Topic: Health Care & Welfare

Reason’s “Obamacare Video Contest Song”

Lyrics:

What’s hated by unions

has businesses wary

and dropping coverage 

like the ‘Skins secondary?

Causing thousands of layoffs

taking it’s toll?

What’s so good for people

that they’re forced to enroll?

What’s a law that’s so good

folks who passed and defended it

see it and got waivers

to be exempted? It’s

like Olestra, at first 

it sounded hip

but we quickly found ourselves

dealing with a whole lot of sh…

Obamacare, Obamacare

Unions and businesses both in despair

So to recap, young people,

your hours get cut

and your income goes down

and your premium’s up

and the taxes you pay

with the cash you have left

go to pay for a stupid 

video contest, touting

Obamacare, Obamacare

Unions and businesses both in despair

It’s hated by doctors and unions are mad.

Not since Billy Ray Cyrus 

has someone made something this bad.

The Stupid Party

Word on the street is that today House Republicans will pass a bill that would keep non-essential government functions open until mid-December, delay ObamaCare for one year, but not block the illegal ObamaCare exemption President Obama’s Office of Personnel Management granted to members of Congress and their staff. If Republicans fail to include language blocking that exemption, they truly deserve the moniker of The Stupid Party.

ObamaCare blocks members of Congress and their staffs from participating in the Federal Employees Health Benefits Program where most of them now purchase health insurance, and thereby denies them the “contribution” the federal government had been making toward their premiums. Starting in 2014, members and staff must obtain coverage either through an ObamaCare Exchange or whatever other options that can scrape together. The purpose of this provision was to ensure that members and staff would experience ObamaCare the same way the rest of the country does – so that just in case the law is a disaster, Congress will have to suffer just like everybody else. Since ObamaCare is throwing lots of Americans out of their prior health coverage, and causing lots of people to take pay cuts due to job losses and reduced hours, so far, so good.

Naturally, members don’t like the way ObamaCare is treating them and people about whom they care. By all accounts, members are extremely agitated about the impact on their staffs. But because Democrats don’t want to repeal the entire law, and neither Republicans nor Democrats want to get caught giving themselves an ObamaCare exemption that others don’t get, a coalition of Republican and Democratic members begged the president for a special exemption. For his part, President Obama didn’t want Congress to reopen the law, so he obliged. His administration announced that OPM will make the same “contribution” to each member and staffer’s Exchange premiums that it made to their FEHBP premiums, despite having absolutely no statutory authority to do so. And thus the political class set itself above the people it governs. The administration’s defenders, like Uwe Reinhardt, note that ObamaCare says “absolutely nothing” about whether OPM can continue to make those payments. Exactly. If Congress has not authorized those payments, OPM cannot make them. Moreover, no one else who works for a large employer may receive a tax-free “contribution” from their employer toward their Exchange premiums. Why should members and staff enjoy such privilege, when the law doesn’t provide for it and allowing it would fly in the face of this provision’s purpose?

This issue gives ObamaCare opponents tremendous leverage, if they are willing to use it. Senate Democrats are likely to strip a one-year delay of ObamaCare’s major provisions from the House Republicans’ “continuing resolution.” But few Democrats would dare to strike a provision blocking the OPM rule. Heather Higgins and Bill Pascoe write, ”92 percent of the public does not think it is right that Congress and their staff are letting the Obama administration exempt them from the costs of Obamacare.” Moreover, “with a minimal push, the issue makes inroads even [against incumbents] most analysts thought beyond reach.” In other words, if the House Republicans’ CR blocks Congress’ ObamaCare exemption, then either vulnerable Senate Democrats will vote to preserve it, or they will be turned out by voters. If the Senate preserves it, which is likely, then even more Senate Democrats will be accept a one-year delay so that Congress can work out some arrangement that eliminates this pay cut for members and staff while providing equivalent relief to average Americans.

Unfortunately, House Republicans appear unwilling to tap their greatest source of leverage. I wish I could say that failure is inexplicable. But the reason is obvious. House Republicans got their ObamaCare fix, and (for now) that is more important to them than saving the rest of the country from this law. President Obama’s “OPM rule” is an attempt to buy their votes, and it appears those votes are for sale. They must not be thinking about what their base will do to them.

It’s great that House Republicans are sending the Senate a bill delaying ObamaCare for a year. Why don’t they want it to pass?

Delaying the Individual Mandate Will Delay Political Backlash until after the Election

Republican Senators Ted Cruz (TX) and Mike Lee (UT) and a few others have proposed that all Obamacare funding be cut off by a legislative “rider,” ostensibly forbidding funding of the 2010 law. They argued that public opinion polls trump mere laws enacted by Congress and vetted by the Supreme Court–an idea that sounds more like populism than conservatism.

Even if such “defunding” could have magically attracted the 67 Senate votes needed to override a veto, it would not have undone the mandate to buy insurance, premium subsidies through refundable tax credits, planned cuts in payments to Medicare providers, or any of Obamacare’s numerous new 2013 taxes–including the extra 0.9 percent payroll tax and 3.8 percent surtax on investment income for couples earning more than $250,000. Rhetorical opposition to “funding” did not even include opposing Obamacare taxes.

The Senate Conservative Fund’s “dontfundobamacare” website, which features photos of Cruz and Lee, exhorted: “Tell the Republicans to OPPOSE cloture to stop Harry Reid’s plan to fund Obamacare. Tell them a vote for cloture is a vote to fund Obamacare!” Nine senators who the SCF websites claims opposed cloture nevertheless voted for cloture on September 25. 

“Mr. Cruz’s ‘yes’ vote … confused conservative activists who had mobilized to stand with him against any procedural step forward,” reports the New York Times. Politically innocent people are often easily confused because they fail to notice that “funds” is the key word in all political action funds. As a fundraiser, this theatrical show was great television. And groups that raise funds for political campaigns don’t offer refunds.

With the cloture vote demonstrating the questionable sincerity and unquestionable futility of the mobilization to “defund Obamacare,” efforts were instantly diverted to a Plan B to delay the individual mandate in a continuing resolution that funds the government. Plan B would allow favored groups to enjoy new refundable tax credits and Medicaid entitlements for a year or two before less-favored citizens face fines (starting at 1 percent of marginal income) to help pay for Obamacare’s redistribution of health.  

Ironically, this Republican plan to delay any such unpleasant aspects of Obamacare would be especially helpful to Democrats, who would then face fewer irate voters in the 2014 election. Being fully aware of this, however the Obama administration has largely preempted Republicans by seizing another opportunity to postpone unpopular features of Obamacare through delay or exemptions. As of September 5, “The IRS has delayed compliance with the proposed regulations for one year under Notice 2013-45, 2013-31 I.R.B. 116. The reporting requirements are now effective for tax years beginning in 2015, with the first report due in 2016 for 2015 coverage.”

Subsidies, tax credits, and Medicaid handouts still begin on January 1, 2014. But the individual mandate cannot be enforced until tax returns are filed on April 15, 2016–with or without the Republicans Plan B–because insurers and employers no longer have to provide coverage information for 2014. The effective delay of mandate enforcement tilts the electoral balance toward those receiving taxpayer-subsidized benefits in 2014 as opposed to those who will face the burden of buying costly insurance in 2015 or paying fines in 2016. The de facto delay of the individual mandate, thanks to an IRS decree, will keep voters largely unaware of Obamacare’s full burden in 2014, making subsidies appear temporarily less costly than they are.

Such delay in the individual mandate and fines is great news for Democrats facing reelection in 2014. So why do Republicans imagine this is their clever idea?

Admiral Ted Cruz

Senator Ted Cruz’s filibuster was impressive. Naysayers claim that it was pointless because Obamacare won’t be defunded this year with a Senate and White House controlled by Democrats. But at a minimum, Cruz and supporting senators have highlighted the huge flaws in the health law and reminded everyone of its unpopularity. If Republicans actually want to repeal the law—as they all say they do—then they need to take every opportunity to hammer away at it.

Cruz is essentially asking his fellow Republicans to stand up or shut up with respect to Obamacare. His maverick strategy has offended some of his colleagues, but what’s the alternative if you want to actually create change in Washington? All the commissions and other establishment efforts in recent years to cut spending and debt, for example, have come up far short. And simply passing Obamacare repeal bills through the House won’t work by itself.

So Cruz is trying something different. He is saying that Republicans in the House and the Senate should draw a hard line and not budge. He is saying that Republicans ought to be playing to win, not just to score points with their constituents.

We will see where this goes, but it takes entrepreneurs to change the dynamics of a situation. They may succeed or fail at their particular goal, but they often change the path of events and open new possibilities. With Obamacare set to wreak havoc on the health care system and the nation headed toward fiscal disaster, every attempt to change course should be welcomed.

The history of the British Navy, as I learned from this book, provides some relevant lessons. From the 1500s to the 1800s, the navy was blessed with a succession of bold leaders who defeated opponents in France, Spain, and Holland over and over again. Many had a background in privateering, and so they were conditioned to be entrepreneurial and to seize opportunities when they arose.

In numerous battles—such as Trafalgar in 1805—the British had fewer ships than their opponents, but they more than made up for it by the bravery of the admirals, captains, and sailors. The British had a strong sense of what they were fighting for, and they believed their cause was righteous. Citizens and sailors rallied around aggressive navy leaders who showed determination to bring the battle to their opponents and to win.       

It’s pretty obvious in recent years that House and Senate Republican leaders haven’t shown much boldness in fighting for limited government. Of course, many Republican members don’t seem to believe much in limited government, at least judging by their voting records. So there has been a big political void, and now entrepreneurs like Senators Cruz and Rand Paul are trying to fill it.

Admiral Horatio Nelson famously told his men before Trafalgar that “England expects that every man will do his duty.” In recent months, Cruz and Paul have been essentially asking every Republican to do his duty to the Constitution—and to aid them in their battle to limit government and repeal Obamacare.

Obama Administration Decrees Overtime for Home Health Companions

In a long dreaded move, the U.S. Department of Labor has issued a final rule requiring that time-and-a-half overtime be paid to at-home attendants who put in more than 40 hours a week caring for a disabled or elderly person. “Many home health aides provide live-in services, and overnight and weekend hours could result in their receiving substantial amounts of overtime pay,” notes Steve Miller at the Society for Human Resource Management. Families employing such attendants will also be required to keep records of time worked. There are a few narrow, hard-to-use exceptions. The rule also brings attendants under minimum wage laws, but it’s the overtime provision that has raised the most fear.

This is a terrible rule. The fear and anger it has stirred is coming not just from commercial employment agencies, as some careless media accounts might leave you to think, but above all from elderly and disabled persons and their families and loved ones, who know that home attendant services are often the only alternative to institutional or nursing home care. 

Even if you’ve followed this issue you probably had no idea that in April, ADAPT, a well-known disability-rights group, staged a demonstration in Washington, D.C. to protest the proposed overtime rule and even blocked all the entrances to the Department of Labor to make its point. That was hardly reported at all in the media; I learned about it through Prof. Samuel Bagenstos’s blog on disability rights law

Your Article Undermined Our Lawsuits? See You In Court!

A plaintiff’s lawyer is suing a medical journal and two doctors for publishing a case report that makes it harder to win some birth-injury lawsuits.

Here are the details, as reported by Sheri Qualters of the National Law Journal. Some newborns are found to be suffering from brachial plexus injury, a type of harm to a child’s shoulder, arm, or hand that in a minority of cases results in permanent disability (so-called Erb’s palsy or a number of related conditions). A large volume of birth-injury litigation goes on as a result, in part because courts have tended to accept the idea that the only medically recognized cause of those conditions in newborns is excessive or traumatic use of physical force by clinicians (“traction”). In 2008, however, the American Journal of Obstetrics & Gynecology published a case report of a delivery in which an infant was found to be suffering such injury although the physician by her own account had not applied any excessive traction during the birth. If instead natural forces of labor could cause the dislocation resulting in the condition, many lawsuits might rest on shakier ground. Since then, defense lawyers have cited the report — by Henry Lerner of Harvard Medical School and Eva Salamon of the Bond Clinic in Winter Park, Fla. — in litigation.

Boston lawyer who claims to have debunked the Lerner-Salamon case study has proceeded to sue its two authors, Elsevier — which publishes AJOG and many other medical and scientific journals — and Dr. Salamon’s clinic for publishing and refusing to retract it. The damages are said to be $3 million each to two families of infant plaintiffs whose lawsuits did not succeed allegedly because of the case report. The lawsuit invokes a Massachusetts consumer protection law which allows treble damages, and also asks for a court order forbidding the report to be entered as evidence in future litigation. A trial court dismissed the case, in part on the grounds that the plaintiffs had not shown that the article was a material cause of the families’ failure to prevail in the suits. Now the case is on appeal to the First Circuit, where defense lawyers are arguing, inter alia, that if there are weaknesses in the article the remedy for plaintiffs is to introduce evidence to that effect to counter it in trials. “As for its own role, Elsevier argued that applying a state consumer protection law to its published material would violate its free-speech right under the First Amendment.”

First Amendment? Let’s not go to extremes. If we start applying the First Amendment, how are lawyers supposed to silence publications that inconvenience them?

Our “watch what you say about lawyers” tag — which perhaps we should rename as “watch what you say about lawyers or their cases” — is here.

(cross-posted from Overlawyered)

Goldhill: ObamaCare to Hurt Those It Purports to Help

Another excerpt from David Goldhill’s new book Catastrophic Care: How American Health Care Killed My Father – And How We Can Fix It:

If the ACA places more of the burden of health care on the poor and the middle class, diverts resources into waste and unnecessary treatments, coddles an industry culture of dangerous sloppiness, and crowds out all other social priorities, then it will have actively hurt the very people it was intended to help.

Goldhill is the CEO of the Game Show Network, a member of the board of the Leapfrog Group, and will speak at a Cato forum on his book tomorrow, Wednesday, September 18, from 12-1:30 p.m. at the Cato Institute. The Brookings Institution’s Kavita Patel and I will provide comments.

Click here to register.