Tag: Health Care

Sorrell vs. IMS Health: Not a Privacy Case

The Supreme Court’s decision in Sorrell vs. IMS Health is being touted in many quarters as a privacy case, and a concerning one at that. Example: Senator Patrick Leahy (D-VT) released a statement saying “the Supreme Court has overturned a sensible Vermont law that sought to protect the privacy of the doctor-patient relationship.” That’s a stretch.

The Vermont law at issue restricted the sale, disclosure, and use of pharmacy records that revealed the prescribing practices of doctors if that information was to be used in marketing by pharmaceutical manufacturers. Under the law, prescription drug salespeople—“detailers” in industry parlance—could not access information about doctors’ prescribing to use in focusing their efforts. As the Court noted, the statute barred few other uses of this information.

It is a stretch to suggest that this is a privacy law, given the sharply limited scope of its “protections.” Rather, the law was intended to advance the state’s preferences in the area of drug prescribing, which skew toward generic drugs rather than name brands. The Court quoted the Vermont legislature itself, finding that the purpose of the law was to thwart “detailers, in particular those who promote brand-name drugs, convey[ing] messages that ‘are often in conflict with the goals of the state.’” Accordingly, the Court addressed the law as a content- and viewpoint-oriented regulation of speech which could not survive First Amendment scrutiny (something Cato and the Pacific Legal Foundation argued for in their joint brief.)

What about patients’ sensitive records? Again, the case was about data reflecting doctors’ prescribing practices, which could include as little as how many times per year they prescribe given drugs. (They probably include more detail than that.) The risk to patients is based on the idea that patients’ prescriptions might be gleaned through sufficient data-mining of doctors prescribing records (no doubt with other records appended). That’s a genuine problem, if largely theoretical given the availability and use of data today. Vermont is certainly free to address that problem head on in a law meant to actually protect patients’ privacy—against the state itself, for example. Better still, Vermonters and people across the country could rely on the better sources of rules in this new and challenging area: market pressure (to the extent possible in the health care area) and the (non-prescriptive, more adaptive) common law.

Whatever the way forward, Sorrell vs. IMS Health is not the privacy case some are making it out to be, it’s not the outrage some are making it out to be, and it’s not the last word on data use in our society.

Vouchers in Education and Health Care Reform

E.D. Kain has a post up here (and here) comparing and contrasting vouchers in education and health care. It’s an interesting post that manages both insight and remarkable oversights in a very short space.

And the insight and oversights are bound up with each other:

I think it’s a consistent position to support both single-payer health care – something many progressives advocate – and single-payer education – something many libertarians advocate…

[Medicare] is a lot like what many school choice advocates want. They want government to foot the bill, but they don’t want them to provide the service, or at least not exclusively. This approach works for Medicare, and it could work for schools also. What we really need is single-payer education – not single-provider education. Anyways, the point is that we think about these programs in somewhat inconsistent ways… Even people advocating single-payer want to be able to go to a private doctor. And yet, these same people are terrified of the government paying for education but not actively providing the schooling.

Kain is right that many school choice advocates want a single-payer, government voucher system. But he’s absolutely wrong to imply the libertarian preference is for a single-payer, government voucher system in education. [Note: I look at ideologies as structures reflecting what people think is valuable, what works and why in politics and society.]

In education, we begin with an almost fully socialized system unlike anything else in American society. So its no surprise that education reform discussions produce ideological confusion.

Vouchers, because they move the means of production out of the hands of the government, into the hands of private providers, and afford the consumer some decision-making powers, are improvements from a perspective that advantages individual liberty. But the single-payer, government funding, and regulation inherent in a voucher program remain massive defects from the libertarian perspective.

Our health care system is crippled by government regulation and single-payer (private employer and government) distortions. But it is not fully socialized or government-funded like our education system. A single-payer government health system would make matters worse from the libertarian perspective.

Think of these policy scenarios on a Left-to-Right ideological scale running from 1 on the far Left to 7 on the far Right, with 4 in the middle. Our standard government-financed, government-run, socialized education system is a 1, as far Left as one can go. Voucherizing the entire system would push it to a 2.

Kain is correct that  ”it’s a consistent position to support both single-payer healthcare … and single-payer education,” because both are completely and comfortably on the Left side of the policy spectrum. Vouchers can’t solve all of our problems in education policy.

Why Is Virginia Gov. Robert McDonnell Implementing ObamaCare?

I ask this question in today’s Richmond Times-Dispatch:

Virginia Republican Gov. Bob McDonnell…says Obamacare is unconstitutional and therefore illegitimate. Yet he has created a state commission to study whether Virginia should implement an illegitimate law. Since the answer does not appear self-evident to commonwealth officials, let’s walk through the reasons Richmond should refuse to create any new health-care bureaucracies.

Didn’t this guy take an oath to support the U.S. Constitution?

My First Year Battling Obamacare

Most people are by now familiar with the broad strokes of the lawsuits challenging Obamacare: more than 30 cases around the country allege, among other claims, that the federal government lacks the constitutional authority to require people to buy a product (the individual health insurance mandate)—and the only way to avoid the mandate is to become poor.  After decisions going both ways in the district courts, we are now at the appellate stage in five of those suits, including Virginia’s and the Florida-led 26-state effort.

Those who follow developments in constitutional law are also familiar with the broad legal arguments being made: that the power to regulate interstate commerce, even when read in the context of the power to make laws that are necessary and proper to executing that specified commerce power, does not include the power to force someone to engage in economic activity—to create, in effect, the commerce being regulated.  Not even during the height of the New Deal did the government require this, and there are no parallels in the Civil Rights Era or since.  (And also that Congress can’t do this under the taxing power for various reasons that I won’t go into here; even those courts ruling for the government have rejected the taxing power assertion.)

Finally, those who follow Cato are probably aware that I’ve been spending a good part of my time since Obamacare’s enactment in March 2010 in this area: filing briefs, writing articles, debating around the country, appearing in the media.  And I’m not alone; our entire Center for Constitutional Studies has been involved in various capacities.  Indeed, Cato Chairman Bob Levy himself produced a very useful Primer for Nonlawyers about what is the clearly the central constitutional and public policy debate of our generation.

Well, if anyone cares to peek beyond the curtain of how Cato’s legal efforts against Obamacare have evolved, I have an article on that forthcoming in the Florida International University Law Review.  Here’s the abstract:

This article chronicles the (first) year I spent opposing the constitutionality of Obamacare: Between debates, briefs, op-eds, blogging, testimony, and media, I have spent well over half of my time since the legislation’s enactment on attacking Congress’s breathtaking assertion of federal power in this context. Braving transportation snafus, snowstorms, and Eliot Spitzer, it’s been an interesting ride. And so, weaving legal arguments into first-person narrative, I hope to add a unique perspective to an important debate that goes to the heart of this nation’s founding principles. The individual mandate is Obamacare’s highest-profile and perhaps most egregious constitutional violation because the Supreme Court has never allowed – Congress has never claimed – the power to require people to engage in economic activity. If it is allowed to stand, then no principled limits on federal power remain. But it doesn’t have to be this way; as the various cases wend their way to an eventual date at the Supreme Court, I will be with them, keeping the government honest in court and the debate alive in the public eye.

Read the whole thing, titled “A Long Strange Trip: My First Year Challenging the Constitutionality of Obamacare.”

Romney Can Run, but He Can’t Hide from Romneycare

Massachusetts Governor Mitt Romney announces today that he will be a candidate for president.   His announcement is expected to tout his business experience and to portray him as the candidate best able to deal with the country’s economic problems.  But one thing you are not likely to hear him talk about is his Massachusetts health plan, Romneycare.

Of course, Romney has already tried to put this issue away with a speech in Detroit last month, and he would probably be happy to never talk about it again.   But if Romney really believes he can hide from the Romneycare fallout, he is badly mistaken. 

Cato scholars have issued several reports detailing the many failings of Romneycare.  Those studies can be found here , here , here and here for instance.  

In his Detroit speech, Romney trotted out three defenses.  First, he says that his plan, unlike Obamacare, did not increase taxes. That is technically true — if you consider only the legislation as Romney signed it. However, it is also true that the legislation relied heavily on federal subsidies — more than $300 million — and was still underfunded. Romney’s successor was forced both to cut back on some benefits that the plan originally offered and to raise the state’s cigarette tax by $1 per pack ($154 million annually) to help pay for the program. The state also imposed approximately $89 million in fees and assessments on health-care providers and insurers. 

Similarly, Romney claims that his plan only costs about one percent of the Massachusetts budget and is, therefore, not a budget-busting, big government program.  In making this claim, however, Romney fails to note that that accounting does not take into account more than $300 million annually in federal funds.  Nor does it count the costs that were pushed off onto Massachusetts businesses and taxpayers through the individual and employer mandates, or the costs of increased insurance premiums.

And, finally, Romney criticizes Obamacare as a “one size fits all” federal plan, whereas his plan was implemented in only one state. That’s true. Governor Romney only messed up the health-care system in Massachusetts, while President Obama has messed up health care for the entire country. Of course, as governor, Romney didn’t have the power to impose his model outside of his state. He now says that he opposes any national plan, calling for states to experiment with different approaches as the “laboratories of democracy.” That would certainly be an improvement over Obamacare. On the other hand, he has repeatedly said that he sees the Massachusetts plan as a model for the nation and has urged other states to copy his approach.

Governor Romney faces many challenges in convincing voters that he really does want to reduce the size, cost, and intrusiveness of government.  For example, Romney has recently been pandering to Iowa voters by renewing his support for ethanol subsidies.  On other issues, he has been a big supporter of federal involvement in education. He backed No Child Left Behind and once called for the federal government to buy a laptop computer for every child born in America. His record as Massachusetts governor was decidedly mixed. In the Cato Institute’s biannual ranking of governors on fiscal issues, Romney received a grade of only “C.” His philosophy of governing can be seen from his comment, “I’d be embarrassed if I didn’t always ask for federal money whenever I got the chance.”

But the biggest single obstacle to his candidacy remains Romneycare.  Unless and until he finds a way to deal with this albatross, he will be a weak and wounded frontrunner.

Who’s Right on Medicare Reform, Ryan and Rivlin or Obama and Gingrich?

This new video, narrated by yours truly, discusses a proposal to solve Medicare’s bankrupt finances by replacing an unsustainable entitlement with a “premium-support” system for private insurance, also known as vouchers.

This topic is very hot right now, in part because Medicare reform is included in the budget approved by House Republicans, but also because Newt Gingrich inexplicably has decided to echo White House talking points by attacking Congressman Ryan’s voucher plan.

Drawing considerably from the work of Michael Cannon, the video has two sections. The first part reviews Congressman Ryan’s proposal and notes that it is based on a plan put together with Alice Rivlin, who served as Director of the Office of Management and Budget under Bill Clinton. Among serious budget people (as opposed to the hacks on Capitol Hill), this is an important sign of bipartisan support.

The video also notes that the “voucher” proposal is actually very similar to the plan that is used by Members of Congress and their staff. This is a selling point that proponents should emphasize since most Americans realize that lawmakers would never subject themselves to something that didn’t work.

The second part discusses the economics of the health care sector, and explains the critical need to address the third-party payer crisis. More specifically, 88 percent of every health care dollar in America is paid for by someone other than the consumer. People do pay huge amounts for health care, to be sure, but not at the point of delivery. Instead, they pay high tax burdens and have huge shares of their compensation diverted to pay for insurance policies.

I’ve explained before that this inefficient system causes spiraling costs and bureaucratic inefficiency because it erodes any incentive to be a smart shopper when buying health care services (much as it’s difficult to maintain a good diet by pre-paying for a year of dining at all-you-can-eat restaurants).  In other words, government intervention has largely eroded market forces in health care. And this was true even before Obamacare was enacted.

Medicare reform, by itself, won’t solve the third-party payer problem, but it could be part of the solution - especially if seniors used their vouchers to purchase real insurance (i.e., for large, unexpected expenses) rather than the inefficient pre-paid health plans that are so prevalent today.

Obama Admin. Repeats Discredited Cost-Shifting Claim in Federal Court

Defending ObamaCare in federal court yesterday, the Obama administration’s acting solicitor general, Neal K. Katyal, peddled the widely discredited claim that the uninsured increase your and my health insurance premiums by $1,000:

“When people self-finance their health care,” Katyal contended, “that raises the cost of health care overall by $43 billion a year, and that raises the average family’s premiums by $1,000 a year. That will price untold numbers of people out of the market.”

That estimate comes from two left-wing groups, Families USA and the Center for American Progress Action Fund.

When President Obama himself made this claim, FactCheck.org reported:

[Obama] said ”the average family pays a thousand dollars in extra premiums to pay for people going to the emergency room who don’t have health insurance.” That’s from a recent report by Families USA, a group that lobbies for expanded government coverage. But another study for the authoritative Kaiser Family Foundation thinks that figure is far too high.

Serendipitously, the same day that Kaytal was repeating this discredited claim in federal court, USA Today reported:

Jack Hadley, senior health services researcher at George Mason University in Fairfax, Va…has found that privately insured individuals don’t end up paying higher premiums to make up for the uninsured because hospitals that serve lower-income families don’t have a lot of patients with insurance. He said the government pays about 75% of those unpaid hospital bills either by direct payment or through a disproportionate payment of Medicaid. (emphasis added)