Topic: Health Care & Welfare

Jonathan Turley on Halbig v. Burwell

Jonathan Turley, a professor of law at George Washington University, has an opinion piece in today’s Los Angeles Times on Halbig v. Burwell:

The administration’s loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court.

Read the whole thing.

A ruling is expected from the D.C. Circuit in Halbig any day now. Here are some materials that will let you hit the ground running.

ObamaCare’s Exchanges Perform More than a Dozen Functions Besides Issuing Subsidies (Updated)

One of the issues underlying Halbig v. Sebelius and three similar lawsuits making their way through federal courts is whether Congress intentionally restricted the Patient Protection and Affordable Care Act’s (PPACA) private health-insurance subsidies to individuals who buy coverage through state-established Exchanges. If so, that would mean the Internal Revenue Service’s decision to issue subsidies in the 34 states that did not establish Exchanges (i.e., that have federally established Exchanges) is illegal. For more on the IRS’s attempt to rewrite the PPACA in this fashion, click here.

On Twitter, a skeptic challenges my coauthor Jonathan Adler’s claim that Congress intended to withhold subsidies in states that did not establish Exchanges, arguing, “The exchanges serve no purpose at all absent subsidies.” (Read the entire exchange here.)

In legal jargon, the skeptic argues that a literal interpretation of the statutory language restricting subsidies to those enrolled “through an Exchange established by the State” would produce absurd results, and the courts should defer to the agency’s reasonable interpretation.

Exchanges, however, are regulatory bureaucracies that perform other functions and serve other purposes besides dispensing subsidies. The PPACA’s authors, the Obama administration, and the president himself have all acknowledged this.

  • In 2008, Senate Finance Committee chairman Max Baucus wrote, “The Exchange would be an independent entity, the primary purpose of which would be to organize affordable health insurance options, create understandable, comparable information about those options, and develop a standard application for enrollment in a chosen plan.“ 
  • In 2009, President Obama said that health insurance Exchanges “would allow families and some small businesses the benefit of one-stop-shopping for their health care coverage and enable them to compare price and quality and pick the plan that best suits their needs.”
  • Senate Majority Leader Harry Reid (D-NV) has said the PPACA “guarantees real choice and competition to keep insurers in check… By creating strong competition, we’ll reduce skyrocketing health care costs.” 
  • The PPACA’s Senate drafters wrote, “Insurers that jack up their premiums before the Exchanges begin will be excluded–a powerful incentive to keep premiums affordable.”
  • The Internal Revenue Service’s proposed tax-credit rule issued August 17, 2011 explains, “Exchanges will offer Americans competition and choice. Insurance companies will compete for business on a level playing field, driving down costs. Consumers will have a choice of health plans to fit their needs and Exchanges will give individuals and small businesses the same purchasing power as big businesses.”

In fact, the Exchanges are supposed to perform more than a dozen functions besides issuing subsidies. Here are some of the ways the PPACA’s health insurance Exchanges attempt to serve the goals of “one-stop shopping,” price and quality comparisons, expanding choice and competition, and reducing health insurance premiums, even in the absence of subsidies:

  1. Facilitate the creation of SHOP Exchanges, where premium-assistance tax credits are not available. §1311(b).
  2. Certify, recertify, and decertify qualified health plans. §1311(d)(4)(A).
  3. Maintain a toll-free telephone hotline. §1311(d)(4)(B).
  4. Monitor premiums and require issuers of QHPs to justify premium increases. §1311(e)(2). 
  5. Monitor QHPs’ compliance with hospital quality measures. §1311(h).
  6. Monitor QHPs’ compliance with mental health parity regulations. §1311(j).
  7. Require transparency from issuers of QHPs, including periodic financial disclosures; and oversee compilation of information on enrollment, disenrollment, the number of claims that are denied, rating practices, cost-sharing and payments with respect to any out-of-network coverage, enrollee and participant rights, and “other information as determined appropriate by the Secretary.” §1311(e)(3)(A).
  8. Collect data from QHPs on the quality of care, including “case management, care coordination, chronic disease management, medication and care compliance initiatives…, prevent[ing] hospital readmissions through a comprehensive program for hospital discharge that includes patient-centered education and counseling, comprehensive discharge planning, and post-discharge reinforcement by an appropriate health care professional…, reduc[ing] medical errors through the appropriate use of best clinical practices, evidence based medicine, and health information technology…, [and] the implementation of wellness and health promotion activities [and] activities to reduce health and health care disparities.” §1311(g).
  9. Rate QHPs based on quality, price, and patient satisfaction. §1311(d)(4)(D).
  10. Maintain a website with standardized comparative information on qualified health plans. §1311(d)(4)(C), (E).
  11. Make eligibility determinations and enrolling applicants for Medicaid and SCHIP. §1311(d)(4)(F).
  12. Issue exemptions from the individual mandate, and certify such exemptions to the IRS. §1311(d)(4)(H).
  13. Facilitate the purchase of health insurance across state lines. §1311(f).
  14. Establish a Navigator program and awarding grants to Navigators. §1311(i).
  15. Facilitate the merger of the individual and small-group markets (at each state’s discretion). §1312(c)(3).
  16. Provide an employee benefit (health insurance coverage) for members of Congress. §1312(d)(3)(D).

Nor is the PPACA the only piece of legislation Congress debated that would allow for Exchanges without premium subsidies. As I have explained elsewhere, the Democrats who controlled the Senate’s Health, Education, Labor, and Pensions (HELP) Committee in 2009 approved a bill that would have withheld similar Exchange subsidies in states that failed to implement that bill’s employer mandate. This is true whether the state established its own Exchange, or the federal government established one for the state. Since the HELP Committee allowed for the creation of both state-run and federal Exchanges without subsidies, its drafters presumably saw the Exchange as serving more than just that one purpose. 

Twelve Senate Democrats voted for the HELP Committee bill. Why should we be surprised that they–and the remaining Senate Democrats, and the vast majority of House Democrats, and President Obama–would approve the PPACA’s similar provisions?

Update: This post has been updated to include the 2008 Baucus quote.

Update #2: This post has been updated to include the quote from the IRS’s proposed tax-credit rule.

NIDA Director Has Misguided Views on Marijuana Legalization

Today’s Washington Post contains a Ruth Marcus interview of Nora Volkow, head of the National Institute on Drug Abuse.

Volkow opposes marijuana legalization; she believies it will generate a large increase in use, which will (allegedly) harm users and society.

No one knows how much use might increase under legalization; existing evidence suggests a modest change, but since few countries have fully repealed their drug (or alcohol) prohibitions, we do not have decisive evidence.

The fact Volkow ignores, however, is that if use increases substantially, this means many people perceive a significant benefit from increasing their use or from initiating use; that is a positive of legalization, not a negative!

Marijuana use can, of course, generate unwanted side effects, but Volkow exaggerates these enormously. And other goods, like alcohol, also generate negative spillovers; yet we keep them legal (in part) because they generate substantial benefits.

Volkow further ignores the fact that prohibition generates its own negatives, such as violence, corruption, poor quality control, civil liberties infringements, medical restrictions, enforcement costs, and foregone tax revenue (which forces other tax rates to be higher).

So even if legalization means far greater use, and even if this generates undesirable consequences, the sum of benefits for current and prospective users, combined with elimination of prohibition’s costs, makes legalization the right choice.

23andMe Closer to FDA Approval

 23andMe, the Google-backed personal genomics company ordered by the Food and Drug Administration to stop marketing its health-related services in November last year, is closer to a reconciliation with the government agency. The FDA did not object to the ancestry information 23andMe provides, but rather the information on inherited risks it released to customers.

Before halting the release of health information 23andMe had provided its customers with information on their ancestry and health. 23andMe gathered genetic information from customers by having them send saliva in a $99 kit.

What had the FDA concerned was the possibility that a false result from a 23andMe test could lead to customers undergoing drastic procedures such as “prophylactic surgery, chemoprevention, intensive screening, or other morbidity-inducing actions.” Reason magazine’s Ron Bailey pointed out such a fear is misplaced because not only is the biochip used by 23andMe and researchers around the word very accurate, anyone who received worrying health news from a 23andMe test would almost certainly consult a doctor and/or get a more comprehensive screening done before undergoing any surgery or procedure.

Last week 23andMe’s Chief Legal and Regulatory Officer, Kathy Hibbs, wrote on the company’s blog that the FDA had “accepted for review 23andMe’s submission for a new 510 (k) application,” which Reuters describes as “a regulatory process that applies to most medical devices sold in the United States.” The FDA considers the 23andMe saliva collection kit a device.

Although 23andMe’s submission focuses on one condition — Bloom Syndrome — Hibbs wrote the following:

Once cleared, it will help 23andMe, and the FDA, establish the parameters for future submissions. More importantly, for our customers, it marks a baseline on the accuracy and validity of the information we report back to them. The submission includes robust validation data covering major components of our product such as the genotyping chip, software and saliva kit.

While it is good news that 23andMe seems to be on its way to being in good standing with federal regulators, Stephanie M. Lee of SFGate.com notes that 23andMe could potentially face months of questions and data requests before being granted FDA approval.

 

Resources for a Potential Ruling Today in Halbig v. Sebelius

The D.C. Circuit is due to rule any day now, quite possibly today, on Halbig v. Sebelius. For those who haven’t been watching the vigil I keep over at DarwinsFool.comNewsweek calls Halbigthe case that could topple ObamaCare.”

First a little background. The Patient Protection and Affordable Care Act offers refundable “premium-assistance tax credits” to qualified taxpayers who purchase health insurance “through an Exchange established by the State.” The PPACA contains no language authorizing tax credits through the 34 Exchanges established by the federal government in states that declined to establish one themselves, nor does it authorize the Internal Revenue Service to treat those federally established Exchanges as if they had been “established by the State.” Offering benefits only in compliant states was proposed by numerous Republicans and Democrats in 2009, for obvious reasons: Congress cannot force states to implement federal programs, but it can create incentives for states to act, such as by offering health-insurance subsidies to residents of compliant states.

Halbig is one of four cases challenging the IRS’s decision to rewrite the statute and offer tax credits in the 34 states with federal Exchanges. The plaintiffs are individuals and employers who are injured by the IRS’s overreach because, due to the PPACA’s many inter-locking pieces, issuing those illegal tax credits subjects them to illegal penalties.

Since a ruling may come today (or some Tuesday or Friday hence, as is the D.C. Circuit’s habit), here are some materials for those who want to hit the ground running.

Update: The D.C. Circuit has handed down rulings for today, and Halbig is not among them. Click here to check on the court’s most recent rulings.

Congress May Hike VA Spending $400 Billion

Last week the Senate voted to greatly increase health care spending for veterans. If the new spending were made permanent, it would cost at least $385 billion over 10 years, as Nicole Kaeding noted. The House version of the bill would cost at least $477 billion if made permanent. The chambers will now work out a compromise bill, and—going out on a limb here—I’m guessing that the compromise is also a budget buster.

The bills would allow veterans to access health services from facilities outside of the Veterans Affairs (VA) system. The VA system needs a fundamental overhaul, but these bills would appear to just throw money at the problem without creating structural reforms.

The CBO score for the Senate bill is here and for the House bill here. For the House bill, CBO says spending would be $16 billion in 2015 and $28 billion 2016. The House bill would authorize the new spending until 2016, but if Congress extends it permanently the total costs would be $54 billion a year and about $477 billion over 10 years.

I can’t remember an instance when Congress has voted so quickly to spend so much money with so little debate and analysis. The CBO cautioned that their numbers are essentially only rough guesses. So the ultimate spending could be even higher than shown in the chart.

Edwards_VASpendingHouse

Suppressing Competition from Migrant Doctors

The claim for physician licensure is that it protects consumers from “quacks;”  it is just a coincidence that licensure also reduces competition and raises doctors’ incomes!  In this case, the strength of licensing should be similar across states, and licensure requirements should determine whether a prospective doctor is competent, not whether a U.S. native or a migrant.

Recent research by Brenton Peterson, Sonal Pandya, and David Leblang (University of Virginia), however, finds the opposite: 

Licensure regulations ostensibly serve the public interest by certifying competence, but they can simultaneously be formidable barriers to entry by skilled migrants. From a collective action perspective, skilled natives can more easily secure sub-national, occupation-specific policies than influence national immigration policy. We exploit the unique structure of the American medical profession that allows us to distinguish between public interest and protectionist motives for migrant physician licensure regulations. We show that over the 1973–2010 period, states with greater physician control over licensure requirements imposed more stringent requirements for migrant physician licensure and, as a consequence, received fewer new migrant physicians. By our estimates over a third of all US states could reduce their physician shortages by at least 10 percent within 5 years just by equalizing migrant and native licensure requirements.

Little evidence suggests that professonal licensure promotes quality or protects the public, but arbitrary discrimination against migrant physicians (many trained in the United States!) is particularly insane.  As are all restrictions on high-skill (or other) immigration.