By Marina Renton
As a public health major at Brown University, I’ll admit I’m biased: When the King v. Burwell decision was handed down this week, I was absolutely elated. The decision felt exactly right to me; people were not going to lose their health care coverage, and more might even have the chance to gain it.
But the case is complicated, so to really understand the take-home messages, I consulted a couple of health care policy experts.
One is Ira Wilson, professor of Health Services, Policy and Practice at Brown University, who taught my “Health Care in the United States” class last semester.
The other is Michael Doonan, assistant professor at the Heller School for Social Policy and Management at Brandeis and executive director of the Massachusetts Health Policy Forum
Their responses are lightly edited:
MR: What background do we need to understand the Supreme Court decision?
IW: One of the core tenets of health care reform is that people who can’t afford insurance get subsidies so that they can buy it.
• Reforms insurance by doing things like preventing denials due to pre-existing conditions. So it requires that insurance do certain things that it hasn’t always done in the past.
• Requires that everybody get insurance. That’s the individual mandate, and that was covered in the 2012 challenge and then upheld in the 2012 case.
• Requires that affordable insurance be available to everyone. And this King case threw into question that third leg of the stool, as it were. Or at least it brought it into question for the states that, rather than deciding to develop their own exchange, used a federal one. So without this, the entire framework for health care reform in those states that have a federal exchange begins to fall apart. And as we know because we’ve seen lots of articles about estimating how many people would lose insurance if those subsidies were taken away (estimates were in the six million range), it would have a devastating impact on people who are now insured who would lose it.
What does the ruling say about Obamacare?
MD: If the Supreme Court had ruled against the government and said that the subsidies could not be available in the 34 states that have federally run exchanges, it might not have been the death of Obamacare, but it certainly would have put it on life support. So this decision is really critical in helping root and solidify the Affordable Care Act. And the more it gets rooted in each of the states, the harder it’s going to be to repeal.
IW: So this actually was a 6-3 decision, not a 5-4 decision. And it does seem to me the fact that both Justice Roberts and Justice Kennedy — who were the two that one might have imagined might have been on the other side of this issue — came down on the side of upholding these subsidies is a bit of a statement.
What if the ruling had gone the other way?
MD: Think about Texas. Now, in Texas, there are about 1.1 million people who are enrolled in that exchange, that marketplace. Well, 90% of them — over 900,000 people — are receiving those subsidies, and they could have lost their insurance.
And it’s not only important that people lose their insurance, which is the most critical thing, but hospitals would see many, many more uninsured patients. So even people adamantly opposed — I think that even Republican governors who are opposed to this are secretly saying, “Oh my gosh; thank goodness.” This would have caused them a tremendous, tremendous burden, because they would have seen more uninsured.
IW: Had it gone the other way, there would not only have been a whole set of immediate short-term problems that relate to the states that have federal exchanges, but you begin to develop momentum to repeal the whole thing, or you start to develop momentum for opponents of health care reform to be emboldened and to challenge more things. And so there’s this whole sense of momentum behind health care reform, which I think would be seriously impaired.
What does this mean for the future?
MD: Repeal of Obamacare is almost off the table. This is the number one domestic policy legacy issue for the President, and it just got saved. Millions more people are going to have health insurance, and the ACA is going to be something that gets even stronger because of this. I bet we see some of the states who are not participating participate by expanding their Medicaid, by looking to the federal government to see if they can cover more people in creative ways.
IW: Repeal still could happen. But the point is it becomes much, much harder. You have two major Supreme Court decisions in support of the constitutionality of proceeding in this direction.
I think the big picture is that there’s a lot to do to continue to implement, and implement effectively, the ACA. This is a marathon, not a sprint. It’s a long process. And what the ruling means is that people can keep focused on doing that implementation work rather than rethinking it altogether.
Judge Strikes California Law That Allowed Nursing Homes To Make Medical Decisions For Mentally Incompetent Residents
A California law allowing nursing homes to make medical decisions on behalf of certain mentally incompetent residents is unconstitutional, a state court ruled this week.
The law, which has been in effect more than 20 years, gave nursing homes authority to decide residents’ medical treatment if a doctor determined they were unable to do so and they had no one to represent them.
Alameda County Superior Court Judge Evelio M. Grillo wrote in the June 24 decision that the law violates patients’ due process rights because it doesn’t require nursing homes to notify patients they have been deemed incapacitated or to give them the chance to object.
Grillo acknowledged the decision is likely to “create problems” in how nursing home operate but wrote that patients’ rights are more compelling.Use Our Content This KHN story can be republished for free (details).
“The stakes are simply too high to hold otherwise,” the judge wrote. Any error could deprive patients of their rights to make medical decisions that “may result in significant consequences, including death.”
The fact that nursing homes are making end-of-life decisions without patient input is a big concern, according to the ruling. The decision cited one nursing home resident who was found to be mentally incapacitated and who had no representative. The facility staff made a decision to take him off life-sustaining treatment and he passed away in 2013.
The ruling came after the California Advocates for Nursing Home Reform, an advocacy group, filed a lawsuit in 2013 against the state Department of Public Health. The suit alleged that nursing homes used the law to administer anti-psychotic drugs, place residents in physical restraints and deny patients life-sustaining treatment.
Tony Chicotel, a staff attorney for the group, said the ruling will dramatically impact the lives of the most vulnerable nursing home residents.
“What [nursing homes] used to do was routinely make decisions big and small for their residents without really any regard to due process,” Chicotel said. “Now the residents are finally going to have their rights acknowledged and honored.”
Even patients who are compromised should still have a say in their medical care, he added.
“They have been ignored,” he said. “Unrepresented residents and the way they are treated in nursing homes has never been a priority of the Department of Public Health.”
The department is reviewing the decision, a spokesman said. Department officials declined to comment further or say whether they planned to appeal.
The law was enacted in 1992 because nursing facilities needed a way to give medical treatment to their incapacitated residents without having to wait up to six months for state approval, according to the ruling.
But the decision could make it challenging for nursing homes to provide routine medical care or to offer hospice care to residents who lack the mental capacity to make their own decisions and have no designated representatives, said Mark Reagan, an attorney representing the trade group, California Association of Health Facilities, which is not part of the lawsuit.
“If the person objects, then what?” Reagan said. “That can put patients and facilities in a difficult place.”
And seeking court approval to provide anti-psychotic medication to residents who truly need it would be costly and time-consuming for nursing facilities, he said. “How do you keep that person safe and how do you keep the other residents of the skilled nursing facility safe?” he said.
Reagan believes the ruling could have an unanticipated outcome: Patients without decision-makers could have a hard time finding a nursing facility willing to take them.
“If this decision makes it more difficult to supply necessary care at the bedside, this population is going to be less served,” he said.
The judge, however, wrote that informing patients and allowing them to object is not likely to result in any significant burdens on nursing homes.
If the physician networks for plans sold on the health law’s online insurance exchanges were T-shirts, more than 40 percent would be size X-small or small. That’s the takeaway from a new study that analyzed nearly 400 physician networks in silver-level plans sold around the country in 2014.
The study labeled 11 percent of plans “extra small” because they covered fewer than 10 percent of physicians in a plan’s region. Another 30 percent were “small,” meaning they covered between 10 and 25 percent of physicians. Just 11 percent of plans were classified as “extra large” because they covered at least 60 percent of physicians in the area.
As consumers shop for coverage on the exchanges, knowing the trade-off between premium price and network size could be important to some, says Kathy Hempstead, director of the coverage team at the Robert Wood Johnson Foundation, which funded the study.
“People don’t have a good way to understand what they’re buying,” Hempstead says. “I think we need to frontload more consumer information, and what your network is like is important.”More from this series
Plan type isn’t a good indicator of network size, according to the study by researchers at the University of Pennsylvania’s Leonard David Institute of Health Economics. Eighty percent of the plans offered on the marketplaces were either preferred provider organizations or health maintenance organizations. Yet even though HMOs typically don’t cover any out-of-network providers, more than half of HMO physician networks were either small or very small. By contrast, only a quarter of PPOs, which typically cover providers who are outside the plan’s network, had physician networks that were classified as either small or very small.
Under the health law, health plans have to “maintain a network that is sufficient in number and types of providers … to assure that all services will be accessible to enrollees without unreasonable delay.”Use Our Content This KHN story can be republished for free (details).
Previously, the consulting firm McKinsey & Co. analyzed narrow networks based on the proportion of hospitals that participated in a plan’s service area. This is the first study to examine physician participation in exchange plan networks, Hempstead says.
“If you’re going to be in a direct-to-consumer market you have to be ready for these issues,” she says.
Please contact Kaiser Health News to send comments or ideas for future topics for the Insuring Your Health column.
In its first five years, the Affordable Care Act has survived technical meltdowns, a presidential election, two Supreme Court challenges — including one resolved Thursday — and dozens of repeal efforts in Congress. But its long-term future still isn’t ensured. Here are five of the biggest hurdles left for the law:
Medicaid Expansion. About 4 million more Americans would gain coverage if all states expand the state-federal Medicaid programs to cover people with incomes at or slightly above the poverty line. Twenty-one states with Republican governors or GOP-controlled legislatures, including Texas and Florida, have balked, citing ideological objections, their own budget pressures, as well as skepticism about Washington’s long-term commitment to pay for most of the costs.Special Coverage: King v. Burwell
Read The Decision (PDF)
Video Analysis: Why Did The Supreme Court Uphold The Health Law’s Subsidies?
Anemic Enrollment. Eighteen million Americans who are eligible to buy insurance in federal and state marketplaces haven’t purchased it. Those marketplaces have had particular trouble enrolling Hispanics, young adults and people who object to being told to buy insurance. Federal funding used by state marketplaces to enroll people and advertise is drying up. Many state marketplaces haven’t figured out how to be self-sustaining. Vermont, Hawaii, Colorado and Rhode Island are among those states searching for more money. The penalty for going without coverage rises next year to $695 per adult or 2.5 percent of family income—whichever is larger.
Market Stability. Nationally, premiums haven’t gone up too much on average in the first two years of the marketplaces, but that could change. The federal government has been protecting insurers from unexpectedly high medical bills, but that cushion disappears after next year. At the same time, insurers finally have enough experience with their initial customers to figure out if their premiums are sufficient to cover medical costs. If they’re not, expect increases.
Affordability. People who get their insurance through their employer have mostly been spared jolts from the health law. But the federal government begins taxing expensive health plans in 2018. The “Cadillac tax,” created by the health law, will pressure employers to offer skimpier health coverage or pass the taxes’ cost on to their employees. Also, individuals buying their insurance on the health law marketplaces continue to risk large out-of-pocket costs if they need lots of care. Their maximum financial obligations for next year are $6,850 for individuals and $13,700 for families. Those who choose to go out of their insurance network may have no ceiling on how much they may have to pay.Use Our Content This KHN story can be republished for free (details).
Political Resistance. Thursday’s ruling did little to diminish the GOP’s zeal to repeal the health law. Republicans on both sides of the Capitol pledged to continue their efforts to kill the ACA. A lawsuit filed by House Republicans last year alleges the president overstepped his authority when implementing the health law. The topic remains grist for the 2016 presidential campaign, with several Republican presidential candidates – including Sen. Lindsey Graham, R-S.C., and former Florida Gov. Jeb Bush — reiterating their desire to repeal the law. If the Republicans capture both the White House and Congress in 2016, all bets are off over whether the law survives intact.
Kaiser Health News writers Julie Appleby, Mary Agnes Carey, Phil Galewitz and Jordan Rau contributed to this report.
This story was updated at 4:11 PM.
The Affordable Care Act made it through its second do-or-die Supreme Court test in three years, raising odds for its survival but by no means ending the legal and political assaults on it five years after it became law.
The 6-3 ruling, a major win for the White House, stopped a challenge that would have erased tax-credit subsidies in at least 34 states for individuals and families buying insurance through the federal government’s online marketplace. Such a result would have made coverage unaffordable for millions and created price spirals for those who kept their policies, many experts predicted.
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John Roberts wrote in the majority opinion for the court. Abolishing the subsidies, he said, “could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner.”Special Coverage: King v. Burwell
Read The Decision (PDF)
Video Analysis: Why Did The Supreme Court Uphold The Health Law’s Subsidies?
Democrats and consumer advocates praised the result.
“If the partisan challenge to this law had succeeded, millions of Americans would have had thousands of dollars worth of tax credits taken from them,” President Barack Obama said at the White House. With Thursday’s ruling, he said, “the Affordable Care Act is here to stay.”
Arkadi Gerney, senior vice president at the liberal Center for American Progress, called the decision “incredibly important” and “a repudiation of what has been this five-year campaign by conservatives … to try to undo this law.”
Republicans lamented the ruling and attacked the law that has been a conservative target from the day it took effect.
“Today’s ruling won’t change Obamacare’s multitude of broken promises, including the one that resulted in millions of Americans losing the coverage they wanted to keep,” said Majority Leader Mitch McConnell, R-Ky., said on the Senate floor. “Today’s ruling won’t change the skyrocketing costs of copays, deductibles and premiums that have hit in the last few years.”
But even a victory for the law closely identified with Obama in the case known as King v. Burwell leaves the health system with incomplete insurance coverage, rising costs and other uncertainties. The ACA itself still faces several lawsuits, although some believe Thursday’s decision will discourage judges from advancing the cases.Use Our Content This KHN story can be republished for free (details).
One threat the law doesn’t seem to face is the possibility that future administrations could reverse the high court’s decision through regulation. The King case was partly about whether the Internal Revenue Service could grant subsidies on its own authority in the face of mixed signals from Congress.
But Roberts wrote that “this is not a case for the IRS.”
Such language “binds this administration and any future administration,” said Kevin Russell, a partner in the Maryland law firm Goldstein & Russell who has argued before the court.
Tom Miller, a lawyer at the American Enterprise Institute, said Robert’s decision “made it much more uphill” for a future administration or other legal challengers to dismantle the law.
Republicans controlling Congress are likely to advance legislation amending or repealing the law, analysts said.
Even so, the only bills likely to go anywhere before Obama leaves office in 2017 are those with bipartisan support that change relatively minor parts, said John Feehery, a Republican strategist at Quinn Gillespie.
Such measures might include repealing a tax on medical devices such as artery stents and artificial knees and scrapping or changing the “Cadillac tax” on high-benefit health plans, he said.
“A comprehensive alternative” to the health law “is just not going to happen,” thanks to the threat of an Obama veto, Feehery said. “If [Republicans] want to do anything about the ACA, they need to help make the next president a Republican.”
Even that might prove challenging. By then the health law will be almost seven years old and deeply entwined in American life.
“With another year and a half of business as usual under the ACA, if it’s a Republican as the next president, it’ll be that much more difficult to make changes,” said Joseph Antos, a health care economist at the American Enterprise Institute.
The case hinged on tax credits created by Congress to help middle-income consumers buy insurance through online marketplaces, also known as exchanges.
The subsidies are available through an exchange “established by the state,” according to the law.
Thirty-four states did not set up their own exchanges and rely instead on healthcare.gov, run by the federal government. Lawyers for the plaintiffs argued that, as a result, millions of consumers in those states should not receive tax credits to pay premiums.
Justice Antonin Scalia agreed. “Today’s interpretation is not merely unnatural; it is unheard of,” he wrote in the dissenting opinion. “Who would ever have dreamt that ‘Exchange established by the State’ means ‘Exchange established by the State or the Federal Government’?”
The Supreme Court of the United States has shown such partiality to the health law, he added, that “we should start calling this law SCOTUScare.”
Pulling the subsidies would have undermined the insurance market in those states to the point of likely failure, experts said. Unable to afford the coverage, many consumers would have dropped out. Those remaining would probably have been older and sicker, driving up premiums to unsustainable levels.
Eighty-five percent of those who bought insurance through healthcare.gov qualified for subsidies averaging $272 per month. The Department of Health and Human Services predicted 6.4 million people would have lost subsidies if the court ruled for the plaintiffs.
Those subsidies are effectively revenue for hospitals and health insurers, financing premiums and the cost of care. Both industries are relieved they were upheld.
“The possible loss of the subsidies would have been chaotic for millions of people and for the health care providers who are trying to play by the rules,” said Alan Levine, CEO of Mountain States Health System in Johnson City, Tenn.
“I’m ecstatic and extremely pleased,” said George Masi, CEO of Harris Health System, a Houston agency that cares for the poor at two public hospitals and numerous clinics.
A loss for the administration would have affected employer-based coverage as well, although not nearly as much, benefits lawyers said.
For large employers not offering health insurance, penalties are triggered when workers obtain subsidies in the marketplaces. No subsidies, no penalties, so employers could have dropped coverage without fearing fines.
Although employers are focused on complicated, health-law reporting requirements that take effect this year, their situation changes little in the wake of the decision, said Edward Fensholt, a benefits lawyer with brokers Lockton Companies.
“The working assumption has been, ‘We need to offer this coverage to our full-time employees or we’re going to risk these penalties,’” he said. “And that’s not going to change.”
ACA supporters said the lack of a reference to tax credits for the federal exchange was a drafting error and that Congress intended for subsidies to be available regardless of the platform. Lawyers for the plaintiffs said the government must follow the letter of the law.
The health law faces other legal cases, including objections from religious institutions to their role in providing birth control coverage and a suit by the House of Representatives contending that Obama’s delay in requiring employers to offer coverage was illegal.
But even if legal challenges to the law disappear, health insurers, doctors and hospitals face broad uncertainty.
Signups for 2015 exchange coverage were lackluster. At the end of March, a little more than 10 million people had enrolled and paid for insurance, less than the 13 million the nonpartisan Congressional Budget Office was projecting last year.
Supporters of the law are pushing for more states to expand Medicaid, renewed enrollment efforts for exchanges and new measures address coverage affordability.
“Everyone who is involved with it knows there are issues where it can be improved,” Linda Blumberg, a senior fellow at the Urban Institute, said after the ruling. “Having this litigation behind us allows us to look at the law very carefully at which areas can be improved and what’s the best way to do it.”
Health costs seem to be creeping up again in a system that is already the most expensive in the world, although there is partisan disagreement on whether the health law is containing expenses or fueling them.
In recent years large, self-insured employers have seen decades-low health-spending increases of 4 or 5 percent a year, said Dale Yamamoto, an independent actuary who works closely with such companies. So far this year those companies are seeing 6 or 8 percent, he said.
“Everyone I’m talking to — it sounds like they’ve started to go up this year,” he said. “If it’s going up for them, it’s probably going up on the individual side as well.”
Jordan Rau, Julie Appleby, Phil Galewitz, Lisa Gillespie, Anna Gorman, Shefali Luthra and Alana Pockros contributed to this story.
The Supreme Court Thursday upheld a key part of the 2010 health law – tax subsidies for people who buy health insurance on marketplaces run by the federal government. KHN’s Mary Agnes Carey discusses the decision with Stuart Taylor Jr., of the Brookings Institution, and KHN’s Julie Appleby.
MARY AGNES CAREY, KAISER HEALTH NEWS: Welcome to Kaiser Health News, I’m Mary Agnes Carey. By a vote of 6-3, the Supreme Court today upheld the health law subsidies that helped millions of Americans purchase health insurance. With me now to discuss the decision is legal analyst Stuart Taylor of the Brookings Institution, and Kaiser Health News Senior Correspondent Julie Appleby. Thanks to both of you for being here.
STUART TAYLOR JR., THE BROOKINGS INSTITUTION: Nice to be with you.
JULIE APPLEBY, KAISER HEALTH NEWS: Good to be here.Special Coverage: King v. Burwell
Why Did The Supreme Court Uphold The Health Law’s Subsidies?
MARY AGNES CAREY: Stuart, I want to start with you. I want to talk about ]what Chief] Justice Roberts wrote for the majority. Why did he uphold the administration on this subsidy issue?
STUART TAYLOR JR.: The chief justice began by acknowledging that a few poorly words in this 2,700-page law, if they were interpreted literally, would cripple the Affordable Care Act in 34 states for complicated reason. So he said, but we don’t have to interpret these words literally, we shouldn’t interpret them literally, because when you read them in the structure of lots of interlocking provisions of this statute, in that context and in the overall structure, they become ambiguous. And then you look to what was Congress trying to accomplish here? They were trying to improve insurance markets all over the country. We shouldn’t interpret this law, unless we really have to, in terms of language, as having to destroy health insurance markets.
Because he explained that it would destroy health insurance markets if the Obama interpretation were rejected. First, it would mean there would be no premium subsidies for millions and millions of people in those 34 states. Then, many of them wouldn’t be able to apply for insurance. They wouldn’t buy insurance; others would no longer have to buy the insurance for complicated reasons, and there would be what he called the “death spiral.” With premiums soaring because only sick people are getting insured, he says, Congress certainly didn’t mean that to happen. And that heavily influenced his interpretation.Use Our Content This KHN story can be republished for free (details).
MARY AGNES CAREY: Justice Scalia wrote the dissent. He was equally as spirited in a completely different reading.
STUART TAYLOR JR.: Yes, I’m just looking at some of his adjectives, he’s always fun for adjectives. Absurd, feeble, indefensible and my favorite was a noun interpreted “jiggery pokery.”
MARY AGNES CAREY: Yeah, I like that one.
STUART TAYLOR JR.: Those were the ways he characterized the Roberts’ opinion and he went on in his usual eloquent hyperbolic dyspeptic way for 21 pages to trash the majority opinion. And Roberts responded, as is customary in majority opinions, in a much more measured fashion in a few little footnotes saying well Justice Scalia says X or the defense says Y, but we disagree, here’s why.
MARY AGNES CAREY: So in the dissent, the words “established by the state” were interpreted much more literally as an exchange established by the State. That’s how I read that as well.
STUART TAYLOR JR.: Exactly and that’s what was forecast and that’s the whole argument in the case. Does the fact that they said subsidies are available in exchanges, marketplaces established by the state as opposed to those established by the federal government, are people in those ineligible unless they are established by the State,
Does that mean you can’t get a subsidy? And the dissent basically said, “It means what it says, it says what it means.” And the majority said, “Ah, not so fast.” Sometimes, things don’t say exactly what they seem to say when you read them in their larger context.
MARY AGNES CAREY: Going back to the majority opinion for a minute, is it written in a way that a future Internal Revenue Service couldn’t come in and say then subsidies aren’t available in the federally run exchanges.
STUART TAYLOR JR.: No, Chief Justice Roberts ruled that out, basically. The question was debated at oral argument. In fact, Roberts asked, if we’re deferring to the interpretation of the IRS, does that mean a new IRS could come along and say we’re changing it? And he mooted that question in the decision by saying, we’re not deferring to the interpretation of the IRS. We’re agreeing with the interpretation of the IRS, but it’s our interpretation and the IRS can’t change it.
MARY AGNES CAREY: And Julie, let’s talk a little bit about the administration, the Democrats. They must be just elated over this. What’s been the reaction?
JULIE APPLEBY: You know, a little while ago, the president came out of the White House and gave a short speech. And basically, he said that after more than 50 attempts to repeal this, after a presidential election, after a couple of Supreme Court challenges, he said the ACA is here to stay.
So he made that very clear: The ACA is here to stay. He went on to say the Supreme Court upheld a very critical part of this law — the subsidies that more than 6.8 million people are currently receiving. But I think in a nod to some of the discussion about repeal, he also mentioned the broader context here — that this law affects a lot of Americans. And he mentioned a few things. He mentioned being able to keep your kids on your plan until they’re age 26, and he mentioned the fact that insurers can no longer reject people who have medical conditions. So he tried to show that this is a broad-reaching law. He did come out and say that he wants to work with the Republicans and the Democrats. He acknowledged there’s more that needs to be done, and he said he would work with them. He called out some of the states that haven’t yet expanded Medicaid. There are about 20 states who haven’t expanded eligibility for the Medicaid program and he said he would be working with the governors and legislatures there to try to encourage them to do that.
MARY AGNES CAREY: How about Republicans? What have they been saying today?
JULIE APPLEBY: You know, the Republicans in their official statements are coming out and saying that they’re not happy with this decision, but I do think many of them are breathing a sigh of relief because if the subsidies had gone away they would be in a position where lots of Americans would be losing these tax credits to help them purchase insurance. And they had not coalesced around a plan to fix that or to deal with that. So, I think in many cases they are a little relieved, but at the same time they are continuing to talk about how this is not a good law and it’s fundamentally broken.
MARY AGNES CAREY: And so it sounds like their efforts to repeal will continue. How does this shape the 2016 presidential election, this decision today? What’s going to be the impact?
JULIE APPLEBY: You know that’s going to be very interesting. I think that Hillary Clinton will certainly make it a big part of her campaign to keep this law in place and say that the Democrats would support that. I think the Republicans are in a little bit more of a difficult situation because repealing is going to mean that you might be taking some things away from millions of Americans who already have it. So that’s a little bit more difficult of a message, but that will probably still be out there. I think this still will be a discussion in the election, but I think there are other issues that may be larger — like the economy.
MARY AGNES CAREY: Stuart, can you take us through … are there other pending legal challenges to the Affordable Care Act?
STUART TAYLOR JR.: There are at least two, but only one of them, I think, is very serious in terms of any possibility of having much impact on the Act. That’s in a lawsuit brought by the House of Representatives as a body — which is highly unusual — against the administration. The first question is do they have legal standing — can the House of Representatives bring a lawsuit, which is an open question. But the claim they are making is not silly. The claim they are making is that hundreds of millions — hundreds of billions of these subsidies over the next 10 years were not appropriated by Congress; that the administration asked Congress to appropriate this money on a year-by-year basis, and Congress refused. And the Constitution says money can’t be spent by the government unless it’s appropriated by Congress. So that gives the administration a problem. The lawsuit’s being taken seriously by federal District Judge Rosemary Collyer, who sits here in the District of Columbia. But, it’s got a long way to go, and even if it’s successful, which I would bet against, it’s not going to cripple the Obamacare law the way a decision going against the president today would have crippled it.
MARY AGNES CAREY: All right, we’ll leave it there. Thank you so much, Stuart Taylor and Julie Appleby.
JULIE APPLEBY: Thank you.
STUART TAYLOR JR.: Thank you.
Whether echoing through the halls of Congress or bubbling up from health policy think tanks, reaction to the Supreme Court’s decision came quickly Thursday. Here’s a sample:
“I think it’s important to note that Republicans that worked on this legislation, they admitted that the legislation’s drafters never planned on withholding subsidies. I think the public has had it with Republicans taking away subsidies. Enough is enough. Let’s move on.” — Senate Democratic Leader Harry Reid, D-Nev.
“Clever judges can find ambiguities that others aren’t able to find. … We’re going to have to repeal Obamacare and replace it with something better.” — Sen. Orrin Hatch, R-UtahSpecial Coverage: King v. Burwell
“We’re going to continue our efforts to put the American people back in charge of their health care, and not the federal government.” — House Speaker John Boehner, R-Ohio
“It would be nice if we could get beyond the unfortunate commentary that has gone on for too long that, somehow, providing affordable health insurance for Americans is going to be the end of our country.” — Sen. Debbie Stabenow, D-Mich.
“For too long, the debate over health care has placed politics over the best interests of patients. No matter the court’s ruling, it’s time for Democrats and Republicans to deliver what the president promised but ultimately failed to do.” — Sen. Mike Enzi, R-Wyo.
“Full repeal probably isn’t in the cards, but the public is still not happy with large portions of the law, and you’re still going to see efforts to make changes.” — Michael Tanner, senior fellow, Cato Institute
“The ACA is already deeply entrenched and will be more so in 18 months when the opportunity for legislative action will occur. You won’t see any opportunity for legislation until 2017, and at that point more than 30 million people will be receiving coverage in one way or another under the ACA. And hospitals, drug companies, device manufacturers will all have new customers under the ACA, and it will be politically risky to roll it back to any significant degree.” — Henry J. Aaron, senior fellow, Brookings Institution
“You’re going to see now a doubling down in Congress and in the states that, really, the law needs to go. This case doesn’t stop the train from derailing. It’s still going to face obstacles and another dead-end moving forward.” — Nina Owcharenko, director of the Center for Health Policy at the Heritage FoundationUse Our Content This KHN story can be republished for free (details).
“With this decision, the law has bought itself another couple years to become further entrenched and enroll more people, so that if a Republican president is ever elected, it will be much harder to undo. With each passing year, attitudes about the law will have shifted.” — Topher Spiro, vice president for health policy, Center for American Progress
“I just hope that with this threat going away, and the fact that it is clear the law not going away, that we can see the other states move forward on Medicaid. As we celebrate, that’s the other thing we have to work on.” — Judy Solomon, vice president for health policy, Center on Budget and Policy Priorities
The Supreme Court’s decision to uphold a key part of President Barack Obama’s health law did more than preserve subsidies for millions of Americans. For the second time in three years, it helped cement his legacy.
“After multiple challenges to this law before the Supreme Court, the Affordable Care Act is here to stay,” Obama said in the White House Rose Garden, standing before a phalanx of news media and aides. “Today is a victory for hardworking Americans all across this country, whose lives will continue to become more secure in a changing economy because of this law.”
In 2012, the health law survived a constitutional challenge and later that year became a major issue in the president’s re-election campaign. The Republican-controlled House has voted more than 50 times to repeal the law.
In his 10-minute talk, Obama reminded Americans that the law is working and stressed that it has helped slow rising health costs to their lowest rate in 50 years.
“The point is, this is not an abstract thing anymore,” he said. “This is not a set of political talking points. This is reality. We can see how it is working. This law is working exactly as it’s supposed to. In many ways, this law is working better than we expected it to.”Special Coverage: King v. Burwell
The president said he would become more active in working to persuade Republican governors and state legislators to expand Medicaid under the law. The Supreme Court in 2012 made Medicaid expansion optional for states. Twenty-one states, including Florida and Texas, have yet to adopt it. “We still have states out there that for political reasons are not covering millions of people,” Obama said.
Republicans have shown no willingness to drop their opposition to the law, which has helped reduce the uninsured rate in many states by half since 2014.
Senate Majority Leader Mitch McConnell, R-Ky., said in a statement the law continues to be bad for America. “Today’s ruling won’t change Obamacare’s multitude of broken promises, including the one that resulted in millions of Americans losing the coverage they had and wanted to keep,” he said.
Sen. John Barrasso, R-Wyo., was even more blunt: “We are going to continue to work to repeal and replace this health care law,” he said on the House floor.Use Our Content This KHN story can be republished for free (details).
Obama said he knew the law is still misunderstood and even people who enjoy its benefits don’t realize their connection to it. He noted when people gain either subsidized coverage or Medicaid, they don’t get an “Obamacare card.”
“This has never been a government takeover of health care,” Obama said, responding to a common GOP sound bite.
Obama compared the impact on Americans to the passage of Social Security in the 1930s and of the creation of Medicare and Medicaid in the 1960s. He said the health law made sure all Americans have access to health care insurance regardless of where they live or their health condition. “This generation of Americans chose to finish the job….This was a good day for America.”
Despite having survived a challenge in the U.S. Supreme Court, the federal government’s health insurance markets face weighty struggles as they try to keep prices under control, entice more consumers and encourage quality medical care.
The government’s insurance markets – as well as more than a dozen run by states — have been operating for less than two years and are about to lose their training wheels. Start-up funds that have helped stabilize prices and partially pay for administration of the marketplaces are ending, feeding fears that premiums may rise after next year at a steeper rate.
There are still 18 million uninsured people who are eligible for coverage but have not purchased insurance. Without broader participation, insurers may be pressed to raise rates as they get a more complete picture of how much medical care their current customers are using.
“It has proven to be harder to get people to sign up for exchanges and keep them than experts expected,” said Caroline Pearson, an executive at Avalere Health, a Washington consulting firm. “Hispanics, young people and men are still lagging in enrollment and it still seems like the exchanges have not figured out how to reach them.”
Insurers in a handful of states have proposed increasing premiums for the cheapest “silver” plans by an average of 4.5 percent next year, according to an analysis by Avalere. That was slightly higher than last year’s 4 percent increase for the cheapest silver plans in all states, Pearson said. Consumers who want to stick with their current plans may see larger increases, as insurers are trying to enact double-digit price increases for some policies.Special Coverage: King v. Burwell
Burden For Consumers
More than 10 million people buy insurance through the online marketplaces set up by the Affordable Care Act, or ACA. About six of every seven of those people are getting financial assistance from the federal government. Even with that help, health care costs can be substantial, with premiums for some reaching nearly a tenth of their gross incomes.
For instance, families of three earning $73,000 have to pay nearly $7,000 on premiums despite also receiving subsidies They still face deductibles, which this year averaged around $2,500 for the most common types of insurance plans, known as silver tiers. If a family required extensive medical care and reached the maximum they would be held responsible for—$13,200 this year—their total health care-related bills, including premiums, would exceed $20,000, or 28 percent of their gross incomes.
“Even some of those who are eligible for financial assistance are still finding the coverage not to be affordable for them,” said Linda Blumberg, a senior fellow at the Urban Institute, Washington think tank.Use Our Content This KHN story can be republished for free (details).
With the end of start-up funds from the federal government, exchanges need to support their continuing responsibilities, which include running the call centers that offer consumer assistance, operating the exchange websites where people choose plans and marketing their efforts to encourage the uninsured to sign up. Most exchanges, including the federal healthcare.gov site, are funded through an assessment on each plan that is sold, although some receive support from state budgets. Revenue has been volatile, and some marketplaces have been caught short when lower enrollment or smaller premiums led to smaller fees. Some states are considering handing their marketplaces over to healthcare.gov.
“We don’t have a clear sense of how much it costs to maintain these programs,” said Kevin Lucia, project director at Georgetown University’s Health Policy Institute.
If premiums rise, the bill for federal taxpayers who fund the subsidies will increase as well. The government has been giving insurers some breathing room by limiting their losses and taking over the costs of the most expensive cases, but that financial assistance ends in 2017. “As it’s fading out, it’s putting upward pressure on premiums,” said Evan Saltzman, an analyst at the RAND Corp.
James Capretta, a former George W. Bush administration budget official now at the American Enterprise Institute, said it will take several years of exchange experience for insurers to know how much medical care their customers use —and if it matches what they expected.
“The biggest open issue is what the risk profile turns out to be,” Capretta said. “We’ll know more about that in 2016 and we’ll know even more about that in 2018.”
Star Ratings Coming
While the exchange websites have mostly surmounted their early technical problems, they still lack key pieces of information about the quality of the various plans, which the health law required. The federal Department of Health and Human Services plans to require exchanges to display quality ratings for each plan, which will be represented by a five-star scale, in time for people buying their coverage for 2017.
To devise these ratings, the department this year is testing a satisfaction survey for consumers, asking people to rate on scales of 0 to 10 their health plan, personal doctor, specialists, ease of getting care and other aspects of their experience. The agency is also preparing to collect a few dozen measures of clinical quality. Many are rudimentary, such as whether children had a preventive care visit and whether adults received flu shots.
Government quality rating efforts elsewhere have shown how challenging it is to fairly differentiate between providers. A current effort to evaluate the medical care provided by large medical groups rated 85 percent of them as average. The government has been more discerning about private Medicare Advantage insurance plans, though regulators have been refining those scores since stars were first awarded in 2008. A third of plans were given four or more stars this year, and 4 percent earned 2 ½ stars or fewer.
“This has always been the big question about the ACA,” said Lanhee Chen, a researcher at the Hoover Institution. “Are people going to be able to make educated choices?”
Obamacare supporters everywhere are celebrating a win from the U.S. Supreme Court. With a 6-3 vote, the court decided Thursday that Americans who buy coverage through health care exchanges run by the federal government can continue to receive subsidies.
None of the 119,962 Massachusetts residents who have health insurance that is subsidized by the government were at risk for losing coverage based on the ruling. That’s because the commonwealth has a state-run health insurance shopping website, the Massachusetts Health Connector. The case before the high court only dealt with people who buy insurance through the federal health insurance exchange.
But many in Massachusetts had a close personal or professional interest in this case.
“I am very relieved that affordable care can continue nationwide. It’s made a huge difference in Massachusetts,” said Faith Perry, who joined the Greater Boston Interfaith Organization through the Church of the Covenant in Boston.
Back in 2005, Perry was collecting signatures and making calls, trying to persuade state lawmakers to pass the state’s near-universal health coverage law. Perry had two children who were about to graduate from college, “and I was very worried that they would not have health insurance after that,” she said.
Perry is one of thousands of residents who celebrated passage of the state law, which Chief Justice John Roberts mentions six times in Thursday’s majority opinion. Massachusetts subsidies and other insurance changes, “reduced the uninsured rate in Massachusetts to 2.6 percent, by far the lowest in the nation,” writes Roberts.
Josh Archambault at the Pioneer Institute says Roberts overlooks the fact that the uninsured rate was low in Massachusetts before the state or federal coverage laws took affect.
“We only saw a drop of about 4 to 5 percent, whereas in other states they’re in much different starting places,” Archambault said. “So I’m not sure it’s a perfect analogy to be drawn.”
But expectations may be shifting.
Rosemarie Day, who was the first chief operating officer at the Health Connector, says that through the federal Affordable Care Act, residents of many states have come to expect that they can get insurance, even if they are already sick or can’t pay the full premium.
“Those are things that are going to become fundamental for America,” Day said. “It’s been this way in Massachusetts and it’s making its way across the country and I’m just thrilled.”
At the Massachusetts Hospital Association (MHA), the reaction is more like one long exhale.
“We dodged a bullet on this one,” says Tim Gens, MHA’s executive vice president. He was prepared to be on a lengthy national strategy call if the court had decided that subsidies for 6.5 million people were illegal.
Gens says state hospitals were worried because they didn’t know what would happen to the entire Affordable Care Act, and all the changes it has triggered, if insurance subsidies collapsed in 34 states named in the lawsuit.
“For a state like Massachusetts that has its challenges but has been working hard collaboratively with so many stakeholders to move in the right direction, it couldn’t have been anything other than bad news to have that disrupted,” Gens said.
The Affordable Care Act will still face challenges from the Republican controlled U.S. House and Senate. The so-called Cadillac tax, small business changes and other provisions that will increase the cost of insurance for millions of Americans are still to come. This test of health care reform is not done.
But King v. Burwell may be the end of serious court challenges to the law that uses the Massachusetts experiment as a blueprint.Related:
Salt Lake City hairdresser Victor Saldivar said that getting subsidized health insurance under President Barack Obama’s health law saved his life after he was diagnosed with kidney cancer last June.
His health plan covered the removal of his cancerous kidney, for which he paid just $500. He’s been healthy ever since, although he must continue to get tested to make sure the cancer has not returned.
“I’m extremely relieved,” he said of the Supreme Court’s decision upholding the health law subsidies that have helped him and more than 6 million Americans purchase private health plans. “Without the subsidy, I am not sure what I was going to do. I was thinking of moving out of my apartment and go live in my car to afford coverage.”Special Coverage: King v. Burwell
Across the country, people who used the federal health insurance exchange to buy subsidized health insurance expressed relief about Thursday’s ruling in King v. Burwell. “I felt like I was out at the edge of a cliff,” said Steve Creswell, 63, of Hixson, Tenn., who feared the loss of his subsidy would have increased his insurance premium from $27 a month to over $400.
“It’s a lifesaver,” said the self-employed computer programmer. “Not just for me but for millions of others who needed this.”
Creswell, who was uninsured for a decade because he could not afford it, said that having coverage enabled him to see doctors to monitor his diabetes and to get his first colonoscopy.
Health experts say the loss of the subsidies would have left millions of Americans without the ability to afford coverage and many would have struggled to get timely care. “We would have seen real health consequences for many Americans,” said John Ayanian, director of the Institute for Healthcare Policy & Innovation at the University of MichiganUse Our Content This KHN story can be republished for free (details).
Studies show that when people lack coverage, they postpone getting care, which can increase their chances of having heart attacks, strokes and other major problems, he said.
Without insurance, many rely on community health centers and hospital emergency rooms —“better designed to care for people with acute medical problems than those with chronic problems,” he said.
“Oh yes, yes, that is such good news. I feel like I’m going to cry,” said Lisa Paterson, 60, of Moab, Utah.
Without a subsidy, her insurance cost would have increased from $26 a month to nearly $500 a month. “I’m elated and happy for me and the millions of Americans [reliant on subsidies]. This is a reaffirmation of who are as a country.”
Paterson, a self-employed life coach who also tutors children in math and reading, said without her subsidy, she would not have been able to get insurance and would have had to rely on less expensive naturopaths for care of her diabetes and osteoporosis.
Having subsidized coverage enabled Barbara Clary, 61, a retired cafeteria worker and her husband, John, a writer, to get a policy for $100 a month. The insurance helped the Garland, Texas, couple afford surgery recently to remove a tumor on the back of John’s neck.
“The people won,” John Clary said. “I was a little bit worried because the Republicans had no backup plan.”
“Why would they want to take insurance away from us and all these people because of a little sentence in the law?” Barbara Clary asked. “We can’t afford to pay $300 or $400 a month for a premium.”
Jennifer Diefenbach, 39, of Fort Lauderdale, Fla., said she felt “an overwhelming sense of relief.”
“I don’t have to worry anymore whether or not my family will continue to have access to affordable health insurance,” she said. “But it is also bittersweet because logically, if we live in the great country I think it is, we shouldn’t even be arguing about universal healthcare … But we are, and we still will be in 2017, so I’ll continue to be vocal about something that helps my family, my community and millions of Americans.”
A self-employed proofreader, she pays about $70 a month for a health plan for herself and her husband, David, thanks to a subsidy. Without a subsidy, their monthly cost would be about $400—beyond what they can afford, she said. “Right now we are pretty healthy but it’s terrifying to not be able to keep our insurance,” she said, adding that her coverage enabled her to monitor her pre-diabetes.
This is the kind of headline that can trigger a snarky response even in the most compassionate person: “Squatting in ‘skinny jeans’ can damage nerve and muscle fibres in legs and feet.”
Yes, it’s true: A case report published this week in the British Journal of Neurology, Neurosurgery and Psychiatry describes a 35-year-old woman who suffered serious muscle damage, swelling and nerve blockage after squatting in her super tight skinny jeans. (The jeans were so tight, in fact, that doctors had to cut them off to treat her.)
Here’s the top of the report (my bold added):
A 35-year-old woman presented with severe weakness of both ankles.
On the day prior to presentation, she had been helping a family member move house. This involved many hours of squatting while emptying cupboards. She had been wearing ‘skinny jeans’, and recalled that her jeans had felt increasingly tight and uncomfortable during the day. Later that evening, while walking home, she noticed bilateral foot drop and foot numbness, which caused her to trip and fall. She spent several hours lying on the ground before she was found.
On examination, her lower legs were markedly oedematous bilaterally, worse on the right side, and her jeans could only be removed by cutting them off. There was bilateral, severe global weakness of ankle and toe movements, somewhat more marked on the right… Sensation was impaired over the lateral aspects of both lower legs, and the dorsum and sole of both feet…Nerve conduction studies showed conduction block in both common peroneal nerves between the popliteal fossa and fibular head…
The story of the skinny jean medical emergency went viral, with fashionistas and feminists weighing in on whether the era of super-tight jeans is over. The New York Times did a piece headlined “Why You Shouldn’t Throw Out Your Skinny Jeans,” and interviewed the paper’s fashion director, who declared:
Not all skinny jeans are created equal, and it would be alarmism to jump to the conclusion that one pair of skinny jeans created health issues, ergo all skinny jeans are bad. I think the takeaway is skinny jeans are one thing, jeans that actually inhibit movement something else. Maybe we should call them straitjacket jeans. Those should be avoided.
Still, after reading the study, it’s hard not to feel a little empathy. Who among us hasn’t worn a heel just a bit too uncomfortably high, or a pair of movement-limiting pants (and don’t even get me started about thong underwear) in an attempt to feel better/younger/sexier?
I asked Emily Sandoz, a clinical psychologist in Louisiana and author of the book “Living with Your Body and Other Things You Hate”, for her thoughts on the study. Here’s what she wrote back:
It’s terribly unfortunate the ways we are willing to treat our bodies in order to look a certain way. This woman is really not alone.
There are truly daily reports of people injuring themselves with efforts to rein their bodies in this way or that – working out past the point where proper form is possible, putting food or medications in our bodies that make us ill, wearing clothing that causes pain, or at times, permanent damage.
My hope is that we can come to a place where caring for our bodies is more important than making them look a certain way.