Posts Tagged ‘healthcare’


Party Preferences in Healthcare

   Posted by: Robert    in News, Politics

A post today by Michelle Malkin brings to light an interesting provision of Obamacare which will apparently target funding at racial minorities.  As she details with a good deal of clarity, this would seem to be an invitation for generating illegal racial preferences in healthcare.  While this, itself, is not a violation of the Civil Rights Act (which Congress may modify or ignore at will), it may present a legal conundrum within the world of medicine.  It also reminded me of concerns that I expressed privately months ago about healthcare being used as a vehicle for political preferences; concerns which are now certainly credible enough to be worth active discussion.

While I do not recall when it first occurred to me, I have been concerned since sometime last summer about the possibility that the healthcare bill would eventually be used as a tool to leverage votes for Democrats.  The basic scenario works as follows: When healthcare rationing inevitably begins, funds will be directed preferentially toward states, counties, and cities which routinely vote Democrat.  The more insidious scenario looks a little bit different: Medical records will be paired, secretly or explicitly, with rolls of party affiliation, campaign contributions, and political activism, and those individuals who support Democrat candidates and policies will receive care more quickly and completely than individuals who are opposed.  However unlikely those scenarios seem, neither one is impossible, and the first appears to be already happening.

Regardless of which scenario ultimately plays out, the result is that voters will be placed into a voting system built from a framework of oppression.  While politicians are well known to offer money to favored constituencies, this becomes the first time in America’s history that politicians can literally begin to equate votes to matters of life and death.  Most voters would not find it a difficult choice to select between supporting some policy that they don’t like, or a politician that they would otherwise oppose, when the alternative is that they will not be able to receive a life saving cancer treatment in time.

No neutral observer could call trading votes for life anything other than false liberty.

Strangely, though, this potential avenue for abuse has been almost entirely absent from the debate over health care.  Throughout the entire debate, I can only recall having seen the question show up once, in a survey published by the RNC asking if voters were concerned “that the government could use voter registration to determine a person’s political affiliation, prompting fears that GOP voters might be discriminated against for medical treatment in a Democrat-imposed health care rationing system.”  My vote, of course, would have been (and is) quite affirmative, especially as the full blown public option was still alive and well as a possibility in August when that survey was published.  The flash of furor, though, was apparently strong enough that the impotent GOP backpedaled, said that the question was “inartfully worded,” and tried to re-frame it as being about privacy rather than political gamesmanship.  With the GOP’s apology issued, the issue promptly disappeared from the debate.

But as we are already beginning to see, the GOP was right the first time.  Trading healthcare for votes is a serious issue about which Americans need to seriously engage.  Even liberals, who may think they’re safe with Obama in charge, should be scared of the potential for abuse.  Imagine, after all, if George W. Bush had been in charge of making your medical decisions; imagine the future of medicine under President Karl Rove.  Tying political support to medical treatment is far more dangerous than the financial quid pro quo that Americans have, unfortunately, gotten used to.

Perhaps Michelle discovering this first attempt will finally shed some light on a looming problem that should have been discussed months ago.

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Why Article 1, Section 7 isn’t the answer

   Posted by: Robert    in Law

As reluctant as I am to take issue with the well considered opinion of Mark Levin, I find myself doubting that the constitutional case against the Slaughter Rule is as open and shut as I have heard him and other conservative commentators describe.  While the procedure set forth in the Slaughter Rule of considering the Senate Bill to have been “deemed passed” is clearly contrary to the legal history and tradition of the country, and to the concept of democracy more generally, there is no particular command in Article 1, Section 7 of the Constitution, or any other place within its text, that definitively rebuts the Slaughter Rule.

Article 1, section 7 of the Constitution states:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Mark Levin and other commentators point out from that text two phrases of paramount importance.  The first is the first sentence which states that “Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States,” and the second comes in the middle of the paragraph to say that “in all such cases the votes of both Houses shall be determined by yeas and nays.”  From these two phrases, and with reference to Clinton v. City of New York, commentators have deemed it obvious that the Constitution requires actually voting on the bill to pass it.  Obvious and correct as this ought to be, it’s not actually what the Constitution says.

To begin again at the start of the paragraph, the clause introduces itself with the words “Every bill which shall have passed” (emphasis added).  Those words, right there, are in the past tense.  This paragraph, right from the start, is not talking about how to pass a bill; it is, rather, talking about how to take a passed bill and turn it into a law.  The remainder of the paragraph is consistent with the understanding that it applies to passed bills, rather than bills to be passed.  It first describes the presentment to the President, explains the process for handling a veto, including its override, and further explains what happens to bills that the President leaves sitting on his desk.  All of the things described by the paragraph are only possible on bills which both houses have finished with.  This paragraph, in other words, assumes that a bill has been passed somehow, but offers no command for how that passage must come about.

Reading on to the second interesting clause, the bill says that “the votes of both Houses shall be determined by yeas and nays” in “all such cases.”  The inclusion of the word “such” is clearly an invitation to examine the preceding context of that phrase and to limit its scope accordingly.  The preceding context is none other than the process for overriding a Presidential veto, meaning that what that sentence tells us is that vetos may be overridden only by yeas and nays, and that it is limited to that meaning by its own terms.  Had the word “such” been omitted, Levin would have a stronger position, although he would still have an uphill battle to defeat the obvious context in which that phrase was placed.

Ultimately, the strongest argument against the Slaughter Rule are originalist rather than textualist, and Clinton v. New York guides the way.  In that case, the Supreme Court held that laws can only be formed when (among other things) “a bill containing its exact text was approved by a majority of the Members of the House of Representatives.”  But even this language leaves open the argument that, because it takes a majority to adopt a rule, and the rule contains an approval of the bill, passing the rule is tantamount to a majority of Representatives approving the bill.  Regardless, it is clear that the Supreme Court has recognized that there is a traditional process for passing laws, which is a good sign.

I have little doubt that the founders would be astonished to learn that the Slaughter Rule is even being considered.  The English law traditions they inherited and the process the country has followed consistently ever since the founding is clear in that bills are passed with majority votes, not with parliamentary trickery.

If the Senate Bill should pass on the basis of the Slaughter Rule, I wish Mark Levin the best of luck in bringing his lawsuit and having the bill stricken in court.  There is no doubt that the proposed rule is an abuse of process and a direct assault on American tradition, perpetrated by politicians waging a war against the liberty of the American people.  I do believe, though, that it would be a mistake to rely on the text of the Constitution alone to defeat the Slaughter Rule.

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Maybe a base hit?

   Posted by: Robert    in Law

I always find it troubling when I disagree with Matt Franck, but at least partial disagreement is where I find myself today.  In a post on Bench Memos, he discusses what he believes to be the judicial role in evaluating the constitutionality of the federal health care bill.  He doubts that there is a proper role for the courts in evaluating the health care bill, including the individual mandate that the law would impose.  I believe that the mandate does fall within the scope of judicial review, though not on the basis of anything Roger Pilon or George Will had to say.

The basic function of the judicial process is to determine what law applies to a given set of facts.  In making that determination, courts look to the laws passed by Congress, to the dictates of treaties and other legally binding agreements to which the US is a party, and to the Constitution to determine which laws are applicable.  Courts have a number of ways to deal with laws that conflict with one another.  Among statutes, or between statutes and treaties, the usual rule is that whatever happened most recently overrides older law if the conflict is unavoidable.  The famous exception to this usual rule applies when a law comes up against the Constitution; in that case, the Constitution overrides the statute or treaty. Determining whether the Constitution has overridden some other law is what we know as Judicial Review.  And, while we regularly talk about courts “striking down” laws, my understanding of the physics of that action are really closer to a court saying “we cannot apply this law to any set of facts.”  The statute still exists, but the law it creates is unusable.

Implicit in that entire process is the fact that what the courts are evaluating are, indeed, laws.  Because the (originalist) Constitution only enables Congress to pass laws within certain enumerated categories, it naturally follows that anything which does not follow from that authority cannot be considered a law. Because courts are not in the business of applying things which are not laws, it must follow that the courts cannot find constitutional any penalty which results from a law beyond the federal government’s authority to create.

In other words, the government may very well impose an individual mandate and hope that most people comply, and their doing so would seem to be just outside the realm of court review.  But the instant they impose a penalty on people who do not obey the individual mandate — the instant they seek to impose a fine — the courts now have a subject to address which is well inside the proper judicial role.  The courts can, and should, find the individual mandate unconstitutional because it imposes penalties which the federal government has no authority to impose.

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The Plight of Implementation

   Posted by: Robert    in Politics

You would think by now that the speed with which Congress switches back and forth on whether or not to include a “public option” would have the media thoroughly tired of finding ways to spin either outcome as a win for Democrats.  Despite having made more switchbacks than a car on an highway through the mountains, the Washington Post has not slowed down in their ability to churn out nonsense aimed at making anything the Democrats do look intelligent.  A new article discusses what the senate health care deal would mean to consumers which paints a, predictably, much more rosy image of the story than is likely.

Included in the article was an interesting statement from a man named Paul Starr from Princeton:

“It’s good to have the federal government in there negotiating with plans because of the possibility that states will do a very bad job of regulating insurers and managing insurers,” said Paul Starr, a Princeton professor of public affairs. “This is a very important protection against poor implementation by states.”

Though this is not the first time I’ve heard this sentiment, it is the first time I’ve heard it so plainly applied to health care.  It is an interesting concept that seems to flow from the general notion that the federal government can do no wrong.  It is a quaint, if irrational, argument that seems to flow mostly from the 1960s civil rights era when the federal government, under orders from the Supreme Court and over the objections of Democrats, federalized the race industry and eliminated the Jim Crow policies of the states.  This gave the federal government instnat credibility as a nearly independent body of government which could craft policies without needing to worry too deeply about what the electorate might have to say.

Their policies, most of which are abject failures in terms of meeting their stated goals, sustainability, or both, are now the gold standard which folks like Mr. Starr want health care reform to compare.  The one thing that these programs — which include Medicare, civil rights reforms, and the radical expansion of the regulatory state — have actually succeeded in doing is removing power from the people and placing it in the hands of government.

A noteworthy example of the hollowness of federal “protection” is the FDA.  For drug manufacturers, the patent period is commonly viewed as the time during which they are able to recover the costs of the drugs they invent.  In order to recover their costs, they set their prices artificially high once the drugs are allowed to be sold.  A longer period of sales would allow drug prices to be lowered, because there would be a greater period of time over which they could spread out recovery of their up front costs.  But into this process comes the FDA, with its lengthy and expensive approval process which can take away as much as half of the patented life of a drug.  In, too, is the FDA, which has the power to pull from the market any drug, even ones the FDA has approved, for not being safe.  Thanks to the FDA, drugs cost more than they need to and have no particular guarantee of safety.  This is the sort of “protection against poor implementation” that we can expect from our federal government.

For liberals, though, the trouble reflected in the FDA doesn’t matter.  It only means that those programs need more money, need to be more invasive, and need to accumulate even more power.  But, that power comes with a price.  I found it notable that during the Bush years, the general cry that the federal government can do no wrong tended to fade into the background, if it was even made at all.  It was California, not Washington DC that was the champion of environmental policy.  It was state courts, not the FDA, that championed patients’ rights.  It seemed that the federal government under Bush could suddenly do nothing right.

We have, right now, a chance to have health care run by President Obama.  But he will not be President forever.  I can already hear the commotion now, come 2012 or 2016, when the White House again changes hands.  Just imagine what life will be like under our next President…

Doctor in Chief Sarah Palin.

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Swine Flu Emergency

   Posted by: Robert    in News, Politics

As the international hyperventilation over swine flu continues, it appears that the disease is now a national emergency.  As absurd as the declaration, and its associated language, are, the stated reason for the declaration now is fairly revealing of different issues with the US government.

According to Jennifer Nuzzo of the University of Pittsburgh’s Center for Biosecurity, the national emergency declaration is “just a precautionary move so if need be we can focus on the care of patients rather than focus on administrative hurdles. In disasters, you often don’t have the time or luxury to keep the paperwork in order. You want hospitals focusing on patients.”  White House spokesman Reid Cherlin echoed this sentiment, stating that “If granted a waiver [under the declaration], hospitals would be freed from some regulations that guide their behavior during normal day-to-day operations.”

To phrase all of that somewhat differently, it sounds as if normal government regulations are getting in the way of doctors and hospitals providing effective medical treatment by default, and the state of emergency is needed to allow patients to be cared for in ways more in line with how medical professionals, rather than government bureaucrats, feel is most appropriate.

If a state of emergency is considered necessary for the management of such a benign illness, that fact alone should raise serious questions about the impact of government regulation during times of normal operation.

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Insuring the Uninsured

   Posted by: Robert    in Politics

One of the recurring themes in the health care debate is the plight of the uninsured American who is given a death sentence because he or she can’t afford to buy insurance and ends up with a major illness.  These people, the rhetoric goes, need a safety net (provided by government) to ensure that nobody is forced to die because they can’t afford the care they need.  The blogosphere has been filled with anecdotes of people losing coverage when they get cancer or some other major illness.  Conservatives have pointed out that there is already a safety net: America’s emergency rooms.  I recently heard about another safety net that already exists, in the form of an anecdote about an uninsured husband and wife who actually got coverage after finding out that the wife had cancer.

The couple in question is a classic couple from Anytown, USA.  The husband owns his own small business, the wife is primarily a mom to their 2.3 children and a dog.  They have enough money to pay the bills and have some fun, but the family isn’t particularly wealthy.  Neither one had employer provided insurance, and they made the decision to not take the plunge with an individual plan.  After all, they are young, healthy, and active; and adding an insurance payment would have put some strain on the family budget.  Put simply, they are the embodiment of the average uninsured American.

Then one day, the wife falls unconscious.  Her husband calls 911 and she’s taken to the emergency room, where she gets a bunch of testing done, more or less all on the hospital’s dime.  The safety net covered exams come back and say that she has a cancerous tumor.  A big one.

From everything President Obama, the Democrats in Congress, and the media have told me, this is the point where I’m supposed to be thinking, “She’s screwed.”  This story is a bit more interesting.

Instead of going home to die, her and her husband take a trip to their local Medicaid office to talk to someone there about getting some help.  An employee there takes a look at their bank account, and recommends a strategic withdrawal to bring the balance below the magical amount required by regulation.  Since the husband owns his own business, they also ask for some business records; mostly copies of the old bills that he’s paid to prove that the company is legit.  Though his paperwork was in a state of disaster, the husband managed to cobble together enough bills to prove what he needed to prove.

Medicaid said they would cover her cancer.

Shortly thereafter, she went in for surgery at one of the best hospitals in the region under the care of a nationally known surgeon.  The report from surgery was everything positive; it’s likely that she will recover quickly and respond well to treatment with radiation, chemo, or both.  Far from screwed, she stands a good chance of being cured.

The safety net worked.  Even without health care reform, the life of at least one uninsured American — who managed to get coverage in a situation where most people talk about losing it — was saved.



Party Biased Health Care

   Posted by: Robert    in Politics

I doubt there are too many people who remember this, but a couple of months ago the RNC published a survey asking people for their opinions on the health care debate as it stood at the time. One of the questions caught a bit of flak from the left, which caused the RNC to backpedal, calling it “inartfully worded.” The text of the question was this:

It has been suggested that the government could use voter registration to determine a person’s political affiliation, prompting fears that GOP voters might be discriminated against for medical treatment in a Democrat-imposed health care rationing system. Does this possibility concern you?  [ ] Yes, [ ] No, [ ] Undecided

The adjective describing that question is not “inartful,” but “prescient.”Garrison Keillor, in the Chicago Tribune, flatly suggests that dropping coverage for Republicans might be a good idea.  Even if Mr. Keillor meant that as a joke, I figure it’s only a matter of time before someone proposes the idea seriously.

Shame on the RNC for backpedaling.  The question they asked is important.  The issue they raised is real.  The political gamesmanship that health care permits is something that needs to be discussed, because even though party biased health care may not be part of this bill, how ever can we guarantee that it might not be part of the next one?



The Case Against Insuring Illegals

   Posted by: Robert    in Politics

In skimming their website for something else, I stumbled across a Newsweek article making the case for health insurance for illegals.  The main thrust of the article is that there is an economic advantage to insuring people who are in the country illegally.  The advantage is based on the notion that illegal immigrants are, for their age and occupation, generally healthier than a similar American.  Because of the way insurance works, a healthy individual paying into the system reduces costs for everyone else because they contribute more money than they demand.  Unfortunately for Newsweek, even assuming that the average illegal is healthier than the comparable American, there are at least two fundamental flaws in the article’s argument providing them with insurance.

The first and most glaring flaw is that the article appears to simply assume that illegals are going to pay for their insurance like the rest of us.  Given that these people are “undocumented,” that they do not pay taxes, and that they do not appear on official company payrolls, this appears to be an assumption that deserves close scrutiny.  Furthermore, if the attraction of hiring illegals is the fact that they can be paid below minimum wage for long hours and given few benefits, these people are certainly not all that wealthy.  Most probably couldn’t afford insurance if they wanted to.  Thus, in order to be covered by universal health care, their premiums would need to be subsidized by raising the premiums (or taxes) on none other than the people whose costs they are supposedly bringing down.  Insuring illegals is a losing proposition the instant one of them goes to the doctor.

The second flaw is somewhat more subtle, but it amounts to the author assuming that the number of sick illegals entering the country will not increase.  That assumption will undoubtedly be false.  The reason illegals are so healthy now is because they need to be in order to not only cross the border but to then also work the long hours of physical labor required for them to succeed.  Insurance for illegals adds a new form of success: Without having done any work or paying a dime, an illegal would be cured of all that ails him.

It is a good sign that even the left understands the need to talk about economics.  They would be better served if their arguments were correct.  The economics are undoubtedly against the left on this issue.  Illegals should not be spending our tax dollars in our hospitals while American citizens are standing in line; they should be where they belong — at home.

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Thoughts on Medical Tort Reform

   Posted by: Robert    in Law, Politics

I have been spending a bit of time lately thinking about what I would like to see from a medical tort reform package.  Along with a couple of other things, tort reform seems, to me, like one of the most important and powerful ways to reduce the cost of health care in America.  America’s tort system is unique in the world (not only in medicine, but throughout the civil arena) because of the high damage awards possible in US courts.  Cutting these awards would reduce the need for and cost of malpractice insurance, which imposes a significant burden on doctors.  Changing the system of punishment in general would also offer a greater opportunity for targeting misbehavior and ensuring a more fair system overall.

Punitive damages are a form of non-economic damage that courts, through juries, are able to award to a victorious plaintiff.  In general, punitive damage awards are large, often several times the actual damages suffered by the plaintiff.  The logic of punitive damages is twofold: They serve as a way to compensate plaintiffs for injuries to which no dollar value can be easily attached, and they punish defendants for misbehavior in the hope that people in the future will not behave the same way.

The reality is that malpractice punitive awards tend to compensate lawyers and the IRS, and punish the doctor’s insurance company which is otherwise unrelated to the case.  The insurance companies, in turn, effectively punish all doctors by raising premiums to offset the huge losses that they suffer as a result of the lawsuits.  An individual doctor who loses may suffer a higher rate increase than the rest of his insurance company’s customers, but he will not suffer all or even most of the punitive damage cost.  After all, that’s why he bought insurance in the first place.  The result is that parties who were not injured reap most of the reward from insurance companies while doctors face very few consequences for their misbehavior, but have to charge patients more money to cover insurance premiums raised by other doctors’ mistakes.

Is there anything about this system that isn’t broken?

A better system, it seems to me, would be to do away with punitive damages entirely and, instead, expose doctors to non-economic punishments which cannot be insured away.  In particular, what I propose is that any doctor found liable would have their case referred to an oversight panel composed of practicing physicians and patient advocates.  The oversight panel would have the option to assign no additional punishment, to suspend the doctor’s license for a period of time, or to revoke the doctor’s license entirely.  The expert composition of the panel more accurately reflects a doctor’s peer group than does a lay jury, so they would be more likely to understand a doctor’s thought process and less likely to be swayed by hindsight bias in deciding an appropriate punishment.  Selecting both practitioners and patient advocates would ensure that both interests are fairly represented.  Finally, affecting a doctor’s license affects the misbehaving doctor directly, ensuring that he and he alone is punished for his misdeeds, that he is punished significantly by affecting his livelihood, and that other patients are made safer by removing a potentially harmful doctor from the market.

Tort reform is often opposed by people who believe it would prevent plaintiffs from bringing claims for certain types of injuries regardless of their claim’s merit.  Indeed, many tort reform proposals do exactly that.  Mine does not.  While this assumption may be questionable, I am willing to assume that every plaintiff who wins a case did receive an injury in fact and deserved to be compensated.  However, when compensation turns to punishment, I am convinced that there are more fair and cost effective solutions available than the punitive damage system we have today.

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Public Option Fading?

   Posted by: Robert    in News, Politics

Saw an article today saying that the Obama administration may be backing off its push for a public option in health care.  If this is true, it is good news.  But it makes me a bit nervous to see conservatives talking this up as some kind of victory.  As I posted in the comments section of another blog:

Without having done a lot of research, I can think of a few things to consider:

  1. Depending on how the thing is set up, there may still be increased federal involvement. One article talks about government insurance whenever there are fewer than two private alternatives, and Schumer has said that he feels any co-op would need to achieve the same goals as the public option.
  2. The co-op would probably need to be started by the federal government, probably with federal dollars. As we saw with the car companies, when the federal government gives money away, it thinks it owns the thing it gave money to. How independent is a federally funded co-op really going to be?
  3. If these were such a good idea, why hasn’t private industry created its own co-op system yet?
  4. The public option is only part of the government’s health care plans. A co-op may kill that, but it won’t keep the government from expanding its reach in other ways.
  5. To me, it feels like socialized health care on an installment plan. They reached too far, and are now willing to make concessions and meet in the middle. If this passes, expect the next health care go-around to focus explicitly on single-payer, with concessions to get us back to about what we’ve rejected today.

With the left apparently on the run, now is the time to press the attack.  When fighting Medusa, one does not quit after removing only the first snake.