Sebelius Lies Before Congress About LTC

By Ross Schriftman, RHU, LUTCF, ACBC, MSAA

Secretary of Health and Human Services Kathleen Sebelius testified under oath before the U.S. Senate Finance Committee on February 15th and lied when she defended the need for a government run long term care program called the Class Act and attacked private long term care insurance by saying this:

“One of the challenges right now is that in the private sector right now there isn’t such a product.  There are residential services available as an addendum to a long term care policy.  But the ability to buy really just home health services that would allow people to stay and age in place are really not available in the private sector market right now.”

Notice that she uses the word really twice which indicates to me she is trying to get the Senators to believe what she wants them to believe is real.  What is real is that I cared for my own Mom in her own home to the day she died and her long term care policy helped pay for her care.

See video of her presentation here (Find the statement between 7:33 and 7:56 minutes)

This is an appalling, harmful and untruthful statement.  It isn’t that Sebelius misunderstands how private long term care insurance works.  After all she was Insurance Commissioner of Kansas and President of the National Association of Insurance Commissioner (NAIC).  During her years heading NAIC she oversaw model regulations that dealt with long term care insurance.  She is purposely promoting the Class Act provision contained in ObamaCare by making stuff up and doing so under oath.  Since the beginning, promoters of the Class Act have tried to diminish and attack the value of private long term care insurance in order to say that their government designed and administered solution was needed.  Sebelius statement is just another in a series of incorrect statements.  In her position as our top official on healthcare she knows better.

Her false statement is harmful to the American people.  If someone is considering purchasing this valuable kind of insurance to protect themselves and their family and take her words as truth, they may forgo getting covered thinking home care benefits are not available.  The truth is that almost all long term care insurance being sold today contains home care benefits including home modification, care giver training, care management services and in home professional care through licensed home health agencies.  The policies have fully incorporated home and community care benefits; not some kind of addendum as her dismissive statement indicates. According to the American Association of Long Term Care 49% of all new long term care insurance claims are for home care services and 21% are for Assisted Living benefits in the community.  Only 30% are for Nursing Home care.  In my State of Pennsylvania the law REQUIRES that only comprehensive policies be sold and therefore that those policies include home care benefits.

Secretary Sebelius must apologize and provide an immediate and public retraction of her statement.  Anything less should be investigated by Congress.

The Need For Better Tools.

By Marcy Zwelling, MD

Health information technology is here to stay.  But, is it really a good thing for the medical industry? Does it really improve patient care? The government would have us believe so.

The government has put its foot forward with a huge investment in the electronic health record.  The stimulus package included billions of dollars to induce doctors to purchase an EMR by offering $40-50,000 if the doctor participates in a program that they call meaningful use.  Meaningful use requires that a doctor send data to the doctor and that he participate in E-prescribing.

The electronic health record would be a HUGE opportunity if it collected good clinical data but to date, it still remains mostly a billing opportunity.  The data extracted is financial data and actually gives us bad information. The government will be collecting that information but depending on what they do with it, it could be a step backward rather than forward.  Bad data is worse than no data.

The electronic health record would be a HUGE opportunity if it created a sequential look at our patients’ health relative to the rest of their life.  But, it remains event based and fails to deliver the right clinical data. If we could track our patient’s health using input from their daily activities, we could learn a lot about why things happen.  Health is not an event; it is about a life.  We need to build a better EMR in order to capture useful clinical data.

Finally, the electronic health record along with E-prescribing could be a wonderful opportunity to save time, improve accuracy, and save paper (and money).  But, insurers and pharmacy benefit managers have already undermined vendors by obstructing our ability to put in our drug of choice.  Some programs do not allow doctors to prescribe what the patient needs.  The keyboard actually will not enter the drug into the appropriate space.  The electronic health record and E-prescribing has (in these instances) become obstructive.

It is time the HIT industry hear doctors “better.” They need to address our patients’ needs.  A tool is only good if it helps us perform better. When it is obstructive, decreases productivity, doesn’t answer the questions we are asking, and when it gets in the way of good patient care, we need to go back to the drawing board and get it right.

Medicaid Mess

By Greg Scandlen

The states are trying to figure out what to do with the Medicaid responsibilities of ObamaCare, especially since Judge Vinson in the Florida decision squelched any hope they might have had that it would be tossed out in court.

The issue goes well beyond the expansion to 133% of poverty for all adults. Most of that (90%) will be paid for by the Feds, although that still leaves a lot of benefits and administrative expenses for the states to pick up. The bigger issue is with the people who are currently eligible but not enrolled. Some 11 million of the uninsured are currently eligible for Medicaid or SCHIP. The new law divides the state/federal match for these people at the same place it has been for some time.


States Slashing Medicaid

Also of concern is the “maintenance of effort” requirement in the new law. Arizona, for one, expanded Medicaid eligibility to single adults some years ago, to the point of being one of the most generous states in the country. Now, with state finances in the toilet, they would like to cut back on the eligibility levels, but will probably not be allowed to.  Kaiser Health News reports that Arizona’s “Medicaid spending has gone from 17 percent of its general fund in 2007 to nearly 30 percent this year.”

It isn’t just Arizona. The New York Times reports that California’s Jerry Brown wants to cut Medicaid by $1.7 billion, and New York’s Andrew Cuomo wants at least $2 billion in cuts. The Times notes that part of the stimulus package in 2009 included $90 billion to offset rising Medicaid costs, and Congress appropriated another $15 billion last August, but even with that help, “deficits were so deep that 39 states cut Medicaid payments to providers in 2010, and 20 states pared benefits.” Now that money is running out –

On July 1, the enhanced federal aid will disappear, causing an overnight increase of between one-fourth and one-third in each state’s share of Medicaid’s costs. But because of the federal eligibility restrictions, the options for states are largely limited to cutting benefits that are not federally required; reducing payments to doctors, hospitals and nursing homes; and raising taxes on those providers.


States Think About Withdrawing from Medicaid

The Wall Street Journal reports that, “At least a half-dozen states have publicly discussed withdrawing from the Medicaid program altogether because of its expense.” For example –

Texas estimates that it will cost an additional $9.1 billion to retain its current Medicaid service levels through 2013. If it tried to plug that gap by cutting health-care provider rates, it would have to reduce them by 48%— and that might drive care providers to stop accepting Medicaid patients, according to the governors’ letter. Texas Gov. Rick Perry, a Republican, has threatened to pull out of Medicaid.


Medicaid Panel Crashes

Meanwhile, a new federal commission tasked with recommending better information systems for state Medicaid programs has hit a brick wall, according to an article by Brett Coughlin in Politico.

The story says,

… the Medicaid and Chip Payment and Access Commission (MACPAC) hit the reset button Friday when faced with the complexity and cost of the effort.”

One panel member called for a “do over” and others suggested the panel was poised to hit Congress “in the face” with a big new request for funds. A new survey to Medicaid and Children’s Health Insurance Program beneficiaries, for instance, is estimated to cost $45 million.

So, maybe not so much.

HSAs For Illinois State Employees

By Greg Scandlen

Our friend, Jim Porterfield, has written an impressive study for the Illinois Policy Institute called “Health Savings Accounts: A Win-Win for Illinois Public Employees and Taxpayers.”

In it he describes how the state and its workers could save literally billions of dollars by switching to HSAs for state employees. He writes:

When compared to the state’s HMO and Quality Care Health Plan premium costs for fiscal year 2011, properly-structured health savings account reforms could allow the state budget to show a savings every year through 2023. Under the three scenarios examined in this study, Illinois taxpayers could save as much as $18 billion to $27 billion between 2011 and 2023. Moreover, state employees and non-Medicare retirees can also save on FICA and federal income taxes while building savings for day-to-day and unexpected current and future health care expenses.

The study drills down deeply into the numbers to arrive at the calculations. Very likely you could replicate his work for your own state or entice Jim to do it for you.


HIT Privacy in Massachusetts

By Greg Scandlen

A friend forwarded this announcement from Aetna in Massachusetts:

Massachusetts recently passed laws requiring that insurance carriers, HMOs, third-party administrators and self-funded plans report certain data on Massachusetts residents covered under Massachusetts contracts to a new All-Payer Claims Database (APCD). The APCD was created and is maintained by the Massachusetts Division of Health Care Finance and Policy (the Division).

All carriers must start submitting member/claims data to the APCD for calendar years 2008 through 2010 by January 31, 2011. Carriers then need to submit data each month, starting in February 2011. We are working with the Division to report this information for you. You do not need to take action for this reporting.

Content of data and its intended use

The data to be reported to the APCD includes, but is not limited to: subscriber and member identifiers; member demographics; race, ethnicity and language information; plan type; benefits codes; enrollment start and end dates; behavioral and mental health, substance abuse and chemical dependency, and prescription drug benefits indicators; and claims-line detail for all health care services provided to Massachusetts residents covered under Massachusetts contracts.

Massachusetts intends the APCD to serve as a reliable clearinghouse for health care cost and quality information for consumers, employers and governments, so they can make health care purchasing decisions. The APCD also will serve as the central repository for all health care claims data for Massachusetts state agencies. The Division will provide the required APCD data extracts to other Massachusetts government agencies. Massachusetts recently passed laws requiring that insurance carriers, HMOs, third-party administrators and self-funded plans report certain data on Massachusetts residents covered under Massachusetts contracts to a new All-Payer Claims Database (APCD). The APCD was created and is maintained by the Massachusetts Division of Health Care Finance and Policy (the Division).

All carriers must start submitting member/claims data to the APCD for calendar years 2008 through 2010 by January 31, 2011. Carriers then need to submit data each month, starting in February 2011. We are working with the Division to report this information for you. You do not need to take action for this reporting.

Content of data and its intended use

The data to be reported to the APCD includes, but is not limited to: subscriber and member identifiers; member demographics; race, ethnicity and language information; plan type; benefits codes; enrollment start and end dates; behavioral and mental health, substance abuse and chemical dependency, and prescription drug benefits indicators; and claims-line detail for all health care services provided to Massachusetts residents covered under Massachusetts contracts.

Massachusetts intends the APCD to serve as a reliable clearinghouse for health care cost and quality information for consumers, employers and governments, so they can make health care purchasing decisions. The APCD also will serve as the central repository for all health care claims data for Massachusetts state agencies. The Division will provide the required APCD data extracts to other Massachusetts government agencies.

So all of the assurance about privacy are out the window. Your most personal detailed information will be collected along with your personal identifiers

High Risk Pools

By Greg Scandlen

As you know, the risk pool mandate of ObamaCare has been a mess. Rather than the expected enrollment of 375,000 by the end of the year, they actually enrolled only 8,000, but even then were spending more than they had budgeted. Well, this got a whole lot of negative attention, so apparently someone from the White House gave certain reporters a good talking to.

At least that is the impression one gets from reading Sarah Kliff’s more recent article in Politico. Here she spins the available information beyond recognition.  She writes: “Within the past 75 days, enrollment in the federally-run high risk pools has just about doubled.” Wow! Nearly doubled? Well, no. Enrollment went from 8,000 to 10,000, an increase of 25%. I guess that is the kind of math they are teaching in J-School these days.

But, that’s okay. She is even more gung ho on the tremendous out-reach programs the states have launched. North Carolina, for instance, “aired a six-week television ad campaign in late November and put up 14 billboards across the state.” Wow, again! That must have really made enrollment shoot up, right? Well, no. But it did result on increased traffic to the web site, with “overall web traffic seeing a 44 percent increase.” The article doesn’t include information on new enrollment.

But North Carolina did lower its premiums along with the federal pools that lowered premiums by 20%. Double Wow! That must mean the risk pool costs have been controlled, eh? Well, no. Premiums were lowered because not enough people were enrolling. The program was supposed to charge enrollees 100% of standard rates in the private market, but this is government. Premiums can be whatever they want them to be. Who cares when taxpayers (and the Chinese) are paying the difference?


State Round-Up

By Greg Scandlen

Next up in the struggle over ObamaCare are the states, which are expected to implement all of the garbage that came out of Congress. Unlike Members of Congress, the state governments are actually expected to know what they are doing. They don’t get to borrow trillions from the Chinese to hide their mistakes. And they are – what’s the word? Appalled? Dumfounded? Flummoxed? Aghast? – insert your own expression.

In any case, an article by David Lightman in the Miami Herald highlights many of the issues the states are dealing with, beginning with the insurance exchanges. Here California has already moved ahead with efforts to create an exchange, even though no one knows what the federal requirements will be or if the law will survive to 2014. But that’s okay, since California has lots of extra money to spend on frivolous things, right? In South Carolina, on the other hand, new governor Nikki Haley has no intention of spending money to implement an unconstitutional law, and the Attorney General of Wisconsin says after the Florida decision, the law is dead unless it is revived by an appellate court.

And then there is Medicaid expansion. Mitch Daniels in Indiana estimates it will cost his state up to $3 billion over the next ten years. We’ll be looking more closely at the Medicaid problem in a separate post.

The Republican Governors’ Association plans to “play a central role in organizing GOP governors against the law,” according to an article by Shane D’Aprile in The Hill.

The article also says,

Regardless of how the RGA’s effort shapes up, one potential GOP presidential hopeful is certain to play a leading role. Mississippi Gov. Haley Barbour, the outgoing chairman who helped raise record amounts of money for the committee this past cycle, is now the RGA’s policy chairman — a newly created position.

In that capacity, Barbour will be a high-profile liaison of sorts between GOP governors and the party’s leadership in Washington.

Haley Barbour is probably the savviest political strategist in the Republican Party today. It is doubtful he will go very far in the presidential race, but when it comes to finding the pressure points on a policy issue there is no one better.

The New York Times also discusses how the states will deal with the court ruling.  It writes,

“in a few states that are party to the litigation, Republican governors and attorneys general declared the expansive health care law effectively null as a result of the judge’s ruling. They suggested they would suspend planning and implementation until appeals courts could rule, although they did not provide details about what precisely might change or whether they would refund federal planning grants already awarded.

It quotes officials from Florida, Wisconsin and Idaho, but also says some Republican governors, especially Nathan Deal in Georgia, are more cautious. And, of course, Democrats like Vermont’s Peter Shumlin are “moving full speed ahead,” which is odd, since Vermont is also moving to set up a single payer system in that state.


Who Pays?

By Ross Schriftman, RHU, LUTCF, ACBC, MSAA

Horsham, PA

Tel. 215-682-7075


The argument that everyone must have health insurance so that we who are insured don’t end up paying the medical bills for those who aren’t insured has been repeated by so many people so many times that it has become an irrefutable truth. That is why Obamacare’s linchpin provision requires all of us to have health insurance by 2014. In fact we will be mandated to purchase only the kind of coverage designed by the Secretary of Health and Human Services in Washington.

Interestingly, the fact is that uncompensated care, although a serious problem, is a small part of our overall healthcare costs.  In 2008 it represented an estimated $43 billion of our $2 trillion healthcare bill or about 2%.  I have not seen a study that shows how much of uncompensated care is for health care services received by people who already have insurance but refuse to pay a deductible or copayment or for services excluded by the insurance plan and not paid by the individual who received them.

When did it become one individual’s responsibility to pay for someone else’s expenses? If someone doesn’t have life insurance and dies does everyone who has life insurance have to pay for his funeral and support his family?  If someone doesn’t have disability income insurance and becomes sick do the rest of us get stuck paying his mortgage and utility bills?  Of course not.

So why would it be any different with health insurance.  Whether or not we have health insurance we ultimately are personally responsible for our medical bills being paid.  Over the years the share of out of pocket expenses people pay for health care in our nation has gone from 10.5% in 1970 to only 4.3% in 2009 according to a recent report by the Centers for Medicare and Medicaid Services.  When did we begin to think that our health insurance is supposed to pay for all of our healthcare needs?

Last week a second federal judge ruled that mandating that everyone purchase health insurance is unconstitutional and he voided the entire new law using the government’s own argument that the mandate was a key provision of the legislation and not severable from the rest of the law.

Eventually our highest court will render a decision as the government has appealed the judge’s ruling. If the individual mandate is ruled constitutional by the Supreme Court then why wouldn’t the next step be that everyone is required to purchase long term care insurance?  Using the Obama Administration’s same logic of “public good” could then be applied to this kind of insurance. After all right now the taxpayers get stuck for more than 50% of the cost of long term care services through the Medicaid program.  The vast majority of people receiving benefits under this program failed to purchase private long term care insurance.  The Medicaid program is helping to bankrupt the states and drive the Federal government into deeper debt.

Then take into account that only about 20% of American workers have any kind of disability income insurance and then realize that about 60 million adult Americans have no life insurance.  An individual mandate on health insurance is just the first step of our government mandating that we purchase all kinds of goods and services that could be determined to be “Necessary and Proper” for the public good.  If this first step is successful than the whole concept of our democracy in which free people make their own decisions and are personally responsible for those decisions is gone.  We will no longer be the nation of freedom that we were founded upon


The Big Decision

By Greg Scandlen

I have read the Florida decision, and—WOW!

If you have a chance, I encourage you to read Judge Vinson’s entire decision.   It is well-written and well-reasoned. It’s like taking an entire semester of Constitutional law without paying tuition.  I don’t think very many of the commentators have actually read it or they wouldn’t be going off on snarky tangents. In the New York Times, for instance, Kevin Sack repeats a charge by Mark Hall of Wake University Law School that Vinson was writing a “Tea Party Manifesto” by mentioning the original Tea Party in his discussion. He also quotes liberal blogger Igor Volsky as calling the decision “an overreach.”

Sack obviously did not read the decision himself, or he would not have had to quote such partisans, who very likely did not themselves read the decision, either. Instead of addressing the issues raised, they attack the judge – a common tactic in these days of supposed civility.

In fact, the judge is very cautious in his ruling. He hews strictly to Supreme Court precedent and does not venture into new territory. If there is an overreach here, it is in the law itself, which even the Congressional Research Service (CRS) warned is “novel,” “unprecedented” and may lack a “solid constitutional foundation.”

But, first, the judge dismisses the plaintiff’s claim that the Medicaid expansion amounts to coercion by the federal government on the states.  He writes,

The gist of this claim is that because Medicaid is the single largest federal grant-in-aid program to the states, and because the states and the needy persons receiving that aid have come to depend upon it, the state plaintiffs are faced with an untenable Hobson’s Choice. They must either (1) accept the Act’s transformed Medicaid program with its new costs and obligations, which they cannot afford, or (2) exit the program altogether and lose the federal matching funds that are necessary and essential to provide health care coverage to their neediest citizens (along with other Medicaid-linked federal funds). Either way, they contend that their state Medicaid systems will eventually collapse, leaving millions of their neediest residents without health care. The state plaintiffs assert that they effectively have no choice other than to participate in the program. In their voluminous materials filed in support

After reviewing existing case law, he concludes there is little support for the coercion claim. He says that, while it may be very difficult politically to do, states still retain the power to opt-out of Medicaid, or to raise taxes to support the program. But he adds –

I appreciate the difficult situation in which the states find themselves. It is a matter of historical fact that at the time the Constitution was drafted and ratified, the Founders did not expect that the federal government would be able to provide sizeable funding to the states and, consequently, be able to exert power over the states to the extent that it currently does. To the contrary, it was expected that the federal government would have limited sources of tax and tariff revenue, and might have to be supported by the states. This reversal of roles makes any state- federal partnership somewhat precarious given the federal government’s enormous economic advantage. Some have suggested that, in the interest of federalism, the Supreme Court should revisit and reconsider its Spending Clause cases. See Lynn A. Baker, The Spending Power and the Federalist Revival, 4 Chap. L. Rev. 195-96 (2001) (maintaining the “greatest threat to state autonomy is, and has long been, Congress’s spending power” and “the states will be at the mercy of Congress so long as there are no meaningful limits on its spending power”). However, unless and until that happens, the states have little recourse to remaining the very junior partner in this partnership.

He then goes on to consider the individual mandate, beginning with a very thorough review of evolving case law respecting the Commerce Clause. There is plenty to discuss here, but I will let it pass for now. Let’s just say that the Depression-era Supreme Court turned 150 years of established precedent on its head with several decisions. Curious that today the senate insists on the importance of “stare decisiswhen confirming judicial appointments, when most of the case law we are living with paid little attention to it in the past. But these New Deal decisions hugely expanded the scope of the Commerce clause, so that –

… from the New Deal period through the next five decades, not a single federal legislative enactment was struck down as exceeding Congress’ power under the Commerce Clause power — until Lopez in 1995.

Although Lopez was a compelling issue (forbidding the possession of firearms in school zones), the Court could not see the logic in using the Commerce Clause to allow federal intervention. Judge Vinson quotes Justice Kennedy’s concurring opinion in the case –

(Kennedy explained) that it is the Court’s duty to “recognize meaningful limits on the commerce power” and intervene if Congress “has tipped the scales too far” as federal balance “is too essential a part of our constitutional structure and plays too vital a role in securing freedom.”

This, by the way, is only one of many instances in which Judge Vinson quotes Kennedy’s opinions. The man is politically savvy, knowing that Kennedy will be the swing vote on the Court and using his writings to support Vinson’s conclusions will surely help in the final verdict.

He then looks at United States v. Morrison and quotes –

The Court began its analysis by recognizing the foundational principle that the power of the federal government is “defined and limited” and therefore: “Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” It emphasized that while the legal analysis of the Commerce Clause “has changed as our Nation has developed,” which has resulted in Congress having “considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted,” authority under the Clause “is not without effective bounds.” (citations omitted.)

He goes on to discuss “activity,” arguing that in every case the Court has reviewed there was some activity involved and an individual could get out from under the scope of the law by ceasing the activity. Even the infamous Wickard decision, which regulated a farmer who simply wanted to grow and consume wheat on his own farm, the farmer could choose not to grow that wheat, and thus be free of the regulation.

The Defendants in this case (the U.S. government) countered that the Supreme Court has never addressed the “activity” issue. But Judge Vinson responded –

(T)here is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before. See CBO Analysis (advising Congress during the previous health care reform efforts in 1994 that “[t]he government has never required people to buy any good or service as a condition of lawful residence in the United States.”)

He goes on to quote extensively from an analysis provided to Congress by attorneys at the Congressional Research Service prior to enactment of the law –

One could argue that while regulation of the health insurance industry or the health care system could be considered economic activity, regulating a choice to purchase health insurance is not. It may also be questioned whether a requirement to purchase health insurance is really a regulation of an economic activity or enterprise, if individuals who would be required to purchase health insurance are not, but for this regulation, a part of the health insurance market. In general, Congress has used its authority under the Commerce Clause to regulate individuals, employers, and others who voluntarily take part in some type of economic activity. While in Wickard and Raich, the individuals were participating in their own home activities (i.e., producing wheat for home consumption and cultivating marijuana for personal use), they were acting of their own volition, and this activity was determined to be economic in nature and affected interstate commerce. However, [the individual mandate] could be imposed on some individuals who engage in virtually no economic activity whatsoever. This is a novel issue: whether . . . this type of required participation can be considered economic activity.

Congress was certainly warned ahead of time that what they were doing was likely unconstitutional, but in its lust for power it ignored the warning, just as it ignored the broad public opposition to the bill and the gross violation of normal congressional procedures.

The government further argued that people who fail to buy insurance are indeed participating in an economic activity because everyone will consume health care eventually, but Judge Vinson was not impressed with the argument, because everyone needs food and shelter eventually, too. That mere fact would hardly justify Congress to force them to buy what Congress prefers they buy. He says –

… the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not “slight,” “trivial,” or “indirect,” but no impact whatsoever) — at least not any more so than the status of being without any particular good or service. If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce.

But, he adds, that such an uninsured person may indeed go on to seek medical care sometime in the future –

And when they do, Congress plainly has the power to regulate them at that time (or even at the time that they initially seek medical care), a fact with which the plaintiffs agree.

And he again quotes Justice Kennedy in the Morrison decision –

In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far.

He sums up the discussion on the reach of the Commerce Clause –

The Commerce Clause originally applied to the trade and exchange of goods as it sought to eliminate trade barriers by and between the states. Over the years, the Clause’s reach has been expanded from covering actual interstate commerce (and its channels and instrumentalities) to intrastate activities that substantially affect interstate commerce. It has even been applied to activities that involve the mere consumption of a product (even if there is no legal commercial interstate market for that product). To now hold that Congress may regulate the so-called “economic decision” to not purchase a product or service in anticipation of future consumption is a “bridge too far.” It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.

Because I find both the “uniqueness” and “economic decision” arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

There is an extensive discussion of the “necessary and proper” clause, and Judge Vinson finds that it cannot be used to justify an otherwise unconstitutional Congressional action. But it is the “severability” ruling that is most important. In this ruling, he departs from Judge Hudson’s decision in Virginia, and declares that because the individual mandate is unconstitutional, what other parts of the law can survive should be a legislative, not a judicial decision. He says –

I note that the defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms “cannot be severed from the [individual mandate].”

He acknowledges that there are many provisions in the law that have nothing to do with the individual mandate and would be able to stand alone without a problem. But it is not clear to him that Congress would have enacted these provision on a stand-alone basis without the mandate and related provisions. Congress purposefully removed the severability clause that had originally been in the bill, implying that it believed the entire package was essential.

Plus, virtually all the discussion of the bill centered on “health insurance reform” aspects. Reforming health insurance was clearly what Congress intended and other provisions were merely incidental to that goal –

(T)he defendants have conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself. The health insurance reform provisions were cited repeatedly during the health care debate, and they were instrumental in passing the Act. In speech after speech President Obama emphasized that the legislative goal was “health insurance reform” and stressed how important it was that Congress fundamentally reform how health insurance companies do business, and “protect every American from the worst practices of the insurance industry.”

The defendants went so far as to write in a memorandum to the court –

[The individual mandate] is essential to Congress’s overall regulatory reform of the interstate health care and health insurance markets . . . is “essential” to achieving key reforms of the interstate health insurance market . . . [and is] necessary to make the other regulations in the Act effective.

Given that this provision is “essential” to the workings of the entire Act, a judge would have to go through the 2,700-page law line-by-line and make an independent determination of which provisions could stand alone. This is a legislative function, one that a federal judge is neither competent nor authorized to do. For example –

(C)onsider the Internal Revenue Service Form 1099 reporting requirement, which requires that businesses, including sole proprietorships, issue 1099 tax forms to individuals or corporations to whom or which they have paid more than $600 for goods or services in any given tax year. This provision has no discernable connection to health care and was intended to generate offsetting revenue for the Act, the need of which is greatly diminished in the absence of the “health benefit exchanges,” subsidies and tax credits, and Medicaid expansion (all of which, as the defendants have conceded, “work in tandem” with the individual mandate and other insurance reform provisions). How could I possibly determine if Congress intended the 1099 reporting provision to stand independently of the insurance reform provisions? Should the fact that it has been widely criticized by both Congressional supporters and opponents of the Act and the fact that there have been bipartisan efforts to repeal it factor at all into my determination?

The remedy is up to Congress –

If Congress intends to implement health care reform — and there would appear to be widespread agreement across the political spectrum that reform is needed — it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts.

Finally, Judge Vinson decided not to issue a formal injunction because –

… there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.”

Since the decision was released the Obama Administration has made it clear it has no intention of following the court’s order. This is not surprising from this Administration that has shown repeatedly that it places no value on judicial rulings. A federal judge ruled twice that the moratorium on drilling for oil in the Gulf of Mexico must be lifted, but no drilling has been allowed.

For that matter, this Administration has no regard for the English language or the truth. In this case, it repeatedly insisted that the mandate was “essential” to the workings of this law, but when it came to the issue of severability, it decided the mandate wasn’t essential at all. In the Virginia case, it declared that the “penalty” for noncompliance was just a “tax,” even though for two years it insisted in Congress and in the media that there was no tax involved, it was simply a penalty.

Do we need to add the astonishing claim by HHS that one-half of America would be denied coverage for pre-existing conditions if not for this wonderful law? Or the waivers from compliance handed out as political favors by Kathleen Sebelius?

Your Agent Can’t Sell You Insurance

By Ross Schriftman, RHU, LUTCF, ACBC, MSAA

“The bitterness of poor quality remains long after the sweetness of low price is forgotten” (Author unknown)

Ask yourself this question.  Do you want your agent to sell you health insurance with a company that is profitable or with an insurance company that is losing money?  As they say this should be a “no brainer.”

However, you don’t really need to ask your agent this question. Most likely your agent must sell you insurance from a profitable company.    That is because in order to be appointed to sell their products insurance companies require insurance agents contracting with them to be covered by a form of malpractice insurance called Errors and Omissions (E & O).  A provision of this insurance covers insolvency of insurance companies; but only if the company was in a strong financial condition when the client bought the insurance from their agent.  The standard used for this provision is usually an A- rating from A.M. Best; one of the financial rating services.  The malpractice insurance company will not issue coverage to an insurance agent that represents below par insurance carriers.  An agent must also have a high degree of integrity and competence in order to get E & O insurance.  If an agent can’t get the coverage they basically can’t sell insurance.  This is a strong consumer protection similar to the state licensing and training requirements for a person to be in our business.

Sadly there may come a day soon when your agent may not be able to sell you any of the health insurance you want and need. Why is that? Well along comes Obamacare containing provisions reflecting its wild theories.  The most recent thrust of the President and his Administration is that the rate increase for the insurance premiums we all pay must be reigned in by force of Federal government regulation.  The law contains a provision that sets an arbitrary percentage of how much companies can spend on administrative costs and maintain as profits. In theory this sounds like a good idea that will lower premiums.  In fact in practice it will actually increase premiums so that companies can cover all their necessary administrative functions and still show a profit.

To mitigate this bad provision from having the real life result I just mentioned our government has put forth another bad regulation. Now the Secretary of Health and Human Services has proposed a rule that will give the Federal government authority to cancel “unreasonable” rate increases.  With the health insurance industry working on a profit of $12 billion in 2009 for the top 13 companies and private health insurance paying out $800 billion in benefits that year it is obvious that they are still profitable even though the margins are small.  (Drug company profits were $64 billion in 2009.) However, it would take only one epidemic or terrorist attack to wipe out those profits.  Even a slight miscalculation by actuaries or government regulators could have a negative effect on the financial strength of a company. When liquidity and claim paying ability is diminished the rating services downgrade an insurance company.  What happens if the downgrade results in a rating of less than A- by A.M. Best?  Your agent can no longer sell you insurance from that company.

Two states; California and Massachusetts have already experienced regulatory attempts to stop rate increases.  Companies started losing money and the regulators have now backed off to some degree.  No one wants a significant rate increases.  However, delaying a legitimate increase will result in only two scenarios.  The first is an even bigger rate increase next time to make up for the loss.  The second is insolvency.  I would rather be unhappy with my rate increase than find out that my insurance company isn’t going to pay my claim or, more likely, have to wait for regulators to deem the company insolvent and hope that the State Guarantee Fund will step in and pay my claim.

Preventing health insurance rate increases to lower healthcare costs will be one of the biggest failures of Obamacare.  Sandy Prager, Kansas Insurance Commissioner and President of the National Association of Insurance Commissioners said it best, “I think we’re chasing the wrong tail here. It’s really about health care costs…In most cases, the companies have been able to justify them (rate increases), because of the economic situation. The book of business is probably getting sicker because healthier people are dropping out.

Now what happens if your agent can’t sell you a particular insurance company’s product anymore because their financial status forced a downgrade of their rating?  Not to worry. Under Obamacare starting in 2014 Americans will be buying health insurance coverage through State Exchanges. The employees of these new organizations will have no experience and little training.  They most likely will recommend that you purchase the lowest premium plan since the entire untested theory of the exchanges is to drive down premiums.  The lowest premium plans usually mean the least financially strong insurance carriers.  There are many examples from past experience of companies under pricing their insurance products.  The results are insolvencies, huge rate increases or termination of the block of business and the company leaving people with no insurance.  This is the future for America unless the so called Affordable Care Act is repealed and replaced with true market driven competitive reforms; ones that increase competition, attract young and healthy people to insure and not force everyone to buy insurance designed and dictated by Washington bureaucrats.