Archive for February, 2011

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Less pain, more gain: defining an alternative to harmful Medicaid cuts

Monday, February 28th, 2011

(please note most links below are pdfs)

On Friday, Community Catalyst sent a letter to Secretary Sebelius, outlining eight policies states could implement to cut Medicaid costs. We were inspired to weigh in by a series of letters between the Secretary and Republican Governors that contrasted two very different approaches to reducing Medicaid expenditures.

Cutting Coverage vs. Cutting Waste
Republican Governors wrote a letter to Congress and the Administration in January, asking them to lift the Maintenance of Effort (MOE) requirement – the provision in the Affordable Care Act (ACA) that prevents most states from reducing Medicaid eligibility between now and 2014. The basic premise of their letter was that states need to cut low-income children, parents, seniors, and/or people with disabilities off coverage in order to “responsibly manage [their] state budgets.” We anticipate Republican Governors will reiterate this argument at the Energy and Commerce hearing Tuesday about the impact of the ACA on Medicaid.

Secretary Sebelius responded with a letter explaining why that basic premise simply isn’t true (see our blog and summary of her letter.) She outlined dozens of ways states can trim costs in their Medicaid programs without eliminating coverage for vulnerable families. By tackling the inefficiencies in our fragmented health care delivery system, many of the policies she suggested not only cut costs but they also have the potential to improve care for beneficiaries in the process. Sebelius also made it clear that her department remains open to suggestions of additional policies states can pursue to accomplish those dual goals.

When Secretary Sebelius Calls, We Answer
We took the Secretary up on that challenge. Our letter to the Secretary highlights eight additional policies states can pursue to lower Medicaid costs and maintain or improve care. More details about these options can be found in the text of our letter, but here are the highlights:

  • Recalibrate provider payment rates, shifting dollars from inpatient care to outpatient care, to give providers an incentive to treat patients in the lowest-cost settings.
  • Rebalance long-term care dollars away from institutions and towards home- and community-based settings by taking advantage of more funding opportunities created by the ACA to help states front the cost of this readjustment.
  • Better integrate care for those who are eligible for both Medicaid and Medicare by expanding existing programs such as the Program for All-Inclusive Care for the Elderly (PACE) and fully-integrated Special Needs Plans (SNPs) that provide a comprehensive and patient-centered model of care.
  • Reduce preventable hospital readmissions and complications by tying hospitals’ payment levels to their preventable complication and readmission rates.
  • Increase the use of generic drugs by making it easier for pharmacists to substitute equivalent generics when the patient was prescribed a brand name drug.
  • Improve evidence-based drug selection and purchasing by expanding utilization management and the use of state Preferred Drug Lists (PDLs) created by an evidence-based evaluation of available therapies. It’s important to include measures to protect access and quality, especially when applied to classes of drugs or medical conditions that have traditionally been excluded from PDLs (such as mental health, HIV/AIDS and cancer).
  • Improve prescriber education by creating an “academic detailing” program that provides prescribers with up-to-date information about the effectiveness of different medications and alternative treatments, serving as an unbiased alternative to pharmaceutical industry promotion.
  • Combat off-label drug promotion and inappropriate prescribing by requiring that physicians inform their Medicaid beneficiary patients whenever the physician prescribes a drug for an unapproved use, and that the patient consents to the treatment.

A Better Path to Savings
These policies — coupled with the consumer-friendly options offered in Sebelius’ letter — offer a clear alternative to cutting low-income children, parents, seniors and people with disabilities off Medicaid; they illustrate why Congress does not need to lift the Maintenance of Effort requirement for states to make their Medicaid programs more efficient.

They also offer clear alternatives to some of the more harmful cost-cutting tools that states already have at their disposal: imposing higher cost-sharing and eliminating or restricting “optional” benefits such as prescription drugs. Those tools just shift costs onto vulnerable beneficiaries, and risk harming their health. And research suggests they result in fewer savings than states might assume: when patients delay or forgo certain services because of cost-sharing or benefit restrictions, their illnesses can worsen and eventually require more expensive care, canceling out some of the state’s savings.

Our letter lays out a better path — one that not only saves money but also can improve the lives of vulnerable Americans. If Governors are serious about fiscal responsibility, they should jump at these opportunities to cut waste and improve the sustainability of the Medicaid program.

-Katherine Howitt, Policy Analyst

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New Round of HHS Funds Help States Fight Premium Increases

Thursday, February 24th, 2011

Today, the Center for Consumer Information and Insurance Oversight (CIIO) announced a new round of grants for states that will strengthen their ability to conduct premium rate reviews and roll back excessive increases. Community Catalyst and Consumers Union spoke at the press event about the importance of rate review to consumers.

“American families and small businesses have too often been the victims of premium rate shock,” said Community Catalyst policy director Michael Miller. “Typically, family income doesn’t jump 10 to 15 percent on an annual basis, the way insurance premiums tend to. Families incurring those rate increases year after year have difficult choices to make, and some of them end up without coverage as a result. So having an effective watchdog that can hold the insurers accountable is very important.”

States have often been overmatched by the insurers, so additional resources, particularly coming at a time when state budgets are still in recovery mode, will help level the playing field. The CCIIO resources are structured in a way that gives incentives to states to toughen up their review processes — more money will be available to states that have greater authority to deny rate increases.

Recent illustrations of the importance of rate review come from states such as California, Connecticut, Massachusetts and Rhode Island. One important change that consumer advocates are anticipating is that states will expand the opportunities for public review and public comment on proposed increases.

While rate review is not a silver bullet for rising health insurance premiums, it is part of the overall thrust of the ACA, which is to make sure that families are getting good value for their health care dollar. The increased scrutiny of rate increases is accompanied by many other initiatives to improve health care value for both premium payers and taxpayers, ranging from setting standards for Medical Loss Ratios, to reforming the delivery of care for people with chronic conditions.

The funding announced today is the second round of funding to enhance state review of premium increases. It does not actually hit the states until the first round expires in August. It will be interesting to see whether governors, some of whom have returned ACA funds or proclaimed their intention not to implement the ACA, will turn down resources that could save individuals and small businesses millions of dollars and instead align themselves as protectors of insurance industry profits.

- Kathy Melley, Communications Director

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The Insider: (Budget) Love Don’t Come Easy

Tuesday, February 15th, 2011

Legal Scene: You Can’t Hurry Love
Although VA Attorney General Cucinelli is seeking expedited review of the case against the Individual Responsibility Requirement (IRR), most court-watchers think this is unlikely to happen. The Supremes rarely reach down to bypass lower courts and do so even more rarely if the Justice Department opposes the move (which in this case it does). Meanwhile “guess how they’ll vote” remains an active pastime. For those who like to back up their speculation with a little cash, the online futures market is predicting that the IRR will be found constitutional (about a 70 percent chance) in light trading.

Want to do something more useful than speculating or gambling? Go out and educate people on the benefits of the ACA. The court won’t make its decision in a vacuum and what people think, matters.

You may be recused
When the SCOTUS finally does get the case, how many justices will actually hear it? Legislators on both sides of the aisle are already battling over this. Orrin Hatch is demanding Elena Kagan recuse herself because when she was Soliciter General, she had taken part in discussions of the ACA within the administration. Democrats are countering with a demand that Clarence Thomas recuse himself because of his wife’s political activities in opposition to the ACA.

Meanwhile, some Democrats in the Senate are not waiting for the Court ruling on the IRR, they are going out and seeking alternatives. This is a misguided effort. First, from a policy perspective, the alternatives will work less well. Perhaps, more importantly, the search for an alternative presumes that a consensus can be built within Congress for constructive modifications when in fact no such consensus is possible. The goal of the current Republican leadership is to bury the ACA, not to modify it.

There are slasher films and then there are slasher films
Remember that movie last year about the guy who was trapped while hiking and had to amputate his own arm in order to stay alive? That seems like a good metaphor for the Obama budget — it’s nasty and painful. But it’s better than the alternative if the proposals from House Republicans for the remainder of FY 2011 are any guide — $1.3 billion cut to community health centers and elimination of all funding for the national health service corps, which provides funding for doctors to work in underserved communities — the political equivalent of the Texas Chainsaw Massacre.

The U.S. economy has yet to really emerge from the worst economic crisis since the Great Depression. Although there are some signs of improvement, there are also many signs of continuing weakness, including in the housing market. With state and local job cuts already a drain on the economy, and more public employee cuts on the horizon in the next state fiscal year, it is premature to be contracting federal spending. While some commentators are making this point, it seems to have little traction on Capitol Hill where the main debate is between the President and his critics on the right. As a result, the budget debate appears to be shaping up as a rerun of the debate on the expiring Bush tax giveaways, and we already know how that movie ended.

Does the public support cuts?
In pursuing spending cuts, aren’t politicians just responding to the demands of their constituents? That’s a hard question. As with questions about health reform, it depends on how you ask. In general, the public seems to prefer the abstract idea of cuts over taxes, but is much less willing to embrace specific spending reductions.

Meanwhile, advocates for programs across the federal budget are rallying around their specific area of concern. This is understandable, but the moment seems to require a broader approach. Arguments that accept the basic premise that spending on human needs must be reduced but posit that somebody else should be cut increase the chance of a food fight over a shrinking pie. For an alternative approach, check out the good work being done by the folks at the Coalition for Human Needs There’s still time to sign on to their statement on budget priorities.

What does it all mean for health care activists?
The approach being pursued by Congressional Republicans is clearly a health care disaster. President Obama’s budget is more of a mixed bag. Although there are some good proposals to reduce health care spending — such as eliminating the ability of drug companies to pay generic drug firms to delay market entry (“pay-for-delay”) — there are also some painful reductions. Most troubling is a proposal to reduce the ability of states to use provider taxes to help fund their Medicaid budgets. While the proposed reduction in allowable taxes, from 6 percent in FY2014 to 3.5 percent in FY2017 and beyond, does not start phasing in until 2015, there are two likely effects. First, it will likely have a chilling effect on states that might be considering these taxes to help balance their budgets in the short run, making cuts in benefits more likely. Second, it will force states to find alternative revenue sources at roughly the same time they are expanding eligibility under the ACA, adding substantive and political challenges to implementation. In general, our view is that the federal government should be doing more, not less to help finance the Medicaid program.

Still, for the most part, the President’s budget spares health care programs from serious harm. But we shouldn’t rest easy. The debate in Congress is sure to be difficult and health care will not emerge unscathed. As difficult as the current budget moment may seem, it is likely that even greater challenges lie ahead when the focus of debate moves from FY2012 to long term debt reduction, which will put health care squarely in the spotlight.

– Michael Miller, Policy Director

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Medicaid Gymnastics: You want state flexibility? I’ll show you state flexibility!

Friday, February 11th, 2011

Secretary Sebelius sent a letter last week to state Governors outlining dozens of ways that states can trim costs in their Medicaid programs (see our summary here).

Most of these policies were right on target. They take aim at our fragmented health care delivery system, reduce costly inefficiencies, and would even improve the quality of care for high-risk Medicaid beneficiaries.

But a few of the approaches Sebelius drew attention to were, well, off-target. For example, the Secretary highlighted how states can impose higher cost-sharing on low-income beneficiaries and restrict or eliminate “optional” benefits like prescription drugs and home- and community-based long term care services. These approaches only shift costs from the state onto struggling families, and would harm the health of chronically-ill Medicaid enrollees.

Why is HHS drawing attention to states’ discretion to cut benefits and raise copayments?
Good question. And there’s a good answer. While we don’t love having these poor policy choices showcased, this letter is part of an effort to avert an even worse outcome.

Last month, Republican Governors wrote a letter to Congress and the Administration demanding they lift the Maintenance of Effort (MOE) requirement – the provision in the Affordable Care Act (ACA) that prevents most states from reducing Medicaid eligibility between now and 2014. The Governors claim that by prohibiting them from cutting people off Medicaid, the MOE hinders their ability to balance their budgets. Their letter has generated momentum on the Hill for eliminating this critical consumer protection.

But repealing the MOE is the wrong solution to state budget crises. It’s dangerous for two key reasons:

  1. It would increase the ranks of the uninsured, cutting vulnerable children, families, seniors and people with disabilities off health care coverage in the midst of an economic crisis. The human costs would be extraordinary.
  2. It would create a major barrier to implementing the ACA’s Medicaid expansion in 2014. States that reduce Medicaid eligibility in the next few years would have to reinstate it at their regular matching rate in 2014. If states are complaining now about the burden of having to just keep the people they’re already covering on Medicaid, just imagine the drama when they have to expand eligibility – and at their regular matching rate.

The HHS letter helps make the case that repealing the MOE isn’t just wrong, it’s unnecessary. By highlighting all the ways – good and bad – that states can save money in their Medicaid programs, it undercuts the Republican Governors’ assertion they have to cut eligibility in order to balance their budgets.

The HHS letter can be a tool for strengthening Medicaid
In their appeal for the elimination of the MOE, Republican Governors pleaded for the federal government to “restore states’ flexibility to craft Medicaid programs tailored to their specific needs.” As the HHS letter underscores, states already have very significant flexibility in designing their programs, and no state has taken advantage of every opportunity for savings.

It’s up to consumer advocates to hold states accountable. When policymakers propose eligibility cuts, cost-sharing increases or benefit restrictions, we should draw attention to the all the options in HHS’ letter to improve care for beneficiaries while lowering the cost for taxpayers (see our summary of the letter for a list of these positive approaches). No state should resort to jeopardizing the health of our most vulnerable families until they have exhausted the lengthy list of opportunities for reducing costs by strengthening Medicaid.

Going beyond the HHS letter
The HHS letter creates a good starting point. But there are other strategies that states could pursue to sustain their Medicaid programs without harming beneficiaries. Stay tuned – Community Catalyst will be highlighting more consumer-friendly ideas to sustain Medicaid in upcoming blogs.

– Katherine Howitt, Policy Analyst

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$25 Million to Tackle Childhood Obesity in Medicaid, CHIP, and Beyond

Thursday, February 10th, 2011

Many of you may recall that the Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) authorized childhood obesity demonstration grants aimed at developing an effective model for reducing obesity in children. Thanks to the Affordable Care Act, $25 million in funding was made available for these grants. With this funding now available, the US Department of Health and Human Services (HHS) recently released the funding opportunity announcement to solicit applications.

The goal of the CHIPRA childhood obesity demonstration grants is to determine whether an integrated model of primary care and public health approaches can improve underserved children’s risk factors for obesity. These approaches may include policy, systems, and environmental supports that encourage nutrition and physical activity for children and their families.

HHS plans to award only three grants; each will be approximately $6.25 million spread out over a four year period. HHS will also make a separate award of approximately $4.25 million to an evaluation center to assess the success of the three demonstration projects.

A call and webcast for prospective applicants will be held on February 16, 2011 from 4:00 P.M. to 5:45 P.M. Eastern Standard Time. The call-in information is as follows:

Call-In Number: (888) 843-9981
Passcode: 3004616

For additional information about the call and webcast, please see the funding opportunity announcement. Optional (but encouraged) letters of intent are due by February 22, 2011 with the final application due on April 8, 2011.

Here at the New England Alliance for Children’s Health, an initiative of Community Catalyst, we find this type of approach to the childhood obesity epidemic to be very exciting because we believe it will be an important step toward what our partners at the National Initiative for Children’s Healthcare Quality (NICHQ) have called “the system framework for addressing obesity” that includes changing “the policy environment, at both the societal and organizational levels.” This type of a framework will allow the childhood obesity epidemic to be addressed from multiple angles to ensure that progress will be made.

—Patrick M. Tigue, Children’s Health Care Coordinator
New England Alliance for Children’s Health

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Community Transformation Grants get a green light, but dangerous cuts loom

Thursday, February 10th, 2011

Put your community prevention planning in high gear! After months of waiting, federal officials yesterday announced $145 million will be distributed nationally this year in Community Transformation Grants. This will make a significant investment in systemic change at the local level to reduce health disparities and chronic diseases. The Centers for Disease Control and Prevention, which will distribute the grants, is finalizing details of exactly what they will fund and how the money will be distributed. Grants are expected to support innovative projects that involve broad coalitions of stakeholders in communities across the nation.

The $145 million is a first-year installment in what is designed to be a multiyear program to get at underlying causes of illness and inequities, including social, economic and environmental factors. The money comes from the Prevention Fund established in the Affordable Care Act. The $750 million in FY11 Prevention Fund spending was announced yesterday by HHS, and followed by a detailed listing of how the money would be allocated. It’s great to see this money going out to the states and local communities, even as Republicans in Congress propose ways to cut funding for all aspects of the ACA. You can help protect the Prevention Fund by publicizing the funds that are already helping your community. See the new state-by-state lists of FY10 funding put out yesterday by HHS.

Speaking of those cuts, on Tuesday, the House Appropriations Committee proposed billions of dollars in cuts to “discretionary” programs this year alone, including some that could have significant impacts on communities of color and low-income neighborhoods. Those cuts include $1.3 billion from community health centers, which traditionally have fared well under Republicans, and which provide primary care to billions of low-income families at relatively low cost. It’s important to realize that a cut of this size would reverse the growth in federally qualified health centers supported so far through the ACA. That growth is explicitly designed to provide additional primary care services needed as millions of Americans get health insurance for the first time.

Other proposed cuts include $758 million from WIC, $210 million from the maternal and child health block grants, $405 million from community services block grants, and $96 million from substance abuse and mental health services. These cuts are by no means certain, and members of Congress need to hear about the damaging effects they would have.

– Alice Dembner, Deputy Policy Director

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Happy Second Anniversary, CHIPRA!

Friday, February 4th, 2011

While the uninsurance rate for adults has risen in recent years, the opposite is true for children: fewer and fewer children are going without health care coverage. This steady decline in uninsured children is due in part to the fact that children’s public insurance programs—Medicaid and the Children’s Health Insurance Program (CHIP)—have become stronger and more accessible at a time when children and families need them most. And much of the credit for the recent strengthening of these programs belongs to the Children’s Health Insurance Program Reauthorization Act (CHIPRA), signed into law by President Obama exactly two years ago today. Happy second anniversary, CHIPRA!

CHIPRA provides states with incentives (in the form of bonus payments) to enact enrollment and retention simplification measures to improve coverage rates, offers grants for conducting innovative outreach, enrollment and quality-improvement activities. It also authorizes new policy options like Express Lane Eligibility, coverage of pregnant women in CHIP, and removal of the five-year waiting period for lawfully residing immigrant children and pregnant women to enroll in public insurance.

All of these new financial resources and policy options have enabled states to make significant improvements to their children’s health programs in a very short amount of time. In 2010 alone, 13 states expanded eligibility, 14 states made improvements in enrollment and renewal procedures, and 15 states qualified for bonus payments. Nationwide, Medicaid and CHIP programs for children are more comprehensive and efficient than ever. According to the recently-released 2010 CHIPRA Annual Report:

– 46 states and the District of Columbia now cover children with incomes up to 200 percent of the Federal Poverty Level (FPL) ($44,700 for a family of four).
– 22 states now offer coverage to lawfully residing immigrant children and/or pregnant women.
– 48 states and the District of Columbia have a 12 month eligibility period for Medicaid and CHIP and 23 states offer 12 months of continuous eligibility.
– 32 states have an on-line application that can be submitted electronically and 29 states allow electronic signatures on applications.
– 33 states and the District of Columbia are utilizing the data matching process provided by the Social Security Administration to confirm U.S. citizenship for children in Medicaid.

Thanks in part to these program enhancements and eligibility improvements, over two million children gained Medicaid or CHIP coverage during federal fiscal year 2010, with the programs serving more than 42 million children during this timeframe. These numbers should continue to rise in the years to come, as outreach, enrollment and retention efforts ramp up thanks to a new round of outreach and enrollment grants and U.S. Department of Health and Human Services Secretary Kathleen Sebelius’ Connecting Kids to Coverage Challenge, which aims to enroll five million eligible but uninsured children in Medicaid and CHIP by 2015.

Yet there is a chance that coverage for children will not continue to move in the right direction. If Republican governors get their way and states no longer have to comply with the Affordable Care Act’s Maintenance of Effort (MoE) requirement, coverage for millions of children in CHIP and optional Medicaid expansions could be eliminated. States could also impose “back door” cuts by using red tape barriers to make it harder for children to sign up for coverage. For example, programs could reinstate face-to-face interviews or shorten eligibility periods.

We cannot afford to let this happen. We need strong Medicaid and CHIP programs to create a solid foundation for the full implementation of the Affordable Care Act in 2014 and to ensure that our nation’s children have the coverage they need to stay healthy. Eliminating the MoE requirement would be a penny-wise and pound-foolish way to address budget shortfalls. After all, let’s not forget about what’s at stake here: the health and well-being of our nation’s children.

—Maia Fedyszyn, Program Associate
New England Alliance for Children’s Health

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Taking Care of Business… and Children’s Health

Thursday, February 3rd, 2011

Here at the New England Alliance for Children’s Health (NEACH), an initiative of Community Catalyst, we have long focused on regional coalition-building. It’s been our experience, since NEACH began back in 2006, that fostering new relationships within and among the six New England states has played a vital role in advancing children’s health policy. And whenever possible, we’ve worked to engage constituencies that — at first glance — might not seem to be natural partners for child health advocates because we believe that diverse stakeholders can often find common ground on policy issues related to children’s health.

As part of this work, we are pleased to announce the release of our new publication entitled Investing in Our Future: New England Business Leaders’ Views on Children’s Health Advocacy. It presents findings from a series of six focus group discussions held in 2008 with New England business leaders about their perspectives on children’s health and their interest in public policies that could improve health outcomes for children. We engaged the New England Council, a well-respected business association, as a partner in this project to help facilitate discussions with selected regional business leaders.

Key findings from the report are as follows:

– Though many business leaders view children’s health as far removed from their everyday activities, they understand that children’s health status impacts the workforce, and therefore, directly impacts their businesses.
– The business community representatives are supportive of children’s health care initiatives associated with preventing illness and fostering healthy behaviors.
– The represented businesses perceive our health care system as dysfunctional and irrational and are somewhat skeptical of public health insurance programs’ objectives and results.
– Most of the represented businesses are not willing to pay additional taxes to finance an expansion of health insurance coverage or finance children’s health care in general.
– The business community representatives would like to see more evidence of a connection between health insurance status and health outcomes for children.
– When judging the success or value of children’s health programs, these business leaders focus on specific and measurable outcomes.
– Most of the businesses represented believe health care consumers should bear at least some fraction of the cost burden of their coverage.

Of course, it’s important to recognize that these findings illustrate both differences and commonalities between child health advocates and business leaders. However, by educating children’s health advocates about business leaders’ viewpoints on children’s health policy issues, our hope is that this publication will further the ultimate goal of helping business leaders and children’s health advocates to establish productive relationships that will benefit all of our children.

— Patrick M. Tigue, Children’s Health Care Coordinator
New England Alliance for Children’s Health

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Tell it Like it is

Wednesday, February 2nd, 2011

What resonates more: hearing the story of one person who lacks access to affordable health care or statistics about the millions of Americans in need?

A study from the University of Oregon might hold the answer. When students were told the story of a starving African child named Rokia, they donated 50 percent more money than students told about the widespread effects of starvation in Africa, including the fact that five million children suffer from malnutrition.

This study demonstrates the grip that individual stories hold on listeners, as well as the difficulty humans have at comprehending large-scale suffering. Strange as it may seem, we are captivated by stories about one person’s adversity, yet shrug our shoulders when we hear statistics about the suffering of millions.

This finding has important implications for how we conduct public education around the Affordable Care Act (ACA). Telling one individual’s story might just be the most effective way to educate the public about the benefits of national health reform.

This really hit home for me when I heard a Connecticut woman named Jenny Bass tell her story at a Washington, DC press event in December announcing rules for a new rate review process — a consumer protection that will prevent insurance companies from drastically increasing premiums. Jenny talked about how her insurance costs kept going up and up, to the point where her family could barely make ends meet and was in danger of losing their small business — a farm they had run for generations. Jenny’s story was powerful and moving; it stayed with me long after I stopped watching the press conference.

If a government official had taken Jenny’s place at that podium and instead cited statistics about the number of Americans affected by premium increases, there’s no way I would have been as interested or engaged in the issue.

Of course, many health care advocates already know the power of stories: A recent report from Community Catalyst’s New England Alliance for Children’s Health initiative listed storytelling as one of the seven key strategies New England advocates used to enact children’s coverage expansions. Many communications firms, such as the Herndon Alliance and Spitfire Strategies, have been preaching the benefits of storytelling for years.

This isn’t to say that data and statistics don’t have their place in the public debate. However, it’s absolutely essential to understand the power that individual stories have in illustrating a reality that is true for millions.

Many advocates may be looking to remind Americans about the ACA’s many benefits. Instead, we should look to one of humankind’s oldest traditions: telling a story.

Interested in learning more about how to capture and tell a great, story? Check out Community Catalyst’s Story Banking Guide.

– Maia Fedyszyn, Program Associate
New England Alliance Children’s Health

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A Closer Look at the Florida Ruling

Wednesday, February 2nd, 2011

Vinson toasts anti-ACA supporters with tea
Alas, the Judge Roger Vinson (Florida v. HHS) ruling is here. The Florida-led case remains the media darling of the handful of cases challenging health reform that are rolling through the Federal courts in various circuits across the country. The Florida-led plaintiff list (those opposing the law) brags of 26 states; this case represents a larger Republican strategy to challenge the almost year old health reform law. The plaintiffs argue that the individual mandate (or the provision that all individuals hold health insurance by 2014 and also termed the minimum coverage provision) infringes upon individual liberty. No one should make you buy health insurance – alternatively, the Department of Justice (DOJ) argues that no one should make you pay for those who decide not to buy health insurance. Confused? We are just getting started.

Sit back and let your tea brew…
Many have waited anxiously for this moment even though there was little doubt regarding the outcome. Judge Vinson did, however, jolt the media with his far right leaning, tea bag dipping, and Constitution defending language: “it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”

Vinson’s stance is most striking because of his position on what is termed ‘severability’; in other words, can the ACA stand without the individual mandate? Vinson maintains that while he did not read the entire Affordable Care Act (ACA) (no fair, we did), that it is clear to him that the individual mandate is inextricably linked to the provisions of the ACA and was the intent of Congress. Therefore, the entire law must be declared unconstitutional because it cannot exist without the individual mandate (and the individual mandate is unconstitutional).

Good news?
On that front, there remain questions about implementation and the responsibilities of states. Did the Judge grant an injunction? (No.) Do states need to implement the law? (Yes.) Will DOJ appeal to the 11th circuit? (Yes.) Various legal minds are trying to sort through these questions – however, the current analyses suggest that because Vinson issued a declaratory judgment, there is no need for a ‘stay’ – or a requirement that until the appeals process is complete, the law stays put on the books. That is not to say that states won’t think this their ‘out’ – advocates must continue to educate the public about the benefits of the law and move forward with implementation. Jonathan Cohn does his best to summarize this confusing outcome here.

In short, states are not off the hook. The ACA is still the law of the land and unless SCOTUS rules otherwise, our work continues. It is important to remember that as the public reaps the benefits of the law, they will embrace it. This will give SCOTUS pause; overturning ACA will be damaging to all Americans. It is our job to remind the public of a state’s need to continue to work to insure millions of Americans, giving them greater access to health care and better health.

Few commentators are touting the win for Medicaid as a result of this ruling. Judge Vinson did tell the right wing to back off of Medicaid – he maintains that there is no legal foundation to their argument that states are being coerced into the program. This is encouraging news for advocates who are working tirelessly to protect a vital program for vulnerable populations.

Keep the context.
The ruling differs from that of Judge Henry Hudson (Virginia v. Sebelius) issued this past December.  Hudson did not go as far as Vinson in his ruling – although Hudson claims that the individual mandate is unconstitutional, he does not maintain that the entire law is null and void. It is important to put all of this into context. These are two rulings of four – the two opposed to the ACA are both from Republican appointed judges in more right leaning circuits (yes, this is part of a Republican strategy as to where they filed cases) while the two rulings in support of the ACA come from Democratic appointed judges – and judges have thrown out 12 cases due to a lack of merit. So, the rulings scoreboard reads 2-2 and we are not even to the seventh inning stretch.

Therefore, the most important ‘take away’ from Vinson is that this is one piece of a larger judicial process – more rulings will be unveiled before the Supreme Court makes its determination regarding the constitutionality of the ACA. However, as pointed out by our own Michael Miller, the ruling is fodder for Republicans to feed their far right base and motivate newly reddened states to hold defiant in their progress toward ACA implementation.

Just roll with it.
What’s next? The 4th circuit. The two Virginia cases will be heard by the same appeals panel (three judges selected at random). While DOJ will appeal in the 11th circuit, the 4th circuit will most probably have the privilege of issuing the first appeals ruling regarding the individual mandate.

– Eva Marie Stahl, Policy Analyst

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