statutory interpretation, namely that the Medicaid expansion was too different from the Medicaid Act for coercion analysis purposes, but that it was similar enough for purposes of limiting the Secretary's authority to withhold or withdraw state Medicaid funding. But, that authority was not in the ACA (contrary to popular perception), it was in the language of the original Medicaid Act. The new/old Medicaid distinction was statutorily nonsensical, and yet it led to a newly recognized coercion doctrine that limits Congress's power to influence state policy through federal spending.

The Halbig appellants want federal courts to engage in this new coercion analysis by virtue of similarly absurd statutory interpretation. They ask the D.C. Circuit to deem the federal exchange funding offered to states to be struck down as coercive; but, they argue it is coercive not because of the money offered to states to create exchanges, but rather because of the tax credits that would not be available to individuals in exchanges established by the federal government. This causal chain is too attenuated; the claim is basically that the states were influenced not by the federal offer of funds but by the unavailability of tax credits for their citizens in federal exchanges. If this indirect coercion were possible, it is hard to imagine that two-thirds of states would have rejected the option to run state exchanges. It also breaks the link between the federal funding, the condition, and the supposed coercion (which is really a germaneness problem). States do not receive insurance premium tax credits, individuals do. States were offered moderate sums to establish their exchanges, and the loss of that moderate sum did not change the state's status at all. The appellants have mischaracterized the nature of the funding and the result of state rejection of that federal funding.

In addition, this argument can easily be turned on its head. Consider, for example, the Amicus Brief for the Commonwealth of Virginia in King v. Sebelius, recently filed in the Fourth Circuit's version of this tax credit litigation. Virginia argues that it was not aware that its citizens would lose access to tax credits if it rejected the funding to create its own exchange, thereby creating the polar opposite clear notice problem because Virginia believed its citizens would still have access to affordable health insurance if they invited the federally run exchange into the state. (See Kevin Outterson's post on Virginia's brief at The Incidental Economist.)

Clearly, exchange funding is different from Medicaid conditional spending. The ACA offered money to persuade states to participate in the establishment of exchanges, but the federal government will proceed without the states in the effort to establish near-universal insurance coverage. Congress would have dismantled its own goal of near-universal insurance coverage if it denied tax credits in federally run exchanges. This is the hope of the Halbig challengers, that the D.C. Circuit will dismantle the ACA's tax credit structure for federal exchanges and gut access to health insurance. Unfortunately, if they succeed, real people will be harmed.

Hot Off the Press: Medicaid Matters Symposium

I am pleased to share the Medicaid Matters symposium issue that has just been published in Volume 102, Book 2, of the Kentucky Law Journal.  This special issue includes articles from Brietta Clark, Mary Crossley, John Jacobi, Elizabeth Weeks Leonard, Laura Hermer (with Merle Lenihan), Sallie Sanford, and Sidney Watson (and me).  This is an excellent collection of thoughtful articles that resulted from a day-long workshop on Medicaid in the post-ACA world.  Many thanks to the participants in the workshop, and I hope you will enjoy the fruits of their labors!

Continued Skepticism re "Wellness Programs"

A big part of the job of being a Health Law Prof is to help students understand the intersection of the many legal specialties that comprise the big tent of "Health Law."  Wellness Programs are a good way of doing that because one of the key features of the Affordable Care Act is the flexibility it provides employers to link the cost their employees pay for health insurance with the individual employee's participation in a company sponsored "welleness program."  Here's an article I wrote explaining how PPACA went about doing that.  Here's a link to the Department of Labor's summary of the current rules and a good overview by the law firm Nixon-Peabody.  This report from Rand is an overview of what these programs are and how companies have increasingly fallen in love with them.   At this point just about every insurance company is offering to create one--here's some information from Aetna.  

The problem is, there's very little evidence that these programs do anything to demonstrably improve health (whatever that may mean).  And quite a bit that they may promote many different kinds of social injustice.

 This article in the Harvard Business Review does a great job describing the kinds of programs that are now descending on employees and how they are creating disatsifaction without any scientifically supportable improvement in "health."

There is also a growing literature suggesting that these programs may disproportionately discourage workers who employers aren't that unhappy to see go--but might not legally be able to actually fire.  Here is some very interesting testimony by Jennifer Mathis Director of Programs, Bazelon Center for Mental Health Law
On Behalf of the Consortium of Citizens with Disabilities.

Michelle Mello at Harvard has coined the term "life-style discrimination" to describe the ways Wellness Programs may target individuals employers may perceive as undesirable because they are obese, smoke or have other non-job related characteristics.

Studying Wellness Programs--and the issues they raise--can be an accessible entry point for students who can easily be intimated by the regulatory complexity of health law and can also be a bridge to understanding how fundamentally the Affordable Care Act has affected the way health care will be paid for and delivered as our students begin their careers in advising those struggling to implement these new regulations.

 

 

 

 

The AOL Babies: Our Healthcare Crisis in a Nut

Where does one start with AOL CEO Armstrong's ridiculous and unfeeling justifications for changes in his company’s 401(k) plan. Cable TV and Twitter came out of the blocks fast with the obvious critiques. And the outrage only increased after novelist Deanna Fei took to Slate to identify her daughter as one of the subjects of Armstrong’s implied criticism. Armstrong has now apologized and reversed his earlier decision.

As the corporate spin doctors contain the damage, Armstrong’s statements likely will recede from memory, although I am still hoping The Onion will memorialize Armstrong’s entry into the healthcare debate (suggested headline, "CEO Discovers Nation's Healthcare Crisis Caused by 25 Ounce Baby”). But supposing (just supposing) your health law students ask about the story in class this week. What sort of journey can you take them on?

Continue reading

IRS Rule Providing Tax Credits In Federal Exchanges Upheld

On Wednesday, Judge Friedman (U.S. District Court, District of Columbia) granted summary judgment to Secretary Sebelius in Halbig v. Sebelius (2014 WL 129023).  Individual plaintiffs and small businesses, supported by the Cato Institute, Competetive Enterprise Institute, and others, challenged the availability of tax credits in federally-run Health Insurance Exchanges as exceeding the IRS's administrative authority.  The court found that the statute, Congress's intent, and the legislative history of the Affordable Care Act supported the IRS's regulations.  Thus, tax credits will be available in Exchanges whether the insurance is purchased on an exchange created by a state or an exchange created by the federal government standing in the state's shoes. The opinion engaged in careful statutory analysis and found the first part of the Chevron test answered the legal questions the plaintiffs presented (though a footnote provided a quick second step analysis anyway).  Professor Gluck called this decision a big win for the ACA given that Chevron deference was not necessary in the court's analysis, and the court's methodical statutory analysis is certainly persuasive. (Professor Bagley posted a similarly sanguine analysis here.) By all accounts, this decision is a win for the Obama Administration.

This solid decision ought to end this frivolous litigation, but the plaintiffs have already stated that they will file an appeal.  As I discussed here and here, even though these challenges have no statutory traction, the plaintiffs are financially well supported, and they have the means to continue pressing their theories up the federal court ladder.  And, the political climate inspires unhappy policy losers to pursue their desired outcome through the judicial branch when they have lost in the legislative and executive branches.  Although the decision in NFIB v. Sebelius allowed the ACA to move forward, it opened the courthouse doors to litigation such as this, which pushes legal reasoning in directions that would not have been considered serious before the successes of the NFIB litigation.  While I do not believe that Halbig et al. have a real case for preventing tax credits in federally-run exchanges, that will not necessarily prevent another federal court from finding a differently.

ACA: The Miracle Policy?

As health care cost inflation has slowed markedly, some observers have cited the Affordable Care Act (ACA) as a major factor—even though the moderation in health care spending began before ACA’s enactment. To be sure, some of ACA’s important cost containment provisions may be playing a role, such as its push for accountable care organizations and its emphasis on paying for quality of care rather than just quantity of care.

Or maybe cost containment is simply the result of a recession that has reduced the spending power of Americans, with a significant contribution from an important pre-ACA trend (about 20 percent of the cost slowdown according to one study). For some time, employers and insurers have been increasing the public’s “skin in the game” by increasing the individual’s share of health care costs through premiums, deductibles and copayments. We’ve known for a long time that making health care more expensive for patients can discourage them from seeking care, so it isn’t surprising that higher patient costs would help contain health care spending. But we also know that patients don’t always distinguish between unnecessary care that can be forgone and necessary care that should be sought.

Time will help us sort out the causes of health care cost containment—if indeed it persists. In the meantime, we should be careful to distinguish between what we would like to be true and what we know to be true.

[cross-posted at orentlicher.tumblr.com]

Republicans and Democrats on Health Care Reform: Not That Far Apart After All

Today’s New York Times describes the Republican Party’s search for an alternative to the Affordable Care Act (ACA). With millions of Americans about to receive their health care through ACA health insurance exchanges, GOP members of Congress recognize that reform rather than repeal is the more sensible strategy.

Interestingly, proposals by leading Republicans look very much like ACA and especially like the favored reform proposal of former Obama senior staffer, Ezekiel Emanuel. While Emanuel has embraced ACA’s individual mandate, his preferred approach to reform is a universal voucher for health care coverage (also discussed here). According to the Times, U.S. Representative Paul Ryan soon will release a revised version of a universal voucher that he and U.S. Senator Tom Coburn proposed in the past. The main difference between Emanuel’s voucher and the Ryan-Coburn voucher is in the amount of coverage. Emanuel would cover the full cost of an insurance plan with standard benefits (akin to the essential benefits requirement of ACA), while Ryan and Coburn pegged the value of a voucher at a fixed dollar amount, about 50-60 percent of the cost of a standard insurance policy. As with ACA, Ryan and Coburn would have established health insurance exchanges, required insurers to meet minimum standards and protected persons with pre-existing conditions from discrimination (though perhaps not to the degree that ACA protects them).

There are good reasons to prefer universal vouchers to ACA. When all Americans, rich and poor, are in the same program, the program works much better. Consider in this regard the differences between Medicare and Medicaid. ACA may promise nearly universal coverage, but persons at higher incomes still will receive their health care mostly through their employers rather than through ACA’s health insurance exchanges or the Medicaid expansion. That gives the political influential a much smaller stake in the success of ACA than they would have in a universal voucher program.

It’s not surprising that there is more agreement than disagreement on the specifics of health care reform. As many observers noted during the health care reform debate, the individual mandate for health care coverage began as a conservative alternative to Clinton health care, and Mitt Romney championed an individual mandate as governor of Massachusetts. As with immigration reform and other policy initiatives, the chief stumbling block to progress is not the lack of common ground but the strong political incentives for elected officials to pursue a policy of conflict.

[cross-posted at orentlicher.tumblr.com]

Get to Know the 9 ACA Exemptions-Health Care Sharing Ministries

Stacey Tovino, a rock-star health law professor and Lincy Professor of Law at the UNLV William S. Boyd School of Law and I were nearly knocked off our chairs at a presentation by Wellesley College Professor Charlene Galarneau, PhD on The ACA Exemption of Health Care Sharing Ministries at the ASBH- American Association of Bioethics and the Humanity’s annual Meeting last month.  If you are a health law professor (or hobbyist) and do not yet know what a Health Care Sharing Ministry is, prepare to be surprised.  It is NOT insurance but rather a non-binding agreement among people of faith to share their health care costs.  As the Alliance of Health Care Sharing Ministries explains, “A health care sharing ministry (HCSM) provides a health care cost sharing arrangement among persons of similar and sincerely held beliefs. HCSMs are not-for-profit religious organizations acting as a clearinghouse for those who have medical expenses and those who desire to share the burden of those medical expenses.”  It specifically does not provide the essential services of an ACA qualified plan.  Yet those without health insurance who are participating in one of these ministries are exempt from the obligation to purchase insurance or pay a penalty—even though it is highly likely that the cost of their care will fall on the community where they become sick and seek treatment.  Read more about it here and here.  Health Care Sharing Ministries are among the 9 exemptions in the Affordable Care Act, yet have not attracted significant attention.  Given their important role in exempting large numbers of people from the obligation of obtaining health insurance, they deserve a place, or at least a shout-out, in all of our classes.

 

Dynamic Medicaid Expansion

Yesterday's reports on the annual meeting of the Republican Governors Association indicated disarray over the Medicaid expansion, and an opinion piece in the NYT highlighted the common story that only half of states are expanding their Medicaid programs.  If CMS is counting, then this tally is correct, as the federal agency can only account for those states that have submitted the proper documentation for expansion.  But this is not the only way to consider the states' decisionmaking regarding the expansion.  I have just posted a short essay preliminarily detailing research I have performed over the last several months, which reveals that many states currently counted as "not participating" are acting to expand their Medicaid programs.  Here is the abstract:

In the run up to the ACA’s effective date of January 1, 2014, the sleeper issue has been the Medicaid expansion, even though Medicaid stands to cover nearly a quarter of the United States citizenry. While the national press has portrayed a bleak picture that only half of the states will participate, the Medicaid expansion is progressing apace. Though this thesis may sound wildly optimistic, it is more than predictive; it is empirically based. I have gathered data on the implementation of the Medicaid expansion during the crucial months leading up to the operation of the insurance provisions of the ACA, and it is clear that most states are moving toward expansion, even if they are currently classified by the media as “not participating” or “leaning toward not participating.” The data thus far reveals counterintuitive trends, for example that many Republican governors are leading their states toward implementation, even in the face of reticent legislatures and a national party’s hostility toward the law. Further, the data demonstrates dynamic negotiations occurring within states and between the federal and state governments, which indicates that the vision of state sovereignty projected by the Court in NFIB v. Sebelius was incorrect and unnecessary.

 

Solving Two Federal Problems at Once: Lets Mail Information to Those Losing Their Inadequate Health Insurance

The efforts by both Congress and the President  to ensure that people can keep individual health care policies which  do not meet the Obamacare minimum coverage standards are so misguided that if it weren't for the fact that vulnerable people are being caused needless suffering  it would be comical.

so far, there is no evidence that anyone is going to be worse off with the coverage now available to them on the exchange than they were with the policies being cancelled.   In fact,  information available to us  from sources like the Kaiser Family Foundation, Business Insider, and Families USA about the characteristics of the policies being cancelled is that whatever peace of mind they provided to those paying for them was illusory.

 The fact that this insurance did not meet Obamacare criteria means that it is highly likely that the coverage they had:

•  Excluded the conditon for which they were most likely to need care
• Had a far higher deductible than the policies now available on the exchange
• And if it covered mental illness at all, did not do so at the same level as other covered illness.

Moreover,  these policies were subject to cancellation as soon as they were needed (for example after a diagnosis of cancer or after a debilitating accident).

Yet these facts are of no help to people without access to information about their alternatives.

Here's one thought--instead of requiring insurance companies to continue making these inadequate plans available, why couldn't they be required to send individualized information about alternatives on the exchange at the same time they send the cancellation letters?

The fact that they already have the relevant information about their policy owners means that those individuals don't need the web site to find out about their options.

In retrospect, depending on any web site to provide all the information to everyone who needed it was a bad idea from the beginning.   But letting people continue to pay good money for bad coverage is not the right solution.

Here's a win/win idea--why don't we activate an already existing but underused government resource to get individualized information out quickly to those who need it---the U.S. Postal System.

The Difference Between a Law Professor and a Pundit

is that most of what I do is in the "no spin zone."  I may agree or not with a holding or a policy, but my job is to explain--not (in my view) editoralize.

 

Unless something is really wrong--and this headline is really wrong. Obama: ‘I’m Sorry’ About Americans Who Are Losing Current Health Plans

 

 Yes, I heard President Obama say he was "sorry" that people who "liked" their health insurance were losing it.  But there are no facts to support the implied conclusion that they were reasonable in their affection.

 So--are people "losing" health insurance they had because it provided so little coverage (so little value for money) that it was as good as being uninsured?  Yes.  But  are there any identifiable people who experienced an illness, were satisfied with the level of coverage they had from these policies?  Not that I've heard speak in any form that can be recorded for review.

 I'm from Connecticut and to say that people are losing coverage they "liked" is to suggest that those unlucky enough to pay a peddler for a piece of wood shaped like a nutmeg "liked" it well enough to continue putting sawdust in their eggnog for years to follow.  Sure, maybe they had thought they got a bargain and at the time could not have afforded a real nutmeg.  But there's a solid old time English word for what they experienced: they were swindled.  And would in no sense describe their feeling about the old block of wood as "liking."

What's missing here is any definition--let alone understanding--of what it means to "like" insurance coverage for which you are paying a monthly premium only to discover on needing it that it's not worth what you paid for it.    People who had this insurance  did so either because they were defrauded or because they had no other access to health insurance and were hoping for the best from it.

Here's my concern--I'm not qualified to assess the politics of this or even the longterm economics.  But I do know that many vulnerable people who either now have solid, excellent insurance through Medicare, the VA or their jobs believe that they could lose it because of Obamacare.  And that's simply not true.

 

All of us who are health law professors field questions from students,  friends, relatives, colleagues and acquaintances about Obamacare all the time--and my answer to almost everyone until very recently was, "I don't know--we'll have to see what happens when it actually takes effect." 

 But here is something I do know---the people who are "losing" healthcare are losing something that was never worth having--and which, by the way, they would surely have lost instantly the first time they made a claim.   Thus putting them in the same catagory of people from whom we have heard no complaints--those without access to health insurance because of pre-existing conditions or prohibitive premiums and now find it available and affordable.

 

Folks who are finding out that the coverage they had did not meet minimum standards and who now have the option of buying insurance that is worth what it costs may well not know the details yet--because they haven't been able to get on line to read about it.   And if they were lucky enough to never have had to use their policies, they may never have known how little they had.

But lets not forget that the system we had was responsible for 62% of personal bankruptcies due to medical bills.  And that includes a lot of people who had health insurance they "liked" but which proved inadequate when needed.

Not being a pundit--let alone an expert on presidential speech writing--I can't imagine how President Obama thought it was a good idea to make a promise that he had as much power to keep as that it wouldn't rain on anyone's Fourth of July Parade or that the entire United States would be covered by an even blanket of new snow on Christmas Eve. 

Most people with "good" insurance through work face changes in doctors, hospitals, and covered medications just about everytime their employer re-negotiates their contract.   It's a reality we all live with.  

But are people who had adequate and affordable insurance losing coverage?  To switch states for a moment,  we have to all be from Missouri.   Show us.

Until  we see what options are available to these folks who were paying monthly premiums to plans, now being cancelled, which would not be there when needed, lets stop scaring people by telling them that the adequate insurance they do have is going to be taken away.  And that they will become uninsured. 

Sure, the roll out is a disaster--and in retrospect predictable once it became apparent how many states were declining the opportunity to set up their own exchanges and shifting the burden onto the woefully unprepared department of Health and Human Services.

But lets not confuse the messenger with the message.  The actual insurance available is from private insurance companies--which for the first time must by law provide comprehensive health insurance for a fair price.  There's no reason to think it will be worse than the expensive and inadequate plans it replaces.  And certainly it will be far better than nothing.    And it seems like the people directly affected by these cancellations know that because with all the glitches and apologies, the majority of Americans  continue to support the increased access to affordable care insurance at the same rate they did when the bill was passed--three years ago!.

Getting back to being a professor, one of the biggest problems in explaining this topic is that it's a moving target and a substantial mistrust about sources of information.  Once again, I recommend the non-profit and non-partisan Kaiser Family Foundation which continues to gather and explain facts.    If indeed the people "losing" their insurance do not soon have access to better coverage at an affordable price, then there is a serious problem far past computer glitches.  Lets wait and see.

Related articles

Hobby Lobby Keeps Moving Forward

For those following the so-called contraceptive mandate litigation, additional documents were filed today with the Supreme Court, but this time the Solicitor General suggested that the petitions in Conestoga Wood be held (here), while the Court considers the petitions in Hobby Lobby.  The Solicitor General's prior petition for cert., in addition to this request, make it appear all the more likely that the Hobby Lobby case will move forward.

Kludgeocracy in America

The PPACA rollout has been termed a disaster (at least on the federal level). What went wrong? Both firms and governments find big software projects hard to manage. The federal procurement process is a mess. But perhaps the biggest problem is the level of complexity that American politics & law imposed on the project.
As Garance Franke-Ruta observes:

Obamacare was damaged at the outset by the political tug-of-war over its very existence, and the conflicts at its creation have had serious downstream effects, placing the federal government in charge of far more than it was supposed to be doing. It also has also suffered from what Johns Hopkins University political scientist Steven Teles calls “kludgeocracy”—the tendency of interest groups, lobbyists, bureaucracy, and bad management to combine to create highly complex legislation and giant public-administration kludges, a term defined as “an ill-assorted collection of poorly-matching parts, forming a distressing whole.”

That is what Obamacare is proving to be, though it has its bright spots, too among the 14 state exchanges. The law passed in March 2010, but final rules governing how the exchanges were to work were not issued until March 2013. A bid from the main IT contractor, CGI Federal, was accepted in September 2011, but the company did not start critical work until this spring because it was waiting for specifications from the government, leaving too little time to troubleshoot the enormously complex systems CGI and others were setting up.

It’s hard to believe that the whiz kids behind NSA data gathering and analysis couldn’t have done some good here. HealthCare.Gov cost less than 1% of spy agencies’ budgets. But to suggest health IT should command even a fraction of the resources of the intelligence apparatus is a heresy in Schmayek's Town.

Federal-State Tensions in Fulfilling the ACA's Promises

[Cross posted today at Constitution Daily:]

The Affordable Care Act expresses many goals, but its heart is the desire to create a health insurance home for all Americans.  The American healthcare system historically exists at the pleasure of a number of stakeholders and is not a coherent whole. This lack of system is reflected in the consistent tensions that underlie American healthcare, most notably federal power versus state power; the collective versus the individual; and the individual versus the state.  In creating near-universal health insurance, the ACA has resolved one of those tensions, individual versus the collective, in favor of the collective.  To that end, the ACA eliminated many of the practices health insurers used to cherry pick policyholders, which excluded people who need medical care from their risk pools.  In so doing, the ACA represented a federal choice to make all people insurable, whatever their wealth, age, medical history, sex, race, or other distinguishing factor. 

Despite the redirection this leveling of the health insurance playing field represents, the ACA did not craft a coherent whole out of the American healthcare system.  Instead, the ACA remodels the preexisting, unstable healthcare system.  In building on the old foundation rather than starting anew, the law retained the historic role of the states in regulating medical matters.  To that end, the ACA urged the states to implement two key aspects of its insurance modifications: Health Insurance Exchanges and the expansion of the Medicaid program.  The federal government has the power under the Spending Clause to create a federally-run insurance mechanism, but it chose instead to employ cooperative federalism to keep states engaged in healthcare policymaking.  The trouble is that some states have not been cooperating with these central legislative goals.

 The Exchanges, or Marketplaces, are an instrument through which qualified private health insurance plans can be purchased by individuals or small businesses.  The states were offered federal funding to create their own state-run Exchanges, which were operative as of October 1, 2013 (Tuesday last week).  Many states created Exchanges, but many rejected them as an expression of their distaste for the ACA.  Predictably, many of the states that have refused to create their own Exchanges were the same states that challenged the constitutionality of the ACA.  While there is value in dissent, the states that refused to create Exchanges invited more federal power into the state, because rejecting the federal offer for funding to create a state-run Exchange did not halt Exchanges from coming into existence. Instead, the ACA tasked the federal government with operating Exchanges in states that did not create their own.  While expressing a desire to protect their state sovereignty, these states have invited federal authority into their borders.  Though the Exchanges at both the state and federal levels have experienced some technical glitches this week, it appears that many people are eager to purchase insurance through them and that they have been successful at doing so.  The states that rejected Exchanges have not stopped implementation of the law, but their actions have other notable ramifications.

The Medicaid expansion was designed to catch childless adults under age 65 and below 133% of the federal poverty level in Medicaid’s safety net.  As with other modifications to the Medicaid program over the years, the expansion added a new element to the Medicaid Act that states could reject, but they could lose all of their funding if they made that choice.  The day the ACA was signed into law, states challenged the expansion of the Medicaid program as unconstitutionally coercive.  They succeeded on this claim in NFIB v. Sebelius, and the Court rendered the expansion optional for states. Immediately pundits began to question whether the states would participate in the Medicaid expansion. 

Though national media tallies make it appear that just over half of the states are participating in the Medicaid expansion, in reality the number is and will be much higher.  In almost every state reported as “leaning toward not participating,” and in many states reported as “not participating,” some significant act has occurred to explore implementation of the Medicaid expansion.  Some states have special commissions or task forces researching expansion; some state governors have indicated a desire to participate and have included the expansion in the budget; some legislatures have held debate or scheduled it for the next session; and so on.  Though some states will not have their Medicaid expansions running by January 1, 2014, it seems very likely that most if not all states will participate in the expansion in the relatively near future.

 In the meantime, state non-cooperation will have a direct effect on some of the nation’s poorest citizens.  People from 100% to 400% of the federal poverty level are eligible to receive tax credits for purchasing insurance in the Exchanges.  In states with no expansion, people above 100% of the federal poverty level who would have qualified for Medicaid will still be able to obtain insurance through federal subsidies in the Exchanges.  But, people who are below 100% of the federal poverty level will be too poor for tax-credits and living in states that have not yet expanded their Medicaid programs, therefore they will not be able to enroll in Medicaid either.  These very low income people will not be penalized for failing to carry health insurance, but they will not have health insurance either.  These individuals will get caught in a health insurance black hole that exists in part because the Court allowed states to refuse Medicaid expansion and in part because of state resistance to partnering in the implementation of the ACA.   

State cooperation in the Medicaid expansion is even more important than state participation in the Exchanges, because many thousands of people may not get the access to health insurance that is the promise of the ACA.  The debate over the meaning of federalism that swirls around political and academic circles will have a direct and important effect on the people who can least afford it.  The good news for them is that Medicaid’s history indicates that all states eventually participate in the program and its amendments, but this week’s implementation of the Exchanges keeps access to medical care through health insurance tantalizingly out of reach.

Happy Exchange Day!

Despite best efforts to prevent the exchanges, or marketplaces, from going on line, today the exchanges have begun to do the work of facilitating a health insurance home for people in the United States.  If you live in a state that has declined to create its own exchange, then you should visit https://www.healthcare.gov/, the federal website for the federal health insurance marketplace.  Though there were reports of the site crashing, as of 3:00 this afternoon it seems to be working.  And, the site will guide you to your state's marketplace site, as necessary.  No need to rush though, as open enrollment lasts through March of 2014.

Many probably saw Governor Beshear's op-ed in the New York Times last week regarding the reasons that Kentucky has created its own state-based exchange (and will accept federal funding for the Medicaid expansion), here.  The commentary seems even more relevant in the wake of the House Republicans shutting down the federal government over health insurance.

More states are expanding Medicaid than you might think

Big news in the world of ACA implementation: CMS approved Arkansas' proposed waiver for an alternative mechanism for Medicaid expansion, which is to be called the Arkansas Health Care Independence Program.  Arkansas proposed a premium assistance program, wherein newly eligible Medicaid beneficiaries will obtain insurance through the Arkansas health insurance exchange by receiving financial assistance for premium costs.  This will place the new Medicaid population in qualified health insurance plans, i.e. private health insurance, which is administratively more expensive than government-sponsored insurance, but it may help to deal with the problem of "churn" between Medicaid and Marketplace-based private insurance.

CMS's approval of Arkansas' Medicaid demonstration program is significant for a number of reasons, but here I'd like to focus on what I think is one of the biggest: this waiver approval will pave the way for other states that are "undecided" to finally declare their intent to expand their Medicaid programs.  I believe this will happen relatively quickly, because most states are already working on expansion.  You would not think this is true from the national media's reporting on the Medicaid expansion.  If you have been following any of the many color-coded maps depicting the five possible categories of expansion (expanding, not expanding, leaning toward expanding, leaning toward not expanding, and alternative model), you would think that just over half of the states are participating in the Medicaid expansion.  The national media has gotten this story wrong, because they do not pick up on the negotiations, investigations, committees, special commissions, and other ways in which the "leanging toward not participating" states are actually exploring how they can expand their Medicaid programs.  To understand how dynamic the state decision making is, you have to track the local newspapers that follow every move of the state legislatures and their conversations with their governors (which I have been doing all summer).

After NFIB v. Sebelius was decided, I wrote that most states would still expand their Medicaid programs.  It appears that most states are now working toward Medicaid expansion in some form.  In future posts, I will explain this dynamic federalism story in more detail.  For today, I will emphasize that CMS has opened the door to more state waivers, which will lead to more states expanding their Medicaid programs.  Though I am not necessarily on board with federalism by waiver, espcially given states' history of waiver mistakes and failures, I do think that in this instance, alternative expansion is better than no expansion.  Otherwise, many of our poorest citizens will be left out of the attempt at national insurance coverage, not paying a penalty, but not having access to much-needed healthcare either.    

ACA and the Perils of Federal-State Partnerships

When it comes to public benefit programs, federal-state partnerships often disappoint. States once determined eligibility for food stamps, and access to the program was not available in many counties across the country. And because states have set the income thresholds for adults to qualify for Medicaid, access to health care coverage has varied considerably from state-to-state for the indigent.

Unfortunately, both because of ACA’s design and the Supreme Court’s decision on the Medicaid expansion, ACA’s implementation relies quite a bit on federal-state partnerships. We are now seeing substantial differences from state to state in the roll out of the statute. As the Wall Street Journal reported earlier this week and the New York Times earlier this month, poor people are much more likely to obtain Medicaid coverage in New Mexico than next door in Texas, and customers for insurance on an ACA exchange will find much more guidance from state officials in Colorado than in Missouri.

The Medicare model of a federal-only program works much more effectively at delivering its benefits than does the Medicaid/ACA model of a federal-state partnership.  

PPACA & Data Collection on LGBTQ Health Disparities

ThinkProgress reports on the following aspect of PPACA: 

According to Section 4302 of the Affordable Care Act, the secretary of health and human services may collect any demographic data that she or he believes to be important for understanding and addressing health disparities. In June 2011 Secretary Sebelius announced a plan for including sexual orientation and gender identity in national data collection efforts starting in 2013, in addition to the law’s required categories of race, ethnicity, primary language, sex, and disability status.

I am supervising a paper on this process, and would greatly appreciate any information about the process for this inclusion (who was consulted, administrative processes, etc.), and the anticipated challenges for implementation.  The HHS website on the topic is good, but there is always room for more analysis. Please feel free to make a note in the comments, or email me directly.