What happens in Oregon if health care is struck down?

Kari Chisholm FacebookTwitterWebsite

Most prognosticators seem to think that at least part of the Affordable Care Act will be struck down by the Supreme Court. Maybe I'm too much the optimist, but I think there's a reasonable chance that Justice Anthony Kennedy will respect a century of precedent on the commerce clause. But, I'm no lawyer.

In any case, Eugene's Register-Guard does an admirable job of summing up the impact on Oregon's efforts to transform health care delivery should the Supremes kill the ACA. In short - we might lose some critical funding (especially if the whole law is struck down), but the central reform will stay in place.

Oregon already has trimmed more than $12 billion in Medicaid costs over the last 15 years through efficient management and prioritization of services. Under the state’s health care transformation, the state is working with local communities to establish coordinated care organizations, or CCOs, that will work to reduce expensive hospital stays and emergency room visits by focusing on preventive care, disease management and early intervention. The state expects the CCOs to save $11 billion over the next decade. Even larger savings could be achieved if the concept is extended to populations beyond those eligible for Medicaid.

The interest of federal officials in Oregon’s bold experiment is understandable. If it works as planned and is replicated in other states throughout the nation, the 10-year savings could exceed $1.5 trillion. Uncontrolled health spending is the U.S. health care system’s primary problem, and Oregon’s overhaul of its Medicaid health care delivery model, with its sharp focus on effective outcomes rather than the amount of services rendered, could provide a national model of how to provide quality health care at an affordable price. ...

If the Supreme Court, as many believe it will, throws out all or a major portion of the federal health care law, Oregon’s health care transformation experiment will draw even more intense scrutiny than it already is. That’s nothing new for a state with a proud and long-standing tradition of innovation and national leadership.

The whole thing is worth reading. What do you think? Will the Supremes strike down some or all of the health care reform law?

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    I don't know what these political hacks and charlatans will do, but I know what Oregonians should do if they strike the law down...

    I think 2014 should be the year of the progressive initiative.

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    Of course they will strike it down. They didn't give a wet slap about the precedent for the previous interpretation of the Second Amendment, totally flipping on the interpretation. They suddenly flipped on the belief that money is free speech, so I have no doubt that the SPotUS will flip on the commerce clause.

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      They read the actual words to the Second Amendment and corrected an incorrect precedent, like when the Dred Scott decision was overturned and when Brown V the Kansas City Board of Education corrected bad precedent.

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    How does one invoke the Commerce Clause if Health Insurance can not be sold across state lines?

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      The exact same way the conservatives on this court felt medical marijuana can be regulated under the commerce clause even if it isn't being sold across state lines.

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        But even Scalia questioned the logic of protecting commerce that the law didn't allow i.e. the Raich descision puts the federal government in the position of putting sick people in jail to protect the profits of drug dealers. They didn't argue that marijuana wasn't medicine because Angel Raich could prove it was. They didn't argue that marijuana was dangerous, because they couldn't prove that it really was. They did argue that the price of marijuana was dropping too quickly, effecting the greater economy - and it was: the costs of an ounce dropped almost 30% in California after Prop 215 passed. That's major when you are talking about a multi-billion dollar crop that secret;y props up an economy: people will start to notice.But in the end, the Raich descision is an embarassment and a stake in the heart of the Constitution.

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    Linda Greenhouse, long term SCOTUS NYT reporter says ACA will be upheld in entirety. So does recent writer in Stanford Law Review. I also believe it will be upheld with Roberts writing the majority opinion. Roberts and Kennedy are corporatists, and they know there will be a collapse of private insurance if it is not upheld. They will write an opinion upholding it but putting their ideas of limits on mandates. This is a Republican law, initiated by American Enterprise Institute, passed by a Republican Governor, Mitt Romney, where it is working quite well. Roberts also knows, if it is struck down, the next step is Medicare for all.

    If they strike down anything it will be the personal mandate but leave the rest of it intact. They don't want their GOP friends in Congress to take the hit for kicking to the curb the children born with chronic conditions, the 3 million young adults who get their parents insurance, the many millions of seniors, self included, who will not benefit from the filling of the donut hole, or the hit that small business will take without receiving their tax credit, or the 1.5 billion in rebate checks that many insurance subscribers will get to them this summer from their insurance companies for not staying within the limits of administrative spending.

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      Eh, we'll see. I'm not convinced that SCOTUS will uphold enough of ACA to make it worthwhile. I'd like to hope they would, but I'm just not convinced.

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    Among those who already have a stake in ACA: http://www.nytimes.com/2012/06/22/health/policy/those-already-ill-have-huge-stake-in-health-ruling.html?_r=1&smid=tw-nytimes&seid=auto

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    The public is right when they believe the SCOTUS is primarily a political body. Scalia, Thomas, and Alito represent the right wing of the Republican Party, the most ideologically oriented. Roberts and Kennedy are Republican corporatists. They are concerned about big business primarily. And for that reason I believe they will find a way to vote for ACA and craft an opinion accordingly. It's what the corporate insurers and providers want right now, and essential to their survival. The vote will be 6-3 to uphold ACA.

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      Read a great profile of Kennedy a few days ago in Time magazine.

      One thing I didn't know: He worked as a lobbyist in Sacramento. Represented various corporate clients.

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    Okay, sorry for spamming but one more contribution, this one from Jonathan Chait:

    Jonathan Chait’s opinion of what might happen on the Supreme Court’s decision on healthcare.

    In ascending order, the Court might:

    1. Leave it all in place.
    2. Technically eliminate the mandate to buy health care while leaving in place the fine for not having health insurance. (Essentially upholding the fine as a tax while technically eliminating the requirement.)
    3. Eliminate the mandate, and the fine, but leave in place the regulations that insurance companies not discriminate against people with health risks and the subsidies for buying insurance.
    4. Eliminate the mandate, the fine, insurance regulations, and the subsidies.
    5. Nuke the entire law.

    “The most likely scenarios in which the Court finds the mandate unconstitutional still leave most of the law in place.”

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      Except that Pelosi's House was in such a hurry to pass the bill before anyone could read it that they didn't include a severability clause.

      If this bill stands as written, then there is no limit on Congressional power under the Commerce clause. Goodbye, Constitutional Republic. RIP. Killed by well-intentioned souls who knew the outcome they desired, and trying to find a way to twist the Constitution to achieve the outcome.

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        Predictable RW talking points. And couched in the righteousness of those who claim the Constitution for themselves.

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          Predictable Liberal talking points Name-calling, but not addressing the topic at hand. In fact ignoring my points. Which, are my own thoughts. I don't let others do my thinking for me. But nice try on your incomplete argument.

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    Ken Ray, Dred Scott was overturned by the Civil War and the 14th & 15th Amendments. Brown v. Board overturned Plessy v. Ferguson, which distorted the 14th beyond all recognition.

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      You are correct that Dred Scott was reversed by the 14th and 15th amendments. I should have been more clear.

      So if you all want this Government health care with a requirement to purchase a consumer product, just pass a Constitutional amendment removing the limits on congressional power.

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    There is a separate issue from the individual mandate. The ACA expands Medicaid by raising the eligibility income level from 100% of Federal Poverty line to 138%. It also in effect makes Medicaid mandatory on the states and sets some stronger minimum benefits, where up to now Medicaid has been technically "voluntary" though pretty much politically impossible not to adopt.

    The CCOs discussed in the Oregonian piece apply to the OHP, which is Oregon's version of Medicaid, so the savings projected if realized would apply not only the existing Medicaid population but the expanded one. (The savings are somewhat questionable at this point since the CCOs have pretty much ended up being the existing Medicaid HMOs that were not required to make substantial governance changes to get the new status, and it's not that clear why they will do anything different. Last week the O had a story about the big insurers who in most instances are the CCOs -- i.e. they contract out the actual care delivery -- pushing back on requirements to do more with the same $.)

    If the Court throws out the Medicaid expansion requirement it will put great pressure on the Exchanges and the individual mandate, as well as the ACA's inadequate efforts to achieve universal coverage of at least low-quality health insurance. Maybe a state like Oregon will have the capacity to opt-in anyway and will do so. But in states that don't opt into the expansion there will be a large low-income population now not covered and facing the individual mandate, who presumably would go into the Exchange and be eligible for the highest level of subsidies -- i.e. boost the expense of the subsidies greatly, all coming out of the federal fisc (Medicaid is split fed-state).

    This would intensify equity issues not only among the states but between low-income workers who get poorly supported health benefits via employers (e.g. Wal-Mart workers) who will not be eligible for subsidies, even though the benefits would not be considered "affordable" compared to their income if they were in the Exchanges, and workers who will get subsidies under those criteria because they are allowed in the Exchange. Combined with broader general conservative attacks on Medicaid, Medicare and the ACA, it will put the whole remaining edifice of the ACA at risk, and at best probably result in a patchwork system covering some states but not others.

    Overturning the federal individual mandate also could lead to a somewhat similar result, as state individual mandates (like Massachusetts') are not affected by the current case. Oregon was moving in that direction anyway before ACA and I would expect the governor and OHA to propose state legislation -- which would set up an interesting political battle.

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    This statement by the O "Uncontrolled health spending is the U.S. health care system’s primary problem" is wrong. The health care system's primary problem is that it excludes 16% of the population and about 25% of working age adults from timely access to effective care (up to 58 million uninsured for some portion of 2011, and 46 million for the entire year), with a further 20% of privately insured persons in high deductible plans with no health savings accounts, which is effectively being uninsured for most non-catastrophic health care needs.

    Uninsurance and under-insurance are significant drivers of the cost crisis, partly through misuse of Emergency Departments but even more through rationing by ability to pay (a.k.a. self rationing) that delays care from the less expensive, more effective early interventions until the most expensive, less effective point. Individuals are poorly able to evaluate or discount such long term costs even to themselves, which in any case get shifted onto hospital and provider overheads and thence to other insurance and or the public fisc, much less to the system or society as a whole or the public health care budges (all different meanings of "cost").

    This is an economic reason why it is wrong to treat health care as a commodity whose distribution is best determined by individual market decisions.

    The more profound reason is moral. Health care is a human right that should be treated as a public good -- i.e. that category of goods in which a general level of equality is desirable for the basic effective functioning and moral integrity of society, like schools, fire and other public safety services, roads and bridges, or public utilities. Markets are inherently incapable of providing the necessary and proper distribution of such goods, since markets work by exclusion at the margins of costs.

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    On top of that, the market for health insurance is not the same as the market for health care. The insurance market is a market in access, and it too works by exclusion. Private insurer profit (including non-profit excessive reserves and massive executive over-compensation) and the huge administrative burdens of multiple plans on employers, providers and patients, as well as the administrative costs of the insurers themselves to process and to try to reject claims are another large increment of the "uncontrolled costs" problem.

    Market competition in insurance pricing is the main theoretical "cost control" mechanism for both the ACA and the conservative alternative non-plans. It is almost entirely ineffective because it is a category error. The main tool insurers use to compete for premium prices is to degrade benefits by raising deductibles, co-pays and co-insurance (this is what Paul Ryan and Ron Wyden want to do to Medicare), shifting the costs onto individuals and families. And as benefits degrade, the rationing by ability to pay/ self-rationing/ increased costs due to delayed care problem increases.

    The last piece of the cost puzzle concerns provider compensation. The big $ question about CCO reforms is whether they can "transform" the misplaced incentives of the fee-for-service model of compensation. Having insurance companies be the CCOs would seem to reduce the likelihood of that. In any case the true costs of procedures are almost entirely opaque due to the many multiple forms of cost shifting and differential price negotiations among providers and insurers.

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    The short version is that whether or not the ACA survives, neither it nor the "free market" alternatives are remotely capable of resolving the continuing and deepening crises of the U.S. health system.

    Whether the ACA survives in whole or in part has significant short term consequences for millions of people that are not to be sneezed at. The improved access that the ACA provides, including reductions of rationing by ability to pay in various ways, should be defended, as should regulations against insurance company abuses.

    But ultimately we need to reform the system to one that treats health care as a human right for everyone living in the society, provided as a public good through social insurance, in a universal risk pool that cuts out the administrative waste, allows for real cost transparency and effective, equitable allocation of resources, and creates the leverage for compensation reform and delivery transformation to a primary care, health promotion, prevention and early intervention set of priorities.

    Health care is a human right. Everybody In, Nobody Out!

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    "The more profound reason is moral. Health care is a human right that should be treated as a public good --"

    Thank you, thank you, Chris. And excellent treatise on health care policy. This is the issue. Do we argue about whether people have a right to police protection, to fire protection, to education. No! But some in our culture think that medical care is a commodity that can be bought or not, and as such it should be handled in the market place and priced for profit, withheld from those who lack the resources to purchase it. Who is expendable? Whose life doesn't matter? Right now 45 thousand Americans die every year from lack of basic health insurance coverage. (Harvard study) This situation is not sustainable. ACA is not the solution but it is a bridge to one. I think a humane policy bridge to an enhanced Medicare for all is the solution. Having total collapse is not desirable for anyone. And the RW wants the nuclear option, crazy and inhumane as they are. I'm thinking the RW members of the SCOTUS lack fundamental compassion. But I'm hoping and thinking two of them aren't crazy nihilists who want to bring down everything for the sake of ideology. Health care for every human being is the moral issue of our time in this country. And we all need to continue this effort until every person in this country has a seat at the table of dignity and well being.

    One of the erudite conservative judges who ruled at the appeal court level made the important point that health care is something that no one can do without, so it qualifies for constitutional federal intervention. It is not optional, a consumer choice. It is a basic human necessity. It is time we all recognized it and oriented our resources and wills accordingly. I've worked in the human services field all my adult life, and witnessed the terrible suffering of destitute people, adults and children who simply can't even find a way to eliminate pain and disease when they are sick. There is no justification ever for that to go on in our nation. No ideology is worthy of honor that promotes and continues that kind of horror. All of us, all of us, pay the price of that horror.

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    I try to apply what I have learned from 19 years of cancer treatment - and the years I was denied treatment by my "doctor" because of her views on drug policy. Truth is: we could reduce our Healthcare costs dramatically if we had Safe Access to medical marijuana. I don't know if I am the rule or the exception to the rule when it comes to reducing Healthcare costs by choosing medical marijuana, but I have been able to dramatically reduce my prescription drug intake, my ER visits and my doctor visits by close to 85%. Most patients that I meet - and I meet a lot - indicate that I am the rule rather than the exception. The OMMP has been a God's send for me, but many don't join because they can't grow and don't know anyone who can. If there were a regulated supply system, the 9% of Oregonians who qualify for this program would be more likely to join. And it would create new jobs and a new tax base for funding Healthcare programs.

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