Single Payer’s Road to Rationing

The reintroduction of Democrats’ single-payer legislation has some families contemplating what total government control of the health-care sector would mean for them. Contrary to the rhetoric coming from liberals, some of the families most affected by a single-payer system want nothing to do with this brave new health care world.

As this father realizes, giving bureaucrats the power to deny access to health care could have devastating consequences for some of the most vulnerable Americans.

Determining the ‘Appropriate’ Use of Medical Resources

To summarize the Twitter thread: The father in question has a 12-year-old son with a rare and severe heart condition. Last week, the son received an implantable cardioverter defibrillator to help control cardiac function.

But because the defibrillator is expensive and cardiologists were implanting the device “off-label”—the device isn’t formally approved for use in children, because few children need such a device in the first place—the father feared that, under a single-payer system, future children in his son’s situation wouldn’t get access to the defibrillator needed to keep them alive.

The father has reason to worry. He cited a 2009 article written by Zeke Emanuel—brother of Rahm, and an advisor in the Obama administration during the debate on Obamacare—which included the following chart:

The chart illustrates the “age-based priority for receiving scarce medical interventions under the complete lives system”—the topic of Emanuel’s article. If a picture is worth a thousand words, then this chart sure speaks volumes.

Also consider some of Emanuel’s quotes from the same article, in which he articulates the principles behind the allocation of scarce medical resources:

Adolescents have received substantial education and parental care, investments that will be wasted without a complete life. Infants, by contrast, have not yet received these investments.
The complete lives system discriminates against older people….[However,] age, like income, is a ‘non-medical criterion’ inappropriate for allocation of medical resources.

If those quotes do not give one pause, consider another quote by Zeke Emanuel, this one from a 1996 work: “[Health care] services provided to individuals who are irreversibly prevented from being or becoming participating citizens are not basic and should not be guaranteed. An obvious example is not guaranteeing health services to patients with dementia.” When that quote resurfaced during the debate on Obamacare in 2009, Emanuel attempted to claim he never advocated for this position—but he wrote the words nonetheless.

The Flaw in Centralized Decision-Making

The father in his Twitter thread hit on this very point. Medical device companies have not received Food and Drug Administration approval to implant defibrillators in children in part because so few children need them to begin with, making it difficult to compile the data necessary to prove the devices safe and effective in young people.

Likewise, most clinical trials have historically under-represented women and minorities. The more limited data make it difficult to determine whether a drug or device works better, worse, or the same for these important sub-populations. But if a one-size-fits-all system makes decisions based upon average circumstances, these under-represented groups could suffer.

To put it another way: A single-payer health care system could deny access to a drug or treatment deemed ineffective, based on the results of a clinical trial comprised largely of white males. The system may not even recognize that that same drug or treatment works well for African-American females, let alone adjust its policies in response to such evidence.

A ‘Difficult Democratic Conversation’

The chronically ill and those toward the end of their lives are accounting for potentially 80 percent of the total health care bill out here….There is going to have to be a conversation that is guided by doctors, scientists, ethicists. And then there is going to have to be a very difficult democratic conversation that takes place.

Some would argue that Obama’s mere suggestion of such a conversation hints at his obvious conclusion from it. Instead of having a “difficult democratic conversation” about ways for government bureaucrats deny patients care, such a conversation should center around not giving bureaucrats the right to do so in the first place.

This post was originally published at The Federalist.

Lowlights of Democrats’ New Single-Payer Bill

Some might think that, having embraced socialism and taking away the health coverage of millions of Americans, the Democratic Party couldn’t move further to the left. Think again.

House Democrats introduced their single-payer bill on Wednesday, and claimed that it’s a “significantly different” bill compared to versions introduced in prior Congresses. It definitely meets that definition—because, believe it or not, it’s gotten significantly worse.

What Remains

Abolition of Medicare—and Most Other Insurance Coverage: As I noted last year, the bill would still eliminate the current Medicare program, by prohibiting Title XVIII of the Social Security Act from paying for any service (Section 901(a)(1)(A)) and liquidating the current Medicare trust funds (Section 701(d)). Likewise, the bill would eliminate the existing insurance coverage of all but the 2.2 million who receive care from the Indian Health Service and the 9.3 million enrolled veterans receiving care from the Veterans Administration.

Taxpayer Funding of Abortion: As before, Section 701(b)(3) of the bill contains provisions prohibiting “any other provision of law…restricting the use of federal funds for any reproductive health service” from applying to the single-payer system. This language would put the single-payer system outside the scope of the Hyde Amendment, thereby permitting taxpayer funding for all abortions.

Lack of Accountability: As with the prior bill, the legislation would give massive amounts of power to bureaucrats within the Department of Health and Human Services (HHS). For instance, the legislation would establish new regional directors of the single-payer system—none of whom would be subject to Senate confirmation.

What Lawmakers Added

More Spending: Section 204 of the new bill federalizes the provision of long-term supports and services as part of the single-payer benefit package. Prior versions of the bill had retained those services as part of the Medicaid program, implemented by states with matching funds from the federal government.

In addition, the revised bill eliminated language in Section 202(b) of the Sanders legislation, which permitted co-payments for prescription drugs to encourage the use of generics. With the co-payments (capped at an annual maximum of $200 in the Sanders bill from last Congress) eliminated, the bill envisions the federal government providing all health services without cost-sharing. This change, coupled with the federalization of long-term supports and services, will result in increased spending—as more people demand “free” health care.

Faster Elimination of Private Coverage: Rather than envisioning a four-year transition to the single-payer system, the revised bill would eliminate all private health insurance within a two-year period. Over and above the myriad philosophical concerns associated with single-payer health care, this accelerated transition period raises obvious questions about whether the new system could get up and running so quickly. After all, Obamacare had an implementation period of nearly four years—yet healthcare.gov failed miserably during its initial launch phase.

In theory, moving away from a fee-for-service method of paying medical providers would eliminate their incentive to perform more procedures—a worthy goal. But in practice, global budgets could also lead to de facto rationing, as hospitals that exceed their budgets might have to stop providing care to patients—just as under-funding within Britain’s National Health Service (NHS) has led to chronic hospital overcrowding.

Compensation Caps: Section 611(b)(5) of the new bill would limit “compensation costs for any employee or any contractor or any subcontractor employee of an institutional provider receiving global budgets,” by applying existing pay restrictions on government contractors to hospitals and facilities in the single-payer program. These restrictions might lead some to wonder whether hospitals could truly be considered independent entities, or merely an arm of the state.

Effective Abolition of For-Profit Medicine: Section 614(a) of the revised bill states that “payments to providers…may not take into account…or be used by a provider for” marketing; “the profit or net revenue of the provider, or increasing the profit or net revenue of the provider;” any type of incentive payment—“including any value-based payment;” and political contributions prohibited by government contractors.

Liberals would argue that eliminating the profit motive will encourage doctors to provide better care, by focusing on patients rather than ways to enrich themselves. But the profit motive also encourages individuals to invest in health care—as opposed to other sectors of the economy—by allowing them to recover a return on their investment.

Effective Elimination of Patents: Section 616(c)(1) of the bill states that “if the manufacturer of a covered pharmaceutical, medical supply, medical technology, or medically necessary assistive equipment refuses to negotiation a reasonable price, the Secretary shall waive or void any government-granted exclusivities with respect to such drug or product,” and shall allow other companies to manufacture the product. By allowing the federal government to march in on a whim and seize a company’s intellectual property, the bill would discourage individuals from investing in such intellectual property in the first place.

“Reasonable” Prices and Rationing: As noted above, Section 616 of the bill requires HHS to determine when the prices of drugs and medical devices are “not reasonable,” by taking into account among other things “the therapeutic value of the drug or product, including cost-effectiveness and comparative effectiveness.” This provision could lead to the federal government denying patients access to drugs deemed too expensive, as occurs currently within Britain’s National Health Service.

This post was originally published at The Federalist.

Do Coverage Expansions Save Lives? ¯\_(ツ)_/¯

A few weeks after two studies called into question whether one particular element of Obamacare—its hospital readmissions program—may have increased mortality rates nationwide, another study released by several economists expressed doubt about whether the law’s more than $1 trillion in spending on coverage expansions actually reduced mortality. Moreover, the latest study also raises fundamental questions about whether any coverage expansion will generate measurable reductions in mortality rates.

Coming in a week when Democrats prepare to release the latest version of their single-payer legislation, which estimates suggest could cost at least $30 trillion, the study raises an obvious question: What exactly will Americans receive for all the trillions of dollars in new government spending the left proposes? The study basically shrugs.

Effects of Medicaid Expansion

The analysis showed the problems inherent with attributing changes in mortality rates to expansions in insurance coverage. The study noted that “if one simply compares the…difference in mortality rates for non-expansion versus full-expansion states…it would appear that Medicaid expansion has a large, immediate effect in reducing mortality.” But in reality, mortality rates among those two groups of states had begun to move in opposite directions before the main provisions of Obamacare took effect in 2014. “There is little additional divergence during 2014-2016.”

The researchers’ work highlights the inherent flaws in this field of study. Because mortality is by definition a rare event (particularly for younger populations), and because so many different factors affect mortality, it becomes exceedingly difficult to attribute any change in mortality rates to changes in insurance coverage.

For instance, the opioid crisis, which has led to a decrease in life expectancy, hit just before Obamacare’s coverage expansions took effect, and in many cases affected the same populations. This and other similar factors introduce statistical “noise” that make it difficult to conclude with any certainty that expanded coverage (as opposed to some other factor) impacted mortality rates.

Simulations Expose Flaws

In most cases, the “power analysis” simulations concluded that, to find a statistically significant reduction in mortality rates at least 80 percent of the time, the coverage expansions would have to reduce mortality by more than 100 percent—a statistically impossible result. Because Obamacare reduced the uninsured rate by only a few percentage points, and because most available data sets lack corresponding income and insurance information—to prove, for instance, that X person had Y type of insurance and Z income over a certain number of years—the researchers could not make conclusive assertions about coverage expansions’ effects on mortality.

As it is, the uninsured already receive significant amounts of health care. One 2017 study found they consume nearly 80 percent of the care used by Americans with health insurance. Therefore, to test the effects of coverage expansions on mortality, researchers either need an incredibly large increase in the number of insured individuals—tens of millions, if not hundreds of millions, of Americans—or much more precise data about the income and coverage sources of those who gain insurance.

Liberals’ Alarmist Rhetoric

The authors caution that “our analysis should not be interpreted as evidence that health insurance does not affect mortality or health, either overall or for particular diseases or subgroups.” (Emphasis original.) However, the analysis does demonstrate that health insurance likely has a small and difficult to quantify effect on mortality rates. The study therefore proves how liberal claims two years ago that Republican “repeal-and-replace” legislation would kill tens of thousands of individuals annually had little bearing in reality.

This post was originally published at The Federalist.

Liberals’ Situational Ethics on Constitutional Violations

A president requests billions of dollars to fulfill his main campaign promise. Congress turns him down, but the president finds a way to go around them and get his money anyway.

Donald Trump and his border emergency? Sure. But this description also applies to Barack Obama’s treatment of Obamacare. Examined from this context, the health care history raises questions about whether liberals’ outrage over Trump’s emergency declaration stems from his extralegal actions—or their underlying opposition to his border policies.

The Obama administration knew full well it lacked a lawful appropriation for the insurer payments. In 2013, it requested billions of dollars from Congress for such spending. But Congress refused to appropriate the money. Republicans, who by then controlled the House of Representatives, had no interest in giving dollars to prop up Obamacare, and even Democratic appropriators seemingly had other priorities to fund rather than insurer payments.

Facing a refusal from Congress to appropriate the cost-sharing subsidies, the Obama administration went ahead and spent the funds anyway. Administration officials concocted a theory that even though an express appropriation for the payments did not exist in law, the health care law implied an appropriation of funds. They paid the cost-sharing subsidies to insurers in conjunction with Obamacare’s premium subsidies, even though the two programs are authorized in different sections of the law, and should operate via two different cabinet departments.

Granted, the Obama administration used much more surreptitious means to accomplish its unconstitutional ends. Unlike Trump, who announced his emergency declaration to much fanfare, his predecessor did not draw attention to his extralegal maneuvering. It took House Republicans seven months to authorize a suit objecting to Obama’s actions. But the only two federal courts to rule on the matter found that the law did not include an appropriation for the cost-sharing payments, meaning that Obama violated the Constitution’s appropriations clause by spending funds without authorization.

In two separate legal briefs, the then-House minority leader claimed Obamacare did appropriate funds for the cost-sharing payments to insurers—a claim that federal courts rejected. But her briefs went even further, claiming that Congress had no standing to object to the executive’s encroachment on its spending power.

Pelosi’s briefs in the Obamacare case present numerous objections to Congress’ suit against the executive. She claimed that “allowing suit in this case undermines, rather than advances, [the House’s institutional] interests,” and would “subject Congress to judicial second-guessing” and allow for “legislative obstruction.” She argued that the House of Representatives had no standing to pursue claims against the executive on its own, without the Senate’s concurrence. And she pointed out that “Congress has numerous tools at its disposal to resolve routine disputes,” for instance “corrective legislation that…prohibits the disputed executive action.”

Pelosi claimed last week that Republicans’ decision to endorse Trump’s emergency declaration will set a precedent they will come to regret. She knows of which she speaks. While researching the issue in recent months, I found that Pelosi’s briefs from the Obamacare case mysteriously disappeared from her website (although thankfully are still archived online.) Quite possibly, Pelosi’s staff decided to remove the briefs from her website upon retaking the majority, because they recognize the inconvenient precedent they set—and which Pelosi will now have to explain away in both the legal and political realms.

Call this a hunch, but I doubt that…the Democratic lawmakers would content themselves with the remedies they have laid forth in their brief about Obamacare’s cost-sharing subsidies. Faced with a President spending billions of dollars on a deportation force never appropriated by Congress, would Nancy Pelosi merely content herself with conducting hearings and ‘appeal[ing] to the public,’ as her brief argues in the Obamacare context? Hardly.

That November 2016 article proved prescient in highlighting the dangers of situational ethics—politicians putting immediate policy wins ahead of larger constitutional principles. More than two years later, Pelosi may soon reap the whirlwind, when Trump’s Justice Department uses her Obamacare briefs to argue that the House of Representatives has no standing to challenge his emergency declaration.

Congressional Republicans should learn from Pelosi’s example, stand fast to their principles, and call Trump’s action for what it is: A usurpation of Congress’ power of the purse, a breach of the separation of powers, and a violation of the principles of limited government that conservatives hold dear.

This post was originally published at The Federalist.

Six Things about Pre-Existing Conditions Republican “Leaders” Still Don’t Get

“If at first you don’t succeed, go ahead and quit.” That might be the takeaway from excerpts of a conference call held earlier this month by House Minority Leader Kevin McCarthy (R-CA), and published in the Washington Post.

McCarthy claimed that Republicans’ “repeal and replace” legislation last Congress “put [the] pre-existing condition campaign against us, and so even people who are [sic] running for the very first time got attacked on that. And that was the defining issue and the most important issue in the [midterm election] race.” He added: “If you’ll notice, we haven’t done anything when it comes to repealing Obamacare this time.”

Problem 1: Pre-Existing Condition Provisions In Context

I first noted this dilemma last summer: Liberals call the pre-existing condition provisions “popular” because their polls only ask about the policy, and not its costs. If you ask Americans whether they would like a “free” car, how many people do you think would turn it down? The same principle applies here.

When polls ask about the trade-offs associated with the pre-existing condition provisions—which a Heritage Foundation study called the largest driver of premium increases under Obamacare—support plummets. Cato surveys in both 2017 and 2018 confirmed this fact. Moreover, a Gallup poll released after the election shows that, by double-digit margins, Americans care more about rising health premiums and costs than about losing coverage due to a pre-existing condition.

The overall polling picture provided an opportunity for Republicans to push back and point out that the pre-existing condition provisions have led to skyrocketing premiums, which priced 2.5 million people out of the insurance marketplace from 2017 to 2018. Instead, most Republicans did nothing.

Problem 2: Republicans’ Awful Legislating

The bills’ flaws came from a failure to understand how Obamacare works. The law’s provisions requiring insurers to offer coverage to everyone (guaranteed issue) and price that coverage the same regardless of health status (community rating) make insurers want to avoid covering sick people. Those two provisions necessitate another two requirements, which force insurers to cover certain conditions (essential health benefits) and a certain percentage of expected health costs (actuarial value).

In general, the House and Senate bills either repealed, or allowed states to waive, the latter two regulations, while keeping the former two in place. If Republicans had repealed all of Obamacare’s insurance regulations, they could have generated sizable premium savings—an important metric, and one they could tout to constituents. Instead, they ended up in a political no man’s land, with people upset about losing their pre-existing condition “protections,” and no large premium reductions to offset that outrage.

Looking at this dynamic objectively, it isn’t surprising that McCarthy and his colleagues ended up with a political loser on their hands. The true surprise is why anyone ever thought the legislative strategy made for good politics—or, for that matter, good (or even coherent) policy.

Problem 3: Pre-Existing Conditions Aren’t Going Away

Within hours after Sen. Thom Tillis (R-NC) introduced a bill last year maintaining Obamacare’s pre-existing condition provisions—the requirement that all insurers offer coverage at the same rates to all individuals, regardless of health status—liberals weighed in to call it insufficient.

As noted above, Obamacare encourages insurers to discriminate against people with pre-existing conditions. Repealing only some of the law’s regulations would exacerbate that dynamic, by giving insurers more tools with which to avoid enrolling sick people. Liberals recognize this fact, and will say as much any time Republicans try to modify any of Obamacare’s major insurance regulations.

Problem 4: Better Policies Exist

According to the Post, McCarthy said he wants to recruit candidates who would “find a solution at the end of the day.” A good thing that, because better solutions for the problems of pre-existing conditions do exist (I’ve written about several) if McCarthy had ever bothered to look for them.

Their political attacks demonstrate that liberals focus on supporting “insurance” for people once they develop a pre-existing condition. (Those individuals’ coverage by definition really isn’t “insurance.”) By contrast, conservatives should support making coverage more affordable, such that people can buy it before they develop a pre-existing condition—and keep it once they’re diagnosed with one.

Regulations proposed by the Trump administration late last year could help immensely on this front, by allowing employers to subsidize insurance that individuals hold and keep—that is, coverage that remains portable from job to job. Similar solutions, like health status insurance, would also encourage portability of insurance throughout one’s lifetime. Other options, such as direct primary care and high-risk pools, could provide care for people who have already developed pre-existing conditions.

Using a series of targeted alternatives to reduce and then to solve the pre-existing condition problem would prove far preferable than the blunt alternative of one-size-fits-all government regulations that have made coverage unaffordable for millions. However, such a solution would require political will from Republicans—which to date they have unequivocally lacked.

Problem 5: Republicans’ Alternative Is Socialized Medicine

Instead of promoting those better policies, House Republican leaders would like to cave in the most efficient manner possible. During the first day of Congress, they offered a procedural motion that, had it been adopted, would have instructed the relevant committees of jurisdiction to report legislation that:

(1) Guarantees no American citizen can be denied health insurance coverage as the result of a previous illness or health status; and (2) Guarantees no American citizen can be charged higher premiums or cost sharing as the result of a previous illness or health status, thus ensuring affordable health coverage for those with pre-existing conditions.

Guaranteeing that everyone gets charged the same price for health care? I believe that’s called socialism—and socialized medicine.

Their position makes it very ironic that the same Republican committee leaders are pushing for hearings on Democrats’ single-payer legislation. It’s a bit rich to endorse one form of socialism, only to denounce another form as something that will destroy the country. (Of course, Republican leaders will only take that position unless and until a single-payer bill passes, at which point they will likely try to embrace it themselves.)

Problem 6: Health Care Isn’t Going Away As An Issue

The federal debt this month passed $22 trillion, and continues to rise. Most of our long-term government deficits arise from health care—the ongoing retirement of the baby boomers, and our corresponding obligations to Medicare, Medicaid, and now Obamacare.

Any Republican who cares about a strong national defense, or keeping tax rates low—concerns most Republicans embrace—should care about, and take an active interest in, health care and health policy. Given his comments about not repealing, or even talking about, Obamacare, McCarthy apparently does not.

But unsustainable trends are, in the long run, unsustainable. At some point in the not-too-distant future, skyrocketing spending on health care will mean that McCarthy will have to care—as will President Trump, and the Democrats who have gone out of their way to avoid talking about Medicare’s sizable financial woes. Here’s hoping that by that point, McCarthy and Republican leaders will have a more coherent—and conservative—policy than total surrender to the left.

This post was originally published at The Federalist.

One Way for Florida’s Legislature to Respond to a Medicaid Expansion Referendum

Last week, Politico reported on a burgeoning effort by unions and other groups to collect signatures on a ballot initiative designed to expand Medicaid in Florida. As the article notes, the effort comes after last fall’s approval of Medicaid ballot initiatives in Utah, Idaho, and Nebraska.

The effort comes as liberals try to extend “free” health care to more and more Americans. But that “free” health care comes with significant costs, and policymakers in Florida have opportunities to make those costs apparent to voters.

‘Free’ Money Isn’t Free

By contrast, the petition being circulated in Florida includes no source of funding for the state’s 10 percent share of Medicaid expansion funding under Obamacare. The failure to specify a funding source represents a typical liberal tactic. Advocates seeking to expand Medicaid have traditionally focused on the “free” money from Washington available for states that do expand. “Free” money from Washington and “free” health care for low-income individuals—what’s not to like?

Of course, Medicaid expansion has very real costs for states, without even considering the effects on their taxpayers of the federal tax increases needed to fund all that “free” money from Washington. Every dollar that states spend on providing health care to the able-bodied represents another dollar that they cannot spend elsewhere.

I have previously noted how spending on Medicaid has crowded out funding for higher education, thus limiting mobility among lower-income populations, and encourages states to prioritize the needs of able-bodied adults over individuals with disabilities, for whom states receive a lower federal Medicaid match.

Taxes Ahead? Oh Yeah, Baby

Proposing a state income tax to fund Medicaid expansion would certainly make the cost of expansion readily apparent to Florida voters, especially the retirees who moved to the Sunshine State due to its combination of warm weather and no individual income tax. Voters would likely think twice if Medicaid expansion came with an income tax—which of course lawmakers could raise in the future, to fund all manner of government spending.

Prior efforts suggest that making the costs of Medicaid expansion apparent to voters appreciably dampens support. Utah approved its ballot initiative, which included a sales tax increase, with a comparatively small (53.3 percent) approval margin. In Montana, a referendum proposing a tobacco tax increase to fund a continuation of that state’s Medicaid expansion (which began in 2016) went down to defeat in November.

New Taxes Are an Uphill Battle

Liberal groups already face challenges in getting a Medicaid ballot initiative approved in Florida. The state constitution requires 60 percent approval for all initiative measures intended to change that document, a higher bar than advocates for expansion have had to clear elsewhere. Of the four states where voters approved Medicaid expansion—Maine, Nebraska, Utah, and Idaho—only the margin in Idaho exceeded 60 percent, and then just barely (60.58 percent).

Disclosure: While the author served on the health care transition advisory committee of Florida Gov. Ron DeSantis, the views expressed above represent his personal views only.

This post was originally published at The Federalist.

Examining the Origins of “Robertscare”

In the end, applesauce won over baseball. Fourteen years ago, during Senate hearings regarding his nomination as chief justice of the United States, John Roberts used a baseball metaphor to explain his view of judges’ modest role:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire…I will remember that it’s my job to call balls and strikes, and not to pitch or bat.

On two major cases related to President Obama’s signature health care law, however, Roberts violated his 2005 pledge, wriggling himself into lexicographical contortions to uphold the measure passed by Congress. As his then-colleague Justice Antonin Scalia noted in the second ruling—which posited that the phrase “Exchange established by the state” applied to exchanges not established by states—upholding Obamacare caused Roberts to embrace “pure applesauce.”

Political Flip-Flop

She writes that he initially voted with the four other conservatives to strike down the ACA, on the grounds that it went beyond Congress’s power to regulate interstate commerce. Likewise, he initially voted to uphold the ACA’s expansion of Medicaid. But Roberts, who kept the opinion for himself to write, soon developed second thoughts.

Biskupic, who interviewed many of the justices for this book, including her subject, writes that Roberts said he felt ‘torn between his heart and his head.’ He harbored strong views on the limitations of congressional power, but hesitated to interject the Court into the ongoing health-insurance crisis. After trying unsuccessfully to find a middle way with Kennedy, who was ‘unusually firm’ and even ‘put off’ by the courtship, Roberts turned to the Court’s two moderate liberals, Stephen Breyer and Elena Kagan. The threesome negotiated a compromise decision that upheld the ACA’s individual mandate under Congress’s taxing power, while striking down the Medicaid expansion.

On the day of the ruling in June 2012, Chris Cillizza, then writing for The Washington Post, claimed that Roberts’ opinion “made good on his pledge to referee the game, not play it.” But the story Biskupic tells, which confirms prior reporting by Jan Crawford published shortly after the ruling, contradicts Cillizza’s view entirely. Roberts’ entire approach to the case consisted of playing games—and highly political ones at that.

The tenor of the passage reinforces how Roberts abandoned his stated principles in NFIB. Over and above talk of “the ongoing health insurance crisis” (perhaps a rhetorical flourish inserted by a liberal Atlantic writer) Roberts had no business feeling “torn between his heart and his head,” let alone stating as much to a reporter. Judges can feel both empathy and sympathy for parties in the courtroom and at the implications of their rulings. But facts remain facts, the law remains the law. Lady Justice remains blind for a reason.

An umpire—or a good umpire, at least—should make calls without fear or favor. If that means calling a third strike against the star slugger for the last out of the World Series, so be it. By his own admission, Roberts let factors outside the law determine his vote in the case. He abandoned his key test at a time when he should have followed it most closely.

Roberts’ Judicial Arrogance

I took that position not because I agree with Obamacare, but because Congress in 2017 decided to set the mandate penalty to zero while maintaining the rest of the law. Of course, Congress had taken no such action clarifying its intent on the law at the time of the ruling in NFIB v. Sebelius.

If the current lawsuit represents judicial activism, asking judges to take an action that Congress explicitly declined to embrace, then Roberts’ 2012 decision to uphold the individual mandate represents an act of judicial cowardice, running for cover and hiding rather than taking the decision that the law requires. For that reason alone, conservatives should refer to the law as “Robertscare”—for the justice who went out of his way to save it—rather than Obamacare. It shall stand as his epitaph.

This post was originally published at The Federalist.

Did Obamacare Increase the National Death Rate?

Researchers have raised legitimate questions about whether a policy change included in Obamacare actually increased death levels nationwide.

Some may recall that two years ago, liberals engaged in no small amount of hyperbolic rhetoric insisting that repealing Obamacare would kill Americans. They viewed that fact as a virtual certainty, and spent more time arguing over precisely how many individuals would die under the law’s repeal.

About the Readmissions Program

The Obamacare change sparking the policy debate involves the law’s hospital readmissions program. Section 3025(a) of the law required the Department of Health and Human Services to reduce Medicare payments to hospitals with higher-than-average readmission rates. The program began in October 2012, and since October 2014 has reduced payments by 3 percent to hospitals with high readmission rates for three conditions: heart failure, heart attacks, and pneumonia.

The program intended to make hospitals more efficient, and encourage them to treat patients correctly the first time, rather than profiting on poor care by receiving additional payments for “repeat” visitors. However, several data points have called into question the effectiveness of the policy.

First, a recent article in the journal Health Affairs concluded that data proving the readmissions program’s effectiveness “appear to be illusory or overstated.” The study noted that, right before the readmissions program took effect, hospitals could increase the number of diagnoses in claims submitted to Medicare. After controlling for this difference, the Harvard researchers concluded that at least half of the “reduction” in readmissions came due to this change.

By contrast, a December study in the Journal of the American Medical Association found an even darker outcome. The JAMA study, which examined a total of 8.3 million hospitalizations both before and after the readmissions penalties took effect, found that the program “was significantly associated with an increase in 30-day postdischarge mortality after hospitalization for [heart failure] and pneumonia, but not for” heart attacks. This study suggests that, rather than incurring penalties for “excess” readmissions, hospitals instead chose to stop readmitting patients at all—and more patients died as a result.

Is This ‘Alarmist’ Rhetoric?

In a blog post analyzing the debate at the New England Journal of Medicine, former Obama administration budget director Peter Orszag pointed out the two studies arrive at conclusions that are likely mutually contradictory. After all, if the readmissions policy didn’t affect patient outcomes, as the Health Affairs analysis suggests, then it’s hard simultaneously to argue that it also increased patient mortality, as the JAMA paper concludes.

But Orszag also criticizes The New York Times for an “unduly alarmist” op-ed summarizing the JAMA researchers’ results. That article, titled “Did This Health Care Policy Do Harm?” included a subheading noting that “a well-intentioned program created by the Affordable Care Act may have led to patient deaths.”

  • Washington Post: “Repealing the Affordable Care Act Will Kill More than 43,000 People Annually”
  • Chicago Tribune: “Repealing Obamacare Will Kill More than 43,000 People a Year”
  • Vox: “Repealing Obamacare Could Kill More People Each Year than Gun Homicides”

These headlines don’t even take into consideration the comments from people like former Sen. Harry Reid (D-NV), who said, “If you get rid of Obamacare, people are going to die.” Then there were the “analyses” by organizations like the Center for American Progress, helpfully parroted by Sen. Bernie Sanders (I-VT), that said “getting rid of Obamacare is a death sentence.”

Alongside this rhetoric, the supposedly “alarmist” Times article seems tame by comparison. It didn’t use the word “Obamacare” at all, and it couched its conclusions as part of a “complex” and ongoing “debate.” But of course, the contrast between the mild rhetoric regarding hospital readmissions and the sky-is-falling tone surrounding Obamacare repeal has absolutely nothing to do with liberal media bias or anything. Right?

Democrats, the Science Deniers

The Times article concludes by “highlight[ing] a bigger issue: Why are policies that profoundly influence patient care not rigorously studied before widespread rollout?” It’s a good question that Democrats have few answers for.

Liberals like to caricature conservatives as “science deniers,” uninformed troglodytes who can barely stand upright, let alone form coherent policies. But the recent studies regarding Obamacare’s hospital readmissions policy shows that the Obama administration officials who created these policies didn’t have any clue what they were doing—or certainly didn’t know enough to implement a nationwide plan that they knew would work.

Given this implementation failure, and the staggering level of willful ignorance by the technocrats who would micro-manage our health care system, why on earth should we give them even more power, whether through a single-payer system or something very close to it? The very question answers itself.

This post was originally published at The Federalist.

Kamala Harris Discovers Liberals’ New Health Care Motto

More than a decade ago, Barack Obama ran for president repeatedly pledging that under his health care platform, “If you like your plan, you can keep it.” Of course, that promise turned out not to be true—millions of Americans received cancellation notices as Obamacare took effect, and PolitiFact named Obama’s campaign pledge its “Lie of the Year.”

Given that tortured history, liberals appear to have come up with a simple and succinct slogan to explain their next round of health “reform:”: “If you like your current plan, go f— yourself.”

Medicare for None

Moderator Jake Tapper claimed during the discussion that Harris supports “Medicare for All,” but in reality, the legislation she co-sponsored during the last Congress would eliminate Medicare, along with every other existing form of health insurance save two: the Indian Health Service and Veterans Administration coverage. In short, Harris supports nearly 300 million Americans losing their current form of health coverage.

Patronizing Paternalism

Just as telling: Harris’ blithe dismissal of Americans who might prefer to keep their existing insurance. She claimed that, under single payer, “You don’t have to go through the process of going through an insurance company, having them give you approval, going through the paperwork.” Never mind that single payer systems have long waiting lists, which bring paperwork of their own. Harris then brushed away Americans’ concerns about losing their health coverage with a flick of the wrist: “Let’s move on.”

There are a number of Americans—fewer than 5 percent of Americans—who’ve got cut-rate plans that don’t offer real financial protection in the event of a serious illness or an accident. Remember, before the Affordable Care Act, these bad-apple insurers had free rein every single year to limit the care that you received, or use minor preexisting conditions to jack up your premiums or bill you into bankruptcy. So a lot of people thought they were buying coverage, and it turned out not to be so good.

Obama minimized both the number of people with cancelled plans—“only” a few million—and the quality of the coverage they held. The message was clear: You may think you had good health coverage, but I know better.

It’s Not About Health Care

Some people wonder why I continue to write about the well-heeled Obamacare supporters—including heads of exchanges—who refuse to buy Obamacare coverage for themselves. For a very simple reason: Those individuals, and Harris, and Obama’s remarks all get at the very same point. Obamacare, and single-payer coverage, aren’t really about health care—they’re about power.

Liberal elites consider themselves intellectually superior to the great unwashed masses, whom they must protect from themselves. That reasoning motivates Obamacare’s “consumer protections,” which act to prevent people from becoming consumers, because liberals don’t want individuals to buy health plans lacking all the features they consider “essential.”

An Ironic Campaign Start

The day before her CNN town hall, Harris launched her campaign in Oakland. At the event, which included her campaign slogan, “For the People,” Harris claimed she will “treat all people with dignity and respect.” In making those comments, Harris likely wanted to contrast herself with President Trump’s tone—his temperament, tweets, and so forth.

But one can make an equally compelling argument that Harris’ platform, and her comments one day later, belied her own rhetoric. Pledging to terminate the health coverage of nearly 300 million people might strike some as treating the American people with a distinct lack of respect.

While Democrats may want to make the 2020 campaign a referendum on Trump, elections also present voters with choices. If their party nominates a candidate who reprises liberals’ past mistakes of talking down to voters—“deplorables,” anyone?—they might face a second straight election night shocker.

This post was originally published at The Federalist.

Exclusive: D.C. Exchange Website Misled Customers about Individual Mandate

Last year, in response to Congress repealing the Obamacare individual mandate penalty beginning this January, the D.C. Council established its own requirement for District residents to maintain health coverage. If D.C. leaders wished to replicate Obamacare on the local level, they have succeeded beyond their wildest expectations—right down to the non-functioning website.

For nearly six months—including the first month of open enrollment—the District failed to inform visitors to its online insurance exchange about the new coverage requirement. When District officials finally discovered their webpage fail, what did they do to admit their fault, and tell the public? Nothing.

The Webpage Fail, Explained

At the start of the open enrollment period in early November, I went to the District’s health insurance exchange website, D.C. Health Link, to evaluate my coverage options for 2019. While there, I found an intriguing—and misleading—webpage. When discussing whether individuals should purchase coverage, the webpage noted that “federal law requires most Americans to have a minimum level of health coverage,” a requirement that was “still in effect for the 2017 and 2018 tax years.”

By stating that the requirement remained in effect for 2017 and 2018, the webpage implied that the mandate will disappear in 2019. But while the federal penalty disappeared on January 1, the District’s own insurance mandate replaced the federal requirement on that date. However, the webpage I saw did not mention the D.C. mandate at all.

By discussing the expiring federal mandate and not the new D.C. requirement, the webpage I viewed did not just provide misleading statements about the need to maintain coverage in 2019, it contained inaccurate information, too. The webpage noted that the federal mandate did not penalize individuals with short gaps of coverage of under three months—but the District’s stricter law requires individuals to maintain health coverage every single month.

The webpage also directed individuals seeking exemptions from the mandate to apply to federal authorities, even though the D.C. exchange has assumed that role for the District’s mandate, effective January 1.

In fairness, I, and presumably other prior customers, did receive a mailer from D.C. Health Link discussing the District’s new coverage requirement for 2019. However, the mailer did not mention the mandate until the top of its second page—an area where casual readers could easily miss it. Instead, the mailer spent prime real estate on the first page discussing “our award-winning reputation as one of the best health Exchange websites in the nation:”

Which do you think is more important for District residents to know: That the website won some awards, or that if they do not buy “government-approved” coverage, they could have their property seized and sold?

Why District Officials Don’t Care

District officials seem more pre-occupied with bragging about their website than updating their website. For instance, during the November meeting of the D.C. Health Benefit Exchange Authority, no one discussed the flawed webpage about the District’s individual mandate, even though D.C. Health Link staff conducted a presentation for the board explaining the website that showed a link to the flawed webpage.

The November board meeting also showed a video of D.C. Mayor Muriel Bowser’s appearance at the launch event for open enrollment. During that event, Bowser gave remarks claiming that “D.C. Health Link has made navigating its website even easier.” Bowser failed to mention that, even as she spoke, that “easier” website included incorrect, flawed, and misleading information about the individual mandate she had signed into law months previously.

Ignoring the ‘Debacle’

Nearly one month into open enrollment, on November 28, it appears D.C. Health Link finally discovered their error. Officials removed access to the page discussing the expiring federal mandate—the Internet Archive captured the old page—and created a new page discussing the District’s new coverage requirement for 2019.

But did District officials publicly admit that their website included incorrect information, try to inform the public, or make things right with those who viewed that incorrect information? No, no, and no. The Exchange Authority board held their most recent monthly meeting in mid-December, and the incident did not come up at all.

When healthcare.gov famously crashed and burned in 2013, then-Health and Human Services Secretary Kathleen Sebelius publicly accepted responsibility for the website “debacle.” By contrast, Mila Kofman, executive director of the Exchange Authority, apparently wants to pretend that the problems with the website she runs never took place.

Congress Should Fix This Mess

Beyond raising obvious questions of competence, the flawed webpage could have very real consequences for District residents. Any individuals who went to the incorrect webpage during the first month of open enrollment, and used its erroneous information to decide not to purchase health coverage for 2019, will face tax penalties when filing their 2019 returns in April 2020—penalties directly resulting from the bungling of District bureaucrats.

While District officials may try to give individuals who suffered from the incorrect webpage exemptions from the mandate penalty, it does not appear they can do so. The District’s mandate uses the same criteria as the federal one to determine hardship exemptions, namely, whether circumstances “prevented [an individual] from obtaining coverage.”

But in this case, circumstances didn’t prevent individuals from obtaining coverage—they prevented individuals from understanding the consequences of not doing so. D.C. Health Link therefore may not have the authority to solve a problem its own staff caused.

To ensure that no one incurs financial penalties because of the botched exchange website, the D.C. Council—or, better yet, Congress—will have to intervene. They should take the opportunity presented by this affair to repeal the mandate entirely.

Or Congress could use the pending appropriations legislation to include the provisions adopted last summer defunding the District’s mandate. Rep. Gary Palmer (R-AL), who sponsored the defunding amendment last summer, once again offered his amendment earlier this month, when the House considered anew the District of Columbia appropriations measure. Unfortunately, however, the new House Democrat majority refused to make a vote on the amendment in order. This means that, absent additional action, individuals may face sizable tax penalties due to a website mess caused entirely by District officials.

No matter what form it takes, the website mess demonstrates that the District’s insurance mandate should go. Given that D.C. Health Link spends $11 million on IT, yet took six months to update a webpage, it should spend less time ordering District residents to buy insurance and more time getting its own house in order.

This post was originally published at The Federalist.