Politicians, regulators, and the media have bragged about the government’s ability to review health insurance increases. Authority that came directly from health care reform. But we have discussed from the beginning, this is a review authority nothing more. Health care reform did not provided the Federal Government or the State Government with authority to deny insurers from their budgeted increases. Accordingly, insurers are doing nothing more than ignoring regulators as they have no expertise or skin in the game to assume the risk that insurers ultimately do. Read more at http://www.politico.com/news/stories/0512/76066.html

Back in August 2011 I highlighted one of the biggest issues in health care reform that is getting little to no attention. The issue is regarding the 9.5% premium cost rule that is the qualifier for an employee to receive a federal subsidy for their portion of health insurance premium. The issue is if the 9.5% includes only the single employee’s premium or if it includes the family premium. This matters greatly since more employees would qualify to receive the federal subsidy if the regulations included the family premium since it would represent a larger percentage of the employee’s income, likely exceeding the 9.5%.

Sarah Kliff of the Washington Post expressed it as a $50 billion cost issue to HCR.  More recently, a staff writer to Kaiser Health News attempts to bring light to this same issue.

It’s worth pointing out that if more employees qualify for the subsidies more employers will pay penalties.  My guess is if the health care law survives the Supreme Court, other legislative challenges, and the Obama administration wins this coming election you will see regulation supporting the inclusion of family premiums in the 9.5% rule. But it’s only a guess.

I went to court many years ago over a heated issue. We learned that the opposing side had hired a very expensive attorney who was well known for being the best in the nation on the particular issue being litigated.  I expressed my concern to my legal counsel. To this day, I remember his comment to me. “They could hire the best attorney in the country and it still will not change the facts of the case.”

I remembered this long ago statement when I read Attorney General of Virginia Ken Cuccinelli’s email on April 2, 2012. I hope the good Attorney General does not mind me posting his email in this blog but I thought it highlighted the health care issue that both political sides are feeling. In addition, the political challenges between the branches of government.

“Dear Fellow Virginians,

There are many things that I would like to address regarding the health care case.  Today, I’ll address two unrelated aspects of the case.  First, the apoplexy of the left regarding the performance of their legal team; and second, a different perspective on the consequences for the Supreme Court itself if it upholds the mandate as constitutional.

Apoplectic

While the limited-government, constitutionalist side of this week’s legal conflict is happier today than we were last week, as you might expect, the opposite is true on the big government side.

Mere ‘unhappiness’ doesn’t seem to properly describe their reaction… I definitely think ‘apoplectic’ describes it better.

The professional and unprofessional left has been dumping on their lawyers – especially Solicitor General Verilli.  Blame for their bad week is being dumped overwhelmingly, nearly exclusively, on the federal government’s alleged poor legal performance.

That’s flat out baloney.

The best lawyer in the world can’t win a lousy case.  Put differently, it’s tough to win a hand of poker when you’re dealt a 2, 3, 4, 5, and 7.

From the very beginning of this case on March 23, 2010, the professoriate, media, and political left established completely unreasonable expectations regarding the outcome.  As recently as this past week – after the hearings – I did a media appearance with Democratic Attorney General Doug Gansler of Maryland.  With a straight face he declared ‘this case should be 9-0.’  Of course I agreed, but acknowledged that his 9-0 was probably different from mine…

I have never expressed more confidence than to say that I am cautiously optimistic that the individual mandate will be found unconstitutional.  Though my optimism has increased since I attended the hearings last week…

Now that the liberal professoriate etc. has spent two years convincing themselves that they should never lose, their reaction to the possibility of actually losing has been explosive and nasty.  While taking the usual shots at those of us that have led the efforts to protect the U.S. Constitution from this federal health care law, they have also turned viciously on their own.

Bearing the brunt of the assault is Solicitor General Verilli (SG) – the lawyer for the federal government tasked with defending the constitutionality of the individual mandate.  He was definitely outshone by Paul Clement for the states, but frankly, anyone would be outshone by Paul – he’s that good.

But the SG’s main problem was not Paul Clement, it was his own case.  Remember what I said above about winning a poker hand starting with a 2, 3, 4, 5, and 7?  That was what the SG was called on to do in this case.

How bad is it?  Mother Jones is one of the most reliable far left blogs out there, and here’s what they had to say:

“Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.”

And after all of their teeth gnashing and rending of garments, they concluded: “If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.”

Now, as a general matter, I am not one to defend my opponent’s lawyer, but the obstinate refusal of the insular left to accept that they had a bad case from the beginning, i.e., that the law was wholly unprecedented and likely unconstitutional, is almost breathtaking.  Their cruel willingness to rhetorically put the SG’s head on a post just to avoid blaming those that actually brought America this unconstitutional monstrosity (and to avoid admitting that they were wrong themselves), is sad and pathetic.

It is still not clear whether the mandate will be found unconstitutional or not, but this chapter in the left’s vicious cannibalism should serve as a lesson to America of how close-minded and insular the left really is.  And more than that, it’s a lesson of just how committed to government control of everything they really are, as they simply won’t allow that any other course is even worth contemplating.

Wow.  Ouch.

Marbury vs. Madison and this Case

For those of you that don’t remember Marbury vs. Madison, don’t worry, you didn’t miss something in the newspaper, Marbury was decided in 1803.  It is considered the landmark case in the history of the Supreme Court, as it is the case that definitively established the concept of what’s called “judicial review.”  Judicial review simply means that the courts are the final decider of what the law is, including the Constitution.

The Supreme Court declaring itself as the final arbiter of the Constitution was a controversial position at the time – even though it was a unanimous decision (4-0).  It has historically been seen as a very clever maneuver by Chief Justice Marshall to solidify the Court’s position and power.

The reason I bring it up now, is that it has occurred to me that a certain degree of the Court’s own power is at stake in the health care case.

How?

Well, I’ll tell you…

If the Court rules that the mandate is constitutional, then Congress in particular — and to a lesser extent, the Office of the President — will suddenly be a lot more powerful in our constitutional system.  Put differently, the balance of power between the three branches of our federal government will noticeably shift.

Congress will gain the most power among the three branches, the Presidency will gain, too, but not nearly as much as the Congress.  Those gains in authority will come entirely at the expense of the Courts.

Why?

Well, I’ll tell you that, too…

If Congress’ power under the Commerce Clause is so broad that Congress (with the concurrence of the president) can order citizens into commerce in order to regulate those citizens, that would represent a massive increase in the recognized breadth of the Commerce Clause, and therefore of the power of Congress and the president.

Remember Justice Kennedy’s first question to the SG on Tuesday: “Can you order people into commerce in order to regulate them?”  For the mandate to be constitutional, the answer to that question would have to be ‘yes.’  And reflecting a different comment by Justice Kennedy, this would represent a fundamental shift in the relationship between the government and the citizens – massively increasing the power of government at the expense of citizens’ liberty.

So, one consequence of a finding by the Supreme Court that the mandate is constitutional will be that the Court will have much less need to review federal legislation in order to judge such legislation’s constitutionality.  The reason for this is that the legal theory supporting a finding that the mandate is constitutional is so sweeping, that there won’t be nearly as many questions in the future as to whether or not a particular piece of federal legislation is constitutional or not, as so much of it will fit comfortably within the new outer limits of the Commerce Clause.

Put another way, if the mandate is constitutional, the outer boundary of Congress’ power would be so broad, that it would be ridiculously simple to draft laws that fit easily within that boundary, even though such laws might appear to be very far-reaching by any previous constitutional standards.  And because so much more federal power would fit within the new outer boundary of the Commerce Clause, there just wouldn’t be as much cause for the Court to review federal laws for constitutionality as in the past, as it would almost be hard to draft a law that was a close call by the potential ‘new’ outer limit of commerce clause power.

Those are my health care litigation thoughts for the day!  I hope you had a great weekend.

Happy Holy Week!

Sincerely,

Ken Cuccinelli, II
Attorney General of Virginia”

In my many articles on health care reform I have mentioned the can-kicking that is going on with HHS. From the Class Act to discrimination testing, these solutions to our Nation’s health care system have either proven too ill-conceived from the beginning or just too difficult or impossible to implement. HHS has chosen not to admit the lack of merrit in these plans and provide a solution but just to kick the can indefiniately down the road.

Now, the ICD-10.  68,000 new codes for medical providers to follow and be implement by the later part of 2013. HHS announced it is kicking this can down the road on this as well. Read more from Robert Laszewski

A recent WSJ article describes how premium subsidies may not be available to the federally run exchanges. It will ultimately depend on how bold the IRS wants to be interpreting the law. However, HCR only made subsidies available to state run exchanges not federal. There is the glitch.

Another ObamaCare Glitch

My wife religiously reviews the expiration dates of all medications in our cabinets before giving these to any member in our family. One day over the stamped date and out it goes.

Some studies have shown that the drugs in our medicine cabinets are much more stable than their printed expiration dates. I remember one study that discovered a stash of presriptions drugs in an old WWII fallout shelter. Those drugs were tested and were as stable as the day they left the factory 50 years prior.

Dov Michaeli MD PhD a basic researcher and writing at the Doctor Weighs In, contributes to to the topic of expiration dates in his article Some Thoughts on Expiration Dates.

Take the quiz. It’s short, only 10 questions. See what you know about health care reform relative to other Americans.

Kaiser Family Foundation Health Care Reform Quiz

I have known hundreds of people that have been advised to have a procedure called Angioplasty by their cardiologist. To the best of my memory, almost all had a triple by-pass within the year.

With angioplasty, a small balloon is pushed through a small incision in the groin and up to a narrowed coronary artery. It is then inflated to removethe plaque deposit that’s restricting blood flow and causing angina. Then, a stent is inserted to prevent renewed narrowing.

Turns out that nearly half of all angioplasty were unnecessary in the provided study.

Read more.

Health Affairs report on the U.S. health care spending since 1965.

Looks like we have reach 18% mark. But when did all this growth start? Charles Roehrig studies and reports on health care spending in the U.S. since the beginning of Medicare. Lot’s of good data for you analytical types.

Good read.

Please do not forget your limited rights under HIPAA. While you do not necessarily have complete control of your medical records, federal laws does provide you with some limited control over your personal health information (PHI). Two good questions for everyone to review are:

Can an individual revoke his or her Authorization?

Yes. The Privacy Rule gives individuals the right to revoke, at any time, an Authorization they have given. The revocation must be in writing, and is not effective until the covered entity receives it. In addition, a written revocation is not effective with respect to actions a covered entity took in reliance on a valid Authorization, or where the Authorization was obtained as a condition of obtaining insurance coverage and other law provides the insurer with the right to contest a claim under the policy or the policy itself.

The Privacy Rule requires that the Authorization must clearly state the individual’s right to revoke; and the process for revocation must either be set forth clearly on the Authorization itself, or if the covered entity creates the Authorization, and its Notice of Privacy Practices contains a clear description of the revocation process, the Authorization can refer to the Notice of Privacy Practices. Authorization forms created by or submitted through a third party should not imply that revocation is effective when the third party receives it, since the revocation is not effective until a covered entity which had previously been authorized to make the disclosure receives it.

What is the difference between “consent” and “authorization” under the HIPAA Privacy Rule?

The Privacy Rule permits, but does not require, a covered entity voluntarily to obtain patient consent for uses and disclosures of protected health information for treatment, payment, and health care operations. Covered entities that do so have complete discretion to design a process that best suits their needs.

By contrast, an “authorization” is required by the Privacy Rule for uses and disclosures of protected health information not otherwise allowed by the Rule. Where the Privacy Rule requires patient authorization, voluntary consent is not sufficient to permit a use or disclosure of protected health information unless it also satisfies the requirements of a valid authorization. An authorization is a detailed document that gives covered entities permission to use protected health information for specified purposes, which are generally other than treatment, payment, or health care operations, or to disclose protected health information to a third party specified by the individual.

An authorization must specify a number of elements, including a description of the protected health information to be used and disclosed, the person authorized to make the use or disclosure, the person to whom the covered entity may make the disclosure, an expiration date, and, in some cases, the purpose for which the information may be used or disclosed. With limited exceptions, covered entities may not condition treatment or coverage on the individual providing an authorization.