A look back at the week's health policy news with a
focus on ACA implementation
Welcome to the penultimate edition of this newsletter. No
news yet on what I’ll be doing next, so if anyone is looking for a health
policy expert who has been told he knows how to string words together to form
meaningful sentences, let me know.
This week we'll talk about the Supreme Court subsidy case
including sections on the gathering storm/media frenzy, oral arguments, and the
aftermath/reading the tea leaves.
Believe it or not, there was other news this week. We'll
look at special enrollment periods, cost issues, and pulling together several
different pieces on quality we are reminded that it’s hard to measure something
if you don’t agree on what you are measuring.
Before we dive into the week’s major story, some context. The
Supreme Court case looks at the availability of advanced premium tax credits
(subsidies) for health coverage. A survey of people across the country asked if
they thought that they personally receive a government subsidy to help them pay
for health insurance. The vast majority of people got the answer wrong. 85%
said that no, they did not receive a subsidy, when most of them do. Anyone
receiving Medicare or Employer-sponsored coverage at work is getting government
help. For those about to say, but people pay into the Medicare system, know
that recipients take out multiples of what they've paid in, even after
accounting for inflation. And of course we've discussed in the past the huge
tax break that people getting insurance at work receive (If
you want to know who gets health-care handouts, look in the mirror). And with that in mind…
ACA: King v. Burwell at SCOTUS, haven’t
we been here before?
Unless you've been hibernating (which actually sounds like a
good idea), you know that the Supreme Court heard oral arguments on the subsidy
case this week. Yes, we were here several years ago; at the Court defending the
ACA, but we’re doing it again anyway. Because I have a problem, I’ve read
countless articles on the topic. But my pain is your gain as I’ve tried to
distill the most useful information for you.
I've broken the section into three categories: 1) the gathering
storm/media frenzy 2) oral arguments and 3) the aftermath/reading the tea
leaves
Before we dive in, here is (what I consider) the bottom
line:
- The plaintiffs attempt to argue that subsidies should not be available in states that have not built their own exchange and instead use healthcare.gov.
- Legally, the case does not stand on its merits, there is too much context in the rest of the law indicating that subsidies should be available on healthcare.gov.
- Because we live in a politically polarized environment, the case moved forward.
- If the Court finds for the plaintiffs, there will be a huge human cost as people in healthcare.gov states lose subsidies and those states individual insurance markets collapse due to the dreaded premium death spiral.
- We will end up a country with two types of states, those whose residents have access to health coverage (Medicaid expansion and individual subsidies) and those who don’t. Ironically, it is the poor conservative states whose residents will lose while some of the richer states like NY and CA will receive the bulk of Federal subsidy and expansion dollars.
- Over time, more states will join the haves by expanding Medicaid and creating state exchanges, but it will take years and in the meantime people will die because they don’t have coverage.
- Historically, oral arguments tell us very little about how the Court will decide. Going in we knew that four Justices were on the government’s side and three on the plaintiff’s side. Roberts and Kennedy were always the swing votes.
- Coming out we don’t know much more, although there are some who think Kennedy showed more sympathy for the government case than expected.
- Going in I thought the government had a 51% chance of prevailing, now I think it has a 75% chance – please note these numbers are based on nothing but my own gut and should be taken with a huge grain of salt because let’s face it – nobody has a clue what will happen.
If that’s enough for you, feel free to skip down to the next
section; if you want more, read on.
The gathering storm/media frenzy
It really is a fascinating story. In advance of oral
arguments, many outlets produced “histories”. Among what I thought were the
best, here is a long one from Vox: The accidental
case against Obamacare: How a lawyer, a law professor, and a libertarian found
the Affordable Care Act's secret weakness and one of the shortest, 10
tweets from Larry Levitt: 10
Things to Know About King v. Burwell: KFF's Larry Levitt shares key facts about
the case on ACA subsidies before the Supreme Court.
Here in Maine, MPBN spoke to Andrea Irwin and me about the
case’s impact: Court
Battle Puts Health Coverage of Tens of Thousands of Mainers at Risk. And
the Press Herald took a look as well: Health
care advocates anxious, LePage administration silent as Supreme Court hears
challenge to ACA.
To quote Oppenheimer: “I am become death, the destroyer of
worlds”. Seems I talk about the premium death spiral a lot…
And speaking of destroyer of worlds, several groups of
Republicans released “plans” on what they will do if SCOTUS finds for the plaintiffs.
From both the House (An
Off-Ramp From ObamaCare Republicans John Kline, Paul Ryan and Fred Upton,
chairmen, respectively, of the House committees on Education and Workforce,
Ways and Means, and Energy and Commerce) and Senate (We
have a plan for fixing health care Sens. Lamar Alexander of Tennessee, John
Barrasso of Wyoming and Orrin Hatch of Utah) we get pieces on how they would
proceed in order to minimize the pain of the impact.
These pieces received lots of pushback. First because they
are not really plans, they are buzzwords without substance: Paul
Ryan Thinks We're Fools “It’s much, much easier to throw around talking
points (2011: “fiscally responsible, patient-centered reforms”; 2015: “toward a
patient-centered system”) and to promise the moon than it is to design a policy
that would really work. Or, for that matter, any policy at all -- one with
details that can be studied by the Congressional Budget Office and outside
independent analysts.”
And second, because there is so much disagreement within the
party, it’s hard to see how anything acceptable to the Senate gets by the House
and vice versa: Republicans
say they have a plan if the Supreme Court rules against Obamacare. They don't.
“But even if the op-ed included more details, the bigger problem is there is
absolutely no way House Republicans will permit Senate Republicans to save
Obamacare. House Republicans won't even let Senate Republicans fund the
Department of Homeland Security. The Department of Homeland Security!”
Then of course you have some, like Governor Jindal, who don’t
try and sugarcoat their true agendas: Republicans
Shouldn’t Try to Save Obamacare Subsidies in Wake of King Ruling.
Many of the reports have focused on the legal arguments and have
not mentioned the human cost – those lives that will be put at risk if
subsidies are eliminated. Here are six of those stories: Courting
Disaster: Obamacare Is Back At The Supreme Court, And These 6 Lives Hang In The
Balance “The Huffington Post interviewed six Americans at risk of the worst
effects of a high court ruling against Obamacare. We wanted to know how the law
has affected their lives already, and how the absence of subsidies might affect
them in the future. They told stories of life and death, financial ruin,
lifelong plans in jeopardy and families disrupted. Here are those stories, as
told by the people who would be living them.”
The plaintiffs’ case relies on the theory that the law
intended to deny subsidies to states not setting up their own exchanges. “But
would Congress really have issued a threat of this magnitude in such a
backhanded way? When Vito Corleone in “The Godfather” made a man an offer “he
couldn’t refuse,” he wasn’t subtle about it: “Either his brains or his
signature would be on the contract.” That’s how you threaten somebody. The
phrase “through an exchange established by the state” doesn’t cut it.” (Hello,
Justices? It’s Reality Calling)
“"There's just no way that we would have been having
this conversation about excluding half the country from tax credits … but not
have had the press, our opponents, and many in Congress screaming at the top of
their lungs," Fontenot said. That's why so many health care wonks have
been so stupefied by this challenge. Because they were all there. They all
lived through it. And this issue the Court will debate Wednesday just didn't
come up at the time.” (Why
the Obamacare Case Drives Washington Crazy: Everything you thought you knew
about the Affordable Care Act might be wrong.)
Some states are trying to figure out what to do if the plaintiffs
win: GOP
states revisit Obamacare as Supreme Court weighs subsidies “A total of nine
states now have bills under consideration to set up their own marketplaces,
according to the National Conference of State Legislatures, though in some
cases these efforts began even before the court accepted the subsidies case.”
But it won't be easy: No
easy fix if Supreme Court halts Obamacare cash “But even if HHS were to
enact policies that make it easier for states to create their own exchanges,
the process would take time, money and political will — all of which are in
short supply. Republican governors would have to be part of the solution — and
conservative groups like The Heritage Foundation are encouraging them not to
attempt to salvage Obamacare.”
Then there’s this reminder that Healthcare
reform is a marathon, not a sprint. As we keep in mind with the Medicaid
expansion, history says that over time states will eventually do what’s in
their own best interest. It may take a long time, like the 15+ years it took
all 50 states to adopt Medicaid, but it will get done.
That said, poling shows that the public may not be
interested in waiting that long: Voters
want Congress to take action if health-law tax credits are voided “In the
WSJ/NBC poll, 54% of voters said that if the credits are struck down, Congress
should pass a law to ensure that low- and moderate-income people in all states
can be eligible for government financial help to buy health insurance. Around
35% said Congress should not pass such a law.”
Oral arguments
Here in all its glory is the Official
Transcript of Oral Arguments. The audio recording (there is no video allowed
at SCOTUS) will be available sometime Friday afternoon.
First up from the Washington Post, an account of the
arguments: Supreme
Court justices split in key challenge to Obamacare subsidies. And here is Tim
Jost’s detailed review: King
v. Burwell: Unpacking The Supreme Court Oral Arguments.
There have been several attempts to simplify the issue in
the suit. The one in this article used Wednesday is actually not my favorite, my
favorite is: “"If I ask for pizza from Pizza Hut for lunch but clarify
that I would be fine with a pizza from Domino's, and I then specify that I want
ham and pepperoni on my pizza from Pizza Hut, my friend who returns from
Domino's with a ham and pepperoni pizza has still complied with a literal
construction of my lunch order," Judge Andre Davis wrote in a concurring
opinion back in July, when the Fourth Circuit Court of Appeals upheld the King
case.” (The
simplest explanation of the Obamacare court case, from Justice Elena Kagan)
Putting the jokes aside about having already been to the Supreme
Court defending the law, it is different this time: Health
Care at the High Court: 5 Ways This Time Is Different 1) People Already Are
Using The Health Care Plans 2 It's Not A Constitutional Issue 3) Some States
Are Off The Hook 4) There Are Ways To Save The Law If Obama Loses 5) But It
Could Begin A Death Spiral.
If you don’t want to read the transcript, here are 10
Key Obamacare Supreme Court Moments--And A Moment That Wasn't. And The
5 Most Important Quotes From SCOTUS’ Obamacare Arguments.
As usually happens, all did not go as expected. Here are 3
huge surprises at Obamacare’s oral arguments “Take it all together, and the
takeaway from the day is similar to where the law was in 2012: at the hands of
a court that could go in a variety of directions. The liberal justices appeared
ready to side with the White House. But swing votes in Kennedy and Roberts were
less clear. And while last time Obamacare was in front of the court most
observers ended up being wrong about which way the court seemed likely to go,
this time it's tougher to even take a real guess. 1) Kennedy raised the idea
that there might be a constitutional issue at play in King 2) Justice Ginsburg
questioned standing 3) Extending tax subsidies until the end of the year?
And of course there were moments of humor: “"What about
Congress? You really think Congress is just going to sit there while all of
these disastrous consequences ensue?" he asked Verrilli. "I mean, how
often have we come out with a decision … [and] Congress adjusts—enacts a
statute that takes care of the problem? It happens all the time. Why is that
not going to happen here?" "This Congress, your honor?" Verrilli
replied. "Of course, theoretically, they could."” (Antonin
Scalia: Won’t Congress Fix Obamacare?)
The aftermath/reading the tea leaves
So what does it all mean?
The truth is, No one
knows how the Supreme Court will rule on Obamacare “So as tempting as it is
to read the tea leaves, set them aside until June -- when the Court hands down
its ruling.”
With that disclaimer in mind you can skip down to the next
section. Or, you can play along at home as we try and read the tea leaves
anyway.
While we won't know the outcome until June, the Justices may
know as soon as this Friday when they start their deliberations. SCOTUSblog takes
a look at how that might go: Argument
analysis: Setting up the private debate on the ACA “On Friday morning, when
the Justices start their private conversation on the case of King v. Burwell,
what those three said in public in an eighty-four-minute hearing Wednesday
could set the tone, and the public signs were that the tone could be mostly
favorable to the government — that is, the chances seemed greater for a ruling
salvaging a nationwide subsidy system that makes the new health care insurance
exchanges actually work in an economic sense, thus keeping it alive.”
Of course as soon as Court adjourned, Both
sides claim victory in latest challenge to the Affordable Care Act “With
Supreme Court justices divided over the latest challenge to the Affordable Care
Act, the legal battle spilled onto the courthouse steps on Wednesday, with
attorneys on both sides claiming victory and continuing their arguments before
television microphones and flashing cameras. Though both sides said they
thought the arguments before the court had gone well, lawyers supporting the
Obama administration seemed a bit more confident that the justices will
ultimately uphold the controversial federal tax subsidies for health care at
the heart of Wednesday’s oral arguments.”
Many came out talking about Kennedy and Roberts, but as we’re
reminded, that’s who we were talking about going in: Justices
Kennedy, Roberts are ‘votes in play’ - Today: 'Two justices came in with
question marks over their heads' “Sprung: So what is the final takeaway?
Bagley: Two justices came in with question marks over their heads. I don’t
think we learned much from either about how they’re thinking about the case.
So, although it’s interesting and it sounds like the Court understands the case
and is grappling with it seriously, I don’t know that we learned a great deal.”
Much was made of Kennedy’s questions: “In a pleasant
surprise for the administration, however, Justice Anthony M. Kennedy, who was
in dissent in 2012, made several comments indicating that his vote was in play.”
(At
Least One Justice Is in Play as Supreme Court Hears Affordable Care Act Case)
and “In asking the question, Kennedy could be hinting that he’s reluctant to
construe the ACA to contain the sort of ambiguity that would normally trigger
Chevron deference. Then again, he might just be putting the government through
its paces. It’s tough to say. Fortunately, there’s an answer to Kennedy’s
question. I drafted an amicus brief explaining why deferring to Treasury here
would be entirely appropriate.” (Deferring
to the IRS)
One other surprise was the possibility of a stay to soften
the blow of losing subsidies: Obamacare
May Get More Time for a Solution, Justice Alito Says “Justice Samuel Alito
floated the idea of giving the government more time to respond if the Supreme
Court strikes down tax credits for millions of people insured under Obamacare.
Americans may be allowed to continue receiving subsidies for their Obamacare
premiums until the end of the year, even if the Supreme Court rules the tax
credits are illegal in three-quarters of the country, said Alito, an appointee
of President George W. Bush. He spoke during arguments Wednesday on a new case
threatening the Patient Protection and Affordable Care Act.”
Tim Jost also tried to peer into the future finding Four
Ways Obamacare Can Survive the Supremes “The justices' questions offer some
support for the law's supporters. At this point the government has four paths
to victory; the challengers have only one.”
In addition to pundits, the stock markets also try to
immediately predict the future – and how stocks will be impacted. So in what
can only be interpreted as a positive sign for the government’s case Hospital
stocks rise on Supreme Court hopes, could sink on ruling “Shares of HCA,
Community Health Systems, Tenet Healthcare Corp. and other publicly traded
chains popped about 5% Wednesday as the news surfaced that Justice Anthony
Kennedy made comments that seemed to indicate he might be doubting plaintiffs'
arguments. Kennedy is considered a key swing vote in the case.”
And finally, let’s remember that Even
With an Unfavorable Court Ruling, Much of Obamacare Would Live On.
ACA
For now, subsidies remain and the work of signing people up
for health insurance continues: Sign-Up
Season Is Over, But List Of Special Enrollment Events Is Expanding “The list
of situations that trigger a special, 60-DAY enrollment period will get longer
in April, when a new rule issued by the Department of Health and Human Services
takes effect.”
And while it didn't make the initial list of new situations
triggering special enrollment periods, the debate continues: Should
women be allowed to sign up for Obamacare when they get pregnant? “Twenty
organizations are lobbying the Obama administration to let women sign up for
coverage immediately after becoming pregnant — and not have to wait until the
next enrollment period. In early March, 37 Democratic senators encouraged the
special enrollment period for pregnant women in a letter to HHS secretary
Sylvia Burwell.”
Drugs
In a well-deserved slap at the made up condition of “low-T”
the FDA
Orders Testosterone Label Limits, Heart Attack Warnings “Makers of testosterone
drugs must change the products’ labels to clarify they are approved for only
certain disorders, not to help men deal with aging, U.S. regulators said.”
Vox took a look at one piece of the puzzle to solving antibiotic
resistance, and why we won’t see the progress we would hope for: Congress
could help solve antibiotic resistance. This Congresswoman explains why it
won't. “Rep. Louise Slaughter, the only microbiologist in Congress, has
been leading the push to stop the overuse of antibiotics on farms through the
Preservation of Antibiotics for Medical Treatment Act (PAMTA). This is a hugely
important aim: 80 percent of antibiotics in the US are used on animals. So far,
Slaughter has met resistance at every turn. PAMTA has been re-introduced four
times since she took it over in 2007, repeatedly dying on the house floor.”
Costs
We don't talk about cost effectiveness in this country
nearly as much as we should. A great video discussing the issue: Healthcare
Triage: Cost Effectiveness in Medicine is not a Dirty Word. If you’re not familiar
with Healthcare Triage, you should be – a weekly video series from Aaron E.
Carroll, MD, MS is a Professor of Pediatrics and Assistant Dean for Research
Mentoring at Indiana University School of Medicine.
In this next piece, two doctors look at how to fix the way
we pay for care: “Being well isn’t simply having your diabetes under control,
it is preventing you from getting diabetes in the first place. If we continue
to commoditize patients, valuing their ailments over their wellness, we miss
the opportunity to provide the very care we claim to offer, health. So how do
we re-organize the way we pay for care to build a health care system instead of
perpetuating a sick care system?” (3
ways to change the way we pay for care)
We certainly need to figure out new ways. One way Medicare
is piloting is bundled payments. Unfortunately, the initial review of the
program is inconclusive: First
analysis of Medicare bundled payments: Check back next year ““We are
limited in our ability to draw conclusions about the effects of (the Bundled
Payments for Care Improvement program) because of the small sample sizes and
short time-frames,” reads the report, which was drafted by the Lewin Group. “As
a result, this first Annual Report may be better thought of as the outline for
future analyses as more participants enter BPCI and gain greater experiences
under the initiative.””
Meanwhile, other attempts to save money are meeting with
resistance: Hospitals
mount campaign against site-neutral Medicare payments “Hospital leaders are
working to head off any momentum in Congress toward overhauling Medicare rates
to pay hospitals the same for outpatient services as the program pays for the
same services in physician offices. The Medicare Payment Advisory Commission
has pushed site-neutral payment policies for years. The panel will make the
same recommendation to lawmakers in its March report, and the change could mean
a $1.44 billion annual drop in reimbursement if Congress adopts it.”
And finally, a look at why, if costs are moderating, middle-class
workers are not benefiting: The
Great Cost Shift: Why Middle-Class Workers Do Not Feel the Health Care Spending
Slowdown “The actual reason why employee and employer costs are increasing
at different rates is because employers have, over time, shifted greater
responsibility for health care expenses to their employees through higher
deductibles, higher copayments, and higher coinsurance—a practice that began
long before the passage of the ACA. Other employers pay smaller shares of their
employees’ health care premiums.”
System Transformation
An important piece (yes, I know that sounds pretentious, but
in this case it’s true) about patient engagement: “If we knew more, would we
opt for different kinds and amounts of health care? Despite the existence of
metrics to help patients appreciate benefits and harms, a new systematic review
suggests that our expectations are not consistent with the facts. Most patients
overestimate the benefits of medical treatments, and underestimate the harms;
because of that, they use more care.” (If
Patients Only Knew: When More Information Means Less Treatment)
And equally important, for different reasons, is the study
by health affairs comparing hospital ratings. We still don’t agree on what
quality is or how to measure it: “The analysis, published on Monday in the academic
journal Health Affairs, looked at hospital ratings from two publications, U.S.
News & World Report and Consumer Reports; Healthgrades, a Denver company;
and the Leapfrog Group, an employer-financed nonprofit organization. No
hospital was considered to be a high performer by all four, according to the
study of the ratings from mid-20to mid-2013, and the vast majority of hospitals
earned that distinction from only one of the four. Some hospitals were even
designated as a high performer by one group and a low performer by another.
“The complexity and opacity of the ratings is likely to cause confusion instead
of driving patients and purchasers to higher-quality, safer care,” the authors
said.” (Hospital
Rating Systems Differ on Best and Worst) Primary
Source: National Hospital
Ratings Systems Share Few Common Scores And May Generate Confusion Instead Of
Clarity
But we keep trying to figure out what quality is, as shown
by this CMS report: National
Impact Assessment of the Centers for Medicare & Medicaid Services (CMS)
Quality Measures Reports “The 2015 Impact Report encompasses 25 CMS
programs and nearly 700 quality measures from 2006 to 20and employs nine key
research questions.”
And this piece on competing approaches: Subjective
vs. objective value in health care “In assessing “value” in health care,
there’s a bit of tension among the experts. Some emphasize satisfaction, others
quality metrics. It’s subjective vs. objective. Which way is best?”
Filed under unintended consequences, this piece on the
drawbacks of a much used quality measure: A
Surgery Standard Under Fire “However laudable the intent, reliance on
30-day mortality as a surgical report card has also generated growing
controversy. Some experts believe pressures for superior 30-day statistics can
cause unacknowledged harm, discouraging surgery for patients who could benefit
and sentencing others to long stays in I.C.U.s and nursing homes.”
It’s hard enough if everyone is trying their best, throw
human weakness into the situation and you get this: Patient
safety expert Denham will pay $1 million to settle kickback allegations “Dr.
Charles Denham, a former leader of the National Quality Forum's Safe Practices
Committee, has agreed to pay the federal government $1 million to settle
allegations that he accepted cash in exchange for influencing the committee's
recommendations.”
Shifting gears, some vaccine news this week. First, a survey
showing Most
Doctors Give In to Requests by Parents to Alter Vaccine Schedules “A wide
majority of pediatricians and family physicians acquiesce to parents who wish
to delay vaccinating their children, even though the doctors feel these
decisions put children at risk for measles, whooping cough and other ailments,
a new survey has found.”
On a positive note, some data that after the Disney outbreak
we may be seeing a spike in vaccinations: Shot
in the right direction “Athenahealth, a company that provides cloud-based
electronic record storage to primary care givers around the country, has enough
clients to be able to follow health trends in real time. The data, generated
anonymously, show an uptick in measles vaccinations in California the week
starting January 25th, just as stories about the measles outbreak started
taking off.”
On a more entertaining but no less serious note, Jimmy
Kimmel has two videos on the topic. First with doctors: Jimmy
Kimmel got doctors to swear at cameras to convince people to get vaccinated
“A bunch of doctors went on Jimmy Kimmel Live on Thursday with a very clear
message: get your children vaccinated. "Here in LA, there are schools in
which 20 percent of the children aren't vaccinated," Kimmel said,
"because parents here are more scared of gluten than they are of
smallpox."”
And then with the public: Vaccine
or lollipop? Jimmy Kimmel asks kids this tough question.
While we're talking about videos, with this week’s
release of the new season of House of Cards, there’s no better time to revisit Dr.
House of Cards.
All
comments and suggestions are welcome; please let me know what you think. And as
always, thanks for reading!
Funded by support from
the Maine Health Access Foundation
*The title is a tribute to the BBC show, the NBC show and the amazing Tom Lehrer album "That Was The Year That Was"
