Two Strikes Against ObamaCare

ObamaCare is taking on water. With the court decision in Virginia on Monday and the election results in Missouri on Tuesday, the states and the American people are fighting back against this hugely unpopular and intrusive health overhaul law.

The Court Decision

Virginia passed the Health Care Freedom Act early this year to protect its citizens from being forced to purchase health insurance or participate in any health care system against their will. After ObamaCare was enacted in March, Virginia sued, saying the law violates the state statute. The Obama administration petitioned the court to throw out Virginia’s suit.

But in a 32-page opinion released Monday, U.S. District Court Judge Henry Hudson said that Virginia’s challenge to the health overhaul law should proceed. The court will hear arguments in October from attorneys representing Virginia and the federal government to consider the issues on their merits.

Judge Hudson said the case should proceed because:

  1. Virginia has “standing” to sue to defend its valid and conflicting state law from an allegedly unconstitutional federal law.

  2. The controversy is “ripe” for legal consideration because the federal law compels the state to begin now to revamp its laws so it could comply with regulation that “radically changes the landscape of health insurance coverage in America.”

  3. Adjudication is needed on the tax argument because there is a genuine dispute over the purpose of the mandate; rather than being designed to generate revenue, it would be used to regulate conduct, which goes beyond the historical bounds of tax policy.

  4. The court sees further merit in the argument that even actions of Congress under the Necessary and Proper Clause “must be within the letter and spirit of the Constitution.”

Virginia Attorney General Ken Cuccinelli (profiled this week in The Washington Post) is challenging the federal law on the core premise that the Commerce Clause in the Constitution never has been interpreted to regulate inactivity — i.e., someone who chooses to do nothing and not engage in commerce and who thereby refuses to comply with the federal mandate to purchase health insurance.

We are awaiting for the October 18 hearing and will continue to watch as this issue inevitably makes it to the U.S. Supreme Court, likely in 2012 or 2013.

Hat tip to Attorney Bill Schiffbauer for pinpointing these key provisions in the District Court’s opinion.

Show Me State

By a margin of 3 to 1, Missouri voters backed a ballot measure on Tuesday prohibiting the government from requiring people to have health insurance or face penalties.

The Associated Press acknowledges this sends “a clear message of discontent to Washington and Democrats less than 100 days before the midterm elections.”

Seventy-one percent of those voting on Tuesday are now on record as objecting to ObamaCare’s mandate that they purchase federally defined health insurance beginning in 2014. Only 29% supported the mandate.

Like Virginia, the ballot measure seeks to protect Missouri from the new health care law. And like Virginia, this is a big 10th Amendment, state’s rights issue.

The Show Me state is going to show the federal government a thing or two about this incredibly unpopular, unworkable, shockingly expensive legislation.

And there’s more: Jon Caldara and the Independence Institute report they have collected more than enough signatures to get their “Right to Health Care Choice” initiative on the ballot this fall to amend Colorado’s Constitution to protect citizens from mandates and allow them freedom to choose their own health insurance arrangements. Voters in Oklahoma and Arizona also are organizing ballot initiatives.

The Wall Street Journal has an excellent editorial today that gets into the next level of challenges with this legislation.

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Pushback in D.C.: Inside the Beltway in Washington, D.C., Senate Republicans are pushing back against the Obama Administration’s $700,000 advertising campaign, using taxpayer dollars as a piggy bank to gain support for ObamaCare. The campaign features an ad with actor Andy Griffith, the sheriff on the popular 1960s TV show set in the fictional town of Mayberry, N.C.

Sen. Tom Coburn (R-OK) and four other senators sent a letter to HHS Secretary Sebelius saying, “The job of the Executive Branch, quite simply, is to execute and implement the law, not re-litigate a political debate. Using the power of the state and the Treasury to advance the agenda of one political party is an abuse that should not be tolerated, regardless of which party is in power.”

The senators demand that she pay the money back. “We request that you cease the ad campaign immediately and reimburse the U.S. Treasury for any expenditure of taxpayer funds related to this effort,” the senators said.

Would the sheriff of Mayberry mislead you about Medicare? Alas, yes,” said It says the HHS ad is misleading in claiming that benefits in Medicare will remain the same, particularly for those seniors in Medicare Advantage plans, and it accuses the administration of using “weasel words” to hide the truth about changes to Medicare.

“Currently, about 1 in every 4 Medicare beneficiaries is enrolled in a Medicare Advantage plan. For many of them, the words in this ad ring hollow, and the promise that ‘benefits will remain the same’ is just as fictional as the town of Mayberry was when Griffith played the local sheriff,” concluded.

Jim Capretta, Joe Antos, and others also have written about the administration’s phony Medicare report upon which the ad is based.

Tune into a webcast of a conference that the American Enterprise Institute is hosting tomorrow (Friday) morning featuring none other than Rick Foster, the rock star of health actuaries, to discuss the Medicare Trustees’ report, due out today.

Someone needs to tell Sec. Sebelius you just can’t make things up.

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The Real Truth about ObamaCare: Sally Pipes is a superwoman in releasing this week her book telling “The Truth about ObamaCare,” published by Regnery Press.

Sally is on the front lines in the health care battles as president of the Pacific Research Institute and also as a native Canadian who has personal experience with socialized medicine.

Her book is a must-read, with careful documentation to expose the “lies and rhetoric” that were used to push this unpopular legislation into law.


Rep. Pete Stark

In this week’s clip, Rep. Pete Stark (CA-13) answers a question at a town hall meeting regarding the constitutionality of the health law by claiming that “the federal government can do most anything in this country.”
Watch now >>



Docs: Running to Stand Still

Thomas P. Miller, American Enterprise Institute
The American, 08/04/10

The promise of preventive care — particularly when offered for “free” — is a superficially popular feature of the new health overhaul law, Miller writes. At least until inflated demand collides with more limited supply. Just because Congress and the administration have tried to insist that someone else must absorb the hidden pass-through costs of additional “free” care, they cannot ensure that those services actually can be delivered in the volume and manner prescribed by law. Primary care doctors in particular already have complained for years that they feel like hamsters on a treadmill, because they must run faster in seeing more patients for shorter times just to stand still. As with other mismatches between what the new health law commands and imagines, and what everyone else can actually manage to handle or needs, a different approach is urgently needed — one based on different priorities, decentralized tradeoffs, deregulation of health care delivery options, patient responsibility, and common sense.
Read More »

ObamaCare Only Looks Worse Upon Further Review

Kevin Hassett, American Enterprise Institute
Bloomberg, 08/01/10

While many Americans have a vague sense that something bad is happening to their health care, few if any understand exactly what the health overhaul law does, Hassett writes. To fill this vacuum, Rep. Kevin Brady of Texas, the top House Republican on the Joint Economic Committee, asked his staff to prepare a study of the law, including a flow chart that illustrates how the major provisions will work. It’s a terrifying road map that shows Democrats have launched America on the most reckless policy experiment in its history, the economic equivalent of the Bay of Pigs invasion. A sprawling, complex bureaucracy has been set up that will have almost absolute power to dictate terms for participating in the health care system. In vivid color and detail, Congressman Brady’s chart captures the huge expansion of government coming under ObamaCare. Harder to show on paper is the pain it will cause.

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Letting Go

Atul Gawande
The New Yorker, 08/02/10

Our medical system is excellent at trying to stave off death with eight-thousand-dollar-a-month chemotherapy, three-thousand-dollar-a-day intensive care, and five-thousand-dollar-an-hour surgery, but hospice care has tried to offer a new ideal for how we die, Gawande writes. In late 2004, executives at Aetna started an experiment. They knew that only a small percentage of the terminally ill ever halted efforts at curative treatment and enrolled in hospice, and that, when they did, it was usually not until the very end. So Aetna decided to let a group of policyholders with a life expectancy of less than a year receive hospice services without forgoing other treatments. A two-year study of this “concurrent care” program found that enrolled patients were much more likely to use hospice: the figure leaped from twenty-six per cent to seventy per cent. That was no surprise since they weren’t forced to give up anything. The surprising result was that they did give up things. They visited the emergency room almost half as often as the control patients did, and their use of hospitals and I.C.U.s dropped by more than two-thirds. Over-all costs fell by almost a quarter.

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Health Reform’s Bureaucratic Spawn

Gloria Park and Fred Barbash
Politico, 08/03/10

Don’t bother trying to count up the number of agencies, boards and commissions created under the new health overhaul law, Park and Barbash write. Estimating the number is “impossible,” a recent Congressional Research Service report says, and a true count “unknowable.” The law says a lot about some of them and a little about many, and merely mentions a few. Some have been authorized without any instructions on who is to appoint whom, when that might happen and who will pay. Those agencies created without specific appointment or appropriations procedures will have to wait indefinitely for staff and funding before they can function, while others could be just the opposite. One entity might not be enough and could spawn others, resulting in an “indeterminate number of new organizations.”

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A Young Republican With a Sweeping Agenda

Monica Davey
The New York Times, 08/02/10

In this highly charged election season with both houses of Congress at stake, not a lot of politicians are lining up publicly behind Rep. Paul Ryan (R-WI). He is, nonetheless, suddenly a rising star in some corners, The New York Times writes. And like many other politicians whose ideas were once considered extreme, only later to be mainstream — like Ronald Reagan — Mr. Ryan is seen as on the leading edge of something. His “Roadmap for America’s Future,” is an elaborate plan that aims to erase the federal debt by 2063, simplify the tax code and significantly alter Medicare and Social Security. “Do you want this welfare state, which puts us down this tipping point, advances this culture of dependency, moves us away from the America idea toward more of a Western European social democracy welfare state?” asked Rep. Ryan during a recent town hall meeting. “Or the alternative party is offering you an opportunity society on top of a safety net where we reclaim these ideals and principles that founded this country. That’s what we owe you. And if we get back in office and we shrink from that challenge, shame on us.”

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Health Insurance Benefit Exchanges — The ACA Requires Them: But Will They Connect?

Dave Racer, MLitt and Greg Dattilo, CEBS, 08/01/10

If the goal is to reduce health care spending, control cost, increase access, or other vital health care system goals, the Health Exchanges established in the new health laws are a poor choice, Dattilo and Racer write. Exchanges are, in a sense, a super-sized insurance agency. There are already in excess of 120,000 health insurance agents in the U.S. These agents and consultants have managed to enroll 170 million Americans into private health insurance policies. The Exchanges provide a vehicle for the government to subsidize health insurance for millions of people but also dramatically increase its regulatory role in insurance distribution and payment.

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What Do We Really Know About Consumer-Driven Health Plans?

Paul Fronstin
Employee Benefit Research Institute, 08/10

This report examines trends in consumer-driven health plans (CDHPs), especially differences in premiums between CDHPs and other types of insurance and drivers of the premium differences. Key findings:

  • Surveys show that employers offering a CDHP increased from less than 5% in 2005 to between 12-15% by 2009. Growth can be seen across all firm sizes.
  • Overall, 19.1 million, or 11% of individuals with private health insurance, were enrolled in a CDHP in 2009.
  • Generally, premiums for CDHPs were lower than premiums for non-CDHPs.
  • Studies agree that use of preventive services did not change (upward or downward) as a result of the CDHP.

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A separate survey from Fidelity Investments finds that 55% of large employers said that high-deductible health plans would be most attractive to their organizations following passage of the health overhaul law, followed by PPOs and HMOs. If the survey respondent’s organization was already using an HDHP as one of their health care options, they were more likely to consider this plan type to be the more likely option for the future, with 60% of this group choosing HDHPs as making the most sense for their organization.


Utah’s Defined-Contribution Option: Patient-Centered Health Care

Gregg Girvan
The Heritage Foundation, 07/30/10

Utah’s leaders have become innovators in the crucial area of health insurance market reform, Heritage’s Girvan writes. The state of Utah has created a defined-contribution option for employer-sponsored health insurance, which offers workers a tax-free contribution toward the health plan of their choice. Each worker chooses from a menu of plans with different benefits offered by competing insurers through Utah’s health insurance exchange. Enabling employers to offer health insurance on a defined-contribution basis creates new paths for more employers to offer coverage and for more workers to obtain the coverage they prefer and can afford.

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Lost Opportunity: Will ObamaCare Kill Indiana’s Promising Experiment in Health Care Reform?

Paul Howard, Manhattan Institute
City Journal, 08/03/10

Obama?s embrace of a fundamentally flawed reform model may also kill off the nation?s first consumer-driven effort to cover the low-income uninsured, Howard writes. The Healthy Indiana Plan, spearheaded by Gov. Mitch Daniels, offers coverage to low-income Hoosiers who are uninsured but aren’t eligible for traditional Medicaid. Participants partner with the state in funding an individual health spending account, and the state adds catastrophic insurance coverage in case of medical emergencies too expensive for the accounts to handle. Today, about 45,000 low-income Hoosiers are enrolled in the program, with another 49,000 on a waiting list. The health overhaul law could kill HIP by requiring many recipients to enroll in the state’s traditional Medicaid program. For now, the program is in limbo, since the expansion of Medicaid under ObamaCare won’t take effect until 2014. Gov. Daniels has no doubt that his model is worth emulating. The question is whether other states will have any chance to put into practice what Indiana has done so well.

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Millions Spent on Doctor ‘Gagging Orders’ by NHS, Investigation Finds

Nigel Morris
The Independent, 08/02/10

Millions of pounds of taxpayers’ money are being spent on contracts that deter doctors in the U.K.’s National Health Service from speaking out about incompetence and mistakes in patient care, The Independent reports. Hospital doctors who quit their jobs are being routinely forced to sign “gagging orders” despite legislation designed to protect NHS whistleblowers. Nearly 90% of severance agreements hammered out between NHS trusts and departing doctors contain confidentiality clauses. A joint investigation by the Bureau of Investigative Journalism and Channel 4 news has discovered at least 170 doctors in England and Wales agreed to such a settlement with the trust employing them — backed up by pay-offs totaling more than £3 million.

Read More »


10th Annual Focus on Healthcare Conference
BMO Capital Markets Event
Thursday, August 5, 2010
7:15am – 5:00pm
New York, NY
Grace-Marie Turner will participate in the luncheon roundtable discussion on “Healthcare & Money: Reform Never Ends.”

Medicare after Reform: The 2010 Medicare Trustees Report
American Enterprise Institute Event
Friday, August 6, 2010
9:15am- 11:15am
Washington, DC

Health Policy Journalism Institute: Covering Health Care
The National Health Policy Training Alliance for Communities of Color Conference
August 11-13, 2010
New Orleans, LA

Adolescent & Young Adult Health in the Post Reform Era
National Institute for Health Care Management Webinar
Tuesday, August 17, 2010
1:00pm EDT