Supreme Ironies: Obama, The Courts, and the Independent Payment Advisory Board

Life’s Little Ironies

Thomas Hardy (1840-1928), Title of book

For President Obama, the future of his health law is full of irony:

As a constitutional lawyer, Obama may see his health law live or die in the Supreme Court, where his law may be declared illegal and unconstitutional.

His law may die in June, in the King v. Burwell case, if the Court rules federal subsidies are unlawful and unconstitutional in 34 states.

Yet the law may live if the Court decides otherwise. And the Court just might.

Yesterday the Supreme Court choose not to take up the case of the Independent Practice Advisory Board (IPAB), a 15 member board to be selected by the President and charged with the responsibility of making Medicare cuts for doctors. The case , Coons v. Lew, was brought by an Arizona Doctor and patient and the Goldwater Institute who said the IPAB exceeded Presidential authority. The case was dismissed by a lower appeals Court because the IPAB has yet to take any actions. It may be taken up latter after the IPAB acts.

The irony? Obama can’t veto court decisions, and his political adversaries have, understandably, turned their attentions to the judiciary. Nearly every significant initiative of the Obama Presidency faces mortal, or nearly mortal, threats in the courts.

From the start, the IPAB has been among the most controversial of ObamaCare’s provisions.

According to Politico among critics, the argument has been,

” The challengers say that the unique nature of the 15-member IPAB gives it unprecedented legal power. Its decisions cannot be overridden by Congress without a super-majority and cannot be challenged in court. The challengers — an Arizona patient and doctor — say that centralized power makes the IPAB illegal.” (Jeffrey Haberkorn, “Supreme Court Won’t Hear Case on ObamaCare Medical Board,” Politico, March 30, 2015).

The moral of this tale? Live by the law, die by the law, even if the law is something you and your party created to live in perpetuity.

A Big Day for Duke Basketball and Duke Cancer Patients

As a graduate of Duke University’s undergraduate and medical schools, today, March 29, 2015, was a big day for me.

The Duke basketball team advanced to the Final Four with a 66-52 win over Gonzaga. On "Sixty Minutes" the CBS Sunday program, it was announced the Duke medical school may have achieved a cancer breakthrough in treating cancer.

I attended the undergraduate school on a combined basketball- academic scholarship. I played one year of freshman basketball. In those days, freshman and varsity basketball were separate. My only claim to fame as a basketball player was once scoring 16 points against North Carolina’s freshman team. I was not tall enough, fast enough, or skilled enough to make the varsity and was cut after one year. But Duke continued my scholarship for years and for that I will be everlastingly grateful. I spent four years at the medical school and did not have a particularly distinguished record, graduating in the middle of my class, but winning an essay contest sponsored by the Dean, Wilbur Davidson, and drawing a series of faculty cartoons for the medical school yearbook.

The news on the medical school‘s innovative war on cancer was breathtaking. By changing the infectious nature of the polio virus and injecting in a series of 22 patients with glioblastomas that had previously been treated with radiation and chemotherapy, Duke was able to achieve three cures and longer time survivals in a group of patients. Heretofore, glioblstoma was a death sentence, with patients rarely surviving for a year or more. The cure and longer survival times were explained this way. By changing the nature of the polio virus, researchers were able to make it non-infectious. Cancer cells in glioblastoma and other solid tumors have a protective surfaces that serve as protective shields against the body’s immune system. The polio virus, when injected in the center of solid tumors, strips away the shield, allowing the body’s immune system to attack the tumor, destroying it in some patients. The Duke team has worked for 7 years with the polio virus in a phase one study, testing its safety and determining the correct dose. If this aggressive immunotherapy continues to achieve cures and prolong survival without harm to patients, the Duke approach may be made available to a wider public (12,000 patients die of glioblastomas each year in the U.S. Studies at Duke have also shown the polio virus is effective with other solid tumors – lung, kidney, colon,and other cancers. If progress continues along this front, it will probably qualify for the Nobel Prize for the Duke research team.

The Gut and The Computer: Subjectivity and Objectivity

Subjectivity and objectivity commit a series of assaults on each other during a human life out of which first one suffers a the worse beating.

Andre Breton (1896-1966), Nadja (1928)

I once had a neurosurgeon friend, Erich Wisiol. He had uncanny knack for spotting patients with brain tumors. How did he do it? After spending time with a patient, Erich claimed he could “smell” a tumor, which is another way of saying he had the human intuition to perceive subjective patterns of symptoms and signs and behavior indicating the patient had a tumor.

This type of intuitive skill is based on something called “perception learning.” If you see enough of something you can perceive what it is without thinking. It becomes automatic. In medicine, you can apply perceptional training to removing gallbladders through a laporascope to reading cardiograms, to identifying rashes, to interpreting biopsies, to unraveling what data means (Benedict Carey, “Learning to See Data,” New York Times , March 29, 2015.

In this computer age, subjectivity is taking a beating. Reformers tell us you can’t trust your gut. You can only trust data and objective algorithms, But there’s a problem. “The problem today is that biological data are often abstracted into the digital domain, says John Greally, director of Einstein’s Center for Epigenomics, “ and we need some way to capture the gestalt, to develop an instinct for what’s important”. In other words to train human intuition to perceive patterns in the digital universe. In the words of Benedict Carey, science reporter of the New York Times, “ The information is all there, great expanding mountain ranges of it. What is lacking is the tracker’s instinct for picking up the trail, the human gut feelings for where to start looking to find patterns and meaning.”

But subjective learning, meaning learning based on person perception or knowledge or time spend with patients, is coming back in style. In Seattle, a medical group called Iora, which as 140 employees in 11 practices , has just raised $28 million in its third round of venture financing. Its secret? More time subjective spend with patients. Most primary care doctors have 2000 patients. The typical Iora doctor cares for only 1000 for a monthly fee. Iora primary care approach is longer hours, more support staff, and additional funding with more upfront time understanding the patient’s problems through daily huddles of the staff, and as a result, driving down total spending, through prevention and fewer hospitalizations. Iora’s model does not include deductibles or co-pays and welcomes more patient communications through visits, emails, and phone calls. (Margot Sanger-Katz, “A Starbucks for Medicine, “ New York Times, March 28, 2015). Iora’s leaders believe their model will prove profitable on a large scale and will attract further venture capital to facilitate expansion.

Fee-for -Service or Bundled Bills: Not-An-All-Or-Nothing Or All-Size-Fits-All Proposition

The March 22 WSJ features a debate between Paul Ginsburg, director of public policy at the University of California, and Richard Amerling, MD, nephrologist and president of the Association of American Physicians and Surgeons (“Should The U.S. Move Away from Fee-Service-Medicine?”)

It is a lively debate. Ginsburg emphasizes reimbursing physicians on basis of value, prevention, outcomes, and total care. Doctor Amerling stresses FFS is not the problem. The problem is high costs caused by 3rd parties, resulting in high administrative costs, insensitivity to real costs, and greater volume of tests and hospitalizations.

The article contains a chart showing these leading cost drivers – hospital care, 34.0%, physicians and clinical services, 21.0%, and prescriptions, medical products, and personal care, 13.5%- accounting for 68,5% of all costs.

What is missing in the debate are these obvious facts:

-- Bundled bills make sense for big ticket bills for major hospital operations , procedures or illnesses - for cancer, heart disease, and common operations for which data exists. I know this because in the 1990s as chairman for a PHO, our hospital and its medical staff created bundled bills for over 100 hospital-based illnesses by giving 10% discounts for hospitals, 3% discounts for physician fees, with prepackaging the two into one bill backed by reinsurance if the bill were exceeded. These kinds of bundled bills are doable and acceptable for hospitals and physicians alike.

-- nBundled bills do not make sense for much of the population seeking care for episodic problems outside hospital settings. These are short-term situations which do not require data gathering or total patient care. They are routine episodes that do not need to be factored in or entered into some massive data base.

-- Bundled bills are already a fact-of-life in many out-of-hospital market transactions. Concierge direct-cash practices offer monthly or annual retention fees that include bundled fees covering the visits, on-line or phone consultations, and routine tests. Ambulatory surgical centers generally bundle surgeons', anesthesiology, nursing, and short-term rehab fees. Retail clinics feature bundled evaluation fees.

The Final Health Reform Four

ObamaCare has been five years in the making, and it’s come down to the final four. The final game will be in Late June in Washington, D.C. with the Supreme Court making the call.

The final four are:

-- Universal Health Care - This is the favorite among liberals, but it was out of the running early. Even its supporters knew it would not win among Americans, who had no wish to emulate the European or Canadian systems. Some thought, hope against hope, we follow the British, Switzerland, German, or even the Singapore models, but that was not to be. Our system had been in place for 70 years . It dated back to World War II when employers were giving tax deductions for covering health care for employees. When Medicare and Medicaid were introduced in 1965, it experienced budget overruns of 9 to 10 times original estimates, and when the medical industrial complex devoured 1/6 of the U.S. economy and was not to be displaced. All of these things were barriers to a winning entry in the reform sweepstakes.


-- ObamaCare - Then in 2010 came the Patient Protection and Affordability Act, renamed Obamacare by critics and embraced by the President because, he said, “It shows I c care.” It is one of the co-favorites because it under its aegis, overall health care spending has slowed and the number of uninsured Americans has declined by over 11.6 million. But it has its liabilities. Americans disapprove of it by 52% to 42%. It did not fulfill its misleading promises – to increase quality, decrease individual costs, and lower premiums for most Americans. Its launch in October 2013 was badly bungled. Among doctors, 46% gave it a D or F grade, and 25% said they would not accept healthcare.gov plan patients. It was passed secretly in the dead of night against unanimous political opposition. The majority of states choose not accept federal Medicaid funds. And it ran into an electoral buzzsaw in the 2012 and 2014 midterms and lost its majorities in the House and Senate. Its survival depends on the kindness of strangers – conservatives on the Supreme Court.


-- GOP Care - This is currently being developed by three man Republican committees in the House and Senate. It is one of the co-favorites. But it has problems. The final versions have yet to see the light of day. It is unlikely to withstand a certain Presidential veto. It promises to be patient-centric, to offer competition, to foster patient choice and freedom to select their own plans, and to lower costs while expanding service and coverage. And it may never see the light of day if the Supreme Court declares federal subsidies to be legal in the context but not the wording of the health law.



-- Free Market Care - Policy markets say this alternative is least likely to succeed. It is a return to the bad old days of unregulated care. It trusts doctors to do what is best for their patients, not their pocketbooks. It assumes patients are well-informed about what is good and bad for their health. Its advocates believe employers will do what is good for their workers. It relies on doctors and patients rather than government and management experts. It has no real base, no rooting section. According to the government, less than 5% of doctors currently participate in free market, i.e., cash-only or concierge, care. It has no structure – no overarching national strategy to guide and regulatory safeguards. But it seems to be catching on – largely because of the complexities, bureaucratic barriers, physician shortages, and high costs of ObamaCare for middle class Americans. A growing tide of consumers are going to urgent care centers, retail clinics, concierge physicians, and to self-care or home care options.

The Doc Fix is On - Reading Between the Partisan Lines

Lawmakers closed in on passage of a measure to permanently replace an 18-year old formula for reimbursing doctors for Medicare patients, as support in the House swelled and resistance faded among Senate Democrats.

Siobhan Hughes, “Passage of ‘Doc Fix’ Edges Closer, Wall Street Journal, March 26, 2015

The two political parties, 18 years after the 1997 Sustainable Growth Formula (SGF) was enacted, tying doctor incomes to the Gross National Product, and 17 years of annual patches, have decided to discontinue the SGF.

Why the shift to a bipartisan solution?

I suspect there are multiple reasons.

Among these are:

National surveys of doctors indicating that 62% of doctors planned to retire early and 56% said they planned to see fewer Medicare patients. Given current doctor shortages of 50,000 to 100,000 among primary care practitioners and specialists, this is unacceptable to voters, who tend to trust doctors more than government and who are reluctant to accept physician assistants, nurse practitioners, and other physician replacements as go-betweens.


Government promises that the Americans could keep their doctors, hospitals, and health plans, when these promises, coupled with narrowing of networks and cancelled health plans , were proven to be untrue, and were known when ObamaCare was enacted.


Consumer and physician disenchantment with health exchange, Medicare, and Medicaid plans. One of four doctors have said they do not plan to accept members of such plans, and further more, somewhere between 10% to 40% of doctors, depending on region of the country, have said they will not longer accept new patients on government sponsored or subsidized plans.


A growing consumer and physician movement away from government or insurer plans towards cash-only care outlets such as retail clinics, urgent care clinics, work site clinics, ambulatory surgical units, and concierge physicians.


A compromise between Democrats, who are getting what they want, health insurance for children in low-income families and to shifting costs to higher income Medicare patients and Republicans who seem to be willing to accept higher deficits in a package that would cost $214 billion over a decade and add $141 billion to the deficit without corresponding tax increases.

Physician Response to Electronic Health Records a Mixed Bag

Although the federal push for electronic health records (EHRs) is now 10 years old and although 70% to 80% of practicing physicians now have these records, physicians are of mixed mind about the effectiveness of EHRs.

This mixed reaction is best shown in a 2014 Physicians Foundation survey of 20,000 physicians. When asked how they felt about EHRs, physicians gave these responses: increased quality of care, 37.3%; decreased quality of care, 27.4%; increased efficiency, 24.3%; decreased efficiency, 45.7%; enhanced patient interaction, 4.6%; distracted from patient interaction, 47.8%.

Clearly, in many respects, EHRs have not achieved their goals of improved quality, greater efficiency, and enhanced physician-patient interaction.

In an Op-Ed piece in the New York Times ( “Why Health Care Tech Is Still So Bad,” Robert M. Wachter, MD, a professor of Medicine at the University of California in San Francisco, and author of The Digital Doctor: Hope, Hype, and Harm at the Dawn of Medicine’s Computer Age, contemplates why EHRs have such a mixed record.


“Last year I saw an ad recruiting physicians to a Phoenix-area hospital. It promoted state of the art operating rooms, dazzling radiology equipment, a a lovely suburban location. But only one line was printed in red.: “No EHR.”

“The unanticipated consequences of health information technology are of particular interest today. In the past five years about $30 billion of federal incentive payments have succeeding in rapidly raising the adoption rate of electronic health records. The computerization of health care has been like a car whose spinning wheels have finally gained traction. We are so accustomed to standing still that we were totally unprepared for that first lurch forward.”

Doctor Wachter , a pro-health information advocate, took a year’s sabbatical to write his book , In the course of that year, he interviewed, among others, Erik Brynjolfsson, a management professor at M.I.T,, Boeing’s top cockpit designers, Silicon Valley iPhone entrepreneurs, I.B.M’s Watson team, and, of course, his digital doctor brethren.

In his book and his Op-Ed piece, Dr. Wachter argues “Health, our most information-intensive industry, is plagued by demonstrably spotty quality, millions of errors and backbreaking costs.” He concludes, “Electronic records will transform medicine, eventually.” To achieve this utopian goal, he says physicians will have to focus on patients rather than demands of the computer, work together in teams, and government will have to mandate the seamless shoring of data between different systems in different settings.

In a related Wall Street Journal article (“Why Health-Care IT Systems Must Be Made to Talk to One Another" March 27, 2015), Wachter observes, “The proportion of doctors’ offices with electronic records has skyrocketed. Our health system finally has a digital backbone. But the backbone’s vertebra are mostly unconnected. What we are lacking is called interoperability.” Once that is achieved, presumably we will have a seamless, vastly improved health care system.

I am not so sanguine. I believe medicine, an intensely humanistic, interactive endeavor, will still require clinical judgment and gut reactions. Long live the gut. Keep the data, churned out day and night by computers and iphones and apps, in perspective. In the words of Dr. Wachter, computers are “Just an essential tool. Nothing more, nothing less.” They are not the end game of medicine, just one way of getting there.

ObamaCare Decline and Fall?

Self-Evident Issues

1. Cultural – America is a vast middleclass center-right culture that believes the majority, not the minority, rules and in equal opportunity, not equal results, for all. One size does not fit all. When this equation changes, decline and fall of health reform law may follow.



2. Economic Growth - In retrospect, as a nation, perhaps President Obama should have focused more on economic growth and prosperity, rather than on regulations and social justice. At 2% growth over last 6 years, recovery from recession is slowest since World War II.



3. Politics - In a bipartisan nation, one does not pass social legislation affecting every American without a single vote from opposition party. Unilateral power breed intense bitterness, lingering partisanship, and gridlock.



4. Constitution - Our governing document, the Constitution, was designed to give checks and balances and equity to three branches of government – executive, legislative, and judicial. When that balance is altered, or the Constitution is thought to be violated, rules for governing may descend into chaos.



5. Consumers - America is a consumer-driven nation, and any health law should be consumer-friendly and consumer-centered, rather than bureaucratic and government-controlled.



6. Doctors – For any health reform system to be effective, practical, and workable, it must have enough doctors to care for patients generated by that reform. If the system causes doctor shortages and relies on foreign-trained physicians to fill gap, it presages reform decline.



7. Simplicity - Health reform that remains unpopular, that incomprehensibly raises premiums and deductibles and leads to loss of health plans, and whose mandates produce uncertainties, confusions, and penalties is in trouble.

8. Computers - In a humanistic enterprise like health care, overreliance on online technologies to judge providers, to measure outcomes, and to improve quality has its pitfalls.

9. Costs - Present costs of healthcare.gov ($2 billion) and projected 10 year costs of ACA ($1.7 trillion), long-term costs of $6 trillion, and unsustainable costs of Medicare and Medicaid and other entitlements make reform of health reform and alternative approaches inevitable.


What's to become of ObamaCare? Will it be repealed in the next session of Congress? Will it prevail and be irreplaceable? Will it be like Prohibition, repealed after 14 years because of unworkability and public rejection? Or will we behave as Pogo said, " We have met the enemy, and he is us."?

Among Millenials, Penalties for Not Having Health Plan Discourages ObamaCare Enrollment

One of the ObamaCare incentives for getting people to sign up for healthcare.gov exchange plans was to tell uninsured people to have a plan – or pay a penalty. Surely, the reasoning went, people with take the lesser of two evils - a plan, particularly if it were subsidized, but not a penalty. But the young and healthy are saying no thank you, I’ll just go without.

According to a McKinsey and C. survey of 3,007 uninsured and individual adults ages 18-34, most uninsured prefer to pay the penalty rather than enroll. Part of the reason may be because 41% of uninsured do not even know a penalty exists, or because the millenials are having a tough time finding gainful employment.

When informed of the penalty, which was $95 or 1% of income in 2014m only 12% changed their mind and decided to enroll.


31% said they didn’t need health insurance and the penalty was less than coverage.



26% said they believed in health insurance but the penalty was less than than coverage.



15% indicated they didn’t believe in the law.

There may be other factors as well. The young may believe they invincible and will remain in good health. In millennial minds, these plans are not a good deal, when you can’t afford them, when ERs will have to accept you, when you can get your plan after you fall ill, and when the IRS isn’t going to be able to enforce the $95 penalty anyway.

More of the young are part of the boomerang generation. They are returning home to live with their parents. Across population groups, they have the highest rate of unemployment, often over 15%. Jobs are in short supply, and more and more jobs are part-time, partly due to ObamaCare policies that encourage discourage full-time employment. Many of the young have staggering credit card and education debts. Tuition costs are high. Financial aid is dwindling. As a result of all of these things, many of the young are going back home to live with their parents or never leave.

In the words of one millennial, Evan Feinberg of Nevada,

“We’re young but we’re not stupid...only 22% of Nevadans signing up are between ages 18 and 34, a far cry from the 40% the White House wanted…Blame the ObamaCare marketing team. The team’s efforts to persuade us to sign up have been inappropriate, incoherent, and simply insulting.”

Because of economic headwinds, a high rate of unemployment, Obama is losing support among white millenials. According to Gallup, approval has dropped from 58% in 2008 to 34% through November 2014. In the midterms, the millenials favored a GOP-led Congress.

Over all, of those signing up for ObamaCare through the exchanges , only 28% were between 18 and 34%, far short of the Obama target of 40%. This is distressing because the young and healthy were expected to be a main source of revenue and were expected to keep premiums down for older and sicker persons. Among the young, the main deterrents for not enrolling were high costs, lack of value of benefits, and irrelevance to their health needs.

Data Quotes

“The gut is dead. Long live the data, turned out day and night by our myriad computers and smart devices. Not that we trust the data, as we trusted our guts.”

Virginia Hefffernan, “ Number Crunch.” New York Times Sunday Magazine, March 22, 2015

“Last year I saw an ad recruiting physicians to a Phoenix-area hospital. It promoted state of the art operating rooms, dazzling radiology equipment, a a lovely suburban location. But only one line was printed in red.: “No EHR.”

“The unanticipated consequences of health information technology are of particular interest today. In the past five years about $30 billion of federal incentive payments have succeeding in rapidly raising the adoption rate of electronic health records. The computerization of health care has been like a car whose spinning wheels have finally gained traction. We are so accustomed to standing still that we were totally unprepared for that first lurch forward.

Robert Wachter, MD, “Why Health Care Tech Is Still So Bad, ,” author, “The Digital Doctor: Hope, Hype and Harm at the Dawn of Medicine’s Digital Age,” New York Times, March 22, 2015

Comment: Among practicing physicians, one of the most controversial issues is the utility, expense, and time-wasted of electronic health records (EHRs). Although some 80% of physicians now have EHR systems, the majority do not regard these systems as enhancing quality.

Don’ts for ObamaCare

Don’t Overstandardize - Don’t try to homogenize health plans by making every plan have the same set of essential benefits. Different folks for different folks have different needs, and they may resent paying for others.


Don’t Rely on Data - Don’t use data exclusively to judge outcomes, to separate good physicians from bad, to use as basis for payments. People often make decisions based on hearts, guts, and principles, rather than on data. Data has human limitations.


Don’t Restrict Choice - America is a land of choice and freedom to choose what one wants to choose, to live where one wants to move, to choose one’s occupation, to pick one’s own doctor rather than a physician in a government or insurance network.

Don’t Mandate - At the heart of the unpopularity of Obamacare are those cursed individual, employer, religious, and health plan mandates. People do not liked to be forced to do what the government wants them to do. They do not want to be compelled to have a health plan or pay a penalty.

Don’t Over- Promise - Promises may be the life-blood of liberal politics, but broken promises on keeping your doctor and your health plan and lowering your premiums will come back to haunt you.


Don’t Be Too Clever - Don’t be too tricky, as you were when you created the Healthcare and Education Reconciliation Act to bypass the Senate and get ObamaCare enacted. Two can play this game. Unilateral executive actions and Congressional bypasses will not work in the long run.


Don’t Demonize Or Be Too Dismissive of Your Opponents - They are simply trying to satisfy their constituents in order to be re-elected. Ridicule begets retaliation, and personalization of differences is counterproductive.


Don’t Obfuscate Your Arguments through the use of lofty words or devious solipsisms or putting up strawmen, who never said you claim they said. You may fool some of the voters some of the time but not all of the voters all of the time. Rhetoric always comes to roost in the form of reality. Don’t be too inebriated by the exuberance of your verbosity.


Don’t’ Rely on Trust in Government - Trust in government is a fickle thing in a decentralized center-right country like America, especially when people look closely at budget deficits and taxes which leave them worst off than before without measurable improvements in their lives, incomes, and opponents. Politics is cyclical, and don’t you forget it.

Don’t Rely on Young to Save Or Majorities to Rescue Minorities. Don’t pit one class against anothe4rl. Redistribution of wealth and health may be a moral imperative for some, but not for the young and ambitious or the middle class and or those seeking opportunity to rise above the common herd.


Don’t Bet on Free Lunch – It’s true, there is no such thing as a free bureaucratic lunch. Sooner or later, someone must pay the government Piper. Who is the fairest of them all - big government or free-markets?

Don’t Under-estimate Doctors - Doctors are not serfs of government. They are free to choose where they practice, what specialties they choose, whether to accept Medicare, Medicare, and health exchange plan patients, and to negotiate with patients what they can afford as long at doctors remain in independent practice, free of the fetters of government.

Lighting and Blowing Candles on ObamaCare’s Fifth Birthday

Out, out, brief candle!

Shakespeare (1564-1616), Macbeth

It’s here. ObamaCare made it until its fifth birthday.

Some people are lighting and blowing candles on the cake. Notable among these people is President Obama himself “On Anniversary, Obama Tells Critics to ‘Embrace Reality” (The Hill). His five year old child is alive. It has reduced overall costs. He says premiums are not as high as they might have been. More people are insured than might have been. As one sage observed, "The saddest words are it might have been."

But others are trying to snuff out the candle.

“Unhappy Birthday, ObamaCare,” Sally Pipes, New York Daily News.

“The Health Law Hasn’t Aged Well,” Editorial, The Washington Examiner.


“Five Years In, Busted Predictions,” Sam Baker, National Journal.

For others, the candles are still there, but they are flickering. but for them, they are burning their personal candles at both ends as they struggle to make ends meet.

“Small businesses struggle with Health Law,” Joyce Rosenberg, USA Today.


“Under the Health Law, Many Tax Filers Discover Costly Complications.” Abby Goodnough, New York Times.


“ObamaCare’s Potential Has Been Stymied by Politics, “ Editorial Board, Los Angeles Times.


Making predictions about ObamaCare is hazardous business. It is like blowing candles in the wind. As Sam Baker observed in the National Journal, the prediction made when ObamaCre became law have not to come to paas.

These predictions included. 1) it would be dead by now; 2) it would become popular; 3) it would end Medicare; 4) it would end private insurance; 5) if you like your plan, you can keep it.



As for me, I am currently working on a book with the self-explanatory title of ObamaCare’s Decline and Fall.

Republicans to Use Reconciliation Process to Repeal ObamaCare

The media is full of reports that Republicans plan to repeal ObamaCare with 51 Senate votes.

What’s this all about? In part, it’s tit for tat, one good turn deserves another, and do unto others what they did unto you. It’s something called the Reconciliation process or maneuver.

Today, March 21, the first day of Spring, marks the fifth birthday of the Democratic-created Health Care and Education Reconciliation Act of 2010, which was followed on March 23, 2010, by the passage of ObamaCare.

A little history. President Obama was elected in November 2008. He inherited a House and Senate dominated by Democrats. The Senate had 60 Democrats. Obama’s team wrote the health law in 2009 and 2010. Then fate stepped in. Senator Ted Kennedy died in August 2009, and his successor, Republican Scott Brown, was elected in January 2010. That election left the Democrats one vote short of the 60 required to avoid a GOP Senate filibuster.

So Democrats went to work and crafted the Health Care and Education Reconciliation Act of 2010, which required only 51 votes rather than 60 votes to pass legislation. On March 23, 2010, 2 days later. Democrats passed the Patient Protection and Affordable Care Act by 220 to 211 in the House and 56-43 in the Senate without a single Republican vote.

Pass forward to today. In 2015 , now that they are in the majority, Republicans plan to use the Reconciliation Act to repeal ObamaCare. They know President Obama will veto their repeal , but reconciliation has the benefit of showing the GOP can act in concert, and of forcing the President to veto a measure supported by the public in countless polls.

Also, if the Supreme Court rules against ObamaCare in June, it moves the GOP closer to gutting the health law, at least symbolically. Whether this all occurs will depend on the outcome of the current Republican budget battle to cut federal spending and strengthen the military. In other words, the reconciliation battle is more than just tit for tat, or one good turn deserves another, or doing unto others what they have done unto you, it’ symbolizes battle for the soul of America in the Presidential and Congressional elections in 2016.

Why Is ObamaCare in Such Trouble?

Why,five years after passage, does ObamaCare remain in boiling political hot water?

The reason why, as I have said many times in these blogs, is anger over lack of political legitimacy. Unlike Social Security, Medicare, and Medicaid, ObamaCare passed without a single Republican vote. This is not the way laws effecting every American are done.

Before passing the health law, President Obama failed to build political support. Instead he bypassed Republicans through Medicaid bribes in three states (Louisiana, Nebraska, Connecticut) and resorted to parliamentary and reconciliation trickery to sneak an unread bill through Congress.

It was Obama’s way or the highway. It was the use of unilateral presidential authority through executive presidential discretion. Presidential discretion, we have learned, is a broad, vague, and gray highway, open to interpretation.

The result, according to Daniel Henninger in today’s WSJ “ObamaCare for Arms Control, ” is a political mess. Henninger compares the current Iran nuclear arms deal to ObamaCare. With Iran, Obama is bypassing Congress and seeking rubber-stamp approval from the United Nations Security Council, which unlike the Senate, is certain to approve the deal.

The result? “A substantive mess undermined by failure to build adequate political control…a virtual Rube Goldberg machine, a patchwork of fixes… a shamble of half-done details.” Henninger contends , “Political legitimacy is the coin of the realm in the American system.”

Illegitimacy breeds anger – anger over a one-party health law, anger over half-baked, unfilled, misleading promises, anger over political arrogance. Yes, ObamaCare has helped deliver subsidized care to 8 million uninsured. Yes, it has expanded Medicaid to 8 million more.

But at a fearsome price, loss of political legitimacy, bitter partisanship, and damage to the traditional relationships between the Presidency and elected representatives of the people in the House and Senate. Anger motivates men to do unto others, e.g. Congressional invitation to Netanyahu, open letter of 47 Senators to Ayatollah, and repeated House votes to repeal ObamaCare, what they did unto you.

Quote to Note: Turning Around A Large Health System on a Dime

While it has traditionally relied on its ability to provide high-priced specialty care, the system, along with every stand-alone community hospital and large academic medical center, is being forced to remake itself. Patients are increasingly seeking care outside the hospital — in a family health center, a doctor’s office, a drugstore or at home.”.

Reed Abelson, “Cleveland Clinic Grapples with Changes in Health Care,” New York Times, March 17, 2015

As a society, we’ve become accustomed to the thinking the best health care to be had occurs at large hospitals or large integrated health systems. But now people are thinking small care may be better. This change of heart is hard for big systems to adjust to. As the expression goes, “You can’t turn the Queen Mary around on a dime.” You don't necessarily change peoples’ habits with big health systems or big health reform laws. People are looking for alternatives outside of big hospitals and big organizations and big government- something friendlier, smaller, more personal, more private , more confidential, more accessible, less bureaucratic, with more choice. Independent, out-of-hospital care may be reaching a tipping point.

One Man’s Meat

One man’s meat is another man’s poison.

Oswald Dykes, English Proverbs (1709)

So speak those in ideologies frozen,

To the followers they have chosen.

To the administration things look bullish.

Not so fast, say critics, do not be foolish.

The numbers don’t mean what you think they do.

They depend on what you’re comparing them too.

Investors say the figures are phoney,

So phoney as to resemble baloney.

Not so , says the Obama administration.

The uninsured show rapid deceleration.

But say critics, at decade cost of $1.7 trillion.

The uninsured will still number 25 million.

And the insured can’t get care out-of-network.

Which is where you go when you need an expert.

References

“Administration Bullish on ObamaCare – Public Not So Much, “ Washington Times, March 16, 2015



“ More Phoney ObamaCare Numbers, “ Investors Business Daily, “ March 17, 2015



“ Most NY Marketplace Plans Lack Any Coverage for Out-of-Network Care,” Kaiser Health News, March 17, 2015

Spin Doctoring

While we wait for the Supreme Court to rule on federal health exchanges legality, now is a good time to go for a spin on spin doctors. A spin doctor, of course, is a politician who seeks to control the way a political event is described in order to influence how people think about it.

Take the top spin doctor, President Obama. Back in 2009, before the health law passed, Obama described physicians’ role in the health system this way.

“ You come in and you’ve got a bad sore throat, or your child has a bad sore throat or has repeated sore throats,” President Obama explained .“The doctor may look at the reimbursement system and say to himself ‘You know what? I make a lot more money if I take this kid’s tonsils out."

In other words, you can’t trust doctors. They are in it for the money. They perform unnecessary procedures. Medical professionals can’t be trusted without guidance from their moral superiors, Democratic politicians and government experts, who must supervise and monitor their medical practices.

Or take today’s news from Sylva Mathews Burwell, HHS Secretary, who announced there are now less 16.4 million uninsured because of ObamaCare, which passed five years ago on March 23, 2010. She said 14.3 million had been added to the government dependency rolls since October 2013, when the first healthexchange.gov was launched. Before that epic event, 2.3 million young people under 26 had been covered under their parents’ plans. The number of uninsured has declined among Hispanics by 12%, African Americans by 9%, and Whites by 5%. If the Supreme Court rules against ObamaCare, 8 million federally subsidized people will be set adrift in a cruel Republican world, no longer able to pay for health insurance.

This is very effective spin doctoring, designed to influence Supreme Court justices to uphold federal subsidies. It is the moral imperative argument and assumes the GOP has no sustainable alternative plan.

The Republicans, adamantly opposed to ObamaCare, of course, spin things differently. Just yesterday, they presented a budget that repealed the health law, partially privatized Medicare, and gave the states Medicaid block grants. They will negatively spin ObamaCare, complaining of the bloated bureaucracy, the $500 billion in ObamaCare-related taxes, the $100 billion in Medicare-Medicaid fraud, the $125 billion in improper payments by federal agencies, cancelled health plans, rising premiums and deductible, disruptive effects of higher costs on small businesses and the middle-class. They will positively spin their approach , saying that rising economic tide will lift all boats, that the only path better care lies in free markets, choice, innovation, and entrepreneurship and distribution of the profits of prosperity.

The ObamaCare spin, positive and negative, will never stop, no matter what Bill O’Reilly says. It will lack context, and it will depend on one’s ideology. And it may never stop spinning . It will only make sense in the context of history. And maybe not even then, for by then, most of us will be spinning in our graves at the outcome.

ObamaCare Alternatives

I am contemplating writing another book on ObamaCare, tentatively titled ObamaCare Alternatives.

Why another book on ObamaCare? In my case, the answer is simple. In the course of writing 2000 blogs on health reform over the last 5 years, I have noted a growing number of ObamaCare alternatives. In part, these alternatives are due to deep unpopularity of the health law and its failure to deliver on its promises. Alternatives include retail clinics, urgicare clinics, free-standing emergency rooms, direct cash practices, alternative medicine, self-care at home, self-pay, care outside the U.S., care from faith-based organizations, and going without insurance.

What is driving these alternatives?

Desire for more choice and more balance between private and government care.



Evidence that market-driven alternatives are often more efficient, less costly, and more personal.



Perception that ObamaCare is a poor fit for America’s decentralized capitalistic culture.



Polls indicating Americans prefer economic growth and opportunities to social equities and redistribution policies.



Growing physician shortages in part due to government cost-cutting and loss of clinical autonomy.



Inability and intrusiveness of government in managing billions of patient-physician-hospital transactions on ground.



Failure to recognize human beings will always seek to obtain best of care and latest technologies .



Over-reliance on information technologies and social media to inform patients and reform system.



Distrust of government in wake of dashed promises to keep doctors and health plans and to lower personal costs.



Fears of loss of personal privacy and over-surveillance secondary to individual and employer mandates.



Growing recognition that ObamaCare has winners (the uninsured, hospitals, Medicaid) and losers (the young, middleclass, and taxpayers) and that being a patient, physician, and employer is no piece of cake.



Resistance to individual, employer, and religious mandates and penalties as un-American.



Conclusion: In America, there is always room for more efficient, innovative private alternatives to government care.

The High and Lows of ObamaCare - The Irony of It All

ObamaCare peaked early - the day it passed on March 23, 2010. Passage epitomized the 100 year old progressive dream of a national health care bill. Senator Edward Kennedy said it best at the 1980 Democratic convention, “The work goes on, the cause endures, the hope still lives, and the dream lives on. Well, Democrats gave birth to their dream that glorious day.

But after birth, troubles set in. The American public was against it at the onset. The dream that the public would come to love it didn’t happen. Then there’s was wet nurse Nancy Pelosi’s admission that no one had read it, “We’ll have to pass it to see what’s in it.” There was the jarring recognition that it was being raised in a single parent political family. Not a single Republican had voted for it. This hadn’t happened with any national piece of legislation. It set the stage for more than 30 Republican bills in the House and Senate asking for repeal or defunding. The Democrats lost two midterm elections, in 2012 and 2014, largely on the basis of opposition to ObamaCare. Dashed promises about keeping your doctor or your health plan or having your premiums lowered followed, and those Jonathon Gruber’s revelations that all of these things were known early on. There were those health plan cancellations , those soaring premiums, rising deductibles, troubles finding doctors, and the bumbling technological incompetence of the health exchange launch and those glitches that kept popping up , fixes that never seemed to be completed, and delays that never seemed to end. There were signs of life and hope, of course, the number signing up for subsidies went up and the rate of uninsured went down. But then, it became apparent that as many as 7 million of those enrolled may have been subsidized illegally if the government and the IRS had adhered to the letter of the law that subsidies were to go only to those in exchanges “established by the state.” In addition to all of this, Americans didn’t like those coercive mandates, that you either had to have a plan or pay a penalty, that you either had to insure your employees or pay a fine. America was the home of the free and the land of choice, not a place where a central government controlled your lives and dictated what you did. But the dream’s single parent took heart, the Supreme Court might save the fledging infant , now approaching 5 years old, in 2015, as it had in 2012.

HilliaryCare:Revisited

Hillary was determined to sweep aside the best medical delivery system in the world and to reshape 14 percent of America’s econo0my by enacting a national health care plan.

Barbara Olson, General Counsel for U.S. Senate, Hell to Pay; The Unfolding Story of Hillary Rodham Clinton, Regnery Books, 1999

Hillary Clinton is prohibitively favored to win the Democratic Presidential nomination, and at the moment, she leads all potential Republican candidates in polls by large margins.

Given this situation, it may be instructive to examine her past performance in health care. When Bill Clinton became president, she announced she would put together a national health plan within 100 days and would pass it into law in 1993. President Clinton named her to head his Health Care Reform Task Force. She interviewed 200 experts from the executive branch to make up the task force. Her task force members were never named, operated in total secrecy, and excluded participants from the private sector.

Ira Magaziner, Hillary's handpicked academic policy wonk, led the group. He reviewed, evaluated and corrected all recommendations. Magaziner refused to openly discuss or summarize the proceedings. Hillary, in turn, refused to compromise with Congressional Democrats, Congressman, Jim Cooper and Senator, John Breaux, who had plans of their own.

When Hillary’s plan finally surfaced it was 1,326 pages and filled 268 boxes. It proposed to expand Medicare and absorb Medicaid into a new system of universal coverage. It had an employer mandate. Its centerpiece were regional alliances from which consumers would pick plans. It smacked of total bureaucratic control. The alliances would serve as purchasing agents, contract negotiators, welfare agencies, financial intermediaries, collectors of premiums, developers and managers of information systems, and coordinators of information and money.

The Jackson Hole Group, led by Paul Ellwood, M.D., denounced the plan as unworkable. The New Republic said it was what happened “when you crossed management blather with paleoliberal ambition.” Daniel Patrick Moynihan, the liberal Democratic Senator from New York was aghast when he learned the plan would cut the number of doctors by 25% and the number of specialists by 50%. He called the plan the “deliberate dumbing down of medicine.”

The plan went down in bipartisan flames. Critics called it illegal and said it violated “open meeting” laws. Magaziner became a scapegoat. Hillary tried to revive her plan by vilifying the insurance and pharmaceutical industries, who struck back with “Harry and Louise” ads that ridiculed the plan. Senator George Mitchell finally sat down with the Clintons in August 1994 and told them the plan was DOA in the Senate. A few months later, voters took out their wrath on Democrats. Democrats lost control of the House, and Democrats like House Speaker Tom Foley, Governor Mario Cuomo, and Governor Ann Richards were ejected from office.

Fixing Doctor Medicare Pay

Once upon a time, 1997 to be precise, Congress designed a formula to be used each year to establish doctor pay for Medicare recipients. The idea behind it was to make sure doctor expenses didn’t exceed growth in the Gross Domestic Product (GDP).

The formula came to be known as the SGR (Sustainable Growth Rate). It was based on 4 factors: 1) % change in physician fees; 2) % change in average number of Medicare fee-for-service market; 3) % 10 year average change in GDP per capita; 4) % change in Medicare expenditures.

The SGR had one problem. It didn’t work. Every year it cut doctor fees to levels doctors couldn’t tolerate, Furthermore, if implemented it might result in doctors abandoning Medicare. Eighteen times Congress had to step in and create a “patch” or “fix”.

This year is no exception. The SGR calls for a cut of 20%. This year \pne difference is the GOP Congress is pushing for a permanent fix. The fix would cost $174 billion. It won’t come easily, and another short-term patch of 3 to 6 month is likely. It will require compromise, probably involving continuation of the Children’s Health Insurance Program (CHIP). The tone in Congress is that the time has come to retire a federal program that doesn’t work with something that ensures physician participation in Medicare.

Where Have All American Specialists Gone?

When I recently visited my cardiologist at a major medical academic institution, he commented to me, “All the candidates we’re getting are foreign-medical school graduates, Not Americans,”

When I asked why, he said in words to this effect,”Because our patients are mostly MediCare. The ObamaCare administration is arbitrarily slashing cardiology fees to save money, and cardiologists are being forced to accept hospital employment. Ambitious American medical school graduates don’t like that scenario.”

I suspect this sort of thing is going on among many fellowship programs in many specialties. And I suspect it is why many foreign medical school graduates are flocking to America to live the American dream – to become a highly respected and highly paid specialist.

This phenomena, foreign –trained physicians as American medical specialists, is not new. But heretofore , it is has been obscured by the focus on primary care shortages.

Yet, truth be known, foreign-educated and American-trained specialist are already prevalent in American.

Among specialists, these percentages of foreign-born specialists are filling the vacuum created by the number of American medial graduates becoming specialists.

Anesthesiologists, 31%

Cardiologists, 31%

Internal medicines, 32%

Nephrologists, 40%

Psychiatrists, 31%

There is nothing intrinsically wrong with this. It simply illustrates that the demand for specialists exceeds the supply of graduates from U.S. medical schools and that fellowship offered by U.S. hospitals and academic centers are not attractive to these graduates. And specialty shortages may grow worse. Shortages are now estimated to be 33,100 this year, 46,109 by 2015, and 64,000 by 2025 (Thomas Hemphill, Gerald Knesak, “The Physician Specialty Shortage, Real Clear Policy, March 12, 2015).

Our Our Humorless and Incoherent Health System

I‘ve always prided myself on my sense of humor and my sense of the big health care picture.

But lately I’ve been stumbling on both counts.

There is nothing even remotely humorous about our health care sysstem. It’s a serious business conducted by serious professionals, needed by seriously ill patients, presided over by serious politicians, and requiring serious money to provide. And it’s seriously complicated.

Milton Berle, the comedian, once remarked, “When it comes to my health, money is no object,” but Milton is in the minority, and he had the money to pay his doctor.

In a feeble stab at satire, I once wrote of HMOs and managed care, “Once they have you by your wallet, your hearts and minds will follow.”

That wasn’t funny, then or now. The federal government now tries to manage most care, and it supplies half of health care dollars. The money comes with strings attached. Medicare and Medicaid pays providers what it wants to pay them and only then when they meet certain conditions and gather data and dispense drugs online.

As for the big picture of where the system is going, that too lacks coherence. Its future is fuzzy. It’s hard to make sense of it, especially when it comes to all that talk about coordinating the government and market sectors.

It comes down to market-based choice versus government coercion. If you want federal dollars, you obey the mandates – individual, employer, and religious – or else. If you want ObamaCare to survive, remember this: it will depend not that you think but on how the Supreme Court rules. If you want to get a subsidized health plan, you must bumble, bobble, bungle, or google your way through the bureaucracy or by filling out a nine page form called 1095-A.

We are headed towards a multi-tiered, multi-option, multi-dimensional system. That’s the way it ought to be in capitalistic, pluralistic, multicultural health system.

Whose Vast Wing Conspiracy is This Anyway?

“Vast Right Wing Conspiracy - Theory advanced by First Lady Hillary Clinton in defense of her husband.

Wikipedia

What is this vast right wing conspiracy?

Should we take this theory seriously?

Is it Talk Radio, Fox News, Wall Street Journal?

Is it the evil GOP with motives infernal?

And are there vast left wing conspiracies?

Mainstream press, lib elites, universities?

Which of these conspiracies is vaster?

Which is more likely to lead to disaster?

Supreme Court - “Your Guess Is As Good As Mine”

Steve Huntley, a Chicago Tribune reporter, ends a piece entitled “Only Legal Gymnastics Can Save ObamaCare,” with this line “Your Guess Is As Good As Mine.”

And mine is as good as his. Anything you read about a Supreme Court ruling on ObamaCare is sheer speculation.

Yes, you can make your shrewd guess, you can put forth your fertile hypothesis, you can leap to your compelling tentative conclusion, you can read what you want into Justices’ questions, and you will be right about half the time.

Only the shadow knows how this thing is going to come out, and she’s not talking. The news gives no clues. Polls In Florida in the district that signed up the most enrollees, a Democratic plus, says it will vote Republican. Republican states have the jitters because the Court may rule in their favor, and in 34 states, they might have to form their own exchanges – a dicey and expensive proposition. Oregon, a deep blue state, has jettisoned its exchange. Tension mounts whether Republicans in House and Senate can come up with workable plan before the Court decides.

And so, we are left in limbo, in a state of high drama and continuing saga. It’s not over until the 9 justices decide, and the fat lady sings

Adverse Supreme Court Decision – The Dark Side

If Republicans offer no workable alternative to ObamaCare, which the New York Times editorial board assumes the GOP does not , even though both the House and Senate have presented plans, here’s what the Times editorial board says ending subsidies would mean.

7.5 million people lose subsidies this year , and 9 million would be unable to get subsidies in 2016.

Younger, healthier and
less costly people to insure would go without insurance.

Insurers would raise premiums for sicker and requiring more health care.

Premiums would increase as high as 47 percent on average of those who pay for insurance, and they would have narrower choices of plans and networks of doctors and hospitals.

Hospitals that hired health care workers to pay for those with subsidies would have to lay workers off.

Insurers that set their rates on assumption of high volume might have to leave the market.


State economies would forego huge federal subsidies that help insure people; state governments would see reduced tax revenues when health care providers and insurers lose business. The two hardest-hit states would be Florida, where the subsidies bring in about $400 million a month, and Texas, which rakes in about $200 million a month,

In all 34 states combined, the Urban Institute estimates, health care spending in 2016 on behalf of those losing coverage would plummet from a projected $27.1 billion to $17.4 billion, leading to a loss of $112 billion over 10 years.


Uninsured patients tend to seek help only when the disease is advanced and treatment is ineffective and costly, would die by the thousands. A study by the American Public Health Association warned the court that ending the subsidies would result in more than 9,800 additional deaths a year.

This dark picture assumes that no alternative plan is forthcoming, that even if is was. that there would be no time frame for transition to that plan, and that the plan would would not be credible or effective. So much for the dark blue side.

Who Is In Charge Here?

It sounds like an innocent question. But with health care the question is profound.

Is it the government? Perhaps. Government pays the health care bills for roughly half of Americans - 55 million or so in Medicare, 70 million in Medicaid, and assorted other government programs, including the VA. It’s estimated ObamaCare has already added 32 million more. In the future, if government has its way, the rest of us will join the government-dependent crowd. This may make sense. As everybody knows, he who pays the bills calls the tune.

Is it the marketplace? Is it health consumers, who will soon or later be patients? Many of them believe that they ought to be able to choose their own doctors, that they ought to pick the health plans that fit their needs and the needs of their family, that doctors and hospitals ought to compete for their business. The marketplace is the keystone of American capitalism. But do these people know enough about what ails them, who the best doctors and hospitals are, and how to get the biggest bang for themselves and their personal and taxpayer dollar?

The, there’s the trust factor. Can online information be trusted, or for that matter can physicians and hospitals be trusted? ObamaCare say no. Only impersonal megadata, assembled by teams of cooperating, coordinated health care teams in large organizations feeding input and outcome data into vast computer networks, can be trusted. Gathering this data requires computers with health information records in every doctors’ office and every hospital with sharing of personal information between computer.

But what if the computer system don’t talk to one another? What if they don’t have common standards? What is patients do not want their personal information shared with others? Ah, therein lies as a dilemma (Eric Whitney, “Digital Dilemma for Medicine: How to Share Records,’ Montana Public Radio, March 6, 2015.)

Where are we now on a scale of 1 to 10 of getting computers to share records with each other, of developing a universal standard, of protecting that information from prying eyes, of paying for it ? Despite $30 billion from the government so far since 2009, the answer appears to be about a 2 or 3, according to the experts.

The Supreme Court-ObamaCare Issue, Briefly

In a Health Affairs Blog of March 5, Grace Marie Turner of the Galen Institute briefly framed the issue before the Court.

“The Supreme Court justices had a lively discussion yesterday during arguments in King v. Burwell about who Congress intended to get health insurance subsidies and under what conditions."

"The central question is whether the Internal Revenue Service had the authority to write a rule authorizing subsidies to go to millions of people in the 37 states now operating under federal exchanges."

"The plaintiffs say the language of the law is clear: Subsidies are allowed in “an Exchange established by the State under [section] 1311of the Patient Protection and Affordable Care Act.” It doesn’t just say this once, but nine times in various linguistic forms."

"The government argues that it is just a typo in legislative drafting: Congress clearly wanted subsidies to be available to citizens of all of the states, and the IRS therefore had the authority to write its rule authorizing subsidies in both federal and state exchanges."

"We likely will know the Court’s decision in June. If the justices decide against the government, the Congress will need to quickly step forward with a legislative solution. And several options are under consideration. Most would provide subsidies as a temporary bridge so people can keep the policies they have. But they would eliminate the unpopular and destructive mandates and regulations that drive up the cost of health insurance for millions of people and businesses.”

ObamaCare and Supreme Court – Questions and Angst

Well, the first day of King v. Burwell is over. There are no solid clues on how the 9 justices will vote. But based on what the Justices’ questions, there is still plenty of angst on both sides of the aisle.

The challengers feel good about the thrust of the questions, but so do the proponents.

The challengers say it’s a narrow, open and shut, black and white case.

The proponents says it must be interpreted as a whole rather than on the basis of 4 words. It’s wide open and full of shades of gray.

In other words, both sides see in the proceedings what they want to see. Both sides hope the decision is decisive, all pro or all con. Liberals pray King will be dismissed on the technicality that the plaintiffs have no standing. Conservatives dream they will be the only ones left standing.

I have no clue how it’s going to go. But I have just read 10 articles of opinion on the first day of proceedings and come away with these conclusions. No one has a clue on how Justices Roberts and Kennedy will vote. Their votes are “in play.” Roberts did not play his hand. The other justices are split and fixed in their positions . The heat of the debate is tangible. The editors of the New York Times feel the whole exercise is absurd but is disturbed the fate of the American health system rests on the outcome. The editors of the Wall Street Journal feel the case is about federalism, the balance of power between the states and the federal government, and favors the state wielding more of that power. The writer for Bloomberg Views, Megan McArdle, has an interesting position, viz. the outcome of the case is not likely to be life or death. Peoples’ health, life, and death may not depend on government but what people do for themselves. Studies offer scant evidence that giving people insurance save increases people’s overall health or saves significant numbers of lives.

Whatever the merits or faults or effectiveness, or costs of ObamaCare , until the Court rules in June, plenty of angst, those feelings of dread, anxiety, and anguish, will remain. The questions will still be: Is centralized government our savior , where should the balance of power reside - between Washington and states, between government and markets?

ObamaCare Has Another Day in Court

Every person deserves to have another day in court and the right to appeal.

Legal dictum

Well, today, March 4, 2015, is a day that has finally come – the day when ObamaCare has its second day in the Supreme Court, the first day being the 2012 Supreme Court decision declaring the health law constitutional. This time the issue is whether the Obama administration can offer subsidies through federal health exchanges when the law explicitly said the subsidies were to go only to people in exchanges” established by the state.”

Here is a sampling of what the headlines have to say about the proceedings.

“Critical Day for ObamaCare as High Court Hears New Challenge”



“Solicitor General Will Try Again to Keep Health Care Law Alive”



“ Health Care Insurers’ Biggest Fear: An ObamaCare Death Spiral”



“White House Says It Has No Plans if Health Law Defeated in Court”



“For Obamacare, Today Is A Big Day In Court”



“Looking Forward: Health Law Supporters See Dire Consequences If They Lose King V. Burwell “



“Poll: Majority Wants Congress To Step In If High Court Nullifies Health Law Subsidies”



“High Court Face-Off: Today's Arguments A Rematch For Attorneys Arguing The Case”

Until the Court renders its decision in June, these headlines tell us essentially every thing we need to know about the questions the Court faces: Does the law mean what it says? Did its writers mean something else? What will be the consequences if it is defeated? Should ObamaCare live or die? ObamaCare goes down, will Congress step in to soften the impact? Which side will win the legal rematch? For conservatives, if the first time you don's succeed, try again.

Proliferating ObamaCare Options

We must dare to think “unthinkable thoughts. We must learn to explore all the options and possibilities that confront is a complex and rapidly changing world.

William Fulbright (1905-1995), Arkansas Senator, Speech before Senate, 1964

As arguments before the Supreme Court begin, ObamaCare optional plans are proliferating on the Republican side of the table .

In plain language, options for federal subsidies include state opt-outs, take-ObamaCare –or-leave it freedom plans, health checks distributed through the states, mew state exchanges, and today a Obama off-ramp. All are Republican plans and are said to be patient-centered or market-based. Democrats say they have not contingency plans, for none will be needed.

The Off-Ramp plan, presented the day before the Supreme Court hears arguments in King v. Burwell, is written by Republicans John Kline, Paul Ryan, and Fred Upton, chairmen of the House committees onf Education and Workforce, Ways and Means, and Energy and Commerce.

The author of the bill claim their Off-Ramp plan has these features:

Make coverage more affordable by opting out of insurance mandates on individuals and employers.


Choice of a wider range of plans based on personal needs and budgets.


Forcing insurers to compete for health consumer business across state lines.


Stop frivolous lawsuits.


Allow small businesses to band together to reduce costs and premiums.


Keep safeguards for patients - permit youmg adults to stay on parents plans until age 26, prohibit insueres from imposing lifetime limits on benefits, protect people with pre-existing conditions, guarantee renewability.



Help people buy coverage by offering tax credits to buy insurance.



Give states more flexibility to design their own solutions.



Do away with health exchanges after a transitional period spent protecting those subsized in federal exchanges.



Let consumers make their own choices rather than having those choices imposed upon them.



Put Americans, rather than government , in the driver’s seat.



Let common-sense, which is not so common under ObamaCare, prevail.

We shall see if common sense and plain dealing works after the incomprehensible sense and complex dealings that have characterized ObamaCare. While this workabout is going on, brace for change and protect the federally subsidized if the challenge to ObamaCare succeeds in the Supreme Court.

The Supreme Court Circus

Every country gets the circus it deserves.

Erica Jong (born 1942). American novelist

Three years ago I wrote a blog about the Supreme Court circus coming to Washington, D.C. to decide the constitutionality of ObamaCare. I reproduce a portion of it now because arguments before the Supreme Court on the legality of federal subsidies in 37 states begin tomorrow.

The blog began:

“Hear Ye! Hear Ye!The circus is coming to town. It starts today. It ends in three days. Get your tickets now while they're hot!

The circus has everything. It has men in dark suits bearing 136 briefs, six men in black robes, three ladies in black gowns, arch conservatives, leaning liberals, a swinging judge, juggling lawyers, legal beagles, a posse of pundits, braying donkeys, dancing elephants, googling journalists, four hundred rapt politicians in the tent goggling the greatest show on earth, busloads of people from afar milling outside, protesters jeering and cheerleaders cheering, and a vast outside world awaiting news and wondering what’s going on inside.”

This Year's Circus

This year’s circus is bigger, longer, and more exciting. It involves the survival of ObamaCare and the legacy of President Obama. It will last nearly 4 months, until late June, when the Court announces its decision and leaves town.

Its ringmaster will be Chief Justice John Roberts, Jr. He is widely expected to be the swing vote in a 5-4 decision whether federal subsidies are legal in 37 states.

Ostensibly the circus focus will be narrow – if the health law phrase “established by the state” applies only to state health care subsidies or to federal subsidies as well. But the practical and political implications of an adverse ruling are huge- Can the government withdraw subsidies from 7 million people who depend on those subsidies for health insurance? Is it humane to leave those people out in the health care cold? What’s more important - the law or the people who wrote the law or the people impacted by the law? How do you prepare to deal with the effects of the law, if it is no longer the law?

Beyond those questions is the big one - Who will be blamed if the law goes down, Democrats who designed, wrote, and enforced it? Or Republicans who have opposed it every step of the way for 5 frustrating years?

This year’s circus will have an enormous audience - the American people who will have to bear the burden of increased premiums and other health costs, state governments who may have to pay exorbitantly to set up state exchanges and support expanded Medicaid programs, and the politicians who will suffer its consequences.

The media, liberal and conservative, can think, write, and pontificate about little else other than the circus. The stakes are beyond belief. The President’s legacy may go down in flames. The 2016 elections may depend on the outcome. The media’s liberal wing says the circus is about social justice and man’s inhumanity to man. It’s a step forward for mankind. Conservatives stoutly maintain it’s about the Rule of Law, not the Rule of Man. It’s a power grab.

All eyes are on the ringmaster. Is he concerned strictly about those 4 words in the text of the law “established by the state? What is his position on federalism and the relative power of the states vis a vis the federal government? Is the law unambiguous or open to interpretation? What are the practical effects of the decision? Do the 4 plaintiffs who brought the case to the high court have legal standing, i.e., were they harmed by the law?

Who knows? Only he and the other justices know, and they have yet to read all the briefs and hear all the arguments.

In the meantime, I leave you with this version of my poem, which followed my original blog.

Here they come
The circus is back in town.
It’s the greatest show around
Yessir! The circus is coming to town.

There are jugglers, lawyers, too
The judges have much to see and do
Now that the circus is back in town.

Donkeys will prance, elephants will dance
Nothing could ever be so grand!

Don’t be left behind
They’re starting today right on time
Cause the circus is back in town
Only four hundred get tickets to see it
Because the circus is back in town.

Here they come
They’re back in town
It’s the greatest show around
Because the circus is back in town.

They are men in gowns, ladies in robes too
The judges have so much to hear and to do
Now that the circus is back in town.

The libs will roar, the Tea's will party,
Nothing could ever be so grand!

The left won’t be left behind
The right will start right on time,
Because the circus is back in town.

In and out, around the circus ring they'll go
Where they'll stop everyone wants to know,
Everyone's on the high wire getting emotional,
To their causes everyone is devotional.

Proliferating ObamaCare Options

We must dare to think “unthinkable" thoughts. We must learn to explore all the options and possibilities that confront is a complex and rapidly changing world.

William Fulbright (1905-1995), Arkansas Senator, Speech before Senate, 1964

As arguments before the Supreme Court begin, ObamaCare optional plans are proliferating on the Republican side of the aisle .

In plain language,GOP options for federal subsidies include state opt-outs, take-ObamaCare–or-leave it freedom plans, health checks distributed through the states, mew state exchanges, and today an Obama off-ramp plan. All of these plans and are said to be patient-centered or market-based. Democrats say they have no contingency plans, for none will be needed.

The Off-Ramp plan, presented the day before the Supreme Court hears arguments in King v. Burwell, is written by Republicans John Kline, Paul Ryan, and Fred Upton, chairmen of the House committees onf Education and Workforce, Ways and Means, and Energy and Commerce.

The author of the bill claim their Off-Ramp plan has these features:

Make coverage more affordable by opting out of insurance mandates on individuals and employers.


Choice of a wider range of plans based on personal needs and budgets.


Forcing insurers to compete for health consumer business across state lines.


Stop frivolous lawsuits.


Allow small businesses to band together to reduce costs and premiums.


Keep safeguards for patients - permit yonmg adults to stay on parents plans until age 26, prohibit insueres from imposing lifetime limits on benefits, protect people with pre-existing conditions, guarantee renewability.


Help people buy coverage by offering tax credits to buy insurance.



Give states more flexibility to design their own solutions.


Do away with health exchanges after a transitional period spent protecting those subsidized in federal exchanges.



Let consumers make their own choices rather than having those choices imposed upon them.


Put Americans, rather than government , in the driver’s seat.


Let common-sense, which is not so common under ObamaCare, prevail.

We shall see if common sense and plain dealing works after the incomprehensible and complex dealings that have characterized ObamaCare. While this workabout is going on, brace for change and protect the federally subsidized if the challenge to ObamaCare succeeds in the Supreme Court.

No Plan B for Adverse High Court Ruling

There’s no Plan B from the Republican or Democratic Party, so if this thing happens, what on earth will come next. Nobody has an answer for that.

Brian Keeley, president and CEO of Baptist Health South Florida, which owns seven hospitals, commenting on possible Supreme Court decision ruling against federal health exchange subsidies, New York Times, March 1, 2014

Storm clouds continue to gather in anticipation of a Supreme Court outlawing federal health exchange subsidies. The storm is intense in Florida, which had an uninsured rate of 21.3% in 2013, which dropped to 18.3% as record numbers enrolled in federal health exchanges.

The convenient meteorological wisdom is, barring alternative plans by either political party, 6 million subsidized enrollees will be inundated with bankruptcies, most will drown and drop their plans as unaffordable, premium flood waters will rise by at least a third and maybe one-half, people will be angry at paying penalties for not having insurance, the individual and employer mandates will die, individual insurance markets will enter a death spiral, ObamaCare will die, political chaos will follow, Republicans will get the blame, to their detriment in the 2016 presidential election sweepstakes.

That ‘s who the New York Times reads the political tea leaves. Its editors says the central claim of the law suit, that the phrase “ established by the State, "is to put it mildly, baloney” (“The Phony Legal Attack on Health Care,” NYT, March 1, 2015). Phony baloney or not, the Supreme Court may rule otherwise, given its political makeup and its lingering doubts that it made the right decision in 2012 by declaring ObamaCare constitutional.

Will the Republicans or Democrats come up with an alternative plan? Will the states be able to make their plans operational enough to save the beleaguered 6 million? (Real Clear Politics, “Officials in States Plan For Aftermath of High Court Ruling,” February 28, 2015))

One wonders what future historians will say about Obama’s strategy in implementing ObamaCare when 85% of Americans were satisfied with their health care? Was expending $1 trillion or more to insure the other 15% worth the cost? Or was Senator Charles Schumer (D.New York) right when he said the focus should have been more on saving the economy rather than concentrating so much on insuring the uninsured.

Maybe ObamaCare was the wrong war , in the wrong place, at the wrong time, against the wrong enemy, the American health care system, rather than on a dysfunctional economic system, saddled by high corporate taxes and heavy regulations producing low growth rather than economic recovery.