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Five Ways The Sixth Circuit Could Decide Its Affordable Care Act Case

Sixth Circuit Judge Jeffrey Sutton

Tomorrow, the Sixth Circuit will become the second appeals court to consider a constitutional challenge to the Affordable Care Act’s provision requiring most Americans to either carry insurance or pay slightly more income taxes. The three judge panel hearing tomorrow’s case includes Judge Boyce Martin, a reliably progressive vote, and Judge Jeffrey Sutton, a hardline conservative with a long history of states rights and GOP activism. In other words, the result in this case could come down to the panel’s third member, an obscure trial judge named James Graham with far less of a record on constitutional issues.

Despite this ideologically divided panel, the court has hinted strongly that it will dismiss the case without considering the merits at all. Here are five possible outcomes for this case, ordered from the narrowest resolution to the most sweeping:

  • Case Dismissed as Moot

No one is allowed to sue to strike down a law simply because they don’t like it; any plaintiff must first show that the law has actually injured them in some way. In this case, the district court permitted the case to move forward because one of the plaintiffs alleged that they were currently rearranging their finances to be able to afford insurance when the law goes into effect in 2014, thus this plaintiff has somehow been injured by the ACA’s insurance tax even though this provision hasn’t even gone into effect yet. Last week, however, the plaintiffs’ attorneys alerted the court that she decided to go ahead and purchase insurance seven months ago — long before she can credibly blame the ACA for causing her to become insured. DOJ almost immediately moved the court to dismiss the case as moot because there is no longer a plaintiff who is actually subject to the law.

If the court grants DOJ’s motion, which seems likely, it will be interesting to see whether they also levy some harsh words or even a threat of sanctions against the plaintiffs’ attorneys. Nearly two dozen briefs were filed in this case, and each judges’ chambers has probably been burning the midnight oil for weeks to prepare for this very high-profile case. If the attorneys knew that their client had mooted the case months ago but they failed to inform the court until many, many hours of work later, the judges will not be amused.

  • Case Dismissed as Premature — Standing or Ripeness

Because the plaintiffs challenge a law that doesn’t take effect until 2014, it is not entirely clear that they — or anyone else for that matter — has been harmed in any way by the ACA. The court previously asked the parties to file additional briefs focusing on whether the plaintiffs need to pack up their legal briefs and come back in a few years when the ACA has taken full effect, which is a strong indication that the court may dismiss the case on these grounds. A decision on these “standing” or “ripeness” grounds would be significantly broader than decision dismissing the case as moot, because a standing or ripeness decision would likely shut down all ACA litigation until 2014 or later, while a mootness decision might allow other cases to move forward.

  • Case Dismissed as Premature — Tax Anti-Injunction Act

The Fourth Circuit recently noted that a similar case may need to be dismissed because of the Tax Anti-Injunction Act which forbids a court from “restraining the assessment or collection of any tax,” although it does permit courts to order the government to refund a taxpayer who has already paid a tax. Because no one has actually paid a tax that doesn’t take effect until 2014, court could dismiss the case on these grounds.

  • Facial vs. As-Applied Challenges

The Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim that the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. In order to bring a facial challenge, however, a party must show that “no set of circumstances exists under which the Act would be valid.

In this case, the plaintiffs claim that because they have decided not to take a particular action — buying health insurance — they are somehow immune from federal commercial regulation. However, even if the court were to accept this exceedingly questionable theory, it is not actually the case that every single person in the country has not at some point participated in the health insurance market. Accordingly, the court could require all challenges to the ACA to be brought on an as-applied basis, drastically limiting the potential impact of these lawsuits.

  • Reach the Merits

Perhaps the least likely outcome in this case, in light of the court’s repeated requests for the parties to brief procedural issues, is that the court will actually reach the merits. Judge Sutton, who is widely perceived as actively campaigning for a seat on the Supreme Court, is likely to be especially uninterested in deciding a constitutional question that will either guarantee that Senate Democrats would prevent him from being confirmed or that Republicans would never nominate him in the first place.

Huntsman In 2007: ‘I’m Comfortable’ With Individual Mandate, Would ‘Make System More Efficient’

Steve Benen points out that Jon Huntsman’s willingness to lie about his past support for the individual health insurance mandate undermines his “veracity as a candidate.” Several weeks ago, Huntsman was telling reporters that he “did not back a mandate as part of his reform package in Utah,” but this video from September 28, 2007 says otherwise:

HUNTSMAN: I’m comfortable with a requirement [to have coverage]. You can call it what you want, but at some point, we’re going to have to get serious about how we deal with this issue. And that means there will have to be a multitude of different policies that are available in the market place. It means that it will be incumbent upon citizens to look at responsibility, their own responsibility in terms of health and the choices that are made…. There is a mandate today, let’s not forget, it’s called the emergency room…. We’re living today in an environment, to be sure, where there’s a mandate in place. It’s whether you really want to make the system more efficient.”

Watch it:

Huntsman is of course in good company. He joins Mitt Romney, Newt Gingrich, and possibly Tim Pawlenty as a potential GOP candidate who was for encouraging individuals to take personal responsibility for their health care before he was against it.

FLASHBACK: GOP Supported Individual Mandate To Prevent ‘Government Takeover’ Of Health Care

The Los Angeles Times’ Noam Levey looks at the history of the individual health insurance mandate and discovers that not only was the provision designed by Republicans as an alternative to President Bill Clinton’s health care reform plan in the 1990s, but it was specifically seen as a way to prevent a “government takeover” of health care:

“We were thinking, if you wanted to achieve universal coverage, what was the way to do it if you didn’t do single payer?” said Paul Feldstein, a health economist at UC Irvine, who co-wrote the 1991 plan with Pauly.

Feldstein and Pauly compared mandatory health insurance to requirements to pay for Social Security, auto insurance, or workers’ compensation.

So too did the Heritage Foundation’s Stuart Butler, who in 1989 wrote a health plan that also included an insurance requirement.

“If a young man wrecks his Porsche and has not had the foresight to obtain insurance, we may commiserate, but society feels no obligation to repair his car,” Butler told a Tennessee health conference that year.

But healthcare is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance.… A mandate on individuals recognizes this implicit contract,” said Butler, who was the foundation’s director of domestic policy studies.

Levey notes that fully a third of Republicans supported a bill that included a national individual requirement, introduced by then-Senator and current Rhode Island Gov. Lincoln Chafee. Sens. Bob Dole (R-KS), Charles Grassley (R-IA), Orrin Hatch (R-UT), and Richard Lugar (R-IN) all backed that measure. The National Federation of Independent Business, a conservative small-business group, even “praised the bill ‘for its emphasis on individual responsibility.’”

And this wasn’t some fluke of the ’90s either. As recently as 2007, “[t]en Republican senators — including Tennessee’s Lamar Alexander, now a GOP leader — signed on to a bill that year by Bennett and Sen. Ron Wyden (D-Ore.) to achieve universal health coverage.” The legislation penalized individuals who did not purchase insurance coverage.

Listing all of the GOP presidential candidates who have previously supported the mandate (Romney, Gingrich, Huntsman, Pawlenty) would only belabor the point, which is that the GOP’s new-found religion on the mandate and its constitutionality is driven by the political need to unravel the Democrats’ crowning social achievement, not any great concerns about policy, constitutionality, or freedom.

Yglesias

Real Health Cost Reform Means Tackling Providers

The part of health care reform that progressives have traditionally been most comfortable talking about involves tackling the vested interests of insurance companies. And lately conservatives have cottoned to the strange idea of improving health care by tackling the vested interests of patients. But the core of the issue is and always has been the vested interests of health care providers. Some of the most important aspects of the Affordable Care Act do just this, telling hospitals that they’ll be held accountable for the quality of the care they provide. The idea is to make funds flow to hospitals that do a good job of using the funds in a cost-effective way.

Naturally, as Robert Pear reports, incumbent hospital administrators hate this idea and feel that the government ought to reimburse them for as much treatment as they can sell to patients, regardless of whether or not it makes anyone healthier.

This clash of interests between the legitimate policy concern for public health and providers’ desire to avoid accountability for the quality of their caregiving ought to be at the center of the conversation over health care costs. A greater focus on cost-effectiveness might bring down spending. Or it might mean that spending stays high, but health improves dramatically. Either way, it’s a winner. Instead we’re talking about a mystical alternate reality in which when we shift costs onto patients, we suddenly develop superpowers that allow us to second-guess surgeons’ accounts of how to perform operations.

Join the Campaign to Fight Asthma in Communities of Color

Our guest blogger is Jorge Madrid, a research associate for the Energy Policy Team at the Center for American Progress Action Fund.

The Center for American Progress Action Fund is leading a campaign to curb asthma and other harmful health effects from coal-fired power plants. This campaign is already underway and it will continue until July 2, 2011.

Asthma affects all Americans. But communities of color are particularly vulnerable to respiratory diseases such as asthma. A recent report by the Centers for Disease Control and Prevention shows that African American children have the highest number of asthma attacks among all ethnic groups, and Latino children are 60 percent more likely to suffer from asthma attacks than white children. Likewise, more than 71 percent of African Americans and 66 percent of Latinos live in areas that fail to meet one or more of the Environmental Protection Agency’s air quality standards.

These crippling health disparities are made worse by the fact that communities of color are the least likely to have health insurance and access to treatment and preventive care.

Higher asthma rates also mean more missed days of work and school in addition to increased medical costs. Every day in America, 40,000 people miss school or work due to asthma, and 5,000 people visit the emergency room due to the disease.

Asthma is triggered by dirty air, and asthma rates are higher in places with bad air quality. Exhaust from cars, factory emissions, smoke, and dust cause poor air quality, which can aggravate the lungs and worsen chronic lung diseases, according to the Environmental Protection Agency (EPA).

Coal-fired power plants are also a big part of the problem. Power plant pollutants are a well-known trigger, as is smog. Asthma has no known cure, but it can be controlled by limiting exposure to these triggers.

The EPA is responsible for protecting our children and families from dangerous pollutants and toxins. They have a proven track record of reducing deaths and illness due to stronger clean air standards.

The EPA took a critical step toward cleaner air on March 16, 2011, by proposing its first-ever air toxics standards for coal-fired power plants. The proposed rule would limit emissions of mercury, arsenic, and other air toxics from power plants for the first time. Adoption of the air toxics rule will prevent approximately 17,000 premature deaths, 120,000 asthma attacks, and 12,000 hospitalizations and emergency room visits every year in 2016, according to the EPA.

All Americans should make a strong statement to the EPA that they want reductions in mercury, arsenic, and other toxic air pollution from power plants. Communities of color in particular can send a message that they want clean, healthy air for their children and families.

Growing Number Of Americans Enrolling In High Deductible Coverage, Skipping Preventive Care

USA Today’s Kelly Kennedy is reporting that as health care premiums continue to outpace wages, a growing number of Americans are now turning to high-deductible coverage for premium relief:

In 2007, about 4.5 million people had high-deductible plans, but by 2010, 10 million people had signed up for the plans, according to an America’s Health Insurance Plans survey of its members.

In exchange for a high deductible — a maximum $3,000 deductible for individuals and a $6,000 deductible for families, for instance — people can save about $85 to $100 a month on premiums.

“People are choosing higher deductibles for lower premiums,” said Karen Ignagni, president of America’s Health Insurance Plans, which represents 1,300 companies providing health insurance to more than 200 million Americans.

It’s important that they understand those lower premiums can mean higher doctors’ bills, she said.

Families spend thousands to meet their deductible and often times avoid treatment altogether. And it’s not the kind of high-tech super expensive care that people are abusing. What the research shows is that people are forging preventive care — the very services that help avoid high costs in the future:

RAND researchers also found that people on high-deductible plans — no matter their income level — received less preventive care: fewer annual exams, fewer cervical cancer screenings and fewer colonoscopies.

Studies have shown that people don’t know that their plans waive fees for preventive care, researcher Amelia Haviland wrote in the report.

According to the study, families enrolled in high-deductible coverage spent 14 percent less in the first year than families with lower deductibles, but “the percentage of young children receiving vaccinations dropped as much as 8.5 percent in the first year their families were covered by the high-deductible plans, while vaccination rates for children in standard plans rose slightly.” “And use of cancer screenings was two to three percentage points lower among families with high deductibles.”

The other problem is that catastrophic-only plans generally appeal to a younger and healthier population that doesn’t think it will ever get sick — at least not in the immediate future. They opt for these kinds of plans, thus further fragmenting the health care market.

The Affordable Care Act already gives younger individuals the option of enrolling in high deductible plans that cover less services at cheaper rates. Insurers will also be able to price their policies based on age and charge young people rates that are three-times lower than what older (and presumably sicker) applicants will be paying.

But some conservatives want to seize the growth in catastrophic-only coverage and go even further. They’re suggesting that insurers should be allowed to design catastrophic plans outside of the requirements of the law (which mandates policies to provide a set of essential benefits) and the exchanges. You can see how this wouldn’t work. If younger people have an incentive to enroll in cheaper high-deductible coverage, the exchanges will be left with sicker individuals who need comprehensive coverage and use it frequently. Without healthy individuals to offset the costs of this care, premiums will have to increase, pushing out everyone but the sickest and neediest applicants. As a result, the exchanges will become cost prohibitive for most Americans.

Is Ryan’s Medicare Plan Similar To Employer Sponsored Coverage?

Over on Ezra Klein’s blog, Austin Frakt of the indispensable Incidental Economist argues that after comparing Rep. Paul Ryan’s (R-WI) Medicare plan to Medicare Part D and the Federal Employees Health Benefits Program (FEHBP), Republicans finally stumbled upon an analogy that actually works: employer-sponsored health insurance. The quote came from Rep. Eric Cantor (R-VA) speaking Sunday on CBS’s Face The Nation:

HARRY SMITH (overlapping): But the– but the question becomes, is it– is the voucher the answer? Is that the only answer? Because, if I understand it correctly, I get a voucher and then I have to go out on the marketplace and hope I’m going to get the insurance I need. And if that’s the– that’s the case, you’re talking about medical rationing. You’re talking about going to insurance companies to– to get what you hope you– you deserve.

REPRESENTATIVE ERIC CANTOR: Well, Harry, I’m– the– the– the reforms that we put forward would apply to everyone fifty-four and younger. And again, what it does is it reforms the program to ensure its still there. And it is much like what most people have with their employer plans. That they are by the employer given the benefit but then choose from a variety of plans out there that best fit their family’s needs. So it’s an attempt to try and personalize the– the Medicare program to allow seniors to choose much like they have with the Medicare Part D program

As Frakt points out, Cantor is right in the sense that like Ryan’s premium support vouchers, the employee contribution to health care has “increased much faster than inflation or wages.” “[P]remiums are consuming a larger portion of workers’ resources. For many, they’re becoming unaffordable. That’s exactly what will happen to beneficiaries under the Republican plan for Medicare,” he writes.

All this is true, but I would also argue that employees are currently much better off than seniors who become eligible for Ryan’s vouchers. Even as their share is increasing, employees aren’t going up against insurers all by themselves. They’re part of a group health care plan which — if the employer is large enough — can help defray increases, spread risk and cost, and shield the policy holder from other insidious practices that insurers often deploy against the individual consumer.

Yglesias

‘Mediscare’ Works Because The Consequences of Privatizing Medicare Are Scary

Ruth Marcus has many virtues as a political pundit, but her weekend remarks on Medicare (flagged by Steve Benen) reveal that the right is having some success in its plan to cry “mediscare” in an effort to avoid criticism of its Medicare privatization scheme. Here’s what she said on Meet The Press:

MARCUS: This play has been run time after time. If you go back and look at the quotes from President Clinton back when he needed to win re-election, they sound a lot like the quotes from Democrats today about don’t let those Republicans take away your Medicare. The difference is that the debt is bigger, the deficit is bigger, the gap is bigger, and the situation is more dire. But I think that, sadly, the lesson of New York 26 is “mediscare” works.

Here’s what’s true. If you go back and look at the quotes from the time Congressional Republicans tried to privatize Medicare in the mid-1990s they do sound a lot like the quotes from the time Congressional Republicans tried to privatize Medicare in 2011. That’s because many people believe that it would be a bad idea to privatize Medicare, so every time the congressional leadership tries to privatize Medicare you have people speaking up against this idea. And we speak up against it in similar terms because the terms that have been used in the past are politically effective. And they’re politically effective because the consequences of privatizing Medicare are scary.

As I’ve been at paints to point out, the key consequence of privatization would be a steep increase in the per unit cost of health care services. Medicare is able to use its semi-monopsony status to drive down prices. If privatized the cost of treating the typical 65 year-old would increase by around 40 percent. Paul Ryan’s version of privatization then “saves” a tiny bit of money for the taxpayer by simply paying a much smaller share of the now much-higher bill. Then he promises to save large sums of money over the long term by ensuring that the share of the higher bill that the government covers will shrink drastically over time. This shrinkage in the value of the government health care coupon either won’t occur (in which case all privatization will do is increase costs) or else it will occur (in which case over 100% of the savings will come from people going without health care services they need) and in either case the consequences are scary.

Ryan’s Medicare Plan And Cost Shifting To Seniors

Rep. Paul Ryan (R-WI) does deserve some credit for responding to Ezra Klein’s questions about his plan — even if only through email — but as someone who attended eight of his town halls in Wisconsin, I can say that his staff did not spend too much time thinking about the answers. They simply molded his typical responses to fit Klein’s questions. That being said, it’s not surprising that there is so much to debunk in his replies. Klein and Jonathan Chait get at some of Ryan’s inaccuracies, so I will contain my response to question 5, in which Ryan tries to argue that his plan would not shift costs to seniors because some of them would receive a higher voucher:

5) The Congressional Budget Office says that private insurance will be more expensive than traditional Medicare insurance of the same quality, and under that analysis, your plan saves money by shifting costs. What happens if they’re right? Would you support your plan if, in 10 years, the savings proved to be primarily achieved through shifting costs to seniors?

Our reforms do not shift costs, they bring down costs. As I explained in a recent interview:

“A couple of things on that analysis. Number one, it fails to take into consideration the extra $7,800 — we’re talking about adding to low income seniors’ benefits. What we’re saying is protect those who are low income by supplementing their benefits and covering their out of pocket costs. We’re also saying as people get sicker, increase their payments to stabilize their premiums and as people get wealthier don’t subsidize them as much. It is really inaccurate to suggest that’s going to happen to everyone.

“The other thing I would say is its comparing Medicare to a fiscal fantasy, which the current system is unsustainable and it is growing at rates that are unsustainable that will crash the system. The question is: what are the kinds of reforms we are putting in place to get at the root cause of health inflation, to make our health care dollar stretch farther, to inject competition into the system so we can stretch our dollar farther. And then subsidize people more who need it more and not those who need it less.

“It is really an incomplete comparison to suggest that’s happening to everybody. Yes, wealthier people are going to pay more in the future, but more importantly there is only so much money to go around – it is finite. What we believe we should do is save Medicare so it is something the next generation can count on and subsidize people who need it the most and not as much as people who need it the least.”

The CBO analysis of Ryan’s proposal found that a “typical” 65-year old would be paying more under Ryan’s plan, regardless of income. “[A] typical beneficiary would spend more for health care…[because] private plans would cost more than traditional Medicare,” the budget office concluded. “[T]he government’s contribution would grow more slowly than health care costs, leaving more for beneficiaries to pay.”

In fact, lower-income seniors — so-called dual eligibles who qualify for both Medicare and Medicaid — would also be harder hit (despite the additional government assistance). As the Center on Budget and Policy Priorities (CBPP) points out, the Ryan budget plan would eliminate the supplemental Medicaid coverage low income seniors receive and instead give this group — which often suffers from multiple chronic conditions — a medical savings account in the amount of $7,800. That amount would grow with inflation every year and would “fall short of what is needed to cover their expenses.” “The savings account amount would cover only 62 percent of the typical 65-year-old’s out-of-pocket expenses in 2022; this beneficiary would still have to pay an additional $4,700 in health care expenses,” CBPP concluded. “This would consume 34 percent of the income of a Medicare beneficiary living at the poverty line (an estimated $13,620 for an individual in 2022). “

NEWS FLASH

HHS To Lower Premiums In High-Risk Pools | The Department of Health and Human Services has just announced that it will reduce premiums in the temporary high-risk pool pool program, in an effort to increase fledgling enrollment rates. “Premiums for the Federally-administered Pre-Existing Condition Insurance Plan (PCIP) will drop as much as 40 percent in 18 States, and eligibility standards will be eased in 23 States and the District of Columbia to ensure more Americans with pre-existing conditions have access to affordable health insurance,” a press release from the agency reads. Approximately 18,000 Americans are currently enrolled in in the program.

Update

On a conference call with reporters, the agency stressed that no new dollars were being appropriated to fund the changes and said that the reductions in the federal pools would be paid for with the $5 billion already appropriated under ACA and member premiums. The federal pools will also have looser eligibility rules that would allow enrollees to present a doctor’s note about a pre-existing condition, saving them from the trouble of applying for and then being denied coverage by a commercial carrier in order to qualify for the PCIP.

When Mitt Romney Convinced Ted Kennedy To Support The Individual Mandate

With Mitt Romney set to announce his candidacy later this week, the Boston Globe’s Brian C. Mooney is publishing a series about Massachusetts’ groundbreaking health care reform law. This first piece explains how the idea was hatched — Romney was inspired by Staples founder Thomas G. Stemberg — made its way through the Democratically controlled legislature, was embraced by business groups, and eventually signed into law by Romney on April 12, 2006.

Mooney reports that Romney’s political advisers weren’t too keen on Romney — who was even then expected to just serve one term as governor before making a run for the presidency — embracing a traditionally liberal issue, but ultimately settled on what they and Romney saw as a fairly conservative approach: encouraging individuals to take personal responsibility for their health care costs by buying insurance coverage through exchanges:

The first step was finding a way to make the 37 percent who could afford insurance but didn’t have it buy in. Romney’s answer came in part from an administration consultant, Jonathan Gruber, an economics professor at the Massachusetts Institute of Technology and a leading adviser, usually to Democrats, on health care reform issues….“What my numbers showed is that it made enormous sense to have the individual mandate,’’ Gruber recalled. Without it, the money available for new insurance subsidies would cover half as many people.

“Romney was intrigued with it because of the personal responsibility aspects,’’ said Gruber, recalling his one meeting with the governor. And if younger, healthier people were coaxed into the system, the cost of premiums would moderate for a larger population.

“There was the moral ‘free rider’ argument, but the numbers said it was financially feasible, too,’’ Gruber said.
[...]

There were other new elements. Murphy had a “eureka moment’’ after a meeting with officials of the conservative Heritage Foundation. He was raving about their concept of an “exchange’’ to provide one-stop shopping for small businesses and individuals seeking health coverage from commercial insurers. This would also prove a forerunner to Obama’s national plan.

Today, conservatives see these ideas as unconstitutional conspiracies to usurp individual freedoms, but back in 2005, America’s greatest liberal Senator needed some convincing. In fact, up to that point, the late Ted Kennedy had opposed the mandate and only came to support the provision as part of a larger reform package. “I’ve never been one for individual mandates in the past, but I do think that the way this has been proposed, in that everybody will do their part, that’s a compromise,’’ Kennedy said in December 2005. “I can buy into that.” (Incidentally, current Massachusetts Governor Deval Patrick experienced a similar conversion).

Kennedy bought it and so did Romney, who came to see the mandate as the “ultimate conservative” solution. “It’s the ultimate conservative idea, which is that people have responsibility for their own care, and they don’t look to government to take of them if they can afford to take care of themselves,” he told the Boston Globe in June 2005. “I think it appeals to people on both sides of the aisle: insurance for everyone without a tax increase.” He even went so far as to suggest that it can be applied to the nation as a whole — although he quickly walked back these statements and proposed an altogether different health care proposal during his 2008 presidential campaign.

Mooney’s whole piece is worth reading, if only to remember just how distorted the political health care rhetoric has become.

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Romney: My Health Law Is Different Than ObamaCare Because It’s Shorter

Mitt Romney trotted out that old argument about the Affordable Care Act being too long when trying to explain the differences between Massachusetts health reform and Obama’s law on NBC’s Today Show:

ROMNEY: I understand there are a lot of people who would like me to get up and say it was a terrible, boneheaded idea, it was a terrible mistake and we are all entitled to mistakes. The only problem is it wouldn’t be honest. we solved a serious need that existed in our state.

Q: President Obama can’t wrap his arms around you tightly enough. He said RomneyCare inspired ObamaCare.

ROMNEY: If I become president, I will repeal ObamaCare. My bill was 70 pages. His is over 2,000. He’s doing a lot of stuff that’s devastating to the health care system in this country. He’s wrong.

Watch it:

Despite the disparity in length, the two laws are very similar in how they try to expand access to health care and some of those extra pages in the ACA are devoted to controlling health care spending — something Romney didn’t include in his 2006 law:


Major Provisions Affordable Care Act Mass. Health Law
Individual Mandate Yes Yes
Employer Responsibility Yes — but not required to provide coverage Yes — required to provide coverage
Affordability Credits Yes Yes
Standard Benefit Package Yes — w/o abortion services Yes — w/ abortion services
Establishes Exchanges Yes Yes
Prohibits Insurance Company From Canceling Coverage Yes Yes
Bans Denying Medical Coverage For Pre-existing Conditions Yes Yes
Medicaid Expansion Yes Yes
Medicare Cuts Yes No Authority


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Republicans Offer A False Choice On Medicare

Republicans appeared on the Sunday morning political talk shows with a unified message: lawmakers can either pass the GOP budget or they can opt to do what the Democrats are proposing, which is nothing at all, allowing the program to go bankrupt and the deficit to skyrocket. During an interview with Sen. Chuck Schumer (D-NY), Meet The Press host David Gregory bought into this canard by asking, “Is there a danger for Democrats in not seriously engaging on Medicare as being seen as abdicating responsibility on really fighting the deficit writ large?”

Schumer’s response — which emphasized that Democrats already seriously engaged on Medicare by extending the solvency of the program in the Affordable Care Act and that Republicans would literally end traditional Medicare as an option to seniors — should serve as a guide to any Democrats who are asked to respond to that kind premise:

SCHUMER: The bottom line is very simple. We already proved our bona fides in last year’s bill, where we, where we extended Medicare’s life by 12 years by doing some of the things that I talked about there on delivery system reform. And we’re going to continue to do that. There’s a choice here–there are three choices. One is to do nothing. One is to preserve the benefits but change the delivery systems and not let some of the providers, like the drug companies, get away with so much. And one is to end Medicare as we know it. Democrats are in the second one, Republicans are on the third one. Until Mitch McConnell abandons the third one, we are not going to get a budget deficit agreement. It’s that simple. [...]

The difference is between us and Republicans. They want to end Medicare as we know it. If you turn it over to a pure system where the–where the insurance companies govern, here’s what happens according to CBO, nonpartisan: the beneficiaries, instead of paying 25 percent, pay 68 percent. But at the same time, the costs don’t go down, they continue to rise because the insurance companies pass the costs to the beneficiaries. That is wrong. That is not politics, I would say to my dear friend Senator McConnell. That is what America’s all about. And we will, we will oppose them in the budget negotiations if they don’t abandon Ryan, and it will legitimately be one of the major issues of the election year in 2012.

Watch it:

Visit msnbc.com for breaking news, world news, and news about the economy

One could go even further and argue that, while health care costs are in fact out of control, the possibility of Medicare going bankrupt is — and historically has been — greatly exaggerated. In fact, if no changes are made, Medicare would still be able to meet 88 percent of its obligations in 2085. But the “time bomb” argument is now being used by opportunistic opponents of the program — the same party that at one point argued that it should whither on the vine — to end it and transfer future enrollees into the hands of private insurers that have historically done a worse job of controlling health care spending and charge more for similar benefits.

It’s also worth pointing out that as Republicans — particularly the contenders for the presidential nomination — grow weary of the public rejection of the Ryan plan and begin forming their own, more moderate proposals, they’ll be offering the very same kind of delivery system reforms that Schumer is describing as choice two. (Only they would want to repeal them first).

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Welcome To ThinkProgress Health!

I’m excited to welcome you to the new ThinkProgress and ThinkProgress Health, a brand new blog focusing on the politics and policy of health care and health reform.

ThinkProgress Health will focus on unraveling the latest conservative attacks against health reform, cover all of health care battles in Congress, and provide exclusive on-the-ground coverage from all of the the 2012 presidential candidates as we enter the primary season.

But the central devotion to health topics will also allow us to solicit contributions from our health policy team at the Center for American Progress and health wonks from around the country to provide more in-depth analysis of the emerging health care proposals from the presidential hopefuls and the ongoing effort to implement health care reform by the federal government and the states. TP Health will also feature integrated content from the new ThinkProgress site and Matt Yglesias.

So bookmark us — http://health.thinkprogress.org — add us to your RSS readers –- http://thinkprogress.org/health/issue/feed/ –- follow us on Twitter –- @TPHealth — and contact me with your ideas and suggestions. I’m very excited about all the health news ahead and look forward to hearing your feedback and comments!

– Igor Volsky
Editor of ThinkProgress Health

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Conservatives Now See No Difference Between RyanCare And ObamaCare Cuts

Thomas Saving and John Goodman have written an op-ed in today’s Wall Street Journal in which they pretend that Rep. Paul Ryan’s (R-WI) Medicare cuts are almost identical to the reductions Democrats enacted through the Affordable Care Act:

In light of the heated rhetoric of recent days, it is worth noting that for everyone over the age of 55, there is no difference between the amount of money the House Republicans voted to spend on Medicare and the amount that the Democrats who support the health-reform law voted to spend. Even for younger people, the amounts are virtually identical with GDP indexing.

The law’s spending path depends on making providers pay for all the future Medicare shortfalls. But since no one can force health-care providers to show up for work, short of a health-care provider draft this reform ultimately cannot succeed. The House Republican path, on the other hand, would make a sum of money available to each senior to choose among competing private plans—much the way Medicare Advantage provides insurance today for about one out of every four Medicare beneficiaries.

Saving and Goodman surely understand that there are different ways to cut Medicare spending, and they also know that the Ryan budget actually maintains many of the ACA’s productivity cuts to providers. The distinction is worth reiterating: the ACA reduced annual increases in payments to hospitals, skilled nursing facilities, home health agencies and other institutions to spur productivity and cut overpayments to private insurers that are not delivering value for Medicare dollars. They used that money to expand coverage to 32 million Americans — many of whom were receiving uncompensated care at these institutions — to extend the life of the Medicare program and invest in new demonstration projects that aim to encourage providers to deliver quality care more efficiently.

The Ryan budget, on the other hand, tries to change the behavior of consumers (not providers) by shifting more of the costs of coverage from the federal government to the individual. Republicans believe that individuals who go out and purchase coverage on their own will use less care (spend less money on health care) and create a more dynamic and competitive health care market. The problem with this approach is that there is no credible research showing that forcing individuals to be more cost conscious will significantly lower national health care spending or that the “savings from competition would be large enough to offset the massive reduction in funding.” Most importantly, as Jared Bernstein has pointed out, the GOP’s approach fails because “there’s no market discipline that average folks with incomplete information armed with an inadequate voucher can enforce on a private health insurance market that’s…well, different.”

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Poll: Americans Don’t Approve Of Ryan’s Plan For Medicaid, Either

On Tuesday, New Yorkers in the state’s 26th Congressional District delivered House Republicans a clear message that House Budget Chairman Paul Ryan’s (R-WI) plan to end Medicare won’t fly. But a new poll shows that the American public’s distaste for Ryan’s proposal doesn’t stop at Medicare. According to a new Kaiser Family Foundation poll, 60 percent of those polled prefer the keep Medicaid — the federal heath insurance system for the poor — “as is,” as opposed to Ryan’s detrimental block grant program. Indeed, more than half want to see no reductions in Medicaid spending at all because of “a strong sense of the program’s importance.” Indeed, many said they had benefited or knew people who had benefited from the program directly:

Support for maintaining the current program may be due at least in part to the public’s personal connections to Medicaid and a strong sense of the program’s importance. About half of Americans say they or a friend or family member has received Medicaid assistance at some point, and a similar share say the program is important to their family.

Even those who initially supported Ryan’s Medicaid block grant idea said the Democratic position could sway them into maintaining Medicaid as it is. As The Huffington Post’s Emily Swanson notes, “The survey suggests the Republican Party might make some inroads in changing public opinion, but likely not enough to attain majority backing.” Overall, the Kaiser poll verified previous polls‘ findings that general cuts to vital entitlement programs like Medicaid and Medicare to reduce the deficit is an agenda deeply out of line with the American public.

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CBO: Defunding Health Reform Could End Medicare Part D, Eliminate Physician Payment Increases

The Hill’s Sam Baker reads through the latest Congressional Budget Office (CBO) letter on the consequences of defunding the Affordable Care Act and discovers that the GOP’s efforts could “lead to the end of Medicare coverage for prescription drugs”:

Although the Medicare drug benefit predates healthcare reform, the new law made changes to the program — most notably eliminating the so-called “doughnut hole,” in which seniors must pay for their drugs out of pocket.

If the new healthcare law is defunded, the changes to the prescription drug program could not be implemented and Medicare would be unable to offer the benefit, CBO said. [...]

A permanent ban on using appropriations to implement the law could prevent Medicare from signing contracts to administer the drug benefit, known as Medicare Part D. It also wouldn’t be able to set rates for Medicare Advantage, so that program might also end.

“As contracts expired on December 31, 2012, there would probably be nothing to replace them and therefore no MA and Part D plans for Medicare beneficiaries,” CBO said. “If there were no Part D drug benefit, federal spending would decline.”

The federal government also wouldn’t be able to collect its share of drug rebates from pharmaceutical manufacturers that service Medicaid beneficiaries. As a result, “the federal government would therefore not realize savings from increased rebates or from other policies that would reduce drug spending in Medicaid,” the CBO report concludes.

A permanent prohibition on the use of discretionary funding could also undermine increases in physician reimbursement rates. Doctors would not be able to qualify for bonuses and other incentives included in the new law and “the effective result would probably be that payment rates would remain at current levels.”

In March, the CBO released a report that found that defunding the ACA piece by piece “would increase spending by $3.1 billion in fiscal year 2012 and by smaller amounts in each of the fiscal years 2013 through 2021.” “Net additional costs would total $3.9 billion over the 2011- 2016 period and $5.6 billion over the 2011-2021 period.”

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Republicans Will Still Attack Dems For Cutting Medicare And They Will Still Be Wrong

Jonathan Chait and Greg Sargent are predicting that having all but officially lost their battle to privatize Medicare, Republicans will now continue to attack Democrats from the left for cutting the program through the Affordable Care Act. They will argue (as Speaker of the House John Boehner (R-OH) does here) that the GOP budget preserves benefits for everybody over 54 while the Democrats cut benefits to today’s seniors and will continue to ration their care and allow the program to go bankrupt. As Chait points out, there is very little truth to any of that:

Of course, there are different ways to cut benefits. The liberal method is to try to get Medicare to stop paying for ineffective procedures, and to encourage measures of results rather than simply incentivize more spending. Conservatives have decided that any measure seeking to root out waste in Medicare amounts to “rationing” and is unacceptable. They prefer to put beneficiaries into private insurance, and then slowly reduce the subsidy for that insurance, so that customers can shop for cheaper plans.

What the Democrats actually did is cut the rate of growth in Medicare, reduced annual increases in payments to hospitals, skilled nursing facilities, home health agencies and other institutions to spur productivity and cut overpayments to private insurers that are not delivering value for Medicare dollars. They used that money to expand coverage to 32 million Americans — many of whom were receiving uncompensated care at these institutions — extend the life of the Medicare program and invest in new demonstration projects that aim to deliver quality care more efficiently.

Those are just the facts, and the problem for the GOP is that they actually voted for many of these reductions as part of the Ryan budget without investing the savings in coverage expansion or changing the way the government finances health care. Jonathan Cohn gets at the difference in his Kaiser Health News column:

Republicans claim, as Democrats do, that their plan will nudge the whole health care system in the direction of more efficiency — not by changing the behavior of providers, as Democrats prefer, but by changing the behavior of consumers, in ways that will create a more vibrant and competitive market. It’s a highly dubious argument, given that private insurance has higher overhead and less bargaining power than government insurance. (Remember, the Democratic plans would take money back from private insurers serving the Medicare population, for precisely the same reason.) But even if it were true, there’s no credible expert who thinks the savings from competition would be large enough to offset the massive reduction in funding Republicans have in mind.

There is also no credible research showing that forcing individuals to be more cost conscious will significantly lower national health care spending, so the GOP is voting for these cuts without increasing coverage or lowering costs.

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GOP Won’t Even Vote On Providing Abortion Coverage For Military Rape Victims

Earlier this year, Republicans faced a backlash after Rep. Chris Smith (R-NJ) — an anti-abortion leader in the House — tried to narrow the definition rape to “forcible rape,” thereby preventing women who are drugged, verbally threatened, or do not physically fight off the rapist, from receiving an abortion with federal funds. Smith promised to remove the language, but in “a sly legislative maneuver,” the GOP still managed to alter the definition in H.R. 3, the No Taxpayer Funding For Abortion Act, an anti-abortion measure that passed the House earlier this month. As Tanya Somanader explained, “essentially, if the bill is challenged in court, judges will look at the congressional committee report to determine intent. The committee report for H.R. 3 says the bill will ‘not allow the Federal Government to subsidize abortions in cases of statutory rape’ — thus excluding statutory rape-related abortions from Medicaid coverage.”

Yesterday, the GOP continued its assault against rape victims. As the Huffington Post’s Laura Bassett reports, “The House Committee on Rules blocked an amendment from going to vote on Wednesday that would have allowed military rape victims to access abortion care through their government-provided health plans”:

Earlier this week, Rep. Susan Davis (D-Calif.) and five other House Democrats submitted an amendment to the 2012 National Defense Authorization Act that would reverse the current policy of denying abortion coverage to military women who are raped and become pregnant during their service. As the bill currently stands, servicewomen have to pay out of pocket for an expensive abortion procedure unless they can prove that their lives are in danger.

By contrast, other federal bans on abortion coverage, including those for Medicaid recipients, federal employees, and women in federal prisons, all include exceptions for victims of rape and incest. The ban on abortion coverage for military rape victims is actually more extreme than the Hyde Amendment, which has prohibited federally funded abortions for the past 30 years except in the cases of rape, incest and life endangerment.

Republicans in the House also approved an amendment “that would prevent a federal healthcare education fund from being used for abortion or to provide for training for abortion procedures.” These moves come just days after a new study found that the national abortion rate has actually decreased by 8 percent between 2000 and 2008, but rose “nearly 18 percent among the country’s poorest women” — the very women who are most impacted by the GOP’s attack on choice.

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