King v. Burwell: ObamaCare On Trial, Health Care Reform Still Needed

King v. Burwell: ObamaCare
On Trial, Health Care Reform Still Needed

By

Leonard Zwelling

(http://www.nytimes.com/2015/03/09/us/politics/some-supreme-court-justices-cite-2012-argument-against-health-care-law-as-defense-for-it-now.html?ref=us&_r=0)

         In a final attempt to bury the Affordable Care Act (ACA,
ObamaCare), the forces of objection, both conservative and libertarian, are
trying to use the phrase in the law that denotes subsidies only for “state
exchanges” as a means to defund the subsidies for insurance acquired on the
federal exchanges. This would functionally kill insurance markets in the 30+
states without their own exchanges and probably end ObamaCare for all intents
and purposes.  In those states using federal
exchanges to provide for those without insurance otherwise, the loss of the
subsidies would make the premiums unaffordable to many who qualify for no other
form of the mandated coverage, thus negating the individual mandate and blowing
up the market in the state.

         The ruling from the Supreme Court on the constitutionality
of this aspect of the law (likely in June) will probably hinge on logic similar
to the logic the Court used in 2012. The Court then thought that threatening
states with the loss of the entirety of the federal component of Medicaid if
the state did not institute the mandatory expansion of Medicaid was overly
punitive. This ruling undermined a key provision of the ACA. One of the major
ways the law had hoped to gain insurance for the poor was to expand Medicaid
and the law tried to force this expansion on states. States that refused to
expand Medicaid to everyone under 138% of the federal poverty line would lose
their federal money that pays for about half of Medicaid. That’s a lot of money
as Medicaid is often the largest single component of a state’s budget.

The
Court said the federal government could not do this to the states and the Court
is likely to do the same thing about the subsidies deeming their elimination
overly punitive as well. 

Thus
the defendants are likely to prevail, ObamaCare is likely to remain and all is
right with the world for federalism has been upheld. Right?

         Hardly.

         Let’s be absolutely clear, the ACA did not reform health
care in the US. It modestly expanded access to insurance (not to medical care)
for many who had no insurance. This may be 10-12 million of the 50 million
uninsured, although no one is sure how many of the 10-12 million had insurance
but elected to use the exchanges instead. It did not lower costs or prices or
premiums. It did not “bend the cost curve down.” It did not improve quality.
The undocumented are not covered so are still likely to clog emergency rooms
demanding the most expensive of care from emergency room providers who will
never see a penny in remuneration for the care they must provide by law in an
emergency setting. They will pass that expense on to the rest of us in higher
prices and higher premiums.

         ObamaCare’s effect on health care in the US is negligible to
all but the 10-12 million. That’s a good start, but nothing more. To really
reform health care the Congress must reform more than just the way health
insurance is acquired for a minority of the currently uninsured.

         Here is what did not get done.

1.  Costs are still rising because old people are a
greater proportion of the population and medical technology is outstripping the
ability to pay for itself. Value goes largely ignored in determining who gets
what. End-of-life care is completely out of control as well.

2.  Quality is an elusive metric that no one understands.
As a recent patient, I can assure you that when it comes to nursing, things are
definitely getting worse.

3.  Health insurance is stupid because insurance is no way
to pay for health care unless everyone is in the pool. Unlike car insurance or
homeowners insurance, everyone will need health insurance sooner or later. It
can’t work by having lots of people pay for the few who need it when those who
need it are not few. In fact, everyone needs it eventually as life is
pre-existing condition and illness and death are ineluctable.

4.  We have a well-functioning single payer system in the
US called Medicare. Why not let everyone in while allowing private insurance or
self-pay for those who wish it, to remain an option?

5.  There are insufficient numbers of care providers of
any kind let alone doctors. College and medical school tuition is leaving graduates
with huge debts that preclude their selecting primary care as a career option.
This is a disaster as primary care physicians are what is so desperately needed.

6.  There are inadequate numbers of residency slots to
meet the needs for doctors in Texas alone. This must be addressed for what good
is an insurance card without a doctor?

7.  Why should there be two tax treatments of insurance
premiums, one for employer-based insurance (pre-tax dollars) and another for
insurance purchased on the open market (post-tax dollars)? That’s just dumb and
worth about $200B per year to the US Treasury that is not currently collected.

The
ACA did very little for most Americans other than probably increase the
premiums for health insurance that they or their employers must pay.  That’s their unrealized raise that is paying
for the increased insurance premiums if supplied by the employer, by the way.

King
v. Burwell will only matter if the Court rules for the plaintiffs which is so
impractical and inconsistent with the 2012 ruling on the ACA, that is beyond
unlikely. Why bother? The inability of Congress to enact meaningful health
legislation in 2010 does not bode well for a response from Congress to restore
subsidies on the federal exchange if the Court ruled for the plaintiff.

In
the end, I predict that Chief Justice Roberts and Justice Kennedy will join
Breyer and the Girls and find for the defense and spare the country any further
anguish about the President’s singular legislative accomplishment that
accomplishes so little.

            

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