The U.S. Court of Appeals for the D.C. Circuit delivered a huge blow to Obamacare this morning, ruling that the insurance subsidies granted through the federally run health exchange, which covered 36 states for the first open enrollment period, are not allowed by the law.
The highly anticipated opinion in the case of Jacqueline Halbig v. Sylvia Mathews Burwell reversed a lower court ruling finding that federally run exchanges did have the authority to disburse subsidies.
Today’s ruling vacates the Internal Revenue Service (IRS) regulation allowing the federal exchanges to give subsidies. The large majority of individuals, about 86 percent, in the federal exchange system received subsidies, and in those cases the subsidies covered about 76 percent of the premium on average.
The essence of the court’s ruling is that, according to the law, those subsidies are illegal. They were always illegal, and the administration never had the authority to offer them. (According to an administration official, however, the subsidies will continue to flow throughout the appeals process.)
Don’t get to excited about this yet. It was a 3 judge panel. And it will likely go to the Supreme Court. Finally, in a different Circuit (4th) a ruling says the subsidies are legal:
A different circuit court ruled today that subsidies offered through federally run exchanges are authorized on the law. This creates a circuit court split, which increases, but does not guarantee, the chances of an eventual hearing by the Supreme Court. It is also possible, and arguably even more likely, that the circuit split will be dealt with via en banc review.
Bottom line: a heavy shot across the bow of the sinking ship ObamaCare. If the DC Circuit finding survives the review and an appeal to the Supreme Court, then foundering ship will take the next shot below the water line. As for the law, it’s not going to get changed anytime soon with a Republican House.
As for the law, the DC Court said it was pretty clear to them:
“We conclude that appellants have the better of the argument: a federal Exchange is not an ‘Exchange established by the State,’ and [the relevant section of the law] does not authorize the IRS to provide tax credits for insurance purchased on federal Exchanges,” the decision says.
The law “plainly makes subsidies available only on Exchanges established by states,” the ruling says. “And in the absence of any contrary indications, that text is conclusive evidence of Congress’s intent. To hold otherwise would be to say that enacted legislation, on its own, does not command our respect—an utterly untenable proposition.”
Plain law, literally interpreted and applied. Certainly not what we’re used too. So let’s see how convoluted this gets moving up the line. My guess is it will be unrecognizable after the lawyers begin to redefine terms and words and make their arguments. By the end of it, it wouldn’t surprise me in the least to learn that “federal exchanges” now means whatever the IRS wants it to mean. But clearly, the way to kill this monstrosity is to starve it. And the way you starve it is to defund it … even if you have to do it bit by bit.
Why yes, yes they did. And they also told us it was because of the expense of this sort of medical care that the benevolent and non-intrusive federal government saw a reason to attempt to manage this through its new and wonderful law.
Nationally, nearly half of ER doctors responding to a recent poll by the American College of Emergency Physicians said they’ve seen more visits since Jan. 1, and nearly nine in 10 expect those visits to rise in the next three years. Mike Rust, president of the Kentucky Hospital Association, said members statewide describe the same trend.
Experts cite many reasons: A long-standing shortage of primary-care doctors leaves too few to handle all the newly insured patients. Some doctors won’t accept Medicaid. And poor people often can’t take time from work when most primary care offices are open, while ERs operate round-the-clock and by law must at least stabilize patients.
Plus, some patients who have been uninsured for years don’t have regular doctors and are accustomed to using ERs, even though it is much more expensive.
“It’s a perfect storm here,” said Dr. Ryan Stanton of Lexington, president of the Kentucky chapter of the ER physician group.”We’ve given people an ATM card in a town with no ATMs.”
I love the doc’s line about ATMs. He’s nailed it on the head.
Now I won’t bore you with the fact that we foresaw this and wrote about it. I mean we talked about doctor shortages, that an increase in those having insurance didn’t mean they’d be able to see a doctor and how doctors were dumping Medicare because of all the hassles and low payments.
But our ever faithful zealots on the left kept telling us that a) we didn’t know what we were talking about, b) human nature isn’t really human nature and c) now that everyone would have insurance all would be sunshine and roses and costs would magically come down (because, you know, the Democrats said they would).
Instead it is all mostly compost. ERs are seeing a surge in patient visits and expect it to get worse. Of course, that sort of care is much more costly than regular doctor office visits (according to the article, about $580 per visit more) but what they hey, they have subsidized insurance now … so you get to continue paying for it.
Another in a long line (and getting even longer) of predictions about the effect of a program that this administration has gotten completely bass ackwards.
It just doesn’t exist in Washington DC and especially with this administration.
Or so says a new McKinsey survey of the numbers:
One of the principal flaws in the coverage of Obamacare’s exchange enrollment numbers to date has been that the press has not made distinctions between those who have “signed up” for Obamacare-based plans, and those who have actually paid for those plans and thereby achieved enrollment in health insurance. A new survey from McKinsey indicates that a large majority of people signing up are now paying for their coverage. This is progress for the health law. But the survey still indicates that three-fourths of enrollees were previously insured.
Of course we’ve seen the propaganda push from the White House that has claimed the numbers (8 million enrolled) mean that the law is working. As usual, the devil is in the details. If the law was designed to provide coverage to those who were uninsured, 25% of the total enrolled fitting that description is hardly indicative of that claim’s efficacy. And when you break down that 25% number, it’s even less indicative:
At most around 930,000 people have gained coverage from Obamacare’s under-26 “slacker mandate” (not 3 million, as is commonly suggested); another 3 million or so have gained coverage from the law’s expansion of Medicaid. Approximately 2.6 million previously uninsured individuals have obtained coverage through the ACA exchanges and the related off-exchange individual markets; however, the off-exchange purchases are mostly unsubsidized, and therefore can’t necessarily be credited to Obamacare.
Here’s a graphic that breaks the McKinsey survey’s results down into a more understandable form:
In reality, what the law has essentially done rearranged the burden of payment among those enrolled while really not doing much at all in terms of reaching those for whom it was supposedly designed to help:
What the exchanges appear to be doing is mainly helping people who were previously insured. If you’re 62 years old, say, and your income is $30,000, and you were paying for your own coverage before, you’re now eligible for plans that are much cheaper for you, thanks to taxpayer-funded subsidies and higher premiums for young people.
Of course that means that other people are paying more. “My old plan was canceled under Obamacare,” an exasperated Californian told me last week. “The new Obamacare plan costs twice as much, and the deductibles are higher. And yet Obama is counting me as one of his 8 million people!” But hey—at least he has maternity coverage.
And I’m sure our Californian is eternally grateful for big brother deciding for him that maternity care was an absolute necessity for which he must pay. But the point is the 8 million number remains very shaky (and that’s being kind) and it really doesn’t at all reflect what the White House would have you believe it reflects – that the law is working.
The demographic that was key to holding down health care costs apparently came in well below the level necessary to ensure that:
Just more than a quarter of the eight million people who signed up for health plans under the Affordable Care Act are in the prized demographic of 18 to 34 years old, falling short of the figure considered ideal to keep down policy prices.
The data, released Thursday by the Obama administration, painted a more complete picture of enrollment in the plans. They show that about 28% of people picking plans on the state and federal insurance exchanges by April 19—after most states’ enrollment deadlines passed—were 18 to 34 years old, a generally healthy group. The proportion is higher than previous counts. But it is significantly below the 40% level that some analysts consider important for holding down rates by balancing the greater medical spending generated by older enrollees.
Insurers right now are setting rates for 2015, and the age data will be a key factor in their decisions. Some insurers say that despite seeing a late surge in younger enrollees, their sign-ups still skewed older overall than they had expected.
Because the “healthy” demographic sign-up fell well below expectations, the rates for 2015 are expected to be at a higher rate. And, of course, there’s the further problem that “enrollment” doesn’t necessarily mean that the enrollee has paid for coverage. As noted in earlier:
Data provided to the committee by every insurance provider in the health care law’s Federally Facilitated Marketplace (FFM) shows that, as of April 15, 2014, only 67 percent of individuals and families that had selected a health plan in the federally facilitated marketplace had paid their first month’s premium and therefore completed the enrollment process. Nationwide, only 25 percent of paid enrollees are ages 18 to 34…
And finally, the assumption is that the 18 to 34 demographic will be a “healthy demographic” relatively speaking and will carry the cost for the more sickly among us. That too may be an erroneous assumption:
While the 18-34-year-old cohort has been dubbed the “young and healthy,” a more accurate moniker might be “young and somewhat healthy.” 68 percent of 18-34-year-olds on the federal exchanges chose a silver plan. As I’ve written previously:
Why does this matter for the death spiral? Because so many enrollees choosing silver plans suggests that the risk pool may be sicker than is optimal. For enrollees at or below 250 percent of the federal poverty level, silver plans tend to offer the most coverage for the lowest price. For persons under 250 percent FPL, ObamaCare offers help with copays and deductibles, but only if the consumer chooses a silver plan. The actuarial value for a silver plan is 70 percent (that is, a silver plan must, on average, cover 70 percent of a policyholder’s medical claims), but when the subsidies for cost-sharing are included, the actuarial value rises to between 73 and 94 percent. As one writer notes, “Why would someone opt for a silver-level plan over a cheaper bronze or catastrophic-level plan? The most plausible explanation is that the enrollee anticipates incurring significant medical expenses over the coming year, which is to say that he’s not healthy.”
Since income tends to be lower the younger one is, a lot of those 18-34-year-olds are probably in that <250 percent FPL range. The inordinate number of 18-34-year-olds choosing silver plans suggests that the exchanges have attracted young and healthy people that are not that healthy.
Not only may they not be young and healthy, but they’ll most likely be receiving high subsidies which again sort of defeats the whole purpose of signing up that demographic, doesn’t it? And it certainly calls into further question whether or not even the 28% that signed up will have any significant effect in helping to lower costs.
Bottom line? Well, to quote a well-known conservative talk show host, we’ve again been treated to a heaping helping of “bovine scatology”. Not that anyone at all familiar with this president and his administration should at all be surprised.
And that reality is the American people aren’t buying the propaganda being pushed by the administration. After its celebration of the dubious enrollment of 8 million and unilateral declaration that ObamaCare was a “success”, new poll numbers show no difference among the public’s opinion of the law than before their declaration:
What’s perhaps more telling is that, despite the rare good news of the past few weeks, their perceptions of the law remain basically as-is — that is, pretty dim. To wit:
- Americans say 50-41 that the implementation of the law has been worse than they expected rather than better.
- They say 44-24 that the health-care system is getting worse rather than getting better as a result of Obamacare.
- They say 29-14 that the quality of care is getting worse rather than better.
- They say 47-8 that their health-care costs are increasing due to the law rather than decreasing.
- They say 58-11 that the overall cost of health care in the United States is increasing rather than decreasing.
Almost all of these numbers are basically unchanged from in recent months.
What is it politicians like to tell us about politics? Ah, yes, perception is reality. And as I pointed out when you mess with people’s health care, the reality becomes very personal. It isn’t something that you view from afar and doesn’t effect you. It is something everyone is interested in in some form or fashion.
The numbers above are their perception of that awful law’s impact on their lives. The propaganda simply isn’t going to change that. “8 million enrolled” is something the people really don’t care about. Higher premiums, more red tape and fewer options for health care, not to mention having to give up their doctor and the health insurance they liked is something they care about. That is the result of the law and it is the reason for the numbers.
As we’ve mentioned previously, the numbers you see above are numbers that exist before the most onerous regulations and requirements (now delayed until after the election) are finally put into effect. If you think these numbers are bad, wait till after November.
The bottom line is ObamaCare sucks and the people know it and no administration sponsored dog and pony show is going to change that perception. We see a lot of Democrats now trying to claim that ObamaCare really won’t hurt them in the mid-terms.
I invite them to look at the above numbers, understand that it is they who are going to get “credit” for the law, and rethink their claim prior to their coming unemployment.
That way it won’t come as such a surprise when they’re defeated.
Peter Morici gives a little ground truth to the hyperbole of the left who’ve decided the best defense of ObamaCare is … to lie about it.
With 8 million Americans enrolled in health insurance through federal and state exchanges, President Obama has declared the Affordable Care Act a success. That’s disingenuous and big changes are needed to make the law work well.
Overall, the ACA’s goals were to provide reasonably priced medical care to the 45 to 50 million uninsured and slow health care cost increases. It is hardly clear those goals will be accomplished.
Many of the 8 million enrolled to replace individual and small business policies, canceled thanks to ACA rules, or to obtain federal subsidies only available through the exchanges.
So if the goal was to proved care to the ’45 or 50 million’ uninsured, how does enrolling 8 million, many of whom had lost their insurance due to the ACA, constitute success?
Well in the real world it doesn’t. Only in Oz or Fantasyland do the rules of reality not apply (even if they really do and what those living there do is deny it) and allow them to make these claims with a straight face.
It’s election prep. We’ve seen it countless times before. It is an attempt to make lemonaide out of the lemons this abomination of a law has handed its creators.
This is just another version of the Big Lie that this particular administration has raised to an art form. And with a compliant media to help them along (a media that seems without curiosity at the most important times) the Big Lie gets plenty of press.
Of course now that the press has helped spread the lie, the Dems will point to those media stories as “the truth” and use them to assure the usual left leaning low information voters that a) they need to turn out because ObamaCare is a “good thing” and b) if they don’t those mean old Republicans will take it away.
You can just see it coming.
Meanwhile, for most of America, the really bad stuff is being unilaterally put on hold until after the election – the most blatant display of partisan politics I’ve seen in some time:
The ACA requires health insurance policies to pay for a wider and more expensive scope of services than many individual and small business policies covered prior to the law.
In many counties, only a few insurers chose to offer policies on exchanges. Absent competition, insurers lacked incentives to bargain as hard as before with hospitals and other providers, further raising premiums and out of pocket costs.
The bronze, silver and gold policies offered by exchanges mostly vary in their deductibles. Folks selecting bronze and silver plans with high deductibles are now paying the full cost of doctor visits that only set them back a $20 or $30 dollar co-pay prior to the ACA.
Simply, for many families the ACA raises the combined cost of premium and out-of-pocket expenses.
About 50 percent of Americans are eligible for premium subsidies, but taxpayers are footing the bill and the burden of health care on the economy — already 50 percent higher than in Germany and Japan — is making it tougher for American businesses to compete and destroying jobs — something the Congressional Budget Office doesn’t bother to calculate.
But then, this was all predicted prior to passage and only a few bothered to listen.
Now we get to live with the “success”.
To make it even worse, of those 4%, only 2.1% got them through exchanges:
All of this … mess … for 2.1% (the rest likely got theirs when they found a job)? All of this intrusion and incompetence and frankly, fascism (see IRS involvement in the ‘new’ system) for a percentage that is essentially insignificant. We would have gotten off a lot cheaper and disrupted a few million less lives if we’d have just paid for it (I’m not suggesting we should have, just pointing out how ridiculous the “solution” was/is).
Makes one want to pound their head on something, doesn’t it?
Oh, and probably the most unsurprising thing about the “newly insured?”
All of the newly insured are more likely to identify with or lean toward the Democratic Party than the overall national adult population. Those who signed up through exchanges are the most likely to tilt Democratic and not Republican.
I’m shocked, shocked I tell you …
Thought you’d like to see this letter to a Congressman from a doctor in Decatur, AL. He outlines the problems that ObamaCare has put on that profession and correctly identifies what is going on as a “war on doctors”. The obvious losers in all of this will eventually be the patients, both current and future as the government further pushes itself between doctors and their patients. It will also provide a disincentive to those who might possibly be entertaining entering the health care field as doctors in the future.
This has nothing to do with markets and voluntary exchange. This is about government intrusiveness, regulatory overkill and rampant bureaucracy in action:
Dear Congressman Brooks,
As a practicing family physician, I plead for help against what I can best characterize as Washington’s war against doctors.
The medical profession has never before remotely approached today’s stress, work hours, wasted costs, decreased efficiency, and declining ability to focus on patient care.
In our community alone, at least 6 doctors have left patient care for administrative positions, to start a concierge practice, or retire altogether.
Doctors are smothered by destructive regulations that add costs, raise our overhead and ‘gum up the works,’ making patient treatment slower and less efficient, thus forcing doctors to focus on things other than patient care and reduce the number of patients we can help each day.
I spend more time at work than at any time in my 27 years of practice and more of that time is spent on administrative tasks and entering useless data into a computer rather than helping sick patients.
Doctors have been forced by ill-informed bureaucrats to implement electronic medical records (“EMR”) that, in our four doctor practice, costs well over $100,000 plus continuing yearly operational costs . . . all of which does not help take care of one patient while driving up the cost of every patient’s health care.
Washington’s electronic medical records requirement makes our medical practice much slower and less efficient, forcing our doctors to treat fewer patients per day than we did before the EMR mandate.
To make matters worse, Washington forces doctors to demonstrate ‘meaningful use’ of EMR or risk not being fully paid for the help we give.
In addition to the electronic medical records burden, we face a mandate to use the ICD-10 coding system, a new set of reimbursement diagnosis codes.
The current ICD-9 coding system uses roughly 13,000 codes. The new ICD-10 coding system uses a staggering 70,000 new and completely different codes, thus dramatically slowing doctors down due to the unnecessary complexity and sheer numbers of codes that must be learned.
The cost of this new ICD-10 coding system for our small practice is roughly $80,000, again driving up health care costs without one iota of improvement in health care quality.
Finally, doctors face nonpayment by patients with ObamaCare. These patients may or may not be paying their premiums and we have no way of verifying this. No business can operate with that much uncertainty.
On behalf of the medical profession, I ask that Washington stop the implementation of the ICD-10 coding system, repeal the Affordable Care Act, and replace it with a better law written with the input of real doctors who will actually treat patients covered by it.
America has enjoyed the best health care the world has ever known. That health care is in jeopardy because physicians cannot survive Washington’s ‘war on doctors’ without relief.
Eventually the problems for doctors will become problems for patients, and we are all patients at some point.
Dr. Marlin Gill of Decatur, Alabama
This is the face of government run healthcare.
The White House has once again bowed to screaming Democrats worried about the mid-term elections and this time cancelled cuts to Medicare Advantage. As you recall, these cuts were made to pay for ObamaCare:
The Obama administration announced Monday that planned cuts to Medicare Advantage would not go through as anticipated amid election-year opposition from congressional Democrats.
The cuts would have reduced benefits that seniors receive from health plans in the program, which is intended as an alternative to Medicare.
Under cuts planned by the administration, insurers offering the plans were to see their federal payments reduced by 1.9 percent, which likely would have necessitated cuts for customers.
Instead, the administration said the federal payments to insurers will increase next year by .40 percent.
The healthcare law included $200 billion in cuts to Medicare Advantage over 10 years, in part to pay for ObamaCare.
The Centers for Medicaid and Medicare Services (CMS) said that the cuts weren’t necessary because of an “an increase in healthy beneficiaries under Medicare.” That, of course, makes little sense. Medicare is a mandatory insurance program for people 65 and older. How that demographic suddenly got “healthier” remains a mystery, but there you have the “reason” for the decision. Well, that and mid-term elections.
As for cost, someone needs to explain how ObamaCare is to be funded if the mechanisms set in place to pay for it keep getting delayed or cancelled.
When CBO analysts most recently looked at the gross cost of expanding Medicaid and giving subsidies to individuals to purchase insurance through the new exchanges — the bulk of the law’s spending — they came up with slightly more than $2 trillion for 2015 through 2024.
After deducting some offsets from the law — such as penalty payments from employers and individuals due to insurance mandates — CBO estimated the net cost at nearly $1.5 trillion.
The CBO hasn’t done a standalone deficit analysis on Obamacare since 2012, but at that time, its analysts estimated the law would reduce deficits by $109 billion, once all tax increases, cuts to Medicare and other savings are taken into account.
When referring to the “cost” of Obamacare, the fair thing to do is cite the $2 trillion figure — and no, that isn’t just because it’s a higher number. The gross figure represents how much the federal government will have to spend on expanding coverage through Obamacare, at least according to the CBO. If the government weren’t spending $2 trillion on insurance coverage, that’s money that could be going to reducing the deficit, spending more on infrastructure or a host of other theoretical policies.
As mentioned above, that $2 trillion cost had about $500 billion in offsets. But the penalty payments from employers and individuals has been delayed and now the $200 billion in Medicare Advantage cuts/offsets is cancelled, or so says the imperial presidency. That, of course, doesn’t change the cost, it only increases it.
Short term political pandering aimed at winning elections as usual from this administration. Ironically, it has been more effective than the Republicans in dismantling portions of the atrocity known as ObamaCare. So, thanks to the mid-terms, Republicans get one of the cuts they wanted reversed cancelled. Of course they won’t get credit for it – but then that’s the plan isn’t it?
And, this is all likely temporary anyway, even though the White House and Dems won’t spin it as so:
“The changes CMS included in the final rate notice will help mitigate the impact on seniors, but the Medicare Advantage program is still facing a reduction in payment rates next year on top of the 6 percent cut to payments in 2014,” said [AHIP] president Karen Ignagni.
But it will get them through the election cycle, won’t it?
This week, Michael and Dale talk about Brendan Eich and Obamacare.
The podcast can be found on Stitcher here. Please remember the feed may take a couple of hours to update after this is first posted.
As a reminder, if you are an iTunes user, don’t forget to subscribe to the QandO podcast, Observations, through iTunes. For those of you who don’t have iTunes, you can subscribe at Stitcher. And, of course, for you newsreader subscriber types, our podcast RSS Feed is here.