SPEAKER
The Affordable Care Act
First Plenary Session
Health Care Reform in The United States - One Year Later
Robert I. Field, JD, MPH, PhD
Professor of Law, Earle Mack School of Law
Professor of Health Management and Policy
Drexel University School of Public Health
Philadelphia, PA, USA
Agenda
(AKA Obamacare)
ISPOR 16th Annual International Meeting
Baltimore, MD
May 23, 2011
Robert I. Field, JD, MPH, PhD
Professor of Law
Professor of Health Management and Policy
Drexel University
3320 Market Street
Philadelphia, PA 19104
215‐571‐4810
[email protected]
© Robert I. Field 2011
The Historical Context
• Historical context
• Affordable Care Act – mechanics
• Public attitudes
• Actions in Congress
Actions in Congress
• Legal challenges
• Lessons from the past
• Predictions
100 Years of Health Reform
http://marketplace.publicradio.org/display/web/2010/03/30/pm‐spirit‐of‐1912/
First calls for universal coverage: Teddy Roosevelt and the Progressive Movement
Impassioned response
• Bull Moose Party platform – 1912
• State‐based initiatives –
1915 ‐ 1919
http://www.synthstuff.com/mt/archives/teddy‐roosevelt.jpg
http://www.bestcyrano.org/?p=3860
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Affordable Care Act: Mechanics
ACA/Obamacare
“I am not the first President to take up this cause, but I am determined to be the last.”
Barak Obama, health care speech, ,
p
,
Sept. 9, 2009
http://www.shallownation.com/2009/09/09/obama‐health‐care‐speech‐video‐presidential‐address‐to‐congress‐9‐9‐09/
Three‐legged plan for coverage
Individual Insurance Market Reforms
Large Employer Mandates
Medicaid Expansion
http://livelydust.blogspot.com/2010/12/fixing‐health‐care‐or‐when‐demon‐you.html
Three‐legged plan for market reform
Insurance Exchanges
Individual Mandate
Low‐income Subsidies
Other Major Elements
Health reform: the moving parts
• Consumer protections
Insurance exchanges
Employer mandate – large companies
• Medicare
Insurance regulation
– Cuts to hospitals and Medicare Advantage plans
– Closing the doughnut hole
Closing the doughnut hole
– Independent Payment Advisory Board
Individual mandate
Comparative effectiveness/IT
• New taxes
• Accountable Care Organizations
Cost cutting/revenue raising
Expand Medicaid
Subsidies
• Comparative Effectiveness Analysis
http://www.presscouncils.org/the‐importance‐of‐health‐care‐bill.html/capitol
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Public Attitudes
Divided but Stable
http://www.saferchemicals.org/resources/opinion‐2010.html
http://www.kff.org/kaiserpolls/upload/8180‐C.pdf
http://facts.kff.org/results.aspx?view=slides&detail=31
3
General observation
The public always wants changes in health care
Year
1982
1987
1991
1994
1998
2000
2002
2004
2006
Minor or no changes
19
29
6
14
15
15
20
13
13
Major
changes
47
47
50
54
52
52
57
50
49
Rebuild
28
19
42
31
30
30
23
36
37
Not sure
6
5
2
1
2
2
1
1
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Blendon, R.J., Brodie, M., Benson, J.M., Altman, D.E., and Buhr, T. “Americans’ Views of Health Care Costs, Access, and Quality.” Milbank Quarterly, 84:4, 623‐657, 2006.
Efforts so far
Repeal and Replace?
• House passed repeal
– Senate rejected it
– Continuing resolution – small funding cuts
• Efforts to defund pieces
– Some enacted in House – exchanges, school health centers, prevention
– One vote a weekk
– Tax reporting provision – technical correction
• Efforts to defund in 2012 budget
• Ryan plan
– Would keep some elements of the law
• All Republican presidential candidates support repeal
http://www.nps.gov/nr/travel/wash/dc76.htm
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Public reactions
• Most are against full repeal or defunding
• Support in Republican base
Business reactions
NOVEMBER 16, 2010
Rivals Jockey for Roles in Insurance Exchanges
• Constituencies supporting key elements of reform
–
–
–
–
Insurance companies
Pharmaceutical companies
Hospitals
Primary care physicians
By AVERY JOHNSON
November 19, 2010
Health Industry Cool To Complete Repeal Of New Law
by Julie Rovner
November 18, 2010
Guess Who Opposes Reversing the Individual
Mandate in Health Reform?
Insurers and other health care companies view the mandate as the law's bedrock—and
the source of new profits
By Drew Armstrong Lobbying
DECEMBER 29, 2010
Insurers Bid for State Medicaid Plans
By AVERY JOHNSON
http://www.healthreformwatch.com/category/advertising‐lobbying/
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Individual Mandate
Legal Challenges
• Interstate Commerce Clause
– Congress can regulate commerce between the states
– Supreme Court has said that insurance involves interstate commerce
– Activity vs. inactivity
A ti it
i ti it
• Liberty/privacy
– Interference with personal decisions (14th Amendment)
– Massachusetts has a mandate
http://www.elcivics.com/constitution_preamble.html
http://blogs.wvgazette.com/coaltattoo/2009/08/27/supreme‐court‐review‐sought‐in‐mtr‐case/
Individual Mandate
Is health insurance like broccoli?
• Tax
– Congress has broad power to raise taxes
– Mandate penalty can be seen as a tax
– Direct tax must be apportioned among the states
• State laws barring mandates
– Direct conflict with supremacy clause
– Article VI, section 2
• This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
http://www.buttermilkpress.com/blog/lemon‐broccoli‐recipe/
Medicaid
Severability
• Spending power
• Can defective provision be “severed” from the rest of the statute?
– Congress can spend money and attach strings
– What did Congress intend?
– When do strings become too prescriptive?
• Alternatives to mandate
–
–
–
–
– Conditions on funding can impinge on state sovereignty (10th
Amendment)
Default opt‐in
Late‐enrollment penalty
Late‐enrollment waiting period
Post a bond for health care expenses
– States can always decline to participate in Medicaid
http://www.kboi2.com/news/local/113879289.html
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Legal Challenges to Date: Outcomes
• All decisions so far have followed the political party of the judge
Legal Challenges
• Successful in district court
– State of Florida (and 25 other states), National Federal of Independent Business, and two individuals
• Ruling: Mandate is unconstitutional, Medicaid expansion is allowed but entire statute must be invalidated
allowed, but entire statute must be invalidated
– Commonwealth of Virginia
• Ruling: Mandate is unconstitutional, but rest of the statute is valid
http://www.mybanktracker.com/bank‐news/2010/08/10/fdic‐safe‐accounts‐program‐approved‐underbanked/
Legal Challenges
• Unsuccessful in district court: entire law is constitutional
– Liberty University
Legal Challenges: Current Status
• Arguments before 4th Circuit Court of Appeals
– Conflict between Liberty University and Commonwealth of Virginia rulings
– 3‐judge panel, all appointed by Democrats
– Thomas Moore Law Center
Thomas Moore Law Center
– Judges seemed positive toward the law
– American Center for Law and Justice
– Decision expected in a few weeks
• Other appeals courts will hear other appeals
– Scheduled appeals – 3rd, 6th, 11th Circuits
– Appeals pending – 8th , 9th, DC Circuits
http://www.miwd.uscourts.gov/COURTROOM%20TECH/judge_bell%27s_courtroom.htm
Legal Challenges
Lessons from the Past
• Supreme Court will hear case, possibly as early as next fall
•
Key issue: scope of the Constitution’s commerce clause
•
Key point to watch: breadth of the decision, severability
•
Will politics determine the outcome?
http://www.benzinga.com/general/205566/playing‐true‐or‐false‐with‐health‐care‐reform
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Massachusetts Experience
•
•
•
•
97% ‐ 98% insurance coverage
Pressure on costs
Surging demand for primary care
High approval
Medicare Catastrophic Coverage
• Passed in 1988
• Repealed one year later
– Overall
Never went into effect
• Never went into effect
• 61% ‐ 2006
• 67% ‐ 2007
• 69% ‐ 2008
• Many confused over provisions
– Individual mandate
• 52% ‐ 2007
• 58% ‐ 2008
– Physician support
• 78% ‐ 2009
• 7% support repeal
Source: Mass. Health Connector, https://www.mahealthconnector.org/portal/binary/com.epicentric.contentmanagement.s
ervlet.ContentDeliveryServlet/Health%2520Care%2520Reform/Overview/Connector%252
0Progress%2520Report%252009.pdf
http://geology.com/state‐map/massachusetts.shtml
Medicare Modernization Act:
Medicare Part D’s Rocky Road
Part D Implementation
• Complex law, difficult implementation
• Poll
– Had difficulty understanding how Part D works and what savings it would provide
• Enrolled in Part D –
52%
• Not enrolled in Part D Not enrolled in Part D – 62.1%
– Think Part D program was well designed –
30.3%
– Think Part D program is a major benefit –
57.9%
– Satisfied with your own drug plan ‐ 76%
(Kaiser, June 2006)
Heiss, F., McFadden, D, and Winter, J. “Who Failed to Enroll in Medicare Part D, and Why? Early Results.” Health Affairs, web exclusive, w344 – w354, Aug. 1, 2006.
http://www.ssa.gov/75thanniversary/photos.html
http://www.pollster.com/blogs/2010‐03‐25‐medicare‐partD.gif
Future of Health Reform
Predictions
• Supreme Court will uphold law or invalidate mandate only
• Law will not be repealed
Business interests in support
Benefits have begun
Full repeal could create chaos
p
The longer the law is in effect, the harder it is to repeal
– Revision possible after the 2012 elections
–
–
–
–
• Implementation will be rocky but ultimately successful
http://mobchina.blogspot.com/2011/03/10‐predictions‐for‐chinas‐internet‐in.html
• Gradual public approval
– Key is implementation
– New norm
http://www.presscouncils.org/the‐importance‐of‐health‐care‐bill.html/capitol
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Future of Health Reform
Overall expansion of the health care sector
SPEAKER
First Plenary Session
Health Care Reform in The United States - One Year Later
Robert I. Field, JD, MPH, PhD
http://www.bus.miami.edu/faculty‐and‐research/conferences‐and‐seminars/global‐forum/session‐papers/transforming‐health.html
Professor of Law, Earle Mack School of Law
Professor of Health Management and Policy
Drexel University School of Public Health
Philadelphia, PA, USA
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