Do What’s Best for Illinois

The dispute in Washington, D.C. over health-care reform is stirring debate everywhere. Opinions on what aspects of reform matter to many puts us at risk of losing sight of what matters to all — quality, affordable health care. Regardless of what the Supreme Court decides, Illinois lawmakers should ensure that Illinoisans see lower costs, better quality and more stability in their health coverage.

They can start by creating a health insurance exchange program that allows individuals and small businesses to pool their buying power and negotiate for better prices for health-care coverage. Smart economic decisions are based on ample choice and price comparison. The more health-care options, the better the cost and access to primary care. An exchange program would provide consumers the opportunity to be in control of their own health coverage.

More than 8,000 of our patients are uninsured and do not qualify for Medicaid or Medicare. An insurance exchange program could secure affordable coverage for their primary health-care needs and keep them from seeking routine care in a hospital emergency room. As a Federally Qualified Health Center, we know the importance of primary care for not only promoting better health, but preventing diseases. Illinois should do what is best for its residents, not for big insurance companies.

Warren J. Brodine, CEO,

Chicago Family Health Center 

Originally published in the Chicago Sun Times on April 4, 2012

Supreme Court Wrap Up - A Law Student's Perspective

Last week the Supreme Court heard oral arguments on the Affordable Care Act (ACA), commonly known as health care reform. Hearings were held for more than six hours over three days -- more time than has been given to a case in over 50 years.  At least 170 briefs were filed -- more than any other case in history.  Efforts to overturn provisions of the history-making law are proving to make history themselves.

On the first day, the Court heard arguments on the impact of the Anti-Injunction Act (AIA) on the constitutional challenge to the ACA’s minimum coverage provision.  The AIA works to prevent federal courts from hearing cases in which taxpayers are seeking court orders to prevent the government from assessing or collecting a federal tax - the theory being that the proper time for a court’s involvement in such cases is after the tax in question has already been paid (which for the ACA could be not for a couple more years).  As a consequence, before the Supreme Court can consider whether the ACA is constitutional, it must determine whether the AIA takes away the authority of federal courts to hear the case, or whether it does not apply to this controversy.  Counsel for the states argued that even if the penalty is a tax, the controversy should still be heard by the Court because the respondents are not seeking to enjoin the assessment or collection of a tax, but instead the requirement that everyone purchase health insurance.  The Justices considered the use of the word “penalty” in the ACA, the relationship between the insurance mandate and the penalty, and the effect of both provisions (individually and together) on the public and the states.
 
On Tuesday, the Supreme Court heard arguments on the minimum coverage provision of the ACA, which requires that all Americans (with limited exceptions) maintain a minimum level of “essential health care coverage.”  The issues the Court must address are whether it is within Congress’s power under the Commerce Clause of the Constitution to mandate the purchase of health insurance coverage, and whether Congress has the authority to assess a penalty against those who refuse to do so.  Americans have already been subjected to a number of mandates before the ACA, such as filing income tax returns and serving on a jury, but challengers to the ACA argue that purchasing health insurance is not a duty of citizenship, as other mandates have been.

Under the Commerce Clause, Congress has the power to regulate an activity that has a substantial affect on interstate commerce.  The questioning on Tuesday centered mostly around which market was being regulated by the ACA: the insurance market, health services generally, or the portion of health services utilized by the uninsured.  The Justices also posed many questions with regard to the argument that everyone is in the healthcare market, noting that almost everyone is going to require some kind of healthcare during their lifetime, that having health insurance is often a requirement for people to access the healthcare they need, and that the government is able to mandate vaccinations when a public health emergency arises.

On the third day of oral arguments, the Court heard arguments on the severability of the individual mandate provision and state sovereignty in the Medicaid expansion.  The severability issue considers whether Congress would have intended the rest of the ACA to stand if the individual mandate provision was found to be unconstitutional.  Challengers to the ACA argue that the individual mandate is the essence of the ACA, and that Congress would not have intended the additional “miscellaneous” provisions of the ACA to stand without it.  The Court also heard arguments in support of leaving the rest of the ACA intact and letting Congress decide whether to enact further amendments if needed, and the government’s argument in favor of striking also only those additional provisions found closely linked to the individual mandate; the guaranteed-issue and community-rating provisions.

The hearings concluded with arguments on the Medicaid expansion.  Under the Medicaid program, the federal government provides funds to participating states, and in return the states agree to follow certain standards.  The ACA set new standards for the Medicaid program in expanding eligibility to individuals with incomes up to 133 percent of the poverty level, the increased costs of which will be paid for entirely by the federal government until 2016, and then decrease to 90 percent federal coverage by 2020.  As a result, states would be required to expand coverage of their state’s Medicaid programs, or lose all federal Medicaid funding (typically 50 to 83 percent of the state’s Medicaid program spending).  Arguments on this issue addressed the possible coercion created by the ACA, by offering states an offer that cannot be refused.  Whether coercion depends on how much the federal government threatens to take away or what it is offering and the relationship between both was also discussed.  At the end of the hearing, Justice Ginsburg sought clarification that the challengers to the ACA would be satisfied with providing states the opportunity to opt out of the Medicaid expansion, instead of striking the expansion from the bill entirely.
            
Finally, last Friday, the Supreme Court Justices cast their votes on the constitutionality of the ACA in a conference room with no one else present.  In the weeks to come, the Justices will draft opinions and dissents on the case, and one Justice may be assigned to write the majority opinion, or multiple will be assigned to each write about different issues.  While each Justice’s vote can certainly change over the course of the next several weeks as they draft their opinions, most often changes are from the minority to the majority after reading the opinion, although it is possible that a vote change will affect the outcome of the controversy.  It will be late June or early July before the decision is finalized and the opinion is made available to the public.  Until then, we can only speculate as to where the Justices will fall on the issue.

Amanda Swanson

LL.M. in Health Law Candidate

Loyola University Chicago School of Law

What’s Next for Health Care Policy in Illinois?

The past two weeks were a non-stop affair for health care policy—the ACA saw its 2nd anniversary right before the Supreme court heard oral arguments for the historic case against the law, and here at IHM we premiered our data visualization tool. However, health care reform news has not stopped. Here’s a brief overview of what the next few months have in store for health care in Illinois:

Health Insurance Exchange: State legislators made little progress towards votes on the establishment of a competitive health care marketplace, though negotiations on HB 4141 are underway. Legislators still have time to establish an exchange, but the Federal deadlines are looming closer, and to miss deadlines could cause Illinois to lose out on important Federal grant money. If the group waits to move forward with the exchange until the Supreme Court announces its decision on the ACA case -- a prospect that interests some legislators -- , there may not be enough time to set up a functioning exchange. Governor Quinn has said that he would establish the exchange via an executive order if necessary.

Potential Cuts to Medicaid: The Illinois Medicaid program faces a $2.7 billion deficit in the coming fiscal year. In order to deal with that budget, the Department of Healthcare and Family Services has proposed a list of possible cuts to Medicaid services in order to balance the budget. As legislators go into the upcoming spring sessions, many advocates are calling for other methods of fixing the Medicaid budget deficit that do not compromise important health care services that the program provides.

The Illinois General Assembly starts its April sessions on the 17th.. Follow the progress of these health policy issues with IHM!

In Short: SCOTUS and the ACA

For three days this week, the Supreme Court of the United States heard oral arguments on the Patient Protection and Affordable Care Act. The case against the ACA is broken up into four main arguments, primarily on the constitutionality of the Individual Mandate and Medicaid Expansion. The historic health law case has made a splash across Capitol Hill and beyond; and the responses range from adversarial to insightful to amusing and back:

The New York Times profiles Jonathan Gruber, the M.I.T. professor responsible for the academic research and number-crunching behind the ACA’s individual mandate.

CommonHealth’s Carey Goldberg talks with Kevin Outterson, director of Boston University’s Health Law Program and a frequent contributor to the Incidental Economist, on the court hearing, and then turns the conversation into a humorous animated video.

AHIP compiled various independent studies on the negative impact of severing the Individual Mandate from the ACA in this infographic.

For those who want to go straight to the source, download the audio recordings and transcripts of the oral arguments from March 26th, March 27th and March 28th.

The Supreme Court will announce its decision by the end of June, at which point, the bill will be handed back to Congress. Will this Congress, notoriously unable to come to agreement across party lines, be up to the challenge? The Hill Health Watch reports.

No matter what happens, Illinois Health still Matters; the State will be transitioning Medicaid into managed care, providers will be challenged to develop new payment models, and we still need to innovate to effectively serve vulnerable populations in tough fiscal times.

The Supreme Court Challenge to the ACA

From March 26 to 28, 2012, the United States Supreme Court will hear arguments in Florida, et al., v. Department of Health and Human Services, et al., the historic challenge to the constitutionality of the Affordable Care Act brought by the attorneys general of 26 states and the National Federation of Independent Businesses. No case has been allotted this much time for argument since the 19th century.

Since the Affordable Care Act was enacted in March 2010, dozens of legal cases have been filed against the law. Most cases have been dismissed on procedural grounds. Of the small number of cases that have gotten past procedural hurdles, four cases have reached the Courts of Appeals.

Of those cases, three courts have rejected challenges to the law (the Sixth Circuit and the DC Circuit upheld the law entirely, and the Fourth Circuit found the challenge to be premature under the Anti-Injunction Act). However, in the Eleventh Circuit, in a case brought by the attorneys general of 26 states and the National Federation of Independent Businesses, the court found the personal responsibility provision to be unconstitutional. However, that court left the rest of the law in place and specifically found the Medicaid expansion constitutional.

The federal government has appealed the decision striking down the personal responsibility provision. The states and National Federation of Independent Businesses have appealed the parts of the decision that upheld the Medicaid expansion and that left the rest of the law in place. No party is arguing that the case against the personal responsibility provision is premature under the Anti-Injunction Act—the Supreme Court has decided on its own to consider that question.

The Campaign for Better Health Care hopes that the justices fully consider the legal precedents that have already been set in similar cases and find that the law is constitutional. We want to see this law given the full stamp of approval of the highest court in the land so that instead of wasting time playing politics around the Affordable Care Act, lawmakers move ahead to implement it.

The central questions here are: What kind of a country do we want to live in? What values do we have as Americans? This isn't a policy debate, it is a philosophical one. The arguments at the core of it are "you're on your own" versus "taking personal responsibility for the common good of your family and America." Our nation was built on the ideals of personal responsibility and working for the common good of our country. Those are the ideals that Obamacare promotes.

The Affordable Care Act protects and offers all Americans the opportunity to obtain quality, affordable health care. People like the consumer protections in the law. They do not want to give up the vital protections that the Affordable Care Act provides them and go back to being at the mercy of insurance companies. Striking down the Affordable Care Act would take away protections that Americans already have or are about to gain, including:

* rules already prohibiting insurers from denying coverage to people, including children, with pre-existing conditions

* tax credits that are already helping small businesses provide coverage to their employees

* rules prohibiting insurers from canceling coverage when people get sick

* rules prohibiting insurers from dropping young adults from their parents’ coverage

* rules prohibiting insurers from imposing annual or lifetime caps on coverage

* improved prescription drug coverage and preventive benefits for seniors and people with disabilities who rely on Medicare

The Affordable Care Act is constitutional, having already been upheld by multiple courts, including by leading conservative judges. If the Supreme Court follows existing precedent, it will uphold the law. Three separate Circuit Courts of Appeal have rejected challenges to the law, with two of these decisions including opinions written by leading conservative judges.

The law is constitutional because Congress has broad authority to regulate interstate commerce. This authority comes from the Constitution’s commerce clause and necessary and proper clause and has been undisputed in Supreme Court rulings dating back at least 75 years. Legal precedent has been well established in this case, so let's move on already.

The Affordable Care Act is fair. The personal responsibility provision is a common-sense rule that will ultimately affect about 1 percent of Americans, and the 83 percent of Americans who already have health insurance (for example, through their jobs or through Medicare) will not be affected by it. Most people without health insurance want coverage but cannot get it, either because they cannot afford it or they are denied it due to their pre-existing conditions. The Affordable Care Act makes coverage affordable and eliminates exclusions for pre-existing conditions. When these people get coverage, they will not be subject to the penalty either.

It is estimated that, at most, 1 percent of the population will refuse to buy coverage and will not qualify for an exemption (for example, for religious reasons or economic hardship). These people should pay their fair share and get coverage before they get sick; waiting until they get sick to get coverage only shifts the cost of their care onto everyone else.

All big changes to our national priorities and policies generate opposition. The Social Security Act in the 1930s and Medicare and the Civil Rights Act in the 1960s were bitterly attacked at the time they were passed. The Social Security Act and Civil Rights Act were even declared unconstitutional by lower courts before the Supreme Court upheld them. Now these laws are part of the fabric of American society. The same will happen with the Affordable Care Act.

Jim Duffett
CBHC Executive Director

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About the Campaign for Better Health Care

We believe that accessible, affordable, quality health care is a basic human right for ALL people. The Campaign for Better Health Care is the state’s largest coalition representing over 300 diverse organizations, organizing to help create and advocate for an accessible, quality health care system for all. For more information, visit www.cbhconline.org.

Preview: Medicaid and the Supreme Court

Tomorrow the United States Supreme Court will be in its third day of arguments about the constitutionality of the Affordable Care Act (ACA). Tomorrow's argument will focus not on the Individual Mandate (which has gotten the most press and political rhetoric) but on challenges to the constitutionality of the Medicaid expansion that will take place in 2014.

Under the ACA, Medicaid coverage will be expanded to any adult with an income at or below 133% of the Federal Poverty level, making low income levels the primary qualification for the program. In Illinois, alone, the Medicaid Expansion will impact 610,000 people. The Federal government will provide funding to cover 100% of the expansion costs for the first three years and 90% thereafter.

The primary argument against the constitutionality of the Medicaid expansion is that the expansion is unlawfully coercive. The plaintiffs argue that the 100% federal funding offered to states for the expansion is so advantageous that states must choose to continue to participate in the Medicaid program. 

Medicaid is, and always has been, voluntary to states. The funding offered for the expansion is not a new idea for Medicaid which has always involved government funding. Historically, the Federal government has funded a substantial percentage of each state’s Medicaid program, ranging from 50-83% of states’ costs and, on occasion, 100% of certain expenditures. Due to the vagueness and lack of legal precedent regarding what is “coercive,” this argument may be difficult to prove to the Supreme Court. 

A secondary argument is that the expansion, in tandem with other parts of the ACA law, creates changes that are extreme to the point of revolutionizing Medicaid. The Plaintiffs argue that the minimum essential coverage requirements outlined in the ACA render State participation in Medicaid indispensable thus turning Medicaid into “a program to provide a minimum level of coverage to every needy person.”

The Defendants counter that, Medicaid is not the only source of coverage for low-income individuals; they may also receive coverage via Medicare, Veteran’s Assistance benefits, other types of government funded care (such as ICHIP or IPXP in Illinois), or through an employer-provided insurance plan. Also, many individuals who would become eligible for Medicaid in 2014 may not be subject to the individual mandate due to their low income and non-taxpayer status. 

Finally, just as participation in Medicaid is voluntary to States, enrollment is voluntary for individuals. This argument also reflects a weak understanding of Medicaid. From its inception, Congress has reserved the right to make changes to the Medicaid program. None of these changes, however, have changed the core features of the program. Instead, these changes have followed a path that leads logically to the reforms called for in the expansion. Minimum coverage offered by a state has gradually expanded over time as criteria for certain low-income populations such as pregnant women, children and adults with a disability and elderly adults were put in place. The types of services covered have increased such as expansions to home- and community-based services that keep beneficiaries out of institutions.  Many of these reforms began as options, and were then converted into requirements for states’ participation in the program. 

A final piece of the Plaintiff’s argument claims that Medicaid is already too large of a program, and that the expansion will cause it to become too much of a financial burden on states. The Defendants counter that the size of a state’s Medicaid program is controlled, in large part, by the state itself. The Federal government creates the baseline requirements for a state’s Medicaid program, but also allows—and funds—many optional programs and experimental demonstration projects that allow each state to best serve the needs of the population. Many states have created programs that go well beyond the federal baseline. In fact, a large part of all Medicaid spending is on these programs—in Fiscal Year 2007, it comprised 60.4% of all Medicaid expenditures.

For more information about the argument to uphold the Medicaid expansion, see the National Health Law Program's Amicus Brief here. For transcripts and recordings of the Supreme Court's Affordable Care Act arguments, go here and here.

Stephanie Altman
Health & Disability Advocates

EDIT: 4/9/2012: For NHelp's recap of the oral arguments on the Medicaid Expansion, click here. 

See into the future of health care reform

Illinois Health Matters has released a new data visualization tool, “Visualizing Health Care Reform in 2014,” for understanding the impact of the Affordable Care Act (ACA) in Illinois. This easy-to-use, interactive tool maps the State and shows who is currently uninsured, how many of those people will become insured, and how they will access health insurance as the major provisions of the ACA go into effect in 2014.

Infographics such as “Visualizing Health Care Reform” are valuable aids for understanding complex concepts, such as the impact of health care reform. By using data to illustrate public policy outcomes, people and policymakers can make informed, data-driven decisions.

This tool is the first of its kind to illustrate the future impact of health care reform at the state level. It also gives a valuable glimpse of how crucial these reforms will be for more than 1.6 million uninsured Illinoisans through Medicaid expansion and the new state Health Care Exchange (or “Marketplace). Clearly, businesses and communities across the state have a lot of work to do to gear up to meet the potential demand.

This is just part of the story. The impact of the new health law is even more far-reaching. For every Illinoisan who will gain access to coverage via Medicaid or the Exchange in 2014, there are others who already benefit, such as the young adults who get to remain insured via their parents’ insurance until age 26 or the children and adults whose health has benefitted from the wide range of preventative care services that insurance companies are now required to cover.

For information on how the law can help you or your community now, go to Illinois Health Matters, sign up for our monthly newsletter, or ask a question. For more on the data used in this tool, go here.