Posts Tagged ‘National Federation of Independent Business’

Supreme Court to Decide Healthcare Reform

Wednesday, November 23rd, 2011

The Supreme Court has agreed to rule on the fate of President Barack Obama’s Patient Protection and Affordable Care Act (ACA) healthcare law, with an election-year ruling due by July on the most comprehensive overhaul in nearly a half century.  The decision had been widely expected because the Obama administration asked the nation’s highest court to uphold the landmark legislation and 26 states asked that the law be ruled unconstitutional.

President Obama expressed confidence that the court would uphold the law when the decision is handed down, just four months prior to the 2012 election.  “Thanks to the Affordable Care Act, one million more young Americans have health insurance, women are getting mammograms and preventive services without paying an extra penny out of their own pocket and insurance companies have to spend more of your premiums on healthcare instead of advertising and bonuses,” said Dan Pfeiffer, the White House communications director.  “We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” Pfeiffer said.  The administration pointed out that other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, all faced similar legal challenges that failed.

Republicans have vowed to repeal “Obamacare,” but that promise will have to be modified if the high court undercuts the law as written.  A Supreme Court victory would make President Obama even more confident that the law is the major accomplishment of his first term.

Senate Minority Leader Mitch McConnell, (R-KY) said “this misguided law represents an unprecedented and unconstitutional expansion of the federal government into the daily lives of every American.”  The majority of Americans agree,” McConnell said.  “In both public surveys and at the ballot box, Americans have rejected the law’s mandate that they must buy government-approved health insurance, and I hope the Supreme Court will do the same.”

Despite Republicans’ insistence that the ACA is unconstitutional, only one of the four federal appeals courts that have heard cases on healthcare reform has struck down even a part of the law.

One of the ACA’s most vocal opponents is Karen Harned of the National Federation of Independent Business, who said: “We are confident in the strength of our case and hopeful that we will ultimately prevail.  Our nation’s job-creators depend on a decision being reached before the harmful effects of this new law become irreversible.”

Legal experts believe that the healthcare vote will be close on the nine-member court, which is comprised of five conservatives and four liberals.  Moderate conservative Justice Anthony Kennedy, who often is the swing vote, and could well cast the decisive vote.  Paul Heldman, senior analyst at Potomac Research Group, which provides Washington policy research for the investment community, said he still leaned toward the view that the law’s requirement that individuals buy insurance will be upheld.  “We continue to have a high level of conviction that the Supreme Court will leave much of the health reform law standing, even if finds unconstitutional the requirement that individuals buy coverage,” he wrote.

An impressive 5 ½ hours of oral arguments will be held in late February or March. The primary issue is whether the “individual mandate” section – which requires virtually all Americans to buy health insurance by 2014 or face fines — is an improper exercise of federal authority.  According to the states, if that linchpin provision is unconstitutional, the entire law must be also be overturned.  Joining Florida in the challenge are Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming.  Virginia and Oklahoma have filed their own challenges, along with other groups and individuals opposed to the law.

According to USA Today’s Joan Biskupic, “The leading question before the justices is whether in requiring most Americans to buy insurance, Congress exceeded its power to regulate interstate commerce.  The case is on track to be heard by March, and a ruling would come by the end of June, just before the Republican and Democratic conventions for the 2012 presidential election. The law known as the Affordable Care Act, intended to extend medical care nationwide, is the centerpiece of the Obama domestic agenda, and all major GOP presidential candidates oppose it.  The legal challengers, including a group of 26 states, say the law went beyond federal power and, if allowed to stand, would hurt small businesses and compromise individual choices on medical care.”

Writing in The Hill, Sam Baker says that “As they weigh the mandate, the justices will have to consider how it affects other parts of the law.  If they find the coverage requirement unconstitutional, they will have to decide whether to strike it down on its own or instead strike down the entire law.  The justices also will determine whether a separate federal law bars them from reaching a decision on the mandate before it takes effect.  People can’t challenge a tax before they have to pay it, and the Obama administration has defended the mandate by invoking Congress’s taxing power.  But it has also said the court should bypass procedural issues and rule directly on the mandate.”

HHS Website Monitors Health Insurance Premium Increases

Monday, October 17th, 2011

Consumers can now select their state on a federal web page to see if any health insurers have raised rates, as well as the company’s reasoning behind the action. This information was previously unavailable, according to Steve Larsen, the Department of Health and Human Services (HHS) deputy director for oversight (only a few states include rate increases on their own websites).  Now, all insurance companies must file this information with HHS as one directive of the Patient Protection and Affordable Care Act (ACA).  “We are taking a good, hard look at why insurance companies are seeking to raise your rates, why your premiums might be going up, and making sure these decisions are public and justified,” HHS Secretary Kathleen Sebelius said.  “This is just a start, and over time we will be reporting more of these requests.”

The announcement follows a recent survey by the Kaiser Family Foundation that showed premiums for an employer-sponsored plan for a family of four climbing nine percent in 2011.  A report by Barclays Capital Equity Research showed that in the first three months of 2011, 13 of the leading 14 health insurers exceeded their earnings per share estimates; average earnings were 46 percent over estimates.  Insurers who wanted to raise rates 10 percent or more for individual or small group plans are required to provide justification.

At the same time, an advisory group urged officials to create a list of essential health benefits under President Barack Obama’s healthcare overhaul that aligns with the cost of typical small-employer plans.  The Institute of Medicine (IOM) report recommended that HHS be specific in deciding what health benefits should be required in individual and small group plans as the ACA goes into full effect in 2014.  The IOM, one of the National Academies of Science that advises U.S. policymakers, did not address any specific benefits types, in keeping with its assigned task.  “We’re in a marathon.  What we’ve just gotten today is the first leg,” said Paul Keckley, executive director of the Deloitte Center for Health Solutions.

The IOM recommendation favors business groups and insurers who have sought a narrow package of required benefits because of concerns that the plans will cost too much, said Neil Trautwein, vice president for the National Retail Federation.  Government should limit premiums to levels no higher than what small businesses pay on average and choose benefits “within the context of financial constraints,” according to the report.  The recommendation “is the appropriate tack to take since the objective is to cover everyone with at least basic benefits,” Trautwein said.

The issue has seen businesses and patient advocacy groups — such as the American Cancer Society, which argues for robust coverage — at odds with each other.  The ACA requires insurance plans to cover 10 broad categories of care, including hospitalization, mental health and pediatrics starting in 2014 and left details to Obama’s HHS secretary, who has  asked the IOM to recommend the optimal way to select the benefits that should be included in the plans.  Employer lobby groups argue that a generous package of benefits would cause workers to desert company plans, which could have the effect of compelling employers to pay fines and raise premiums as the number of people covered by their health plans decreases.

According to the IOM, Sebelius should start with a package of benefits that mirrors what small businesses offer their employees.  She should set a “premium target” for the benefits that is approximately the same as what small businesses will pay, on average, in 2014.  Next, she should select benefits that meet the target, a process the IOM compared to shopping for groceries under a budget.  “If the package of essential health benefits gets too comprehensive, it quickly becomes unaffordable,” said John Ball, chairman of the institute committee that wrote the report.

Beginning in 2014, every health plan in the new marketplaces known as “exchanges” will have to provide a minimum package of “essential health benefits.”  The IOM report provides federal officials with a framework for devising that package, but doesn’t provide specifics.  “I’m sure a lot of people were expecting to get a list,” said Elizabeth McGlynn, a member of the IOM committee and head of the Kaiser Permanente Center for Effectiveness and Safety Research.  “That was outside of our charge.”

“With this thoughtful report, the IOM is urging policymakers to strike a balance between the affordability of coverage and the comprehensiveness of coverage,” said Karen Ignagni, president and CEO of the health insurance trade group America’s Health Insurance Plans.  “We agree that this balance is critical to ensuring that individuals, working families and small employers can afford health insurance.”  Amanda Austin of the National Federation of Independent Business termed the report “encouraging,” and “pretty thoughtful,” although she believes that HHS still has to do the heavy lifting to write the plans.

Sebelius issued her own statement on the report, saying she will hold “listening sessions” to help people choose what benefits they want included in the mandatory package.  “These conversations will help us ensure that every American can access quality, affordable health coverage they can rely on,” she said.  This seems to suggests to some that a proposal from the department won’t be coming anytime soon.

Skeptical Federal Appellate Court Hears Arguments on the ACA

Wednesday, August 3rd, 2011

Attorneys representing 26 states – with Florida taking the lead – locked horns with the Obama administration in the U.S. Court of Appeals for the 11th Circuit over the constitutionality of the Patient Protection and Affordable Care Act (ACA).Florida, 25 other states and the National Federation of Independent Business claim that the “individual mandate” violates the Constitution’s Commerce Clause by requiring that Americans buy healthcare insurance or pay a penalty.

Arguing for the Obama administration was acting Solicitor General, Neal Katyal, who said “People are seeking this good already in untold numbers.  The good of healthcare.  It’s purely financing.  It’s about failure to pay.  Not about failure to buy.”  Katyal pointed out that the 50 million Americans who currently lack healthcare insurance too often end up in emergency rooms for medical treatment, driving up costs.  Defending the law, Katyal emphasized the special nature of healthcare and the insurance market today.  He said billions of dollars incurred by people without insurance are passed on to people who carry insurance.  Arguing for the states, attorney Paul Clement conceded that the government can enact laws that people acquire healthcare insurance, but not until they need medical care.  Prior to that, “they’re not engaged in commerce.  They’re sitting in their living rooms,” Clement said.

The three-judge panel seemed to be skeptical about the government’s position. “I can’t find any case like this,” Chief Judge Joel Dubina said.  “If we uphold this, are there any limits” to the federal government’s power?  Judge Stanley Marcus said “I can’t find any case” in the past where the courts upheld “telling a private person they are compelled to purchase a product in the open market…Is there anything that suggests Congress can do this?”

So far, three federal district judges have upheld the ACA while two have ruled it is unconstitutional.  Three cases were heard by appeals courts, with a fourth appellate panel planning to hold a hearing in September.  The current case has attracted the most attention because it involves 26 state attorneys general who jointly challenged the law.  Additionally the Atlanta-based 11th Circuit is considered one of the nation’s most conservative federal appellate courts.

If any appeals courts declare the law unconstitutional, the case likely would be heard by the Supreme Court — perhaps during the election year.  Legal experts believe the 11th Circuit is more likely to rule against the administration.

The hearing was a government appeal of a decision by Florida-based U.S. District Judge Roger Vinson that ruled against the insurance mandate and voided the healthcare law.  According to Vinson, the mandate exceeded Congress’ power to regulate commerce because, instead of involving the usual “economic activity,” it targeted “inactivity,” in other words, someone’s decision not to purchase insurance.  This case is high profile because it was brought by more than half of the states; additionally, it tests an unprecedented lower-court ruling that invalidated the entire law.

One of the appellate judges asked Katyal if there are there any limits on Congress’s power to compel people to act. “Absolutely,” Katyal replied.  “We are not saying that Congress can force somebody to buy something and that failure to do so is economic activity.  People are seeking that good already,” he said.  Katyal said $43 billion is spent annually on care for the uninsured.  “That’s quintessentially economic,” he said.  Clement argued that the crux of the issue is whether the federal government can regulate individuals.  “For 220 years, Congress never saw fit to exercise that power,” he said.  “The whole reason we do this is to protect individual liberty.”  According to Clement, the Commerce Clause regulates people engaged in commercial activity and does not force them to engage.

Writing in The New Republic, Jonathan Cohn is reluctant to say how he thinks the court will rule.  “I didn’t hear the entire oral argument, which C-Span helpfully broadcast.  (Note to the federal judiciary: There’s this thing called the internet and it can transmit audio files.)  But I, too, came away genuinely uncertain how the court will rule.  The judges seemed a lot more ornery during the questioning of Katyal than they did during the questioning of Paul Clement, the former solicitor general arguing on behalf of the states filing the lawsuit.  But the actual substance of those questions – and some side comments that the judges made – suggested they were ready to reject essential pieces of the legal challenge.  Particularly striking were a series of comments from Frank Hull, in which she (yes, Frank is a ‘she’) stated repeatedly that she did not agree with the ‘activity-inactivity’ distinction opponents of the law have made.  As those of you following this case know, that’s really the heart of their argument:  They say the decision not to buy insurance is a form of ‘inactivity,’ which means the government may not regulate it.  Supporters of the law, including the government, disagree.  And Hull seemed to side with them, saying (roughly, given my sketchy notes):  ‘When I decide I would rather spend my money differently…that I would rather buy this product than pay for health insurance…that’s an economic decision…How can that be anything other than an economic decision?’”

Healthcare Reform – 3; Opponents – 2

Wednesday, March 16th, 2011

The score on legal challenges to the Affordable Care and Patient Protection Act is now 3 – 2 – with the Obama administration and healthcare reform in the lead. Nor surprisingly, the three judges who have voted to uphold the law are Democratic appointees, while those who struck down the law are Republican appointees.

The law survived a challenge in federal court in Washington, D.C., the third win in a series of lawsuits attempting to overturn the legislation. U.S. District Judge Gladys Kessler threw out a lawsuit brought in June by five individuals who claimed the requirement that people obtain minimum insurance coverage starting in 2014 is unconstitutional.  Judge Kessler said Congress was acting “within the bounds” of its constitutional Commerce Clause power when it imposed the insurance requirement.  “The individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage,” Kessler wrote.  “Thus, the aggregate effect on interstate commerce of the decisions of individuals to forgo insurance is very substantial.”

A right-wing group called the American Center for Law and Justice (ACLJ) is appealing Judge Kessler’s ruling.  The group maintains that it is unconstitutional for the law to require that each person purchase insurance; they perceive it as a move towards adopting socialized medicine.  According to the appeal, the group wants to spare Americans “all of the horrors you have heard coming out of Canada (and) Europe, where it is a bureaucrat who decides — not your doctor — what care you have.”  According to Edward White, an attorney with the ACLJ, “That does not mean that Congress cannot fix the healthcare problem we have in this country.  It’s just the way they’re going about it now by requiring people to act and buy a product and using its Commerce Clause power to an extent that is beyond what Congress has ever done in the 200 some odd years of this country.”

Judge Kessler could not disagree more strongly: “To put it less analytically, and less charitably, those who choose — and Plaintiffs have made such a deliberate choice — not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free healthcare which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep,” she said.  “In short, those who choose not to purchase health insurance will ultimately get a ‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.”

Nearly one year after President Obama signed the healthcare reform bill, more than half of the states have challenged the legislation in the courts. In comments filed in a Florida federal court, representatives of the 26 states that successfully challenged the healthcare reform law asked the judge to halt the healthcare law’s implementation, according to The Hill. The comments are a response to the Obama administration’s request that U.S. District Judge Roger Vinson explain his January 31 ruling that the healthcare reform law is unconstitutional.  Of five federal court rulings on the reform law so far, Judge Vinson’s is the only one that strikes down the entire law.

Additionally, Florida and Alaska have declared the reform law effectively dead unless an appellate court reverses the decision.  Court comments by the 26 states – which were backed by the National Federation of Independent Business — said the Obama administration should have requested a stay, pending appeal, rather than request a clarification.  “If the Government was not prepared to comply with the Court’s judgment, the proper and respectful course would have been to seek an immediate stay, not an untimely and unorthodox motion to clarify,” the plaintiffs wrote.

Judge Rules That Healthcare Law Must Be Implemented as it Heads to the Supreme Court

Tuesday, March 15th, 2011

The same Florida federal judge who declared President Barack Obama’s healthcare reform law unconstitutional ruled that states must continue implementing it as the case goes through the courts. U.S. District Judge Roger Vinson was responding to a request from administration attorneys who sought to ensure that states obey the law until their challenge to it is resolved.  Two other federal judges have upheld the law; one in Virginia has ruled against it.  The law’s ultimate fate is expected to be decided by the Supreme Court. In all, three federal judges have ruled that Congress possesses the authority under the Commerce Clause of the Constitution to enact the Patient Protection and Affordable Care Act (ACA).  The mandate requires that all Americans acquire healthcare coverage.  Two other federal judges have voted that the healthcare reform law is unconstitutional.

“It would be extremely disruptive and cause significant uncertainty” to halt implementation, Vinson wrote.  He added that if the federal government does not appeal within seven days, the states can consider the law invalid.  The Justice Department welcomed the stay and plans to file an appeal within the required time frame.  David Rivkin, a lawyer representing the 26 states challenging the law, said the decision “gets us exactly what we always wanted, which is an expeditious appellate process.”

“The battle lines have been drawn, the relevant case law marshaled and the legal arguments refined,” Vinson wrote.  “It is very important to everyone in this country that this case move forward.”  In some ways, the ruling was a victory for the Obama administration because it ended confusion over whether states should continue working to implement the law. “We appreciate the court’s recognition of the enormous disruption that would have resulted if implementation of the Affordable Care Act was abruptly halted,” Justice Department spokeswoman Tracy Schmaler said in a statement.  “We strongly disagree with the district court’s underlying ruling in this case and continue to believe — as three federal courts have found — that this law is constitutional.”

“It almost seems to be that he’s (Vinson) telling the 11th Circuit what they’re supposed to do,” said Tim Jost, a professor at Washington & Lee University School of Law.  “I’m not sure they’re going to take very kindly to that.”  The case was brought by 26 states and the National Federation of Independent Business NFIB), which hoped for an injunction clearly barring implementation of the reform law.  “The government’s attempts to stymie the judicial process are simply prolonging the uncertainty surrounding the law and do a disservice to the states, small-business owners and individuals who are seeking resolution,” said Karen Harned, executive director of the NFIB Small Business Legal Center.

In her “Right Turn” column in the Washington Post, blogger Jennifer Rubin writes that “When U.S. District Judge Roger Vinson issued his ruling finding ObamaCare unconstitutional, liberals seemed to develop a reading comprehension problem.  He plainly stated that the law is unconstitutional, but defenders of ObamaCare seemed not to grasp that the judge meant the government was supposed to follow that edict.  Can we imagine the howls that would have gone up had the Bush administration acted with such brazen dishonesty and contempt for a court?”

According to Rubin, “In sum, the administration’s feigned lack of understanding of the court’s earlier ruling, a position egged on by the liberal cheerleaders for ObamaCare, has only served to speed up the next level of review of ObamaCare’s constitutionality.  Moreover, for an administration promising to ‘depoliticize’ the administration of justice and to be faithful defenders of the rule of law, this episode shows the chasm between administration rhetoric and behavior.”