Tag: patient protection and affordable care act

ACA’s Looming IPAB Test

Yesterday, in a move being described as “a major shift,” the American Cancer Society changed its guidelines on when and how often women should undergo professional physical exams and mammograms for breast cancer.

Under previous guidelines that the organization had trumpeted for years, women “of average risk” were to begin both at age 40 and repeat them every year. Now the ACS is recommending annual mammography start at age 45, cutting back to once every two years at age 55, and eliminating the screen altogether when a woman’s future life expectancy falls inside of 10 years. As for the physical exam, the ACS no longer recommends it at all.

The reason for the change is that both screens provide so many stressful false positives that the ACS doesn’t believe regular testing passes a cost-benefit test unless the woman is of “higher than average risk.”

The shift should be welcome news for women. Mammograms and doctor breast exams are charitably described as “uncomfortable,” and probably more accurately described as “painful and embarrassing.” But the ACS change could become painful and embarrassing for the architects of the 2010 Patient Protection and Affordable Care Act (ACA).

One of the most scrutinized provisions of the ACA is the creation of the Independent Payment Advisory Board (IPAB), whose ostensible job is to recommend cost-containment measures if Medicare expenditure projections begin to outpace a previously determined growth rate. In reality, IPAB is to monitor the cost and effectiveness of various types of care to determine which will be covered by Medicare, with the expectation that those decisions will serve as a template for private health insurers and other third-party payers. The hope is that IPAB’s decisions will eliminate coverage of procedures that don’t measure up, thereby “bending the cost curve”—that is, reducing the nation’s overall spending on health care.

IPAB has been derided by critics as a “death panel” that could eliminate crucial care, and criticized by more thoughtful scholars as an unaccountable rationing board that will inject itself in decisions that ought to be private. In contrast, I’ve argued that IPAB is more likely to be a paper tiger that may occasionally block some treatment or another, but will usually cave to political pressure and approve popularly appealing procedures and treatments that pass no reasonable cost-benefit test. Those decisions will then pressure third party payers to also cover the care. That way, IPAB will bend the cost curve—just in the opposite direction from what the ACA writers intended.

So think of the ACS shift as a looming test of IPAB, as not-recommended breast cancer screenings are exactly the sort of Medicare expenditure the board should identify for elimination. So far, the “projected expenditures” provision for the board (or the secretary of health and human services, acting in IPAB’s stead) has not been triggered, so no cost-containment recommendations are currently forthcoming. Thus give IPAB an “incomplete” on this test for now—but don’t expect a good grade later.

A Conspiracy against Obamacare

A Conspiracy Against Obamacare coverLast week, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case was released, of which I am proud to be the editor. The book compiles the discussions and debates about the Affordable Care Act that occurred on the legal blog the Volokh Conspiracy, supplemented with new material. The posts are stitched together into a narrative structure. As a result, you can see the constitutional arguments against the Affordable Care Act develop in real time, from before the law was passed all the way to the Supreme Court. 

The book documents a bellwether moment in the history of legal academia: A legal academic blog influencing major Supreme Court litigation. And not just major Supreme Court litigation, but a case that went from a much derided challenge to the biggest and most watched case in decades. As former Solicitor General Paul D. Clement, who expertly argued the case before the Court, kindly wrote in the foreword, “The Constitution had its Federalist Papers, and the challenge to the Affordable Care Act had the Volokh Conspiracy.”

The contributors are Randy E. Barnett, Jonathan H. Adler, David E. Bernstein, Orin S. Kerr, David B. Kopel, and Ilya Somin, most of whom are closely associated with Cato in one way or another.

In the introduction, I discuss the constitutional arguments against the law in a more abstract way, as well as describe how the law is destined to fail due to poor design. We are seeing the beginning of those failures now, but I fear we ain’t seen nothin’ yet.

It was not much commented on at the time–the administration and the law’s supporters were too busy spiking the ball–but the Supreme Court’s decision will speed up the law’s inevitable failures. As I describe in the introduction:  

Due to the chief justice’s unpredictable opinion, we are now likely stuck with a law that I fear will seriously damage the health of Americans. What’s more, attempts to further centralize power will not stop at the individual mandate. When the law fails, as I predict it will, it will be said that the federal government lacked enough power to make it work. The chief justice’s opinion gives people a real choice whether to comply with the requirement to purchase insurance or pay a “tax.” Many people will not, and as the price of insurance goes up, more and more people will choose to remain uninsured. This will certainly be called a “loophole.” Similarly, the Court also gave states a choice about whether to comply with the Affordable Care Act’s Medicaid expansion. Another “loophole.” Finally, the states that don’t create health care exchanges will also throw wrenches in the law’s overall scheme. “Loopholes” all around. Having freedom of choice in deeply personal health care decisions, however, is not a loophole.

When the time comes to revisit the Affordable Care Act, those choices by free, sovereign entities (citizens and states) will be blamed for the law’s dysfunctions. To paraphrase philosopher Robert Nozick, liberty disrupts patterns. Free choice inevitably upsets the carefully crafted plans of Washington.

As a solution to the law’s problems, more power will be proposed. A few voices, such as many who write for the Volokh Conspiracy and those of us at the Cato Institute, will strenuously argue that the problem is not a lack of power but a lack of freedom. I am not optimistic, however, that very many entrenched bureaucrats and politicians will locate the problem in the mirror rather than in the freedoms of the American people.

If the Affordable Care Act keeps going south at this rate, we may need to prepare to have that debate sooner than we expected. 

You Keep Using the Word ‘Affordable.’ I Do Not Think It Means What You Think It Means.

The federal government gave a $10 million “affordability” prize to a giant corporation for manufacturing a $50 lightbulb. The Washington Post:

The U.S. government last year announced a $10 million award…for any manufacturer that could create a “green” but affordable light bulb.

Energy Secretary Steven Chu said the prize would spur industry to offer the costly bulbs…at prices “affordable for American families.”…

Now the winning bulb is on the market.

The price is $50.

Retailers said the bulb, made by Philips, is likely to be too pricey to have broad appeal. Similar LED bulbs are less than half the cost.

This is the same federal government that refers to ObamaCare, which costs more than $6 trillion, as the “Affordable Care Act.”