Author: Ann Marie Marciarille

Up In Smoke

Ann Marie MarciarilleLeave a comment

Today I want to pause and take a direct look at one small but highly significant piece of recently proposed ACA implementation: health insurance premium variance based on tobacco banding. You may recall that the ACA's much vaunted promise to end both pre-existing condition exclusions and individual underwriting of insurance risk in many health insurance markets was designed to streamline — both procedurally and financially — access to health insurance for Americans.

There are some exceptions to the take all comers approach, however.  In particular, it has always been contemplated that a certain amount of premium variance based on age and  on the use of tobacco products would be permitted.  Only recently, proposed rules on the insurance process known as banding have shown what is really meant by an acceptable amount of discrimination based on tobacco use. The ACA permits premiums to vary based on tobacco use by a factor of 1.5.  And the premium supports available to low income individuals are not available for the tobacco use premium band bump. 

What does this really mean for older low income tobacco users?

In a nutshell: quite a bit. The proposed approach on tobacco use banding allows health insurers considerable flexibility in determining how to band for tobacco use but the recently proposed rule contains one example of permissible tobacco use related banding that gave me pause.  Under the proposed rule, insurers could apply a different — and considerably lower — surcharge for tobacco use on younger smokers than on older smokers. How different? We are talking a tobacco use premium of, say, a few dollars a month for younger tobacco users and several hundred dollars a month for older tobacco users.

Several months ago, an interesting analysis by Rick Curtis and Ed Neuschler, projected that several hundred dollars of non-premium supported health insurance cost could knock a substantial number of older smokers into a very familiar kind of uninsurability known as unaffordability.   This means an older low income smoker seeking insured status might find an un-subsidized tobacco premium surcharge of perhaps $4,000 a year, unaffordable. (Of course, were you an older low income citizen intent on evading the individual mandate you could take up smoking and game yourself into the exceeds 8% of houshold income exemption for the individual mandate.)

All of this makes some actuarial sense.  Tobacco use has a long term fuse for its most expensive health effects.

All of this may not make the most public health sense, however.  If higher unsubsidized premiums are designed to discourage tobacco use, there is little doubt that shorter term tobacco users have a higher success rate at quitting.  Older smokers — say a 57 year old male — tend to be those with a pretty hard core addiction to nicotine, an addiction intensity not evenly distributed among the smoking population. There is recent evidence that some of  the damage from long term smoking is more enduring than previously thought, even after complete cessation.

And the real irony is that Medicare has no tobacco use premium banding. Smoke your way to 65, for most Americans, is a perverse incentive indeed.

 x posted at http://prawfsblawg.blogs.com/

 

Bodegas Clinicas: Diagnosing an Outbreak of Competition

Ann Marie MarciarilleLeave a comment

The New York Times today has an interesting article about the
ambivalence of the Los Angeles medical establishment over the
proliferation of what are known as  "bodegas clinicas" –small
storefront licensed physicians' offices that operate on a cash economy
without the intermediation of health insurance.  These bodegas clinicas 
specialize in offering primary care services to some of California's
uninsured including some of California's estimated 2.5 million
undocumented residents.

What's not said in the article is as telling as what is.  Bodegas
clinicas have been thriving in California for some  years. Their growth
is of a piece with the growing number of medical clinics found in
Mexican border cities — clinics that cater to undocumented California
residents who may re-cross the border for care as well as uninsured or
underinsured American residents who cross the border for care in Mexico.

Why the hue and cry now about quality concerns in Los Angeles' bodegas clinicas?

One reason is surely that some of the documented now using these cash-based programs have (under California's early Medicaid expansion) or will
become eligible for Medicaid.  And whatever can be said about Medicaid
reimbursement rates in California, they are certainly higher than zero. 
The newly or about-to-be low income insured, as a result, are in the
genuinely odd position of being sought after as customers. 

Competition appears to be breaking out on the low end of the health
insurance scale between bodegas clinicas and safety net providers for
newly or about-to-be Medicaid eligible and soon-to-be subsidized health
insurance exchange purchasers. Students of competition policy will note
that one way to drive competition from the marketplace is to attempt to
raise rivals' costs, say — for example — by activating expensive
licensing investigations into the business models of thinly margined
competitors.

California has some of the lowest Medicaid reimbursement rates in the
entire country.  They are on a downward trajectory. This does not and
will not make Medicaid beneficiaries particularly sought after in
facilities with a better payor mix.  But California's Federally
Qualified Health Care Centers (FQHCs) and FQHC look-alikes are fighting
for their financial lives.  And Medicaid reimbursement may look good to
them.

In fact, if California's 100 plus FQHCs cannot make the case for
their own newly insured to stay with them as well as to solicit the
business of newly insured from others, they will be in trouble.  This is
because they serve the undocumented — the outsiders to the Affordable
Care Act. An FQHC will be hard pressed to make the successful business
case for a patient panel consisting entirely of the undocumented
uninsured. The problem is that some FQHCs have behaved exactly like
providers of last resort — impersonal and inflexible.

What I do like about the New York Times article is how it offers
insight into why some consumers with options might prefer bodegas
clinicas for primary care over an FQHC.  The article points out the good
neighborhood access of these facilities, the extended hours designed to
accomodate the many service worker patients who work the night shift, 
and the linguistic competence of all levels of the staff. I have written
elsewhere on what patients at all income levels seek from the clinical
encounter. (You can read more here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2078684.)

Is it possible that, in one of the more modest corners of our
country's health care delivery system we can learn lessons about health
care delivery success that is neighborhood based, culturally competent,
and forgiving of those without the foresight to fall ill only inside of
bankers' hours?

 

X posted at http://prawfsblawg.blogs.com/

Broccoli Ice Cream

Ann Marie Marciarille1 Comment

It has been two days since Florida Governor Rick Scott traveled to D.C. to meet with HHS Secretary Kathleen Sebelius to discuss possible Medicaid expansion under the Affordable Care Act in Florida. Since then, Mum's the word on what they discussed.

But today we are being inundated with competing ten-year cost estimates for Florida's possible Medicaid expansion. Governor Scott estimates a state taxpayer burden of $26 billion but the Florida Agency for Health Care Administration estimates a $3 billion price tag.

Why the spread?

Some of the difference relates to Governor Scott's budgetary assumption that the federal government will change the law and reduce funds pledged to the state. Florida's Agency for Health Care Administration priced the possible expansion as written — the federal government to assume 100% of the expense for expanded Medicaid enrollees in 2014-2016, gradually tapering down to a 90% federal government cost share in 2020 and beyond. This is in contrast to Florida's conventional Medicaid match or Federal Medicaid Assistance Percentage (FMAP), set at 58.08% in 2013.

Governor Scott's budget assumption discloses his disbelief that the federal government can or will honor the enhanced cost share. Whether the budgetary assumption is designed to disguise the generosity of the federal enhanced matching percentage is unclear. Certainly, it is harder to rationalize turning down something free — what I have analogized to the offer of a free ice cream cone — all upside and no visible downside.

Another contributor to the wildly different budgetary estimates is more subtle, however. Governor Scott's budgetary estimate appears to add in a high-end estimate of funds to cover Medicaid enrollment for those Floridians currently eligible for Medicaid but presently unenrolled. The governor's budgetary estimate, in short, acknowledges two truths: Medicaid's current eligibles have surprisingly low participation or take-up rates and any increase in take-up rates among this population will be at Florida's standard Medicaid matching percentage of 58.08 %, not at the ACA-enhanced matching rate. It is easier to understand fearing increased Medicaid enrollment that comes without full or near-full federal subsidy — something I analogize to broccoli.

Why would Governor Scott think Florida's non-expansion Medicaid population will increase? Because Florida's Medicaid take-up rate has lots of room for increase. Best estimates are that there are 500,000 children in Florida currently eligible for Medicaid (and Medicaid extension programs) who are not enrolled. No one knows how much of the outreach effort to enroll the Medicaid expansion population could spill over into increased currently eligible Medicaid take-up. No one knows how much of the ACA-mandated streamlined Medicaid eligibility guidelines and processes will spill over into increased currently eligible Medicaid take-up. Everyone is busy guestimating, though.

This is the story of Medicaid expansion from a state budgetary perspective: ice cream (100% federal match) plus broccoli (significantly increased already eligible take-up at a non-enhanced subsidy).

That's why I call it broccoli ice cream.

cross posted at http://prawfsblawg.blogs.com/

Do We Even Need Hospitals Anymore?

Ann Marie MarciarilleLeave a comment

Cross posted at http://prawfsblawg.blogs.com/

 

You may have also received an invitation to participate in tomorrow's
"Future of the Hospital" forecasting game.  (An open invitation is
found here:  
http://www.iftf.org/future-now/article-detail/future-of-the-hospital-infographic/ 
for those among you who have yet to register.) Sponsored by the
California Health Care Foundation and others, this twenty four hour
competition looks like an attempt to crowdsource the question: "Do we
even need hospitals any more?" 

This is a very good question.

Intrigued, I have explored the forecasting game's website, twitter
feed, "challenge" posts and decided to register.  Why this one? I
receive invitations to a number of such "let's re-invent health care
before  we become obsolete" type events. I occasionally participate by
helping formulate questions. 

But this is the first time I would like to help brainstorm answers
in this format. The difference is the series of smart questions posted
under the first challenge: "Construct a 21st century safety-net system
that is fair, economically sustainable and delivers high-quality
emergency care services to all in need." This challenge includes these
sub-topics:

  • Should hospital relocations and closures be stopped through the
    legal or political systems?  What if minority communities could sue to
    prevent a hospital closure?
  • What if the drop in operating EDs
    across the country is a positive sign of market forces at work, creating
    a more efficient healthcare system?
  • Could EMTALA (the
    act that requires hospitals to provide care to anyone needing emergency
    health treatment regardless of citizenship, legal status or ability to
    pay) be strengthened to restrict closures in medically underserved
    areas?

This is great stuff, much of it resonant of the 2006 Institute of Medicine's study on challenges facing 21st century hospitals.

Hospital closures — whether full closures or partial closures such
as  stand alone Emergency Department closures — are complex and, often,
emotionally fraught.  Whoever said every divorce, from the perspective
of family life, is the death of a civilization might have known a thing
or two about community hospital closures. In a secular society, schools
and hospitals often substitute as the institutions where all of our
paths eventually cross at transcendent moments of our lives — birth,
death, life-threatening illness. Hospitals, while primarily health care
institutions, are also civic institutions.

As a result, in the throes of a pending closure, it can be a
challenge to address the larger questions about efficiency, the changing
nature of hospital delivered care, and equity. I look forward to the
forecasting game's insights. As a warm up,  I offer here a few thoughts
on the topic of permission to close a hospital.

Permissive hospital closings are the inverse of the long-debated
hospital building certificate of need ("CON") process.  In some states
— but no longer on the federal level — a hospital's advance permitting
to build requires a determination of need. A CON is not required in
California, for example, but is required in New York.  There is
considerable diversity of approach in between the hands-off wild wild
west approach and the fairly searching scrutiny required in some states.
Just as you might imagine, this means hospitals are often built on spec
as it were in some states, in anticipation of demographic trends, and
then have to be re-purposed as other kinds of facilities.  There are
risks.  In other places, it can be arduous to open a hospital,
essentially protecting market share for long-established institutions. 
There are risks to harm to competition in these places.

In these different contexts, you can see that requiring permission
for full or partial hospital closure might seem more or less consistent
with that jurisdiction's thinking about hospitals as public goods. All
of this is further complicated by the fact that, though the majority of
hospitals in the United States are not for profit, states like
California have substantial for profit hospital chain presence.

Add to this mix the reality that some parts of the country are
over-supplied with acute care hospital beds (and their attendant
hospital-based medical specialty providers) and some are under-supplied
and realize that tomorrow's forecasting game ought to be lively.

Reinvent community hospitals for the 21st century? I'm game.

Good Night, Sleep Tight, and Don’t Let the MRSA Bed Bugs Bite

Ann Marie MarciarilleLeave a comment

I have been thinking about bed bugs lately. No, it is not because I
just checked into a hotel. Recent press coverage of our bed bug
infestation has got me thinking or re-thinking my take on bed bugs as a
public health matter.

When I teach and talk about  public health law, I introduce my
students and listeners to public health analysis and to the triggering
of the  exercise of public health law authority through topical
examples. I often start an introduction to public health law with what I
hope will be a vivid example of local significance.  I start small (no
pun intended), building later to a look at the mass pandemics of our
time.

I start with bed bugs.

Bed bugs are ubiquitous and almost universely reviled.  My students
are disgusted by the bed bug specimens I bring to class.  This revulsion
goes a long way, I suspect,  toward fueling press reports of a "bed bug
epidemic." We, however, pause to consider whether bed bug infestation is
a true epidemic and, if so, whether bed bug infestation merits
activation of the full legal and regulatory force of public health law.

When I taught public health at Hastings, we looked at San Francisco's
public health ordinance regarding bed bug infestation.  We consider the
personal cost, mental health implications, and economic cost of bed bug
infestation in a city with a tourism-driven community.  We can find the
legal and regulatory system allocating rights and responsibilities all
around the "epidemic."

Talking about bed bug infestation also introduces my students to the
idea that public health crises often beget public health crises.  In
this case, the virtual ban on the use of certain insecticides plays a
role in the U.S. resurgent bed bug population, though serious public
health concerns put the brakes on routine mass use of these
insecticides.

As anyone who has ever battled bed bugs will tell you, bed bugs are
no laughing matter.  Still, there are moments of levity in the public
health analysis of this infestation. It is inevitable that discussions
of current plans to use popular de-worming agents developed for animal
use on humans (pet owners: think HeartGuard) provoke a smile.

But the most recent news on bed bugs over the last few months has
been sobering. Even a well fed bed bug is quite small, often difficult
to see given their nocturnal ways.  Those who specialize in capturing
them for dissection have begun to report the presence of
community-acquired MRSA (Methicillin-resistant Staphylococcus aureus) in
some communities of bed bugs.

Community-acquired MRSA may be one of our under-diagnosed epidemics.
Even more troubling, our relatively lax approach to MRSA screening and
reporting has begun to blur the line between health care
facility-acquired and community-acquired MRSA. And, yes, bed bug
infestations are not unknown in health care facilities.

Maybe a string of bed bug bites (hence the derivation of the old
chant: breakfast, lunch, dinner) was always more than a nuisance.  Now
it is possibly much more than that.

Of course, much remains to be learned about all of this, particularly
about the rate of MRSA infection in the general bed bug population and
whether or not we can determine if bed bug to human MRSA transmission is
a genuine threat.  In the mean time, bed bugs as possible disease
vectors frame one issue nicely: what role public health law ought play
in allowing surveillance of and requiring treatment of potential disease
pathways.

A marvelous guest speaker in a health law course once brought me up short
with laughter when he advised the student listeners that the single
most important requirement for a new attorney interested in health law
was to have a strong stomach. Just in case that is not your calling, you
can always check out reports of bed bug infestations in public
accomodations online. 

Cross-posted at prawfsblawg.blogs.com

 

The Doc Fix Is In

Ann Marie Marciarille1 Comment

Happy New Year! I am happy to be guest blogging at PrawfsBlawg this month, so this is cross posted at: http://prawfsblawg.blogs.com/prawfsblawg/2013/01/the-doc-fix-is-in.html

 

Roll Call is reporting — citing anonymous Congressional aides —
that a one year Doc Fix is included in the fiscal cliff resolution
package.  This, of course, is unconfirmable.  But I would be astonished
were it not true. Kicking the can down the road on Medicare's
sustainable growth rate formula (SGR) is what we are good at.  Deciding
whether we can ever have a coherent public conversation about Medicare
physician reimbursement rates and the systematic undervaluation of
primary care services, not so much.

The SGR's origins in the Balanced Budget Act of 1997, as part of an
attempt to link Medicare physician reimbursement to the general growth
rate of the economy, are almost lost to history.  Some of this is
because, as early as 2001, the Medicare Payment Advisory Committee
(MedPac)  was calling for its repeal.  This first call for repeal, as
with all subsequent ones, has gone unheeded.  In 2002, the SGR formula
triggered a 4.8% reduction in Medicare reimbursement for physician
services.  Physicians were displeased. And it is physician displeasure
combined with Congressional inability to confront that displeasure that
has kept us at an impasse ever since.  It is not for nought, though
perhaps  an overly cynical insight, that the SGR is sometimes described
as a Congressional fundraising vehicle. So long as Medicare physician
reimbursement hangs in the balance, members of Congress will be in close
communication with physician constituents.

Unable to implement, we have deferred SGR implementation through
fourteen Doc Fixes since 2002, producing what Peter Suderman has
described as the "permanently temporary" decision not to decide what we
think about reining in Medicare physician reimbursement. Now you know
why I would be astonished by any other news, despite the fact that SGR
repeal is rumored to have been included in one of the fiscal cliff
negotiating packages.

Why would the long-contemplated SGR repeal have fallen out of the
fiscal cliff negotiations?  I can only speculate that the fiscal and
political complexity of developing an alternative reimbursement
restraint played some role. So, here we are: continuously overriding a
systemless sytem. Unable to move forward or backward, like crabs we
scuttle continuously sideways.

None of this is news.

 

 

Kansas Reinvents Medicaid or Medicaid Reinvents Kansas?

Ann Marie MarciarilleLeave a comment

It was down to the wire, but Kansas has received CMS approval (for the most part) of its Section 1115 Medicaid waiver application, allowing it to proceed with its experiment with state-specific Medicaid reform beginning tomorrow, January 1, 2013.  The waiver is time limited, but waiver renewals and extensions are pretty common, so think of this as the first cycle of Kansas Medicaid reform efforts.

Since Kansas has announced its intention to not expand Medicaid under the ACA, its attempts to reign in Medicaid spending on its existing Medicaid eligible population should be interesting.  As KanCare's August, 2012 waiver application pointed out, Kansas has experienced Medicaid cost increases exceeding seven percent each year of the past decade.

The hard questions are: why has this occurred?  And what is found in the KanCare proposal that will help to turn the tide on Medicaid health care inflation?

The plan is to push as many Medicaid enrollees in Kansas to managed care as quickly as possible, in the hopes of improving utilization review and care integration.  Though CMS, in its recent section 1115 demonstration project waiver letter, put the brakes on this slightly by delaying the movement of certain Mediciad sub-populations into managed care and by refusing to waive the 45 day appeal process for Medicaid managed care vendor patient assignment decisions, we will see a big move into the Medicaid managed care products of the three selected vendors: Amerigroup of Kansas; Sunflower State Health Plan, and United Healthcare Community Plan.

All of this will happen while the general pool of Medicaid eligibles in Kansas likely expands considerably under the seamless enrollment mechanisms between the Federal Health Exchange for Kansans and the Medicaid eligibility portal for Kansans. Even without a state specific exchange, the plan is for Kansans to experience simplified enrollment under the ACA, a part of the ACA unchanged by NFIB v. Sebelius.

These are interesting times to be a Medicaid administrator in a non-Medicaid expansion state.  As Medicaid take up rates change, in line with the streamlining of eligibility, Medicaid will likely expand considerably even in non-expansion states.  And those new enrollees, in Kansas, will be in managed care.

This may be reinventing Medicaid as we know it for Kansas, but it is a fairly well trod path to Medicaid reform in other states. Medicaid Managed Care has been around for some time.  What is unusual about KanCare is the extension of Medicaid Managed Care, eventually, to the disabled, to low income seniors, and to those in skilled nursing facilities. These folks are the expensive folks in the Medicaid budget. 

So the real challenge for Kansas, as it is for every state, is to stop health care cost inflation for this group. Not surprisingly, this will be the challenging part of the assignment for a number of reasons — the most significant of which are that Kansas is, outside of a very few metropolitan areas, a sparsely populated state. Sparsely populated places are notoriously difficult to serve in health and senior services for two reasons: geographic distance can challenge economies of scale pretty quickly and managed care entities have, historically, found it difficult to serve rural areas in a cost effective manner.

How will Kansas do this? It is an experiment, so let's watch it unfold. In the meantime, Kansas has already indicated its ultimate goal: a global waiver that will administer an outcomes based Medicaid and CHIP program under a per-capita block grant.

ACA Implementation: University of Missouri Payroll Announcements

Ann Marie Marciarille1 Comment

I am cleaning out my mailbox in anticipation of the New Year so I can just start junking it up again.  This sifting and sorting has its upside, however.  I just paused to read the University of Missouri's 2013 Payroll Announcement memo.  One entry, in particular, caught my eye:

Medicare Taxes

There will be two tiers of Medicare taxes starting January 1, 2013.  For wages of $200,000 and below, the Medicare tax rate will
remain at 1.45%, same as in 2012.  An additional 0.9% rate of Medicare tax on wages in
excess of $200,000 was enacted as part of the Affordable
Care Act.  There is no cap on the earnings subject to Medicare tax or
the additional Medicare tax. 

There it is.  I spy with my little eye the ACA provision that increases the Medicare tax rate by .9%. Specifically, the tax rate will increase by .9% for those with incomes over $200,000 (single) or $250,000 (filing jointly), representing an increase from 1.45% to 2.35%. It only applies to income over these threshold amounts.

You can see the IRS interpretive regulations here: http://www.irs.gov/uac/Affordable-Care-Act-Tax-Provisions. Also, here's Kelly Phillips explaining it pretty well in Forbes:

 

 Under the current system, when you work, you pay into the Medicare system as part of your federal payroll taxes. You pay 1.45% of your pay and your employer pays in 1.45% for a total contribution of 2.9%. Unlike Social Security, there is no income cap, so all of your wages are subject to the tax; the cap on Medicare wages was removed as of January 1, 1994. Beginning in 2013, the Medicare tax imposed on high income taxpayers on the employee side will be increased by 0.9% – to 2.35% – for wages over the income thresholds (individual taxpayers reporting income over $200,000 and married taxpayers filing jointly reporting income over $250,000); amounts under the threshold will still be taxed at 1.45%. By way of example, if a single taxpayer earns $500,000, the first $200,000 is taxed at 1.45% and the next $300,000 is taxed at 2.35%. Self-employed taxpayers will have the same limitations.

 

This is a good explanation because it assumes no pre-existing knowledge of the status quo on the  Medicare tax and Medicare funding. Second only to questions interpreting health insurance policies and decisions, I am asked questions about understanding health care financing — particularly in relationship to payroll deduction. Across the educational and income spectrum, those who ask know suprisingly little about their own payroll taxes.

There it is.  We have to acknowledge, via an increase, that current workers contribute to Medicare funding. That is what FICA is and, though these funds are allocated to a Medicare-only trust fund, they are also supplemented by your income taxes to pay for Medicare and — ultimately — supplemented by various premiums and co-pays when you become a Medicare benificiary.

If you are still with me this late on Christmas Eve, you are what I would call a motivated student.

Here's the question for advanced students: If the ACA raises the Medicare tax, why does it do so unevenly or only on the employee side of the equation?  Do we see a bit more of an effort to means test Medicare here, by targeting this increased Medicare tax to higher wage earners alone?

And for extra credit: Where else do we see advanced the means-testing of Medicare?

Joyous Holidays to All!


Missouri’s Contraceptive Coverage Exemption Statute, the ACA’s Women’s Health Amendment, Federal Preemption, and the Race to the Finish LIne

Ann Marie MarciarilleLeave a comment

In August of this year, the Missouri legislature amended the state health insurance statute and  added language requiring that "[a]ny health carrier shall offer and issue to any person or entity purchasing a health benefit plan, a health benefit plan that excludes coverage for contraceptives if the use or provision of such contraceptives is contrary to the moral, ethical, or religious beliefs or tenets of such person or entity." You can see how it will work here: http://www.moga.mo.gov/statutes/c300-399/3760001199.htm.

In October of this year, the Missouri Department of Insurance (DOI) issued an interpretive bulletin advising an effective date of October 12, 2012 and, in short order, has taken enforcement actions against Missouri insurers (health insurance companies doing business in Missouri) for their deference to the ACA's preventive services coverage provision, found at 42 U.S.C. section 300gg-13(a), further developed under the HRSA/HHS guidelines of February 15, 2012.  There, all FDA approved contraceptive methods, are included in the definition of preventive services necessary to women's health. Last week, Fed. Dist. Ct. Judge Audrey Fleissig enjoined further MO
DOI enforcement actions against the member entities of the Missouri
Insurance Coalition caught between the competing mandates. As the
Missouri Insurance Coalition case wends its way toward a decision on the
merits, it does so in the shadow of numerous filed cases pressing the
preemption point.  Does the federal law, as a Constitutional matter, preempt the state statute?

Much ink has also been spilled discussing the exemptions in these rules for religiously affiliated employers. But what about religiously motivated employers — secular (as in non-formally religiously affiliated entities) entities whose owners, operators, and employees see the their religious  vocation in secular life? Those cases are out there as well, most strikingly in an opinion from the E. Dist. of Missouri in O'Brien v. HHS.  There, federal district court Judge Carol Jackson grappled with some important questions. Can a corporation engage in the free exercise of religion?  Is a requirement of indirect financial support of a practice, from which a plaintiff may abstain according to their own religious principles, be considered a substantial burden on plaintiff's religious exercise?  At the end of the day, the court held that a "neutral and perfectly constitutional law may have a disproportionate impact upon religiously inspired behavior" and dismissed the complaint.  Then, the Eighth Circuit granted a motion for a restraining order on ACA implementation until full review could be made of this lower court decision.

As interesting and illuminating as all of this, none of this tells us where this is all likely to end up, though the under-discussion of federal preemption in local press reports gives me pause. This is a teachable moment for the press to educate Missouri's citizenry about federalism, preemption, the United States Constitution, as well as our court system. I do not know what to make of what I'll call the "horse race" theory of judicial opinion reading –interpretation where all the focus is on who passes the finish line first.  As grappling with these thorny issues is much more likely to be a marathon than a sprint, each breathless reporting of another "decision", discussed only in isolation,  misses the mark.

In Constitutional law, it is not so much where you start as where you finish that matters.

 

 

 

 

HHS Secretary Sebelius Sounds Tired

Ann Marie MarciarilleLeave a comment

There is a tired note to Secretary Sebelius's December 10, 2012  letter to the states on timlines and terms for exchanges and market reforms under the ACA. You can see it for yourself here: http://cciio.cms.gov/resources/files/gov-letter-faqs-12-10-2012.pdf.  It is true — as she points out–that negotiations have been underway about ACA implementation, on one issue or another, for more than two years. But I want to suggest that this will not all be resolved anytime soon. This will be a marathon and not a sprint.

Secretary Sebelius also sounds tired of negotiations over the possibility of phased-in or partial expansion of Medicaid to 133% of the federal poverty level. The latest FAQ format guidance to the states does indicate, though,  that "[i]f a state that declines to expand coverage to 133% of FPL would like to propose a demonstration that includes a partial expansion, we would consider such a proposal to the extent that it furthers the purposes of the program, subject to the regular federal matching rate." The regular FMAP varies by state, of course, but in no instance even approaches 100%. Choices will have to be made.

This means that fifty flowers can bloom, but it will cost you.