Topics: Health Reform, Politics
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The Congressional Budget Office will no longer evaluate the fiscal implications of some parts of the Affordable Care Act, partly because of all the changes made during implementation. KHN's Mary Agnes Carey and The Fiscal Times' Eric Pianin discuss.
MARY AGNES CAREY: Welcome to Health on the Hill, I’m Mary Agnes Cary. One of the Obama administration’s major selling points of the sweeping 2010 health care law was a Congressional Budget Office (CBO) analysis that the measure would expand coverage for millions of people, while reducing the federal deficit over the next decade. But recently the CBO said it could no longer evaluate the fiscal implications of all of the law’s provisions, in part because the administration has made so many changes during implementation. Eric Pianin of The Fiscal Times is with us now to discuss this development. Thanks so much for being here, Eric.
ERIC PIANIN: It’s my pleasure.
MARY AGNES CAREY: As you and I both know from covering the health care law together, the CBO had made this estimate that the law would save something around $120 billion over the next decade. But given this recent announcement what does this mean for the CBO’s ability to analyze these provisions on how much money they’ll save.
ERIC PIANIN: I think you’re right, I think the CBO consistently in recent years has projected that overall it would have a positive impact on the deficit, maybe bring it down by $120 billion over ten years or so. And when Republicans made a big push to try to repeal Obamacare, the CBO warned that it could add $210 billion to the deficit, so that was the flip side. But very interestingly in April, very quietly in a footnote to a very complicated report, the CBO signaled for the first time that while it could point to areas or programs in the Affordable Care Act that would bring down the deficit long term they couldn't make a blanket assertion that the law taken together with all of its component parts would have that impact. They backed away. In a sense, they backed down, from that earlier projection.
MARY AGNES CAREY: Eric, there are some parts of the law the CBO can track and others that they can’t. Can you explain?
ERIC PIANIN: Well, I think that’s right. In terms of the insurance coverage and subsidy program to help poor people obtain insurance, the CBO can track that and has pretty good handle on its long-term budgetary impact. For other programs, like for the example, the employer mandate and a series of other policy initiatives, and segments of the program that have been temporarily put on hold or delayed, it’s much harder for them to track that.
MARY AGNES CAREY: You’ve been a budget reporter for a long time. Have you ever seen the CBO do this before? Come out and basically say, we just can’t score some elements.
ERIC PIANIN: I can’t recall anything quite like this. And I am kind of surprised by the way they did it, so quietly, in terms of a footnote. It wasn't like, a little announcement or a separate box in one of their complicated reports -- say, "Oh, by the way, we can’t do this anymore." It was something that they -- in a sense, slipped in -- my guess feeling that experts who are following this issue very closely, they would immediately pick up on it.
But for the rest of us who don’t follow it in an incremental stage, it was kind of a surprise.
MARY AGNES CAREY: You mentioned politics a minute ago. What are the political ramifications of this?
ERIC PIANIN: I think from the Republican standpoint, this is just one more example of [bait and switch], in which the administration promised one thing and is delivering something else.
This isn’t the administration’s estimates. This is the independent Congressional Budget Office doing this, so I guess if [the White House Office of Management and Budget] made a pronouncement like that, it would be even more controversial. But I sense that this will be just like one more argument by the Republicans that this is a terribly flawed program that needs to be changed or done away with, according to some.
MARY AGNES CAREY: Do you think it will be an issue in the midterms or the presidential [campaign], or that it wouldn’t get that kind of legs?
ERIC PIANIN: It’s not clear. I think that maybe in some races and some venues it might be brought up as another example. And I don’t think we’ve heard the last of it. I’m sure members of Congress are bombarding Doug Elmendorf, the head of the CBO, with letters demanding explanations. My guess is we’re going to be hearing more about this at least on the Hill or in a budget context.
It’s something I’m sure the administration is worried about, because it was a great arguing point for the Affordable Care Act. Maybe this program wasn’t working. Maybe we had a terrible rollout, but in the end, ten years from now, this is going to be a good thing for the budget.
MARY AGNES CAREY: Thanks so much, Eric Pianin of The Fiscal Times.
ERIC PIANIN: My pleasure.
Topics: Medicare, Politics
Lawmakers this week debated a series of changes to Medicare -- including payment shifts in Medicare Advantage plans and a proposed fix to how the program pays doctors. KHN's Mary Agnes Carey and Politico Pro's Jennifer Haberkorn discuss.
MARY AGNES CAREY: Welcome to Health on the Hill, I’m Mary Agnes Carey. Medicare has been a key focus for lawmakers and the Obama administration this week. There are battles over proposed payment changes to Medicare Advantage plans, and members of both parties say they want to permanently repeal a Medicare physician payment formula, but they disagree over how to finance the fix. With me today to discuss these issues is Jennifer Haberkorn of Politico Pro. Thanks for being here.
JENNIFER HABERKORN, POLITICO PRO: Thanks for having me.
MARY AGNES CAREY: First let’s start with what happened at the beginning of the week. The Centers for Medicare & Medicaid Services, also known as CMS, decided to not implement some changes to the Medicare Prescription Drug Program, which is also known as Medicare Part D. What were those changes they decided not to move forward with, and why did they make that decision?
JENNIFER HABERKORN: So, CMS had proposed changing the way that some anti-depressants and other kinds of drugs were paid for in Medicare. It got a ton of opposition from provider groups and patient advocacy organizations who really said that this was going to hurt patients on Medicare. So CMS said, "We’re not going to do that anymore. We’re going to hold off and potentially come back to this decision." They could come back and make some changes -- maybe come back after the election. This got a lot of political opposition, and CMS is under a lot of pressure. Like you said there’s a lot of Medicare changes going on right now and they’re facing a lot of political opposition. To that point, you were at a Medicare Advantage hearing this morning, which I think was the stage of other kinds of opposition too.
MARY AGNES CAREY: Right, we heard a lot of the same arguments we’ve heard around proposed payment changes to the Medicare Advantage program. Again these are these private plans in Medicare. Almost a third of current beneficiaries are now enrolling in them. There are some payment reductions in the Affordable Care Act. There’s also some payment adjustments that CMS wants to move forward with. There’s a lot of heat on both sides on this. You have many Republicans and some Democrats that say if you lower Medicare Advantage payments, it’s going to hurt beneficiaries and reduce choices. Other Democrats come back and say, “Now, wait a minute, since the Affordable Care Act was enacted, which has these particular payment changes, that you’ve seen premiums drop, you’ve seen enrollment increase, that really the sky is not falling.” So I think this narrative that we’re going to hear now and through the elections – the final Medicare Advantage payment rates are supposed to come out on April 7 but who knows when they will actually be released. That’s the deadline but we’ll see – I just think we’re going to hear a lot of this back and forth in the weeks ahead.
Speaking of back and forth, another big Medicare issue I know you have been following is the sustainable growth rate, we call it the SGR. It’s how Medicare pays physicians. Everybody agrees they want to get rid of it, and we even have a bipartisan bill on how to get rid of it and how to change the way Medicare pays for services. But nobody can seem to figure out the “pay-fors.” A House bill is moving tomorrow. How would that finance an SGR repeal?
JENNIFER HABERKORN: The House has decided that they would pay for this by repealing the penalties in the individual mandate under the Affordable Care Act for five years. That would generate savings because you don’t have to buy insurance under the law. Presumably fewer people are going to do that, and the government would have to pay fewer subsidies. Like you said, this issue is one that there’s bipartisan support for what to do and a lot of opposition over how to pay for it.
And that’s really coming to a head now because the next “doc fix” patch, as we call it, is expiring at the end of the month. So, Capitol Hill really needs to act before then. They either have to replace this permanently, which looks very unlikely at this point, or has to come up with another patch to prevent a cut to physicians who treat patients under Medicare.
We’re seeing another bill in the Senate that would take the same replacement strategy and not pay for it at all. So we’re going to see those bills come together. I think we’re going to see both the House and the Senate say, “We dealt with this, now the other chamber has to act.” It looks unlikely they’re going to come together and come up with some kind of bipartisan solution, at least before the end of the month.
MARY AGNES CAREY: Maybe we won’t get the big picture solution by the end of the month, but they do have to do a patch. Could it go through the end of the year? Are we talking about a 9-month patch? Any ideas on how they might pay for that?
JENNIFER HABERKORN: It does look like if they do a patch that it would be nine months. That would kick the next time that they have to deal with this to the lame-duck session after the next election. Those are always relatively unpredictable because you have a Congress that -- we may see the Senate flip and that would throw everything on its side. I think there’s some hope among Republicans that if that happens, that they can pay for this through additional cuts to the Affordable Care Act.
Even if the Republicans controlled the Senate, President Obama surely wouldn’t sign that into law. So there is no clear resolution in sight, but they do need to come up with a patch. Traditionally, Congress has turned to health care providers to do that, and there’s no reason to think that they wouldn’t this time, too.
MARY AGNES CAREY: Alright, thanks so much Jennifer Haberkorn of Politico Pro.
JENNIFER HABERKORN: Thank you.
This article was produced by Kaiser Health News with support from The SCAN Foundation.
Topics: Politics, Health Reform, Medicare, Health Costs
With the Congressional Budget Office projecting a reduced cost for a long-term "doc fix," Congress may seize the opportunity to end the annual adjustments to Medicare reimbursement rates. Mary Agnes Carey and CQ Roll Call's Emily Ethridge discuss.
>> Listen to their conversation here.
MARY AGNES CAREY: Welcome to Health on the Hill. I’m Mary Agnes Carey. Amid the partisan battles over the 2010 health care law known as Obamacare, lawmakers may be close to bipartisan consensus on another health care issue – overhauling how Medicare pays physicians. Three Capitol Hill committees are discussing how to replace the “Sustainable Growth Rate” – known as the SGR. For years, Congress has passed last-minute patches to the formula to prevent Medicare physician payment cuts. And while there isn’t a unified approach or agreement on how to finance a fix, many analysts say Congress appears closer than ever to replacing the SGR. With us to discuss the latest developments is Emily Ethridge, a health care reporter for CQ Roll Call. Hi Emily.
EMILY ETHRIDGE, CQ ROLL CALL: Hi Mary Agnes.
MARY AGNES CAREY: It’s great to have you here.
EMILY ETHRIDGE: Thanks for having me.
MARY AGNES CAREY: Sure. Give us a little bit of background on the Medicare SGR. When was it created, what was its purpose, and why are people talking about repealing it?
EMILY ETHRIDGE: So this was part of the 1997 Balanced Budget Act. If you go all the way back to then, and we really thought this was a formula that would keep the payment rates for Medicare physicians more in line with the overall growth of the economy. For a few years, it worked out pretty well. For the first five years, it seemed OK. It basically puts a limit on how much physician payments can grow.
Around 2002, things started to get bad. It started calling for cuts. Every year since 2002, it has called for more and more cuts. Drastic – now I think it’s about 25 percent cuts to Medicare physicians if we let this formula take place. However, Congress hasn’t let it actually take place in the past 10 years. They keep doing these short-term patches, which is what everyone knows as the “doc fix.” That makes it actually more expensive every time they don’t let the cuts happen, they give physicians instead this tiny little raise and that means that every year the formula calls for deeper and deeper cuts.
MARY AGNES CAREY: So, as we know, before the August break, the House Energy and Commerce Committee passed a bill to repeal and replace the SGR. How would that measure work and how would they pay for it?
EMILY ETHRIDGE: We don’t know how they’ll pay for it and that is the biggest sticking point right now. That is going to be the thing that really makes or breaks whether this bill happens. Because it’s a pretty big price tag. Only repealing the SGR – just taking away the SGR for 10 years – is about $140 billion. That’s doing that without doing anything else you might want to do. Any other kind of payment models, any other Medicare reforms you might want to try to make. So we’re looking at a pretty big price tag on this bill and right now we have no idea how they make up for that cost.
But the Energy and Commerce bill, it would get rid of the SGR which is a huge goal for everybody. Then we would have a little transition period of five years, where they would just set small payment updates for all Medicare physicians. Then after that, physicians would be able to move into these alternative payment models. The idea here is to get away from the “fee-for-service” Medicare that most stakeholders and health care economists really hate.
MARY AGNES CAREY: That’s traditional Medicare.
EMILY ETHRIDGE: That’s traditional Medicare, that’s what we have now, fee-for-service. You perform a service, Medicare pays the doctor. People say it encourages volume of services over really good quality care. So they would try to put in these new models, under the Energy and Commerce bill, to get away from that and start rewarding the quality of care. Or having better outcomes while saving money for Medicare overall.
MARY AGNES CAREY: And also, there are other committees. In the House, we have the Ways and Means Committee working on the issue. In the Senate, it’s the Finance Committee. Do we know enough now to tell how those approaches might be different from each other and from what Energy and Commerce has done?
EMILY ETHRIDGE: Everyone says Energy and Commerce has a pretty good base of a bill and they like it. However, those other committees don’t like it enough to say that we’re just going to take that up, maybe make a few tweaks here and there and send it along on its way, which would be the fastest option. They seem to each have more, bigger changes in mind. Everyone really wants to put their own stamp on this bill. So I feel like we’re going to get similar-looking bills but not the exact same bill from all three committees.
MARY AGNES CAREY: Now as we both know -- you and I have reported on this for years -- the SGR has been with us for a long time. What’s the reason for all this momentum right now, and is this Congress really going to act to make a change?
EMILY ETHRIDGE: As you said this is really the closest we’ve ever gotten to having the SGR go away. The Energy and Commerce Committee marking up a bill and approving it unanimously – 51 to 0 – so it’s bipartisan support to get rid of this – is farther than we’ve ever come in the history of the SGR. The reason that really put the momentum behind this is, yes, Congress has been working on this for a long time, but earlier this year we got a very favorable score from the CBO, that $140 billion I mentioned earlier. That’s the lowest score, the lowest price tag for getting rid of the SGR that we’ve ever seen, really, in the past, I’d say, five years. So everyone said basically it’s a fire sale on the SGR. Let’s go for it and strike while the iron’s hot. Get rid of this before CBO changes its mind.
MARY AGNES CAREY: While it’s only $140 billion in Washington language it still is a $140 billion. So what are the likely ways for financing? What are the options?
EMILY ETHRIDGE: Traditionally, when they do these small patches they take money out of Medicare somewhere else. They find other ways to cut provider payments elsewhere, maybe cut specialty doctors instead of physicians, or hospitals. They look to Medicare to try to move money from one pile to another. That could definitely happen here, although again $140 billion, plus more most likely, is a big ask. Republicans would love to cut that money from the health care law, from the overhaul, I don’t really think Democrats will be on board with that, but maybe if they could get some of it from it from the health care law, that might be part of a bigger compromise that could happen.
There’s also a lot of talk about tax reform -- tax code overhaul – in some of these committees right now, in Ways & Means and Finance. So it’s possible they might find some things in the tax code that produce savings, and they might just tack that on to pay for it instead.
MARY AGNES CAREY: Speaking of the health care law, we know the House Republicans voted several times to defund all or part of that measure. Are we going to see more of those votes this fall?
EMILY ETHRIDGE: I definitely expect to see more votes in the House on repealing or trying to de-fund the health care law. Right now you have a big group of Republicans who want to de-fund the law – stop it all together – and are willing to put some things at risk to get that to happen.
You don’t have House leadership on board with that yet, and we really haven’t reached a critical mass of those Republicans who want to de-fund the law yet. It’s about a third of the House Republican caucus. So it remains to be seen whether we actually will see that vote this month or possibly next month. But it’s something they’re really working on. And I think if they don’t get that de-fund vote, they’ll get some other repeal votes or delay votes just to keep everybody satisfied.
MARY AGNES CAREY: And I think you’re talking here in the sense of de-funding as part of the continuing resolution to fund the government, correct?
EMILY ETHRIDGE: Right. Exactly.
MARY AGNES CAREY: So if that one doesn’t occur, you may see some more of these rifle shots to de-fund pieces of the ACA.
EMILY ETHRIDGE: Especially when we have a debt ceiling fight again in October, this could certainly come up as part of that.
MARY AGNES CAREY: Thanks so much, Emily Ethridge of CQ Roll Call.
EMILY ETHRIDGE: You’re welcome, thank you.
This was produced by Kaiser Health News with support from The SCAN Foundation.
Topics: Politics, Health Reform
KHN's Mary Agnes Carey talks with Politico Pro's Paige Winfield Cunningham about the latest Republican effort to delay or repeal Obamacare provisions, including putting off a mandate on individuals to carry health insurance.
MARY AGNES CAREY: Welcome to Health on the Hill, I'm Mary Agnes Carey. The Obama administration's decision to postpone, by one year, a requirement that companies with 50 or more workers offer health insurance or pay a fine has brought heavy criticism from Republicans on Capitol Hill.
Today, members of the House Ways & Means health subcommittee examined the administration's decision to postpone the health law's employer mandate. With us to discuss the hearing is Page Winfield Cunningham of Politico Pro. Thanks for joining us.
PAIGE WINFIELD CUNNINGHAM: I'm glad to be here.
MARY AGNES CAREY: Paige, you and I have covered a lot of these hearings on the Affordable Care Act, which is also known as the ACA. And today, I heard a lot of what I've heard at some of those other hearings: Democrats defending the law, Republicans attacking it. What was new?
PAIGE WINFIELD CUNNINGHAM: You’re absolutely right. We've heard the same arguments over and over again from Republicans. But what I think was new today was that they do have a new piece of ammunition to throw at the same target. And that is now that the administration is giving employers another year to comply with the law, Republicans are trying to make the case that this is really unfair to individuals and families who are also going to be faced with this mandate. And they're saying, "If you’re going to treat one person, give one party the special treatment, you really should apply it across the board to everyone."
But, they're really trying to use that argument to aim at the same thing, and that is the overall health care law. So you're hearing a lot of the same arguments that the law is not ready; that the administration is saying it will be, but it won’t; other parts of the law have already been repealed; the exchanges aren't all rolling out as the administration thought with some states refusing to run them themselves. So they're trying to feed all of this into that broader argument that the health care law is just fundamentally flawed.
MARY AGNES CAREY: What did Democrats say about this delay in the employer mandate? Do they support it?
PAIGE WINFIELD CUNNINGHAM: Absolutely. They're trying to make the case that the administration is just listening to the business community, which has been very vocal over the last year, saying that they need more time, they need more details about the regulations, that that they’re not going to be ready on Jan. 1.
So Democrats are saying: "Hey, the administration is doing its best job to roll out a really big, complicated law. They’re just listening and being attentive." You also saw ranking member Jim McDermott (D-Wash.) talk a lot about how this is really just one small piece of the law. It’s not really going to affect that many people. There was a small portion of folks that were expected to get employer-sponsored coverage next year. But in the broad scheme of things, this is just one piece of the puzzle.
So they’re saying Republicans are really blowing this up too much.
MARY AGNES CAREY: This isn't the only hearing on this subject. Kevin Brady (R-Texas), who heads the Ways & Means health subcommittee, said they're going to have another hearing next week. They'll have a witness from Treasury there to discuss the delay. We know there are other Hill committees with hearings on the horizon.
How might those be different? What might we learn in addition at those hearings?
PAIGE WINFIELD CUNNINGHAM: I think Republicans are really trying to capitalize on this opportunity before the August recess, so you’re right, they’re rolling out a lot of hearings. We might even see one come out of the Education & the Workforce Committee, which has a little bit of jurisdiction.
I think they’re trying to really drill down and find out why the administration made this decision, what was going on behind the scenes. But mostly they really, I think, want to call the administration out and make them publicly talk about this and really put them on the hot seat and force them to answer questions about this. There had been some suggestions by Republicans that the administration didn’t have the legal authority to do this. So that’s probably going to be part of the discussions, as well.
MARY AGNES CAREY: You mentioned this is now in the political arena, as well. House Speaker John Boehner has promised additional votes on the ACA. Tell us about those.
PAIGE WINFIELD CUNNINGHAM: It is going to be a really busy month. There could be three votes this month before they leave for recess. One would be to also delay the mandate for individuals and families. That could possibly be paired with another bill that would basically do what the administration has already done, which is delay the employer mandate. The Republicans want to force Democrats to vote on that [employer provision], and then hold a vote on individuals and families, to kind of call them out that way. And then a third vote would be on a bill sponsored by Congressman Tom Price. That would be to basically ban IRS from doing anything to implement the law.
So we could see three votes on that coming down the pipeline very soon.
MARY AGNES CAREY: Who does this bring political leverage to in the midterms? The Republicans? The Democrats? Both?
PAIGE WINFIELD CUNNINGHAM: It's a little hard to say at this point. Probably Republicans, because they’ve been trying to make a case all along that this law was not going to be ready in time, and here’s a piece of evidence they can point to. I guess the thing working in favor for the Democrats is: The business community had been very, very vocal about wanting a delay and wanting some changes. This decision is allowing the administration to say: Hey, we’re listening to you, we’re attentive to what the stakeholders are saying.
So we’ll see how it plays out. But Republicans are going to keep this in the forefront as much as they can.
MARY AGNES CAREY: Thank you so much, Paige Winfield Cunningham.
Jackie Judd talks with KHN's Mary Agnes Carey about what's next for the stalled confirmation of Marilyn Tavenner, and who will fill the void in health policy when three senior Senate Democrats retire in 2014.
JACKIE JUDD: Good day, this is Health on the Hill. I'm Jackie Judd. A stalled confirmation and retirements among senior Senate Democrats involved in health care policy top our conversation today with Mary Agnes Carey of Kaiser Health News. Welcome, as always. Well, for a minute there, it looked like Marilyn Tavenner, who has been heading the [Centers for Medicare & Medicaid Services] for sixteen months now, was finally going to get a full Senate vote. And then it didn’t happen because of [Iowa Sen.] Tom Harkin. What does he want?
MARY AGNES CAREY: Tom Harkin, who championed funding for prevention in the health law, is upset that the administration is going into that fund to take money out to implement the health care law. And the reason they’re doing that is the administration has asked for more funding from Congress, but Republicans on Capitol Hill don’t want to grant that request. So as we know the health law's exchanges have to be up and running this fall, the navigators who are supposed to help people understand how to navigate the exchanges need to be up and running, and so the administration has got to go into existing funding, including the prevention fund.
JACKIE JUDD: But Harkin believes that there are other sources of funding.
MARY AGNES CAREY: He does.
JACKIE JUDD: And has he made any headway with the White House?
MARY AGNES CAREY: Not that we know of yet. I’m sure that they're having conversations back and forth, and one thing that intrigues me – to your point – is Tom Harkin is an appropriator. He's on the Senate Appropriations Committee, he runs the subcommittee that oversees HHS, and when Tom Harkin says: I think there are other places they can get the money, I have a feeling that they’ll listen to that.
JACKIE JUDD: Let's presume that Marilyn Tavenner eventually will be confirmed by the full Senate. What is the practical impact of her being the head of the agency as opposed to the acting?
MARY AGNES CAREY: I think when you are confirmed as the administrator of an agency, it gives you a little more gravitas to express your vision of where you think it needs to go and to get that vision implemented. Now, to be sure, the agency hasn't had a confirmed administrator since 2006, and they have been working very hard – employees there – to implement Medicare and Medicaid and so on. But I think that it’s that extra oomph – to use that word – if you are confirmed as administrator.
JACKIE JUDD: Mary Agnes, Tom Harkin is one of three [Senate] Democrats who has announced their retirement. One of three involved in health care issues – Jay Rockefeller, West Virginia is another; Max Baucus, of course, who is currently chair of the Finance Committee. It’s going to be a real policy drain. Again, an impact question. What is the impact when three people like that – three lawmakers very committed in their own ways to health care policy – what impact may it have?
MARY AGNES CAREY: I think looking ahead, before the 2014 elections all of these senators had made it very clear that they’re going to use their power to implement the health law as they see fit. We've just talked about Tom Harkin. We can’t forget about Max Baucus, head of the Senate Finance Committee, who just a week or so ago grilled Secretary Kathleen Sebelius, who heads HHS, saying that he saw a "train wreck" coming on implementation of the health law.
And Jay Rockefeller is another health care champion on Medicare, Medicaid and the ACA, so I think leading up to the election, while people know they're not going to be around after 2014, they also know they’ll be wielding the power they have before that point.
JACKIE JUDD: But will they suffer from being lame ducks?
MARY AGNES CAREY: To some extent, one can make that argument.
For example, Max Baucus has been in negotiations with Dave Camp of the House Ways & Means Committee about a possible overhaul of the tax code. And there are thoughts that that may weaken Sen. Baucus' ability to negotiate that -- or if they chose to look at the entitlement structure.
But, again, 2014 is a bit away, that election, and I do think the lame duck thing does figure in, but they will work as hard as they can this year to try to avoid that.
JACKIE JUDD: Presuming that Democrats maintain control of the Senate after the 2014 elections, who is waiting in the wings? Who will be the new Tom Harkin? New Rockefeller? The New Baucus?
MARY AGNES CAREY: There are many, many Democrats who are very strong on health care. But here are some people that I have watched that I think are very interesting to follow:
When you talk about health care and Democrats, you've got to talk about Ron Wyden of Oregon. He is behind Sen. Baucus, behind Sen. Rockefeller, the next ranking Democrat to take over Finance. He may or may not be the Finance chairman, but he's got a long tenure on that committee. He started his career with the Gray Panthers. He knows a lot about Medicare and Medicaid. He has reached across the aisle. He sponsored something called the Healthy Americans Act with Bob Bennett, the former Republican senator of Utah, that would de-link insurance from employment.
He worked with Paul Ryan, the House Budget chairman, Republican in the House, on an early version of premium support – not the one that's currently in the House budget, but an earlier version of that. So he's one to keep your eye on.
I think Ben Cardin, who is on the Finance Committee, a former House Ways & Means Committee member, is very interesting. He asks a lot of very interesting questions on Medicare and Medicaid. And Sherrod Brown is another Democrat, formerly in the House. He's a former member of the Health, Education, Labor & Pensions Committee in the Senate. He's now on Finance. And for 18 years, Sherrod Brown would not take the health insurance that's offered to members of Congress and their staffs, because he felt it was not fair for him to have that advantage over his constituents. But since the passage of the ACA, he has enrolled in that insurance. But I think he'll be one to watch on health care, as well.
JACKIE JUDD: Thanks so much, as always, Mary Agnes Carey of Kaiser Health News.
Topics: Health Reform, Politics, Medicare, Medicaid
>> Listen to the interview.
JACKIE JUDD: Good day. This is Health on the Hill. I'm Jackie Judd. As the "fiscal cliff" looms, there has been a lot of political posturing, but not so much actual negotiation. Still it has become clear that if there is a deal before year's end, Medicare will almost certainly be in the mix. Senior correspondent for Kaiser Health News Mary Agnes Carey is here as always to analyze what may be on the table for discussion. Welcome back, Mary Agnes.
MARY AGNES CAREY: Thank you.
JACKIE JUDD: The first item is raising the age limit. It's something that President Obama signaled last year he might be willing to consider. What are the contours of this? What might be saved?
MARY AGNES CAREY: The thought is that seniors are living longer and they're healthier so raising the Medicare eligibility age over time from 65 to 67 is a viable alternative, and one that lawmakers should look at. But others suggest that it's a little more complicated than it looks.
JACKIE JUDD: It always is.
MARY AGNES CAREY: It always is. It’s health care. The idea that basically while the federal government would save money, those costs would simply be shifted on to employers. People would stay on their employer-based health insurance longer. And also on to seniors. If you don't have health insurance and you have to wait two years longer -- even if you get a subsidy to purchase health insurance on the exchanges created in the health law -- this is going to shift costs from the government on to seniors.
JACKIE JUDD: But what would the government save? What are the estimates?
MARY AGNES CAREY: The Congressional Budget Office has estimated about $148 billion in savings over a decade, so that's why this is so attractive. And as we know the eligibility age for Social Security is being raised gradually from 65 to 67, so there are a lot of folks who think we can do it with Medicare as well.
JACKIE JUDD: I know that there are not a lot of details attached to either the Republican or Democratic proposals, but if they do discuss raising the eligibility age, I'm presuming it would not affect people at or near retirement age. Is that the thinking?
MARY AGNES CAREY: I think that you're correct. They would not want to, for example in Paul Ryan's plan to raise the Medicare eligibility age, it would not affect anybody 55 or higher. The thought is people at or near retirement should not be impacted. You would go for younger beneficiaries who would stretch it out over a period of time to make it more politically palatable.
JACKIE JUDD: Another option potentially on the table is linking premiums to income. To a degree, that’s already being done. How might that be ramped up?
MARY AGNES CAREY: Well, as you noted, and under current law, if you are a senior and your income is $85,000 as an individual or $170,000 as a couple, you’d pay more for your Medicare Part B coverage. Medicare Part B, as we know, covers physicians and outpatient services, that sort of thing. So, what proponents of this idea are looking at [are] those thresholds which won’t be indexed for inflation through 2019 as part of the health care law. And so, more seniors will go into that over time. Do you continue to hold those thresholds without an income adjustment so more seniors fall into that category? Do you look to this category and say, “Perhaps those beneficiaries could pay more for their copays and deductibles?” But on the other side of this there’s a concern that if you make wealthier beneficiaries pay more for the Medicare Part B -- they also tend to be healthier -- they might look outside the Medicare system for other coverage and not stay in Medicare. That could dramatically change the risk pools.
JACKIE JUDD: Then you end up with a sicker population.
MARY AGNES CAREY: That is the concern.
JACKIE JUDD: A less healthy population. Let’s move on now to some other options that affect other sectors: the pharmaceutical companies having to do with drug rebates. That’s a complicated one, explain it to us.
MARY AGNES CAREY: I’ll do my best. Under the Medicaid program, pharmaceutical manufacturers have paid rebates for drugs dispensed to Medicaid beneficiaries. As part of the creation of the Medicare prescription drug benefit, beneficiaries who are dually eligible – they qualify for Medicare and Medicaid – shifted to Medicare for their prescription drug coverage. So the Medicaid drug rebates for the dual eligibles, which now are about 9 million people, went away. So some members of Congress -- Henry Waxman, a Democrat of California, for example – and the president has advanced this – say that that shift, if you will, of duals into Medicare for drug coverage created a windfall, in their words, for the drug companies. And those rebates should be recaptured, and that would help lower Medicare costs.
JACKIE JUDD: What kind of savings are we talking about there?
MARY AGNES CAREY: It’s fairly significant. It is about $122 to $135 billion, according to the Congressional Budget Office.
JACKIE JUDD: Over a decade?
MARY AGNES CAREY: Over a decade.
JACKIE JUDD: Also a possible change is payments to providers. This is separate and apart from the so-called "doc fix." What providers are we talking about, and why do some lawmakers on the Hill view this as less politically risky than some of the other options that we’ve been talking about?
MARY AGNES CAREY: Many Democrats, for example, talk about [how] they don’t want beneficiaries to pay beneficiaries any more for their Medicare coverage. So the thought is that you go to the providers. You go to the hospitals. You go to the nursing homes. You go to the home health agencies. And you cite various research and reports, including those from the Medicare Payment Advisory Commission that suggest that some of these sectors may be overpaid.
Now, as we know, in the health care law, many of these sectors agreed to some provider cuts. And unless these automatic spending cuts in January are stopped, Medicare providers face another 2 percent in cuts. So expect pushback from these sectors to say: “Wait a minute. We agreed to cuts in the health care law. We’re facing sequestration. Any more Medicare cuts you make you make to us make it more difficult for us to serve Medicare beneficiaries.”
JACKIE JUDD: Would these be actual cuts or a slowdown in the expected growth rate?
MARY AGNES CAREY: They probably would be a slowdown in the expected growth rate, but it would all depend on what kind of savings Congress needed and how they crafted those reductions.
JACKIE JUDD: OK. Complicated stuff. Thank you very much, Mary Agnes Carey of Kaiser Health News.
MARY AGNES CAREY: Thank you.
Topics: Medicare, Medicaid, Health Costs, Politics
Jackie Judd talks to KHN's Mary Agnes Carey about the budget negotiation scenarios for Medicare, where the "doc fix" fits into the budget picture, and whether Medicaid cuts are possible.
>>Listen to the audio or read a transcript below:
JACKIE JUDD: Good day, this is Health on the Hill. I’m Jackie Judd. A year ago this month, negotiations on Capitol Hill to reduce the federal deficit collapsed. A year later, have the political dynamics shifted enough so that there is an opportunity for a deal? And if so, how might that affect Medicare and Medicaid? Here to sort through that question is Mary Agnes Carey, senior correspondent for Kaiser Health News.
Mary Agnes, you’ve spent a lot of time this week listening to what people were saying on Capitol Hill. Are you hearing anything different? Is the tone different? Could there be a deal?
MARY AGNES CAREY: Everyone seems to be talking about a “balanced approach.” We hear this from the president. We hear it from Democrats. We hear it from Republicans. The president and Democrats are saying to Republicans, “If you move on taxes, if you ask some high-income individuals to pay more on taxes, we’ll move on entitlements, on Medicare and Medicaid.” People seem very, very open to this idea of avoiding the fiscal cliff, of avoiding these automatic spending cuts that are set to kick in in January. But the thing we have to remember from watching Capitol Hill for a long time is that this is where folks always are at the beginning of a negotiation.
JACKIE JUDD: And when it comes to Medicare, is the struggle over, as it always seems to be, how to balance the pain between the patient and the provider?
MARY AGNES CAREY: Right. That is definitely the balance that’s in the works. If you ask beneficiaries to contribute more, what do you ask the providers to do? For example, some ideas that are out there, they’ve been around for a while: Do you look at the fee-for-service Medicare structure on co-payments and deductibles? Combine those into one deductible, for example, but add a catastrophic cap, which doesn’t exist in fee-for-service Medicare. On providers: As we know, their payments will continue to increase over the next ten years, but under the health care law they’re going to do so at a slower rate. So do you go back to providers, to hospitals, to the nursing homes, to home health care agencies, and take more from them? And how do you balance that pain to get an equal result?
JACKIE JUDD: At this point last year, the president was suggesting that he could go along possibly with raising the eligibility age. Is that something that his liberal base is suggesting this year can be in play?
MARY AGNES CAREY: Chris Van Hollen, who is in the House Democratic leadership, suggested, in fact, this week that it should be in play. But there are others -- Chuck Schumer comes to mind, a Democratic senator from New York. He had a forum at the Press Club about a month ago, and he suggested that the eligibility age would not be raised and that it was extremely unpopular. But again, it’s one of those items – same thing happened in Social Security. If you gradually raise it over a period of time, the thought is it doesn’t happen right away, it doesn’t affect beneficiaries right away, but over time you can save a lot of money.
JACKIE JUDD: The “doc fix.” That, separate and apart from the fiscal cliff negotiations, comes up at about the end of the year. Does it get folded into these discussions?
MARY AGNES CAREY: That’s what I think. Because the political will, the momentum that it will take to get this big package would mean you stick in everything you can. And that’s an additional pressure point, because if Congress doesn’t step in, physicians who accept Medicare reimbursement are going to be cut 27 percent in January. Congress routinely steps in to fix it – I think it will be folded into the bigger deal, if there is one.
JACKIE JUDD: And Medicaid: Less in the crosshairs, it seems this time. But what’s possible there?
MARY AGNES CAREY: There are a lot of ideas out there. For example, instead of the federal government picking up a fixed percentage of a state cost, you would have something called a Medicaid per-capita cap. Some people love this. Some people hate it. Nonetheless, it’s on the table.
Congress could also step in and change a state’s ability to assess provider taxes in Medicaid which affect their federal share of money. And another idea that has been out there is something called the blended rate. Instead of the federal government reimbursing states at one rate for Medicaid or the Children’s Health Insurance Program, you blend those.
But, again, the concern here from people who represent Medicaid beneficiaries is: Will this simply mean less money and cuts in services for those beneficiaries?
JACKIE JUDD: Congress, lawmakers go home soon for Thanksgiving. Then they come back. If they want to get back home before Christmas, it only gives them 3-4 weeks to make all of this happen.
Have you heard any suggestion yet that this could be pushed over to January, with the argument that the new Congress should deal with these big issues?
MARY AGNES CAREY: That argument is certainly out there, but also if you allow that to happen, if you allow the Bush-era tax cuts to expire, if you don’t patch the alternative minimum tax in the tax code, if you allow the doc fix to not be fixed and those cuts to happen, that’s a lot of mess for the next Congress to clean up.
And while we’ll have some new members in January and some members who are staying, it’s still divided government. Democrats still control the White House and the Senate. Republicans still control the House. So there’s some thought that if you can’t get the big deal, you at least get a down payment with the details filled in later.
JACKIE JUDD: OK. Thank you, Mary Agnes Carey of Kaiser Health News.
MARY AGNES CAREY: Thank you, Jackie.
Topics: Health Reform, Politics, Medicare
KHN’s Mary Agnes Carey and Marilyn Werber Serafini discuss how Medicare reforms could figure into November’s presidential election now that presumptive GOP presidential candidate Mitt Romney has chosen Rep. Paul Ryan, R-Wis., to be his running mate.
> > Listen to the audio.
Here's a transcript:
MARY AGNES CAREY: Good day, this is Health on the Hill. I’m Mary Agnes Carey. Presumed GOP presidential nominee Mitt Romney’s choice of Wis. Republican Paul Ryan to be his running mate has put new energy into Gov. Romney’s quest for the White House. The announcement has also given President Obama and Democrats fresh ammunition to attack Romney and Ryan on the issue of entitlements. The Republican-controlled House has twice approved a plan that would make major changes to both Medicare and Medicaid. With us to discuss Ryan’s proposal and what it means for the presidential race is Marilyn Werber Serafini of Kaiser Health News. Marilyn, thanks for coming.
MARILYN WERBER SERAFINI: My pleasure.
MARY AGNES CAREY: Let’s talk a little bit about Paul Ryan. As we know, he heads the House Budget Committee. He has a budget plan they’ve passed twice with major changes for Medicare. Tell us about those.
MARILYN WERBER SERAFINI: Paul Ryan has been talking about Medicare, and he has had a plan on the table to fundamentally restructure Medicare for a number of years. Now, the House has passed his plans as part of their budget resolutions for the past two years, but he had a couple year head start on that. He started out with a true voucher program: Give people a set amount of money; let them buy private plans in the private marketplace. That has evolved over the years. The current plan that he is talking about – the most recent plan that the House passed this year as a part of its budget resolution, which went no further, but it passed the House – would have specified a certain about of money that would go to individuals to purchase insurance. Now that insurance could be a private plan – it could be the traditional government-run Medicare plan.
MARY AGNES CAREY: This is fee-for-service.
MARILYN WERBER SERAFINI: Fee-for-service. So, all of these plans, including the government-run plan, would bid. The second lowest bid would be the amount that the government would cover. So if a person chose a plan that cost more, they would have to pay the difference. If there was a plan that cost less, then the person could actually, potentially get a rebate. Now, the amount that he would cap federal spending at would be the growth of gross domestic product plus half of a percentage point. It’s important to point out that’s different from today, because Medicare currently pays whatever it takes to cover a set amount of benefits for each individual beneficiary.
MARY AGNES CAREY: So there's currently no cap on growth in spending?
MARILYN WERBER SERAFINI: That’s correct.
MARY AGNES CAREY: Now Gov. Romney has also advanced a Medicare plan. How is that similar or different from what Paul Ryan wants to do?
MARILYN WERBER SERAFINI: It’s really the same thing. Right before Ryan came out with his latest plan, Romney came out with essentially the same plan.
MARY AGNES CAREY: And how do the ideas from Mitt Romney and Paul Ryan, how are they similar or different from what President Obama and Democrats have proposed on Medicare?
MARILYN WERBER SERAFINI: Well, they actually have a surprising number of similarities, although the differences are much bigger than the similarities. So let’s start with the similarities. They both set a cap on federal spending at the growth of gross domestic product plus a half of a percentage point. In fact, President Obama laid down that marker first. He did it as part of budget deficit reduction negotiations this past year. As soon as he did that, Paul Ryan said: Well, if he can do it, I’m going to go down to that mark too. Because previously, Paul Ryan had been at gross domestic product plus 1 percent. But here’s the difference, at least on that front: The big difference is that Paul Ryan, if under his plan Medicare spending exceeded that level, it would automatically be brought down to the growth of gross domestic product plus half of a percentage point.
Under the Affordable Care Act, that is the same target. However, there is a specified formula for decreasing spending if that target is exceeded. And that formula might or might not take spending down to that level. So it is not as strict.
And that's really one of the major differences. Similarities? Again, both of them say they would preserve traditional Medicare for people who were currently in the program. Everybody age 55 and above, Ryan says, would still be allowed to get Medicare exactly as they have it today.
The biggest difference is the benefits. Would you have Ryan saying -- if you want the benefits that you have today, would you be able to still get them without paying more money? And there’s really a question about that, because [Ryan] says that you would, because his basic plan would have the same benefits guaranteed as traditional Medicare. But critics say you might have to pay more for the same kinds of benefits.
MARY AGNES CAREY: But, if I understand it correctly, neither President Obama nor Democrats are suggesting a premium support or voucher plan at this point, right?
MARILYN WERBER SERAFINI: That's correct.
MARY AGNES CAREY: Let’s talk a bit about Ron Wyden. He's a Senator from Oregon, a Democrat, who has worked with Paul Ryan to put out a framework for Medicare overhaul. How will that play into the presidential race?
MARILYN WERBER SERAFINI: Well, it depends which party you're talking about. If you're the Republicans, you're going to say: Look, we have this bipartisan plan.
OK. Is it really bipartisan? Yes. Sen. Wyden did come together on a plan with Paul Ryan. He is the only Democrat who came together with him, so I'm not sure that makes it a major bipartisan plan. Plus, it's really important to note that Sen. Wyden and Paul Ryan came together on a plan, then Paul Ryan came with a new plan, a new revised plan, which Sen. Wyden did not endorse. It is stricter. It brings the level of spending down further than two had agreed to initially.
MARY AGNES CAREY: Thanks so much, Marilyn Werber Serafini, Kaiser Health News.
MARILYN WERBER SERAFINI: Thank you.
Topics: Health Costs, Health Reform, Politics
Jackie Judd and KHN’s Mary Agnes Carey discuss the continuing dispute over the health law provision mandating free-to-consumers contraception coverage, as the focus broadens from Congress to the courts as well.
JACKIE JUDD: Good day, this is Health on the Hill. I’m Jackie Judd. Over the next few years, various aspects of the health overhaul law will go into effect—some big and some small. Recently, there was a significant expansion of women’s health services, including coverage of contraception. That has triggered a new round of controversy involving Capitol Hill and the Catholic Church. Here to fill us in is Mary Agnes Carey of Kaiser Health News. Welcome, as always.
Let’s go back to the beginning and remind us what these services include and who for the moment is exempted.
MARY AGNES CAREY: This is a package of women’s health preventive services that went into effect Aug. 1. It applies to plans that are new after that date; it does not apply to grandfathered plans. But you’re talking about contraceptive services that have been approved by the Food and Drug Administration. The controversy here is that for the Catholic Church and for some other faiths, they are arguing that requiring them to cover these is a violation of their religious liberty. There was an exemption for organizations that serve members primarily of their own faith: a church or a synagogue, for example. They don’t have to abide by this coverage requirement. But religiously affiliated organizations, a hospital or a university, would have to abide. They’ve been given a one year exemption from complying, but the fact that they have to comply remains controversial.
JACKIE JUDD: Soon after it was enacted Aug. 1, the Catholic bishops of the U.S. wrote yet another letter to the U.S. Congress asking them to address this “urgent and fundamental issue.” Congress has taken a couple stabs at rolling this requirement back; none successful so far. What was in this letter and what prompted it once again?
MARY AGNES CAREY: The bishops noted, as you just explained, earlier this year in the Senate, there was a move to expand the exemption to any religious organization -- or even a health insurer that found this morally objectionable. That did not succeed in the Senate. In the House there’s an appropriations bill pending that would accomplish the same goals. That’s not expected to become law.
And so the thought is that the bishops have said to Congress: "We know that you’ve tried in other avenues, but -- to every member of Congress -- you’ve got to work on this and resolve it and expand this exemption before you adjourn for the year."
JACKIE JUDD: What is the likelihood that that will happen? As always on Health On The Hill, we note: We’re in the middle of a political year, which changes so much.
MARY AGNES CAREY: John Boehner, who is the speaker of the House, who had said previously on the floor of the House that the House would take action to repeal this. He said at a news conference last week, before the House adjourned for the August break, that he and others that oppose this requirement continue to work with groups that also oppose it, but it wasn’t going to telegraph their strategy.
As we know, when this was debated earlier in the year, Democrats attacked Republicans, saying this was a "war on women." And that strategy seems to have worked for Democrats. I doubt very much that Republicans would want to vote on this again before the election.
JACKIE JUDD: There are couple of dozen lawsuits that have been filed contesting this requirement. What is the likelihood that the courts would act and act quickly?
MARY AGNES CAREY: Well, it's interesting. In Denver, about a week ago, a judge gave a reprieve to a Catholic business owner who said: "I don't want to comply with this requirement. This is morally objectionable. It violates my religious freedom." And so he did get a reprieve.
Now whether or not that will play out in other courts is unclear. But it seems at least through the election, perhaps through the end of the year, the courts may be the place where we see more action on this than Congress.
JACKIE JUDD: What's so interesting, if you step back from this specific issue, is the Supreme Court ruled that the Affordable Care Act is constitutional, and yet that hasn't stopped these kinds of issues still coming to the fore.
MARY AGNES CAREY: Absolutely, and you may see more of this as the health law is implemented.
JACKIE JUDD: OK. Thank so much, Mary Agnes Carey of Kaiser Health News.
MARY AGNES CAREY: Thank you.
Mary Agnes Carey and Marilyn Werber Serafini join Jackie Judd to talk about the permutations of the impending Supreme Court decision on the constitutionality of the health care law. Carey says much is at stake for all people who touch the health care system while Werber Serafini outlines some of the Republican alternatives to the law.
JACKIE JUDD: Good Day. This is Health On The Hill. I’m Jackie Judd.
It’s a time of high anxiety here in Washington with the Supreme Court close to issuing its landmark decision on the constitutionality of the health law. How is each party positioning itself in anticipation of that ruling? Here to answer that, two veteran policy reporters, Mary Agnes Carey and Marilyn Werber Serafini of Kaiser Health News. Welcome to you both.
MARY AGNES CAREY: Thanks.
MARILYN WERBER SERAFINI: Thank you.
JACKIE JUDD: You've covered the town for a long time. Give us a sense of this moment.
MARY AGNES CAREY: You mentioned high anxiety. I’d throw in nervous anticipation. So much is riding on this decision for so many people. And for so many industries. In the health care industry, for example, you've got the pharmaceutical manufacturers, the hospitals, the physicians to name a few. For consumers, there are 32 million people who could get coverage either through the exchanges created in the health law, or through the Medicaid expansion. And there’s wide political ramifications for both Democrats and Republicans. So this is why this is so heavily anticipated.
JACKIE JUDD: A lot of ramifications heading into the November elections.
MARY AGNES CAREY: Absolutely.
JACKIE JUDD: You've been covering the Republicans. Is there a position behind which they have coalesced if the law is upheld, and the second scenario, if some or all of it is struck down?
MARILYN WERBER SERAFINI: Right. Look, if the law is upheld you can expect the House immediately -- which is, the House controlled by Republicans -- to come up with a vote to repeal the law. They've done this before. It would likely pass but it wouldn't go any further than that with a Democratic in the White House and a Democratic-controlled Senate. On the other hand, if the Supreme Court strikes down the law or even individual mandate, Republicans will certainly be rubbing it in from here until November. All eyes are on the November election and the Republicans will want to say "I told you so" all the way from here to then. Look, the message that's worked very well for them up until now has been "Repeal Obamacare." It’s gone over well with their conservative base. It's gone over well with some swing voters and they will certainly keep at it. There's no chance that they’re going to come back with a massive replacement bill.
JACKIE JUDD: The approach would be more piecemeal. Post-November, what's on their laundry list?
MARILYN WERBER SERAFINI: There are a number of items. Mitt Romney mentioned one of them last week. He said he would want to give people the opportunity to buy insurance with some kind of subsidy. This is different than the current law which is requiring most people to buy insurance. But the Republicans who have moved more toward encouraging people to buy insurance and reducing the cost. So, other items that have been in the Republican playbook for many years: allow people to buy insurance across state lines, allow small businesses to pool together to purchase insurance, possibly at a lower cost because they’re grouping together, fix the malpractice system, and maybe block-grant Medicaid to the states. So these are all items that are out there and they've been there a long time. We can expect it to be a smaller scale approach.
JACKIE JUDD: Moving on to the Democrats, the administration has steadfastly said "we're confident this law is going to be upheld," but interestingly of late, administration allies are beginning -- in public -- to talk about the what-ifs.
MARY AGNES CAREY: There is concern that the Supreme Court could move to strike out the individual mandate and this is the requirement as Marilyn was talking about. It’s in the law that most individuals by 2014 have to purchase coverage or pay a fine. If that were to go away, what advocates of the law are saying is, the mandate is not the heart of the bill -- the rest of the health law is not dead. The subsidies would remain, the exchanges would remain, the Medicaid expansion, all these provisions that are in place that people seem to like, keeping an adult child up to the age of 26 on your health insurance policy, or no lifetime limits on coverage -- all those things are still there. That is the message their getting ready for in case the mandate is struck.
JACKIE JUDD: One of the great guessing games in Washington at the moment is "Is there a Plan B tucked away in someone's office at the White House or at HHS? Do you have any sense of there has to be a contingency plan, that just makes sense -- any more information?
MARY AGNES CAREY: I’d love to get that document -- if anyone listening to this or watching, please I’m waiting for your call at Kaiser Health News. While I don't have the paper on that yet, I think it’s fair to say that they must be looking -- the administration officials must be looking -- at alternative measures. For example, if the mandate were taken out of the law, you could put a late enrollment penalty into the health law. In the sense, if you wait to a certain point to get insurance, it’s going to cost you more. That could be a disincentive for people to wait. They’ve got to come up with other scenarios. But I think their absolutely looking at all options and they've got to have some things in place, ready to go, if the decision is not to their liking.
JACKIE JUDD: OK, thank you, we should know more in the coming days. Thank you both.
Topics: Politics, Health Reform, Supreme Court
KHN's Mary Agnes Carey talks with Jackie Judd about two measures from the health law that the House GOP will attempt to roll back in votes this week. Republicans want votes on repeal now, Carey says, to make an economic argument ahead of elections.
> > Listen to the audio of the interview.
JACKIE JUDD: Good day, this is Health On The Hill. I’m Jackie Judd.
The Republican-led House is expected to vote later this week on two measures in the health law that the GOP wants to repeal. What are they and why now? Here to answer those questions, as always, is Mary Agnes Carey of Kaiser Health News. Welcome back, Mary Agnes.
JACKIE JUDD: One measure has to do with medical devices; the other: over-the-counter medications. Give us the details.
MARY AGNES CAREY: The first one would repeal a 2.3 percent tax that’s supposed to be placed on medical devices, starting next Jan. 1. Here we’re talking about things like artificial hips, artificial knees, stents, medical imaging equipment. They would not be taxing things at the retail level. They would not be taxing hearing aids or eyeglasses, that sort of thing.
The second would lift a requirement in the health law that says if you want to use pre-tax dollars to purchase over-the-counter medications, you’ve got to have a prescription from your doctor to get that tax break. So the prescription requirement would be lifted.
JACKIE JUDD: Together these measures would generate an estimated $34 billion over ten years. This has to be what they call on Capitol Hill “revenue neutral.” So where would the Republicans come up with that amount?
MARY AGNES CAREY: Their “pay-for,” another Capitol Hill term, is going to be something that Democrats are really going to dislike. Here’s what it is: Currently in the health law, in 2014 you can qualify for a subsidy to purchase coverage on the exchanges, which are also created in the health law in 2014.
What this provision would do is say, if you receive a subsidy amount in excess of what you should have received – let’s say you got a promotion, you got a new job, you got a bonus, you received more income – you’ve got to pay back that additional subsidy in its entirety. Current law basically has that payback on a sliding scale. The more you make, the more you’d be required to pay back if you received too much money. But this would say, if you received too much, you’ve got to pay the entire amount back.
JACKIE JUDD: Party-line votes expected on all of this?
MARY AGNES CAREY: Pretty much. You may get some Democrats in states where medical device manufacturers are very strong voting for this. The medical device industry has been very successful in a campaign to say that this tax is going to kill jobs. Not everybody agrees with that.
But in states like Massachusetts, Minnesota, Indiana and California you may have a lot of Democrats -- actually they’re on record, several, of saying they want to lift it. But when they see that pay-for, that new subsidy recapture, that’s going to give them pause. That’s going to say: that’s going after the health law, and we don’t agree with that.
JACKIE JUDD: And consumers.
MARY AGNES CAREY: Exactly.
JACKIE JUDD: Very consumer-oriented. The Supreme Court is expected to rule later this month on the entirety of the federal law. So why are Republicans trying to pick apart pieces of the law now?
MARY AGNES CAREY: It’s no secret they dislike the law. They’ve tried to repeal the whole thing. They’ve gone after the individual mandate. They’ve gone after the prevention fund. This is yet another in a series of steps. And as you mentioned, with the Supreme Court case in the forefront of many people’s minds, this is a topical time to go after this. But also, Republicans are making the case: This is an economic argument.
As we mentioned, the device industry has said this will kill jobs. Not every analysis agrees with that. But Republicans are saying: We’re about jobs. We want to improve the economy. And that’s why we want to repeal this tax.
JACKIE JUDD: In the context, of course, of an election year.
MARY AGNES CAREY: Absolutely.
JACKIE JUDD: All of this dead on arrival in the Democrat-controlled Senate?
MARY AGNES CAREY: That is the expectation, of course. It’s Congress, and anything can happen. But as things stand now, it looks like it may not even come for a vote.
JACKIE JUDD: Thanks so much Mary Agnes Carey of Kaiser Health News.
MARY AGNES CAREY: Thank you, Jackie.
KHN’s Mary Agnes Carey and Jackie Judd discuss the congressional wrangling over the federal budget and what’s ahead for the automatic cuts scheduled for January.
> > Listen to audio of the interview.
Here's a transcript of the conversation:
JACKIE JUDD: Good day, This is Health On The Hill. I’m Jackie Judd. The House is expected to vote tomorrow on a series of spending cuts that — in the words of one journalist — contain some “tough love priorities.”
The package is almost certain to pass in the House and almost equally certain to die in the Senate. Here to discuss what cuts are being proposed in health care programs is Mary Agnes Carey of Kaiser Health News. Welcome back, Mary Agnes.
What are the cuts? What programs would be most impacted?
MARY AGNES CAREY: There are a lot of cuts we’ve heard about all year long. Many of them involve funding for the health care law, the health care law’s prevention fund, grants programs to the states to allow them to set up health insurance exchanges in 2014. There would also be cuts to [subsidies for] individuals to help them purchase coverage on those exchanges: cuts to the Medicaid program, cuts to the Children’s Health Insurance Program, cuts to hospitals that take care of a lot of poor and uninsured individuals.
And also, there’s a provision in there Republicans favor to put a cap on punitive and noneconomic damages in medical malpractice lawsuits.
JACKIE JUDD: This is a real guns-and-butter question. One reason the Republicans are proposing this is to avoid some mandated cuts down the road in the military.
MARY AGNES CAREY: Right, there’s a series of automatic cuts that kick in on Jan. 1. Republicans do not want these cuts to impact defense, and so they’ve gone after domestic spending to shield the defense cuts from happening.
JACKIE JUDD: What are the ideological arguments that you’re hearing on the Hill that separate the two sides so widely?
MARY AGNES CAREY: You’re going to hear the word “priorities” a lot. Republicans say enough is enough in federal spending and that the government has simply overspent. And that no taxpayer should have to pay more money to correct Washington’s mistakes. And that these proposed cuts make good sense.
Democrats say that if Republicans would simply be open to raising taxes on some industries and wealthier individuals, they could shield not only defense, but individuals from these cuts that are coming up in January.
JACKIE JUDD: And Republicans are also arguing, are they not, that the cuts in the health care programs would not be as draconian as the Democrats are portraying it, because some federal purse strings would be loosened. It would allow states, the Republicans say, to act in a more efficient manner.
MARY AGNES CAREY: For example, in Medicaid, there’s a “maintenance of effort” provision that states have to maintain those Medicaid programs as they were before the health law passed. And to your point, Republicans are saying if you lifted that constraint from states, they could do it in a more economical way. They could take care of that same vulnerable population.
Of course, Democrats say that is not the case. They fear deep cuts to those individuals if this maintenance of effort provision were lifted.
JACKIE JUDD: Given the extremely dim prospects for this in the Senate, should we view this as more of a political document than a fiscal document?
MARY AGNES CAREY: I think it is. It’s political as much as policy. It’s out there because both sides want to appeal to voters, especially those independent voters who are yet undecided, to try to get their votes, and they’re using this to try to craft the differences between the two parties.
JACKIE JUDD: And a final question: As you mentioned earlier, the military cuts are due to kick in in January of next year. Unlikely this Congress will have a meeting of the minds before then. So in the lame duck session later this year, is it likely that they will – one of Washington’s favorite phrases of the moment – ‘kick the can down the road’?
MARY AGNES CAREY: I think it is. The bipartisanship, if you will, on this issue is that both Democrats and Republicans really dislike the idea of the automatic cuts. The problem is they disagree wildly over how to stop them.
But I think in that lame duck session, they’re going to come together and find a way to stop these cuts. For how long, to what extent, we don’t know. But I think, to use your phrase, they will ‘kick the can down the road’ once again.
JACKIE JUDD: Thank you, Mary Agnes Carey of Kaiser Health News.
Topics: Medicare, Aging, Politics
KHN's Mary Agnes Carey and Marilyn Werber Serafini join Jackie Judd to preview this week's House hearings on Medicare and to dig into the details of the Medicare trustees' report.
>> Listen to audio of the interview.
>> An Even Bleaker Prognosis For Medicare?
>> Trustees Issue Warnings On Medicare, But Make No Changes To Solvency Projections
JACKIE JUDD: Good day, this is Health on the Hill. I'm Jackie Judd. A House subcommittee returns this week to the idea of expanding the role of the private sector in Medicare. This against the backdrop of the latest projections about Medicare's financial health. Joining me to discuss all of this: Mary Agnes Carey and Marilyn Werber Serafini of Kaiser Health News. Welcome ladies.
JACKIE JUDD: Mary Agnes, you first, give us a preview of the hearing and why now.
MARY AGNES CAREY: The hearing will look at this idea of premium support, of the government limiting the contribution per beneficiary in Medicare. And the committee wants to do this now because there is all this discussion about the debt and the deficit. As you mentioned the Medicare trustees' report just came out. The solvency has not been extended. It's still at Year 2024. So the idea is let's look at the idea of limiting the government's contribution. Let's bring in a lot of witnesses. They are going to include Henry Aaron of the Brookings Institution, who is one of the founding architects of the premium support idea. Another witness is John Breaux, a former Democratic senator of Louisiana, who along with the former Ways and Means Committee Chairman Bill Thomas of California came up with a premium support idea. So they want to do this now in part because of the trustees' report from yesterday and also, you know, the Republican message has been let’s control federal spending, especially in entitlements and here's a way to do it.
JACKIE JUDD: When Paul Ryan brought this idea back again last year, some members of the Republican establishment were pretty chilly toward the idea. Has that changed at all?
MARY AGNES CAREY: One change that Paul Ryan made was to include Medicare fee-for-service as an option for beneficiaries. That wasn't in the plan last year. And also, as we know, Paul Ryan has been reaching out to Democrats, including Ron Wyden, a Democratic senator from Oregon, to revise and work on his idea on premium support.
They feel with this addition of traditional fee-for-service, it inoculates them from attacks from President Obama and Democrats who are saying Republicans are trying to change Medicare as we know it.
JACKIE JUDD: Marilyn, you dug pretty deep into this report we've been talking about, particularly what Rick Foster, the chief actuary, had to say. What struck you?
MARILYN WERBER SERAFINI: What struck me is that you had a report that was almost 300 pages long, and right at the end of it were three pages that Rick Foster wrote – his opinion – that basically said the projections by the trustees: They're accurate. They did their job. But those projections are based on current law, and current law contains many changes that he says are unrealistic. Congress will not let them stand.
He says Congress will not allow 30 percent cuts to physician payments in Medicare starting in January, that Congress will not allow deep cuts to hospitals and other medical providers that were created by the 2010 health care law. He's saying that the kind of productivity improvements that are assumed will take place because of the health care law – you know he says that they will lower the health care costs but not the overall growth. Growth will still continue on an unsustainable path. So he's saying that given all this, Congress will absolutely step in and they will change those provisions so that they are more generous in payments to medical providers. And if you do that, that means less savings, and if you have less savings, that means a harder financial hit to Medicare.
JACKIE JUDD: Even before this report came out, the White House talked about it. Soon after it came out, the Republicans started talking about it. Does it become a lightning rod for each side and how is each side positioning it to work in their favor?
MARILYN WERBER SERAFINI: It already is a lightning rod. This is something that Romney talks about all the time. He came out with a statement yesterday already saying, "Look, what they’re doing, this is bad news, it's only going to get worse." And actually, two hours before the trustees' report came out, the Obama administration came out with something of a pre-emptive strike with a small report that said, "Medicare is getting better, beneficiaries are going to get – their costs are going to go down." They, again, are basing those projections on current law and what’s supposed to happen and that’s based on all of these assumptions that Rick Foster says are unrealistic.
JACKIE JUDD: A lot of debate, a lot of spinning. But Mary Agnes, you’ve covered the hill for a long time as it pertains to health care policy. Is it safe to presume that nothing of substance will happen this year? No votes will be taken -
MARY AGNES CAREY: That's correct.
JACKIE JUDD: - to change the program?
MARY AGNES CAREY: In the lame duck session which is predicted to happen after the elections, I think that both parties will be laying out their markers: this is what we will do about the deficit; this is what we will do about the debt. Of course, we have this automatic sequestration – this two percent cut in Medicare just to providers – about to kick in in 2013. They've got to figure out a way around that. But most folks predict that nothing really major is going to happen until next year.
JACKIE JUDD: OK, thank you both so very much.
MARILYN WERBER SERAFINI: Thank you.
Topics: Health Costs, Medicare, Quality, Delivery of Care
KHN's Jordan Rau and Mary Agnes Carey discuss Medicare's transition to compensating doctors based on the quality of the medical care they provide.
>> Read related story: Medicare To Tie Doctors' Pay To Quality, Cost Of Care
MARY AGNES CAREY: Hello and welcome to Health on the Hill. I’m Mary Agnes Carey. The 2010 health care law requires that Medicare providers be paid on the quality of medical care they give and the amount their patients cost Medicare. That's a change from the current Medicare system, which is based on the number of services provided. Making this payment change for physicians is turning out to be more complicated than experts anticipated. Jordan Rau of Kaiser Health News is here to give us the details.
Now as we know, backers of the health law have said that linking provider payment to the quality of the service that they provide, something known as value-based purchasing, is really important to reducing health care costs. But when it comes to implementing this for physicians, it’s turning out to be a little more complicated than it is for other providers, like a hospital. Why is that?
JORDAN RAU: It’s really interesting – this was part of the law that was least controversial when it was passed, because everyone thinks, well, pay more for quality and less for low quality, that doesn’t sound unreasonable. But now that they’re getting to the details, it’s proving to be very difficult. And it’s more difficult for physicians than just about anyone, because, first of all, there are fewer number of patients that a physician sees and you need a large sample or mass to really figure out how they’re treating the patients. Because if you just have a couple and one patient is particularly sick or doesn’t do that well, you don’t want it to unfairly reflect on the physician. So that’s one reason.
Another problem or challenge that they have is who to compare the doctors to. You don’t want to compare one type of specialist to a different type that isn’t exactly the same. And then they also have the challenge of figuring out – and this is probably the hardest thing – how much resources that doctor uses of Medicare. That is proving very challenging, because you can’t just take a look at the Medicare billing of that doctor, but you have to figure out what they’re doing: Are they referring too many people to high priced specialists and not intervening early enough? Are they having too many lab tests? Conversely, you want to make sure you’re not thinking that someone who is not doing enough is actually doing a great job.
MARY AGNES CAREY: In the story that you recently did on this issue, you talked about 20,000 physicians in four states getting reports from Medicare about the care that they deliver to patients. What sorts of things did those reports discuss?
JORDAN RAU: These are really long reports. They’re 14 pages long, and they were links [that] were e-mailed in, and they have extensive amounts of the quality measures that the Centers for Medicare and Medicaid Services are considering using. So [it asks] everything from "How did you handle a patient with diabetes?" to "Did you do depression screening?" Just dozens -- I think 28 -- so two dozen, different potential tests. And they also have in them -- what I think is going to be the most disconcerting for some physicians -- they have the average amount that their patients cost Medicare compared to all other doctors. And that’s not just including what that doctor did that cost Medicare, but all of the patient’s services.
MARY AGNES CAREY: And what’s Medicare going to use all this information for?
JORDAN RAU: These are technically called "feedback reports," and that is actually very accurate. These were started because Medicare is really trying to figure out how to do this correctly, so they are sending these out to doctors to see what the doctors are going to say: You know what, this is really unfair or inaccurate because of x, y or z.
It’s almost like a survey. Rather than waiting until they’ve implemented this program, and people’s pay are actually being affected by it, they want to do a dry run of their initial efforts, and then they’re going to use these to fine-tune their metrics.
MARY AGNES CAREY: Do they have a time yet, when by this date, this is how Medicare will evaluate what you’re paid as a physician.
JORDAN RAU: The law says that they have to start doing this new payment system in 2015, but they have a lot of leeway. They’re supposed to do it for large-group practices and some specialists as the government sees fit. But they’re supposed to have it all wrapped in by 2017. And then it should apply to most physicians.
For the people that are picked in 2015 – and the government hasn’t decided who those are going to be – their initial pay is going to be based on what happened to their patients in 2013. So that’s actually pretty close. That’s just a couple of months away.
MARY AGNES CAREY: We know that physicians are unhappy with the current Medicare payment system. Something known as the Sustainable Growth Rate always calls for these large reductions unless Congress steps in to stop it. They can’t be happy about this.
JORDAN RAU: You would think that in some ways that half of them would be happy, because most doctors, you would think, think that they do a pretty good job. But they’re very, very worried about this. The professional societies are very worried about this. We did a story about this for the Washington Post and it got over 200 comments, and they were all concerned -- because doctors are already so frustrated with the Medicare payment levels, because they are so much less than commercial insurance – that they just see this as another uncertainty, another potential for them to lose out on money. And they are very worried about it.
MARY AGNES CAREY: Thank you so much, we appreciate your time, Jordan Rau of Kaiser Health News.
JORDAN RAU: Thanks.
Topics: Health Reform, Supreme Court
The justices heard from the opposing lawyers about issues as basic as 'what is liberty?' and whether it's better to 'fix' flaws in legislation or scrap it entirely. Legal analyst Stuart Taylor, Jr., talks with Jackie Judd about the last 2.5 hours of this historic week.
> > Listen to audio of this interview
> > Read excerpts from the severability and Medicaid expansion arguments
> > Listen to day three audio of the morning and afternoon arguments at the Supreme Court
> > See coverage from Day 1 and Day 2
> > Related: Even Without The Individual Mandate, Health Law Would Still Affect Millions
JACKIE JUDD: Good day and welcome to Health Reform And The Court. I’m Jackie Judd. The third and final day of arguments at the Supreme Court on the health care reform law is over. Today, the justices considered two very different questions. If the individual mandate is struck down, can the rest – or part – of the law remain intact? And, second, did Congress overstep its authority by expanding the Medicaid program? Once again, legal contributor Stuart Taylor joins us. Welcome back, Stuart.
STUART TAYLOR: Nice to be here again.
JACKIE JUDD: Before we started taping, you said that at the end of these three days, six hours of arguments, the opposing lawyers did something slightly unusual, by stepping back from the minutiae, as you called it, to talk in grander terms about what this was really all about.
STUART TAYLOR: Right. That was Solicitor General Don Verrilli at the end of his argument about why Medicaid expansion should be sustained, which was the last of the arguments. So coming to the end of the six hours, he said, let me take half a step back, and he gave an impassioned plea for saving this law, on grounds of liberty. He invoked the term liberty. By the way, liberty is Justice Kennedy’s kind of leitmotif.
JACKIE JUDD: [He's the] swing vote?
STUART TAYLOR: Yes, swing vote. Central theme, not an accident. And [Verrilli] said: This law would secure the blessings of liberty to millions of people who are now uninsured. People with diabetes, people with heart conditions who are now unable to live normal lives. We can secure those blessings of liberty to them. He said: Please, think about that while you’re deciding what to do with this work of the president and the Congress and give some respect to them, too.
JACKIE JUDD: And Paul Clement’s response?
STUART TAYLOR: Paul Clement came back and, after making a couple of more minute points, closed with a respectful reference to what Verrilli had said. Then he said: It’s a strange conception of liberty that would force millions of people to buy insurance policies that they don’t want. And so, there you sort of had it, Verrilli arguing at a very general level, Clement going right to the central objection.
JACKIE JUDD: And let’s get specific for a moment. This morning, they did argue about: If the mandate is struck down, can the rest of the law, or most of it, stay intact? What were the highlights of that hour and a half?
STUART TAYLOR: It’s hard to pick a highlight, because there were three lawyers arguing three different positions and there were eight justices saying everything under the sun. But the general tenor of it was Clement, whom I just mentioned, the lawyer for the states challenging this, said, in essence, you should strike the whole law down, all 2,700 pages. Just give Congress a clean slate so they can start over and decide what they want to do now.
And his point was: A lot of these provisions are interdependent. Some of them, obviously, as the solicitor general said, and I’ll get to that in a minute, some of them are so closely related that it doesn’t make sense to keep some while getting rid of the individual mandate, which would provide money for them. Others are a little more tangentially related, but still related, and others are way off in left field. And they were just sort of stuck in there, because, you know, this is the vehicle. So that’s Clement.
Deputy Solicitor General Ed Kneedler, [in] the only part of the argument that wasn’t done by Don Verrilli, his boss, said: First, you shouldn’t breach severability at all in this case. Leave that to future cases, except for one little provision where the states had raised it. If you’re going to reach severability – and by the way, the justices didn’t seem to buy the first part of that, so I think they are – you should uphold most of the law. Your purpose should be to salvage as much of Congress’ handiwork as possible.
There are two provisions that you should strike down, not because they are unconstitutional -- these are the heart of the act – but they don’t work without the mandate. Because these are the so-called “guaranteed issue” and “community rating” provisions that basically say: Insurance companies cannot hold your medical history against you when they are setting rates and deciding whether to take you. And he said that doesn’t work without the mandate, because if people know they can sign up at the last minute once they get sick, for insurance, all the healthy people will bail out. They won’t get insurance. We have to force them to get insurance to prevent the insurance industry from basically going down the drain while people leave these positions.
JACKIE JUDD: One of the issues that has received less attention than the other ones we’ve been talking about the past three days is this expansion of Medicaid, even though it will affect many millions of people. What is the core of the argument there?
STUART TAYLOR: That was the last hour. Clement went first, because he’s challenging. And he said, using past-case law, the problem with the Medicaid expansion is that it coerces the states to participate. It effectively leaves them with no choice.
JACKIE JUDD: How did the liberal bloc challenge that?
STUART TAYLOR: They said, and Justice Breyer was particularly active here, in essence: Oh, the law doesn’t really mean that. It may say that, but that’s just what Medicaid expansions have said in the past. In reality, the government would be reasonable, the courts would require them to be reasonable under the Administrative Procedure Act, and you’re not going to see some arbitrary ripping away of all of the state’s Medicaid money, just because it refuses to go along with this expansion. The liberals and Deputy Solicitor General Ed Kneedler - I’m sorry, this was Verrilli again – they said: Look, the reason the states are all going to go along with it is because it’s a good deal. It’s not because they’re being coerced to.
JACKIE JUDD: Because the federal government, particularly in the earlier years, will be picking up 100 percent of the additional costs.
STUART TAYLOR: 100 percent in the earlier years, then 95 percent for a couple of years, and then 90 percent supposedly indefinitely, although the states might worry that that could change.
JACKIE JUDD: One final question that has to do with the timing of a ruling – when do you expect it?
STUART TAYLOR: Late June, probably very late June. Conceivably early July. But they almost always finish in late June, and they almost always serve up the biggest, boldest, most difficult cases last. Particularly when they argue late in the term.
JACKIE JUDD: And drop it right into the middle of a presidential campaign.
STUART TAYLOR: Exactly.
JACKIE JUDD: Great having you here this week. Thank you, Stuart.
STUART TAYLOR: Nice being here, thank you.
JACKIE JUDD: And a reminder to you to tune in to our 30 minute live webcast Thursday, March 28 at 11:00 a.m. Eastern. KHN’s Mary Agnes Carey will lead a panel discussion about this historic week. Joining her will be Stuart Taylor, Tom Goldstein of SCOTUS blog and Julie Rovner of NPR. The panel will also answer your questions, which you can send to firstname.lastname@example.org. I’m Jackie Judd.
KHN contributor Stuart Taylor, Jr., tells Jackie Judd the conservative justices were especially skeptical today, asking sometimes-hostile questions of Solicitor General Donald Verrilli.
> > Read a transcript of excerpts of day two arguments on the health law at the Supreme Court
> > Listen to day two audio of the health law arguments at the Supreme Court
> > Watch: The Guide To What Happened At The Supreme Court, Day 1
JACKIE JUDD: Good day and welcome to "Health Reform and the Court." I'm Jackie Judd. The second day of the historic Supreme Court hearings on the health reform law focused on this central question: Does Congress have the power to require Americans to purchase health insurance? Is the individual mandate constitutional? Our man at the court, Stuart Taylor - who is a legal contributor to many publications, including the National Journal - once again joins us. Welcome, Stuart.
STUART TAYLOR: Nice to be here, Jackie.
JACKIE JUDD: A livelier argument today than yesterday.
START TAYLOR: Much livelier. It was easier to follow, too. Yesterday was actually pretty lively, but lively about intricacies of the tax code.
JACKIE JUDD: Today, what were the overarching arguments that both the states made and the federal government?
STUART TAYLOR: And the justices pitching in on both sides.
JACKIE JUDD: Absolutely.
STUART TAYLOR: Donald Verrilli, the solicitor general arguing for the government, the Obama administration, started off. And his lead points were: Congress was confronted with a terrible problem – 40 million people without health insurance – and also a lot of cost-shifting, where when these people need emergency care, have terrible accidents, things like that, they can’t pay for their care, they’re not insured, and therefore the costs get shifted to everyone else.
He said the average health insurance policy of those of us who are insured is raised $1,000 by the need to subsidize all of these other costs. The other side disputes the numbers, but clearly it’s a big number. Those were his main themes. And also that health care is clearly a commercial service and everybody needs health care sooner or later - it’s just a matter of the timing. So all we’re doing is regulating the timing of how people finance their own health care.
JACKIE JUDD: And Paul Clement, who argued for the states?
STUART TAYLOR: His main themes were: This requires people to buy a commercial product they don’t want. It requires people to enter commerce - people who don’t want to be engaged in commerce - and that’s unprecedented and unbounded. His point was: Once Congress can do that, if you let Congress do that, there’s nothing Congress can’t do. They could make us buy cars, buy broccoli, etc.
JACKIE JUDD: So the "essential relationship between the federal government and the individual shifts" was his argument?
STUART TAYLOR: It certainly was. And some of the justices picked up with the same theme.
JACKIE JUDD: One report out of the court said that Verrilli got only 3 minutes into his prepared remarks before the justices started asking their questions. What were the most pointed questions?
STUART TAYLOR: I don’t think he got three minutes. I could go back and count. But the most pointed questions came from the conservatives. Justices Scalia and Alito asked a bunch of hostile questions to Solicitor General Verrilli and no hostile questions to the other side. It became pretty clear that they, as well as Justice Thomas who was silent, are going to vote to strike the law down. They kept making the same points that the lawyer Paul Clement and Mike Carvin were making about this being an illimitable power. That they can make us buy broccoli, that they can make us buy car insurance - themes like that. And raising hypotheticals, something about burial insurance, in the case of Alito, raising that hypothetical: Everybody’s going to have to be buried.
It’s clear that the four liberals are going to vote to uphold the law. The two to watch, who seem up for grabs, were, arguably, Chief Justice Roberts and Justice Anthony Kennedy. Both of them, especially Roberts, were very tough on Don Verrilli, the solicitor general. Here are some samples of Roberts: a hypothetical, on emergency services, could they make us all buy cell phones, the broccoli thing, the car thing, requiring people to buy insurance for pediatric care, people who don’t have children, to subsidize others. And most importantly, I suppose, "all bets are off," something he said twice, meaning: If we uphold this, there's nothing Congress won’t be able to do.
JACKIE JUDD: Which justice said that?
STUART TAYLOR: That was Chief Justice Roberts.
JACKIE JUDD: And did Roberts and Kennedy give an equally-challenging time to Clement?
STUART TAYLOR: No. Kennedy was a little less hard on Verrilli, but the tenor of his comments was similar to Roberts, that this really can’t be limited.
Each of them asked kind of musing, philosophical questions of Clement and Carvin that sounded a little more like they were just making sure that all the bases were touched, and they didn’t sound so much as though: I’m not buying your argument.
JACKIE JUDD: What was the role today for the liberal justices? What did they seize on?
STUART TAYLOR: All of them were very active. Justice Breyer, as is his wont, was asking long, hypothetical questions that would be hard to summarize.
Justice Kagan was a little punchier. One thing she said, for example, that they lawyers for the challengers were making a big point about this forces young, healthy people to subsidize old, unhealthy people. Justice Kagan said: Well, eventually the subsidizers all become the subsidized. As in: We all get old.
Justice Ginsburg kept analogizing this to the Social Security system. Her basic point was: That is young-subsidizing-old, too. And we do that as a government program with a tax. If that’s OK – and that is OK – why can’t we do it with a more open, commercial system that involves private insurers in this context. That was one of her main points.
Justice Sotomayor asked a lot of questions. One of my favorite moments was when Justice Breyer was asking was one of his long – good – hypotheticals, just hard to summarize, it kind of interrupted Kagan and a while later someone said, "Let's get back to Justice Kagan's question" and she said, "I've forgotten my question."
JACKIE JUDD: Stuart, it’s a little risky sometimes, I think, to judge how a justice will rule based on the way he or she questions during the arguments. But everything you’ve said today makes it sound like the federal government was very much on the defense today, far more than the states. Fair characterization?
STUART TAYLOR: I think that’s a fair characterization. For that reason I heard some people coming out of the arguments – and I’m no better prognosticator than some of the others are – saying for sure the law is going to be struck down 5 to 4.
But others were saying they’re not so sure. They thought the law might be upheld. They thought that both Kennedy and Roberts might go over to the other side. Even though that’s not how they sounded today. And then part of the thinking is that if Kennedy gives a majority to the liberal side, rather than be in the dissent in a 5-4, Roberts might join the majority, too, in order to be able to write the opinion himself and control how broad it is.
JACKIE JUDD: Interesting. We’ll hear from you again tomorrow. Stuart Taylor will be back with us tomorrow at the conclusion of the hearings.
And another reminder that at 11 a.m. Eastern on Thursday, Stuart will be joined by Tom Goldstein of SCOTUS blog and Julie Rovner of NPR for a 30 minute live webcast. The panel will reflect on this week at the court and also answer your questions, which you can send to us at email@example.com. For now, I’m Jackie Judd. I’ll see you here tomorrow.
The first day’s arguments focused on the Anti-Injunction Act and whether the court can rule on the case before a penalty is imposed on those who do not have health insurance. KHN’s reporter inside the court, Stuart Taylor, Jr., tells Jackie Judd that all the justices, except one, seemed eager to ask questions.
> > Read a transcript of the day one arguments on the health law at the Supreme Court
> > Listen to day one audio of the health law arguments at the Supreme Court
Here's a transcript of Taylor and Judd's conversation:
JACKIE JUDD: Good day and welcome to "Health Reform and the Court." I'm Jackie Judd. This is day one of the historic hearings at the Supreme Court on whether the health reform law is constitutional. The focus today -- the Anti-Injunction Act and a question of timing. Can the court even rule before a penalty is imposed on those who do not have health insurance? Sitting in the chamber was Stuart Taylor, a lawyer, author and contributor to many publications including the National journal. He joins us now. Welcome, Stuart.
STUART TAYLOR: Nice to be with you.
JACKIE JUDD: Before the arguments, the atmospherics. What was the moment like for this much-anticipated hearing?
STUART TAYLOR: It was electric, both inside and outside the courtroom. Outside, there were hundreds, probably thousands of demonstrators for one side or the other. Mostly in favor of the health care law, I’d say. Inside the court there were more than 100 reporters, I doubt they've ever had as many reporters. And the chamber was jammed.
Although the justices didn't let on that it was anything other than routine, the whole atmosphere --scheduling 6 hours over 3 days in one case made a statement. And they did, in order to sort-of enforce their usual routine, they summarized two new decisions from the bench before they even got to the health care arguments, which delayed things about 13 minutes.
JACKIE JUDD: Both the states and the federal government actually agree on the question that was debated today: Can the justices rule now [on the law] or do they have to wait until 2014? So the court made a slightly unusual move by bringing in a friend-of-the-court lawyer. What were the highlights of the arguments?
STUART TAYLOR: Well, the specialist was Robert A. Long. And he argued that the Anti-Injunction Act applied. The Anti-Injunction Act basically bars any lawsuit to prevent a tax, with some exceptions -- to stop a tax until the tax has actually been imposed, until there have been penalties. In this case, it wouldn't be until 2015. His argument was dozens of cases, statutory citations. The law is basically ambiguous and he was making the best case that could be made that, "Yes, this is a tax for purposes of the Anti-Injunction Act and therefore, you have to wait." A wrinkle in that was that the Solicitor General -- the government -- had said "It's not a tax, and even if it is, we aren’t objecting to it." But that was the essential setup.
JACKIE JUDD: And what justices were you most interested in hearing from, in terms of their questions and what you might divine from those questions.
STUART TAYLOR: Usually when you go into a case like this, you kind of have a little scorecard going: okay, who is going to come down on which side. You’re never sure but --
JACKIE JUDD: I’m not going to ask you to predict.
STUART TAYLOR: -- but in this case, I was less sure than I’ve ever been before. Eight of the justices – Justice Thomas hasn't asked a question in five years or more -- eight of the justices peppered all three lawyers with questions coming from every conceivable angle. It was hard to discern any of them showing a clear intent to vote one way or another.
One question I thought that got to the complicated nature of the process better than any was asked by Justice Alito. He was speaking to Donald Verrilli, the solicitor general who is arguing for the government, and he said more or less in so many words: "Mr. Verrilli, today you're arguing that the penalty for not complying with the individual mandate for not having health insurance is NOT a tax. Tomorrow, you're going to be back here arguing it is a tax." Which was true.
And the question was sort of have we ever held that you can have a thing that's not a tax for today but it is a tax tomorrow, basically. And Verrilli gave a very good answer, which was, "Yes, that is what we're arguing, because tomorrow I’m going to be talking about the constitutional taxing power of the United States, which is very broad. Today, I'm talking about an act of Congress called the Anti-Injunction Act, which is much more narrow. And therefore tax can mean different things in those two contexts."
JACKIE JUDD: You mentioned tomorrow, it does bring in the more central question of the constitutionality of the law, especially the mandate. Give us a little preview.
STUART TAYLOR: That's the heart of the case tomorrow. The main challenge is that the requirement that individuals who don't otherwise have health insurance -- through their employer, say -- must buy health insurance unless they qualify for an exception because they can’t afford it or for various other reasons. That, or they pay a penalty to the IRS. That is the issue tomorrow, that is the issue that has been central to the public debate all along.
The government claims two powers as the basis for imposing those requirements: the power to regulate interstate commerce, which has gotten the most attention, the power to lay and collect taxes, which is the one I just referred to in the context of Justice Alito’s question. They say those powers are both very broad, broad enough to support this. The attackers basically say as to the Commerce Clause, "Never before has the government imposed an obligation on individuals to buy something they don’t want to buy simply because they live in the United States." And that that goes too far.
JACKIE JUDD: Thank you very much.
STUART TAYLOR: Thank you.
JACKIE JUDD: Stuart Taylor will be back with us for daily updates. And on Thursday, at 11 a.m. Eastern, we will be joined in a live webcast by Tom Goldstein, of SCOTUSBlog, and Julie Rovner of NPR to dig a little deeper into these marathon hearings and to look ahead to the potential ramifications on the law. Please send questions you want the panel to address to firstname.lastname@example.org. I'm Jackie Judd, I'll see you tomorrow.
Topics: Health Costs, Medicare, Politics, Medicaid, States, Health Reform
KHN's Marilyn Werber Serafini and Mary Agnes Carey discuss the budget Wis. Republican Rep. Paul Ryan released today and how it differs from the proposal he released last year.
>> Read related story: New Ryan Budget Would Transform Medicare And Medicaid
MARY AGNES CAREY: Good day, this is Health on the Hill. I'm Mary Agnes Carey.
House Budget Committee Chairman Paul Ryan unveiled his fiscal 2013 budget plan today, which includes major changes to Medicare and Medicaid. Ryan's proposal would also repeal the health law, which he says would have dire consequences for Medicare providers and patients.
REP. PAUL RYAN: Providers will get paid at about 80 cents on the dollar to begin with, going down to 30 cents on the dollar. The hospitals and docs will get paid less than Medicaid. And the problem is - what ends up happening is they'll just stop seeing patients. You'll just have reduced access and quality to Medicare for current seniors. The other thing it does is it takes a half trillion dollars from Medicare to spend on creating the president's new health care law. What our budget does is this: It gets rid of that.
MARY AGNES CAREY: With us today to discuss the details of the Ryan plan is Kaiser Health News correspondent Marilyn Werber Serafini. Hi, Marilyn, thanks for coming.
MARILYN WERBER SERAFINI: My pleasure.
MARY AGNES CAREY: Paul Ryan made a lot of headlines last year when he introduced his Medicare overhaul proposal. Can you tell us about what he introduced today and how is that different or the same as what he introduced last year?
MARILYN WERBER SERAFINI: Well the proposals are really very similar, in that they both would limit the amount of money that the federal government spends on Medicare. But they differ in two important ways. One is that the cap for how much the federal government would spend is tighter this year. Both times, it's tied to the growth of gross domestic product. But last year, tied to Gross Domestic Product plus one percentage point. And this year, tied to gross domestic product plus one-half of a [percentage point].
And that is really the same as what President Obama was talking about not too long ago – the GDP plus one-half of a percent. So Ryan picked up on that and went with it this year.
Also is fee-for-service. Now, that is the traditional Medicare program. Last year, Paul Ryan would have given seniors a percentage of the premium that they could choose for a list of private health care plans. He would have totally done away with traditional fee-for-service Medicare. This year, he includes the promise of traditional Medicare.
MARY AGNES CAREY: He partnered with Ron Wyden, a senator from Oregon, on this idea to broaden the premium support concept to include traditional fee-for-service and the private plans. Is Ron Wyden on board with what Ryan did today?
MARILYN WERBER SERAFINI: No, he's actually not. But it doesn't have to do with the promise of fee-for-service. It's more that when Ryan and Wyden partnered together, they had a cap on federal spending, but they had limited it to GDP plus one. And with Ryan coming across with a tighter cap; that is not what Wyden had supported.
MARY AGNES CAREY: Paul Ryan's talking about in his view, the president's health law would so drastically reduce payments to providers that Medicare providers and beneficiaries would be hurt. How does he deal with that in his plan?
MARILYN WERBER SERAFINI: Well, actually, critics are already saying the same thing about his plan. There's only so many places to take cuts out of Medicare. And if you're not going to it with beneficiaries, then, historically, what Congress has done is to take Medicare savings from making cuts in payments to doctors, hospitals and other medical providers.
So, already today, we have hospitals complaining that: "Look, if you decrease our payments any more, we're going to look a lot more like Medicaid. And if we look a lot more like Medicaid, people are going to have trouble getting in to see a doctor. Because physicians, hospitals, medical providers – they're just not going to want to take those kinds of payments."
MARY AGNES CAREY: On the House floor this week, they are scheduled to vote on legislation that would do two things, would eliminate this panel created in the health law to make recommendations on how to reduce Medicare spending and it would also overhaul current medical malpractice laws. Chairman Ryan also looks at those in his plan. What does he do?
MARILYN WERBER SERAFINI: He would do both of those. He wants to repeal this board, called the IPAB – the Independent Payment Advisory Board. Frankly, it hasn't been a very popular part of the health law since its inception. So he wants to get rid of that. And he wants to do some malpractice reforms. He wants to cap non-economic damages in malpractice awards – that's for pain and suffering. He doesn't say by how much, but he wants to cap that, to help with the cost of health care.
MARY AGNES CAREY: Now let's turn and close with Medicaid, the federal-state program for the poor and disabled. What would Ryan's plan do to Medicaid?
MARILYN WERBER SERAFINI: He would simply block-grant the Medicaid program. Right now, it’s a federal-state partnership. What he wants to do is give states the ability to take a federal chunk of money – the federal government sends the states the money and the states would simply run the program. He has said this has been a very successful model under welfare. And he believes that this would work very well for both controlling costs and potentially improving quality in the Medicaid program.
MARY AGNES CAREY: And that's similar to what he did on Medicaid in his proposal a year ago?
MARILYN WERBER SERAFINI: Exactly.
MARY AGNES CAREY: Thank you so much, Marilyn Werber Serafini, Kaiser Health News.
Topics: Supreme Court, Politics, Health Reform
In part two of analysis of the Supreme Court's upcoming decision on the health law, Stuart Taylor talks with Jackie Judd about the arguments each side is likely to make defending or against the individual mandate and the Medicaid expansion.
>> SCOTUS Preview Part 1: The 'Very Big Deal' – SCOTUS Takes On The Health Law
>> The Supreme Court Decides: Health Law At The High Court
Here's a transcript of the whole conversation:
JACKIE JUDD: Good day, I’m Jackie Judd. Beginning March 26, the Supreme Court begins an extraordinary three days of hearings on the health care overhaul law, the Affordable Care Act. The central issues are the individual mandate requiring most Americans to obtain health insurance or pay financial penalties, and the expansion of Medicaid, and whether each is constitutional. Stuart Taylor, a contributing editor for the National Journal on legal matters joins us today to dig deeper. Welcome, Stuart.
STUART TAYLOR: Nice to be with you.
JACKIE JUDD: Let’s talk about the mandate first. When you’ve gone through the briefs, how has the federal government, how have the state governments tackled the constitutional questions raised by the mandate?
STUART TAYLOR: The fundamental question about the mandate is whether Congress has power – at all – under the United States Constitution – to require people to buy health insurance or any other commercial product they don’t want. Congress has never done this before, and so there’s no clear precedent, but the government claims it has ample power a) to regulate interstate commerce, which has been broadly construed and b) to lay and collect taxes, which has been even more broadly construed, and that each of those powers independently suffices to justify the individual mandate as a response to a national crisis in health insurance coverage, which clearly involves interstate commerce.
The states on the other hand say: No, the commerce power has never been interpreted that broadly, and if it’s interpreted that broadly, the federal government’s power will be without limit, contrary to the intent of the framers. The federal government could require anybody to buy anything. That’s not what the constitution provides.
On the taxing power, again, the government says: We have power to do this because the taxing power is broad enough to encompass what was done here, because it’s a penalty provision that’s paid to the Internal Revenue Service if you don’t buy the health insurance. The states say: Hold on a minute, while this was pending in Congress, the President and other supporters said, “This is not a tax.” They said that, because they knew it would not have passed if the people thought it was a tax, and they can’t turn around now and say, “Guess what? It’s a tax for purposes of us defending its constitutionality.” They say that would defeat accountability in government.
JACKIE JUDD: One of the lesser known issues that will be discussed at the court hearing, but important, is the anti-injunction act. What is the AIA and how does it apply – or how may it apply – to this argument?
STUART TAYLOR: This is one issue on which both opposing parties agree, but it gets complicated.
JACKIE JUDD: Of course.
STUART TAYLOR: The anti-injunction act says that no court can enjoin a federal tax unless and until it’s actually being collected, which in this case would not be until 2015, because the mandate doesn’t take effect until 2014, and so forth. And so the argument would be – and the court will hear an argument from an independent lawyer – the individual mandate litigation has to be deferred until 2015 because there’s a law that says the court can’t do anything about it because it's a tax for purposes of the anti-injunction act. Both the federal government and the states say, "No, it's not a tax for purposes of the anti-injunction act, it’s a penalty. And therefore the anti-injunction act doesn’t apply."
Now you may think, "Well, wait a minute, didn't the federal government just say that this is a tax for purposes of being within the power of Congress to lay and collect taxes?" Indeed they did. But they say, "Here the interpretation of what tax means in the anti-injunction act is different than the constitutional question and we have lots of reasons to say it's not a tax for purposes in the anti-injunction act."
JACKIE JUDD: And is there some possibility here that the justices could decide that these questions can’t be answered until 2015?
STUART TAYLOR: That the individual mandate questions can't be answered?
JACKIE JUDD: Yes.
STUART TAYLOR: There is a possibility. I’d say most people would say it's not very likely, but frankly, if they want to duck – if it's a close call and they want to duck this in an election year, that would be a very convenient way to do it.
JACKIE JUDD: Now the other issue - it’s still attached to the question over the mandate - is severability. Whether the mandate can be judged separately or if it is so intrinsic to the overall law that the whole law either rises or falls on it.
STUART TAYLOR: Right. There's a range – remember this is a 2,700 page law with dozens and dozens of provisions and there's a range of answers to that question. Some say, neither of the parties in this case say, but some say the rest of the law should stand. Congress would have wanted it all to stand even if the individual mandate was gone. The federal government says, "Well, most of it should stand but there are two big provisions: the ones that require insurers to take everybody regardless of pre-existing medical conditions and not to discriminate against people based on medical history in their premiums. Those would have to go down with the mandate," says the federal government, because it is the mandate that would provide the insurers with the money to pay the extra costs they would incur. The 26 states and their allies, on the other hand, argue that the mandate is an integral part of the law, that it all falls apart without the mandate, that the coalition that supported it would not have supported it without the mandate, and that, therefore, the whole law needs to go down. So the court has a huge range of options there.
JACKIE JUDD: And then on the issue of Medicaid, the expansion of Medicaid, how do the parties attack this issue in their briefs?
STUART TAYLOR: The 26 states say that they being coerced by this law to expand Medicaid beyond the point where they can afford it in the long run. The federal government would pay the costs of it in the short run. But the states would eventually have to pay more.
They have traditionally voluntarily participated in Medicaid in exchange for the federal money. They say, well this is different, because we are now so dependent on Medicaid that we can’t afford not to be in it. And this law requires us to pay more money or it takes it all away from us. The federal government says that you can drop out of the Medicaid program if you don’t want to keep participating in it, and, therefore, it’s voluntary. And, therefore , you’re not being compelled. And, therefore, it doesn’t violate state sovereignty under the 10th Amendment.
JACKIE JUDD: Final question: The cases will be heard in late March. When should opinions be expected?
And it may fall right in the middle of the height of the presidential campaign season. What impact might that have?
STUART TAYLOR: Sure. The opinions are likely to come down in late June, possibly in early July – although they usually finish all their cases by late June. A big case like this that’s argued late in the term definitely wouldn’t come before late June.
How it would affect the campaign is tricky. It would have manifold effects, but, ironically, if the court strikes down the mandate, the most obvious effect would be to energize the left – energize the Democratic base to attack the court as part of a Republican right-wing conspiracy and to say, "We have to do something to roll this back somehow."
On the other hand, the states and others who are attacking – the conservatives who are attacking the constitutionality of the health care law might be energized to say: "Well, now that the courts have upheld it, if that's what happens, the only way we can get rid of this thing is to get a Congress and a president who will repeal it."
So it could energize the one base or the other or both, depending on the outcome.
JACKIE JUDD: Thank you so much, legal analyst Stuart Taylor.
STUART TAYLOR: Thank you.
In just over 5 weeks, the Supreme Court will hear challenges and defenses of the 2010 Affordable Care Act – the federal health law. In part one of two conversations about the case, Jackie Judd talks with Stuart Taylor, an attorney and contributing editor for the National Journal, about why these cases are so significant. Taylor says it's been 56 years since the court has spent so much time hearing cases on a single law. There are tens of thousands of pages of briefs on the law's requirements that individuals buy health insurance or pay a fine and that Medicaid expand to cover millions of uninsured Americans.
JACKIE JUDD: Good day, I'm Jackie Judd. In March, just two years after President Obama signed into law the most sweeping social legislation in decades, the Supreme Court will enter the fray. The Justices will hear cases challenging the constitutionality of the Affordable Care Act – the health care overhaul law. Stuart Taylor, a contributing editor for the National Journal on legal matters – joins us to discuss what’s at stake. Welcome, Stuart.
STUART TAYLOR: Nice to be with you, Jackie.
JACKIE JUDD: Put these cases in some historical context. How big a deal are they?
STUART TAYLOR: Very big. Very big. For example, justices have scheduled 5 ½ hours of oral argument ...
JACKIE JUDD: Over three days.
STUART TAYLOR: … over three days. It looks like it's going to be six, because the government has requested more time. It’s been 56 years since they've argued as many as six hours on a single case and those were two historic cases in 1966: Miranda vs. Arizona and the Voting Rights Act case. They've cut back on their other cases, there are only half as many arguments in other cases for the rest of the term, or at least in April, as they usually do, clearly to leave themselves time for all the writing they're going to be doing on this health care case. And then, there's a huge influx of "friend of the court" briefs, probably on its way to being more than 100 — maybe an all-time record. And those are kind of just the outward indicia of the court clearing the decks for a huge case.
JACKIE JUDD: You have read some of those many, many briefs, including of course what the federal government filed, what the states are filing. Does some of the language match the kind of historic moment that this is?
STUART TAYLOR: Yes, especially coming from the opponents of the law, the states and the other opponents, which say, "What the government is trying to do here is it would be a revolutionary expansion of federal power over the states, a historic attack on the sovereignty of the states, an expansion beyond even the very broad federal powers that have been recognized in the past and way beyond anything the framers intended." The government, more or less, pooh-poohs these things, and counters with a huge crisis in national health care and this is the way the government has decided to fix it. Now, the government doesn't sort of predict doom and gloom if it's struck down, they're measured. But, a lot of others who support the law are afraid that a government – that a court – decision striking down this law could pave the way for a series of decisions striking down a whole bunch of federal laws since the New Deal. There's one Justice on the court who’d like to do that, Justice Thomas, I don't know that there are any others.
JACKIE JUDD: So we will talk about the mandate, the expansion of Medicaid, but for the moment, the larger issue here is the role the government plays in individual's lives. And it may impact, not only the Affordable Care Act, but other legislation down the road?
STUART TAYLOR: That's for sure. For the opponents of the law say that if the government can do this, it could require everyone who can afford it to buy a Ford to help the national economy. It could require people to join health clubs or to buy broccoli in order to become healthier. Now nobody seriously says that you could be required to eat broccoli, but you could be required to buy it. And so there are all sorts of scenarios of "if the government can do this, it can do anything; its power is unlimited." The government, on the other hand, says this is a unique case. We're using judicious powers to address a unique national health crisis and therefore it doesn't pave the way to any great expansion.
JACKIE JUDD: At the 10,000 foot level, walk us through the issues related to the individual mandate and to the expansion of Medicaid.
STUART TAYLOR: The individual mandate is a requirement that you either buy insurance - if you don’t already have it from your employer – or pay a penalty. And the big question there is does the federal government have the power to require people to buy a commercial product that they don't want. And it's never done that before- it’s clear Congress has never done that before. The question is whether it can do that. And the other big issue is Medicaid, a huge Medicaid expansion that the states say - 26 states say - would cost them too much money and that they’re being coerced into it. That they have no real choice but to go along and take what the federal government gives them and to spend more of their own money and that that invades state sovereignty.
JACKIE JUDD: And that's the constitutional question?
STUART TAYLOR: The constitutional question is whether it violates the 10th amendment rights of the states to sovereignty and independence from the federal government.
JACKIE JUDD: Okay, we will go deeper on some of these questions about what's at issue in these cases in our next interview. For now, thank you very much, Stuart Taylor.
STUART TAYLOR: Thank you, Jackie.
KHN's Mary Agnes Carey talks with Jackie Judd about an Obama administration rule that would require many religious-affiliated groups to cover birth control in their insurance plans. House Speaker John Boehner has suggested Congress could take legislative action to stop the rule.
>> Listen to audio of the interview.
JACKIE JUDD: Good day, this is Health on the Hill. I’m Jackie Judd.
Religion, politics and health care. It’s a potent combination as the political fight between the White House and Capitol Hill shows: A fight triggered by the administration’s decision to require most religious-affiliated institutions—such as Catholic hospitals—to include free contraceptive care as part of their health insurance coverage beginning in 2013. A clear sign of the growing anger over the issue was Speaker John Boehner’s unexpected appearance today on the House floor.
SPEAKER JOHN BOEHNER, R-OHIO (video clip): “In imposing this requirement, the federal government has drifted dangerously beyond its constitutional boundaries, encroaching on religious freedom in a manner that affects millions of Americans and harms some of our nation’s most vital institutions.”
JACKIE JUDD: Kaiser Health News correspondent Mary Agnes Carey is following this and joins us now. Welcome, Mary Agnes.
JACKIE JUDD: Walk us back a couple of steps. This is part of the ACA – the health reform law. What does it require, and what has the administration done about it in the past couple of weeks?
MARY AGNES CAREY: What the health law requires is that preventive services be offered free – no copays, no deductibles. The Institute of Medicine advised the Department of Health and Human Services to include contraception as part of these required services. So when that announcement was made on Jan. 20, churches themselves, synagogues and so on, were exempted. But as you noted, not the religious-affiliated institutions, not the hospitals, not the universities. They’ve said those institutions will have a year to comply with the requirement that goes into effect for everyone else in August.
JACKIE JUDD: David Axelrod, one of the president’s top advisors in his presidential campaign, suggested last night there might be a compromise in the works. What did the White House say about that today?
MARY AGNES CAREY: The White House has reiterated repeatedly that they’re open to talking to all parties. As Speaker Boehner mentioned, there are religious institutions – Catholic institutions, some evangelical institutions – that find this requirement offensive to them, and they feel it is an intrusion into their religious freedom. And so what the White House has said is: We want to talk to people that have concerns. We’ve given them additional time to implement this requirement, and we hope to find a compromise. But they’ve made it clear that they’re not backing down from this guarantee of contraceptive coverage for all women no matter where they work.
JACKIE JUDD: Political tightrope for the White House.
MARY AGNES CAREY: I think it is a political tightrope, but it kind of cuts both ways. This was very critical for the Democratic base. Very important for women’s rights groups, women’s health groups – they feel very strongly about this. The administration feels strongly. They’re hoping that signaling that they want to be flexible in giving an additional year to comply will possibly buy them some time. They might find some compromise. But opponents of this say it doesn’t matter that they have an extra year. They have another year to "violate their conscience," which just doesn't appeal to them.
JACKIE JUDD: And in the House floor speech today that John Boehner delivered, he suggested that there may be some kind of legislative action that he will try to move through the House?
MARY AGNES CAREY: The Energy & Commerce Committee has already had a hearing on this previously. I’m sure they’ll have more hearings there. You can see legislation coming out of that committee, going to the House floor. In the Senate, Mitch McConnell, who is the Republican leader, has suggested they’ll also have a legislative response. But in the Senate, Democrats control the floor. So you might not see something like that get to the floor for action.
JACKIE JUDD: But on Capitol Hill this fight is not breaking cleanly between Democrats and Republicans. For some Democrats for example, who are Catholic, they’re not very happy.
MARY AGNES CAREY: John Larson, who is the fourth ranking Democrat in the House has suggested the administration work with opponents, including Catholic churches, to find a compromise on this. Dan Lipinski, who is another Democrat in the House, is concerned about it. In the Senate, Bob Casey, who is a senator from Pennsylvania, is very concerned. Joe Manchin of West Virginia is concerned.
So while the majority of Democrats do support the president, there are absolutely those who do not.
JACKIE JUDD: And in 2012, we cannot have a conversation like this without making the obvious point that there is presidential campaign going on. So how much of this dispute is a proxy, if you will, for the larger disagreements that many Republicans have with the reform law at large?
MARY AGNES CAREY: I think that it is simply another opportunity for Republicans to talk about what they hate about the law. They’ve made the argument for a long time: It’s an overreach of the federal government. Here’s another example: “if, by the way, we run the place, we’ll get rid of it.” So they’re definitely using this.
But Democrats, as well, are using this to build support for the health law, to say that this guarantee for women is a critical pillar of the health law, and they plan to maintain it.
JACKIE JUDD: OK, more later I’m sure.
JACKIE JUDD: Mary Agnes Carey of Kaiser Health News, thank you.
Topics: Politics, Health Reform, Medicare
KHN's Mary Agnes Carey talks with Jackie Judd about President Obama's State of the Union speech. Obama talked little about health care, reflecting maybe the hard sell they're having getting the public to buy into the health law's benefits. Republicans talked about reforming Medicare in their response.
JACKIE JUDD: Good day, This is Health on the Hill. I’m Jackie Judd. President Obama delivered his State of the Union message last night and made only a modest mention of the issue that helped define the first half of his administration: health care reform.
PRESIDENT BARACK OBAMA (video clip): I will not go back to the days when health insurance companies had unchecked power to cancel your policy, deny your coverage, or charge women differently than men.
JACKIE JUDD: Here to discuss the State of the Union and the Republican response is Kaiser Health News reporter Mary Agnes Carey. Welcome, as always.
MARY AGNES CAREY: Thank you.
JACKIE JUDD: I took a look at earlier State of the Union speeches, and back in 2010 the president devoted about 7 paragraphs to the issue of health care reform. A couple last year. What was the administration’s calculation to give it such small play?
MARY AGNES CAREY: Basically, everyone knew this was going to be a speech about the economy and that certainly was a speech about how to repair the economy, how to get it back on track, how to create more jobs. But the minimal mention of the health law may be a reflection of the difficulty that the president, the administration, supporters of the health law are having selling it to the public.
For example, the latest Kaiser Family Foundation tracking poll found that just 41 percent of Americans have favorable views of the law; 43 percent have unfavorable views. The individual mandate – the requirement that most Americans by 2014 have to purchase insurance or pay a fine, that’s the issue before the Supreme Court right now – that is wildly unpopular with the public. (note: KHN is an editorially-independent program of the foundation.)
So the president focused on the provisions that are popular. For example, talking about insurers will no longer have unchecked power to cancel your coverage; they can’t charge women more. In a counterpunch to Republican attacks against the health law, President Obama talked about how the health law relies on a reformed private market. It’s not a government program.
JACKIE JUDD: As many analysts said last night, this was as much a State of the Union as it was a campaign speech. So, it was a hint as to how the president will address this issue on the campaign trail.
MARY ANGES CAREY: I think he’ll talk about it. He’ll talk about again the issues that are popular with folks. But he has to maneuver around the fact that a lot of Americans are wrestling with the health law: "What’s in it for me? What matters for me?" And a lot the big provisions don’t even kick in until 2014.
JACKIE JUDD: And last night in his speech, he made brief mention that he’s prepared to make reforms to rein in Medicare and Medicaid spending. And that’s what Indiana Gov. Mitch Daniels zeroed in on in the Republican response. Take a listen.
GOV. MITCH DANIELS (video clip): We must unite to save the safety net. Medicare and Social Security have served us well, and that must continue. But after half and three-quarters of a century, respectively, it’s not surprising they need some repairs. We can preserve them unchanged and untouched for those now in or near retirement, but we must fashion a new, affordable safety net so future Americans are protected, too.
JACKIE JUDD: So, in a way, the Republicans made a more sustained statement on health care than the president did. The same question I asked you earlier: What was the GOP calculation?
MARY ANGES CAREY: Well, they evidently have a great comfort level now talking about Medicare, talking about Medicaid and the safety net. Mitch Daniels mentioned the safety net six times. He talked about how we can’t afford to give Medicare benefits to millionaires anymore: this whole issue of income-relating that has come in and out of the discussion.
I think that Republicans intend to – they’re trying to cast themselves as protectors of Medicare and Medicaid. Of course, the views they have vs. Democrats and the president are extremely different. But I think it shows a comfort level that they would hit this so hard in their response and have such a sustained discussion.
JACKIE JUDD: Change of course, but sticking on the issue of Medicare. Yesterday, just before the State of the Union, House and Senate conferees got together for the first time to discuss the payroll tax extension, the cut, and part of that of course is the “doc fix.” What should doctors who treat Medicare patients be reimbursed? Any progress in those conversations?
MARY AGNES CAREY: This was about an hour and a half of opening statements, but it became clear that both Republicans and Democrats on the conference committee do not want Medicare physicians to face a 27 percent payment cut at the end of February, which is when the current fix expires. The difference of course, as always, is on how do you pay for it? Several Democrats talked about using the war savings to pay perhaps for a long-term fix for the sustainable growth rate. Republicans aren’t really crazy about that. Dave Camp, who heads the conference, head of the Ways and Means Committee, said using war savings for the SGR is not on his top 10 list. But everyone seems committed to fixing it. The question is how do you finance it.
JACKIE JUDD: OK, thank you so much, Mary Agnes Carey, Kaiser Health News.
MARY AGNES CAREY: Thank you.
Topics: Politics, Medicare, Health Reform
KHN's Mary Agnes Carey and Marilyn Werber Serafini talk with Jackie Judd about Tuesday's New Hampshire GOP primary. The GOP field is united in their opposition against Obama's Health Law, but differences remain in how they would reform Medicare.
>> Listen to the audio.
JACKIE JUDD: Good day, this is Health on the Hill. I'm Jackie Judd.
Another day, another state. The Republican presidential candidates have moved on to South Carolina where the next primary will be held January 21st. Last night in New Hampshire, in Mitt Romney's victory speech, he again promised to roll back the health care overhaul law.
(ROMNEY SOUNDBITE: This president has enacted job-killing regulations; I’ll eliminate them. He lost our AAA credit rating; I’ll restore it. He passed Obamacare; I’ll repeal it. )
JACKIE JUDD: Repealing so-called "Obamacare" is an issue that unites the GOP candidates. What separates them from each other in terms of health care policy? Here to answer that question: Kaiser Health News reporters Mary Agnes Carey and Marilyn Werber Serafini. Welcome to you both.
The common ground is repeal Obamacare. But what separates them, it seems to me, is the issue of Medicare. Most of the comments of the candidates tee off the Ryan plan, which was proposed in the House; the linchpin being a voucher system, which would put seniors into the private marketplace as opposed to a government-run medical care system. What are the differences then, on that plan?
MARILYN WERBER SERAFINI: This is where the candidates have talked about their differences. The differences are relatively minor; they're not huge differences. They all believe in this general concept of less government, of the government limiting the amount of money that it spends on Medicare. Currently it's an entitlement – that doesn't happen. So we had Huntsman and we had Santorum immediately come out and support the Ryan plan. We also had Romney say that he would sign a bill that was the Ryan Plan. He said he would prefer to have his own legislation, put his own mark on it, but he would sign it. You also had Newt Gingrich who came in and was very critical initially; he believed that it was important to give seniors the choice to stay in traditional Medicare.
MARY AGNES CAREY: And then when Paul Ryan modified his plan, which he did last month with Ron Wyden, a Democratic senator from Oregon – when fee-for-service was added to the mix, then Newt Gingrich was more complimentary to the Ryan program.
MARILYN WERBER SERFAINI: And Romney was also then more on-board.
MARY AGNES CAREY: Exactly. And to be fair, Gov. Romney also proposed his own modified version of Ryan a few months ago, so Ryan is definitely the linchpin. But we have some Republican candidates that are talking about Medicare in different ways. For example, Ron Paul has said Medicare is fine for current beneficiaries; he wants younger folks to get their care in a different way in the private market when they reach their senior years. And Rick Perry has suggested maybe states could do a better job than the federal government at running Medicare.
JACKIE JUDD: Medicare has proven to be treacherous territory for politicians in the past. Older citizens don't have to see a change to the program – for the most part. How much of what's being debated during the primary season, how real is it?
MARY AGNES CAREY: I think it's absolutely real. There are so many pressures on the budget with entitlements. We have more baby boomers coming in and flooding the system. Fiscal conservatives want to see an answer on entitlements. They want to hear Republican candidates talking about it.
So I think this is absolutely a sign of what's in play, not only in the election, but in 2013 and beyond.
MARILYN WERBER SERAFINI: Right. Ask any Republican who freshman came in in 2010 if they think it’s real, and they will say: Medicare won me my election. A lot of them do actually say that.
It all comes back to the health care law that passed. Republicans made a big deal about in 2010 in saying: Look, the Democrats took $500 billion out of your Medicare program. And the seniors responded. That was a very salient message with seniors in the 2010 election. That's when the Republicans took control of the House, and lot of the Republican freshman who came in do attribute that to that message.
JACKIE JUDD: To some degree, it was Michele Bachmann, who dropped out after Iowa, who really drove the issue about what to do with health care policy in the future. She's gone now. Does it seem to either of you that a little bit of the air has been let out of this issue on the campaign trail in the past week or so?
MARY AGNES CAREY: I think it has. Michele Bachmann was always the one jabbing on who favored the individual mandate and looking at different positions that they had. I also think that the candidates are looking at the electorate. The economy is the predominant issue.
The Associated Press did an exit poll in New Hampshire, saying that only 5 percent of people who voted said health care was their top concern. So while we may not hear as much about this now as the primaries continue, when you get to the general election, where Republicans want to repeal President Obama’s signature policy achievement, the health care law, then I think it will be center stage again.
MARILYN WERBER SERAFINI: It's also important to remember that while health care might not be the top issue for Republicans in the primary, it never is. And it's not this time, as well. As Mary Agnes said, it's the economy; it's all about the economy.
However, you have to remember that seniors – Democrats and Republicans – care very deeply about their Medicare. And it doesn't take much to make a difference in an election.
JACKIE JUDD: Final question: A little bit of a reality check. When Michele Bachmann was still in the race and she would talk about repealing "Obamacare," she said it in the context of: We need to elect x number of Republican senators so we can control both the Senate and the House in order to repeal.
What is the reality of any of the candidates, should they become president, being able to roll the law back?
MARILYN WERBER SERAFINI: First of all, what we haven't talked about is we've got a Supreme Court decision coming that could –
JACKIE JUDD: There is that.
MARILYN WERBER SERAFINI: – There is that. That could have a bearing on this.
But even so, even if the Republicans take control of the Senate, which is not really expected to happen, any party in charge really needs 60 votes really to be able to do anything. Moreover, even if you can roll back a piece of this, there are benefits that are already in place – popular benefits that are already in place. Even some of the candidates as they go around talking about wanting to repeal, they say: Well, I do like this element, and I do like that element.
JACKIE JUDD: So there's more nuance to it.
MARILYN WERBER SERAFINI: I think that's right.
MARY AGNES CAREY: Absolutely. I agree.
JACKIE JUDD: Thank you so much, both of you: Marilyn Werber Serafini and Mary Agnes Carey.
KHN's Mary Agnes Carey talks with Jackie Judd about what a divided Congress returns to in Washington this month as it begins dealing with fixing how Medicare pays doctors. A conference committee has until the end of February to fix the so-called "Sustainable Growth Rate" or doctors face a big pay cut.
JACKIE JUDD: Good day. This is Health On The Hill. I’m Jackie Judd.
It’s a new year, but Congress will turn to some of the same old issues, when lawmakers come back to Capitol Hill later this month. Chief among those issues is what to do about reimbursing doctors who treat Medicare patients. But there others, and here to fill us in is KHN correspondent Mary Agnes Carey. Happy new year, Mary Agnes.
JACKIE JUDD: Before Congress left in December, they put into place this two-month fix that essentially froze the levels of reimbursements to doctors. That expires at the end of February. In Congress time, that’s no time at all. So what happens when they return in mid-January?
MARY AGNES CAREY: A House and Senate conference committee – this is a bicameral, bipartisan panel – will sit down to try to resolve these differences. But he same obstacles remain that were there before the holiday break: How large of a fix do you pass? How do you finance it? The numbers are fairly daunting: It’s $21 billion for a one-year fix, about $38 billion for a two-year fix. And if you wanted the problem to go away forever, that would be $300 billion over the next decade.
Another pressure here is the calendar. Presidents Day recesses are scheduled now for the Senate and the House. In the Senate, Presidents Day recess is scheduled the 20th through the 24th of February. And the House, of course, as a different week, the 18th through 26th. So that creates even more pressure.
JACKIE JUDD: You raised the issue of how to finance a fix, so that there is not a 27 percent cut in reimbursement rates. The idea that the Republicans put forth late last year was to make some cuts in Medicare spending, to make some cuts in health reform, where they could find some revenue. Are there any other ideas floating out there so that the ball can be moved?
MARY AGNES CAREY: Some lawmakers – one that comes to mind is Jon Kyl, who is the second-ranking Republican in the Senate, has said, let’s take the savings from Iraq and Afghanistan, that war drawdown money, and use that to get rid of the SGR forever. That doesn't have a lot of appeal with the House Republicans, so I’m not quite sure if that will get traction. But as you note, Congress seems to be going to the tried and true. Do you reduce the hospital payments? Do you reduce payments for skilled nursing facilities? There’s been debate about asking Medicare beneficiaries who have higher income to pay even more to help fund their coverage. So a lot of the old ideas are on the table, perhaps some new ideas, and they may come up with some things we haven’t even thought of.
JACKIE JUDD: Jon Kyl is among the 20 members on the conference committee. Each side has appointed those they want to serve. Can you divine anything from the make-up of this group?
MARY AGNES CAREY: Well, you do have some prominent members of committees of jurisdiction. In the Senate, for example, you’ve got Max Baucus, who runs the Senate Finance Committee, a Democrat. In the House, you’ve got Dave Camp, who runs Ways and Means – he's a Republican from Michigan. Another Michigan Republican, Fred Upton, runs the Energy and Commerce Committee. And there are some freshman faces. In the House Republicans, for example, you've got Renee Ellmers of North Carolina and Nan Hayworth of New York. So you've got some new blood; you've got some established players. But again, the difficulties remain in this. There are deep philosophical divides between the parties on how to approach many issues that are involved in this. The payroll tax cut is one. The Medicare "doc fix." And so, I think, ultimately, we may see this going back to the leadership level, just as it did before the break, to try to reach a resolution that will get enough support in both the House and the Senate.
JACKIE JUDD: As I said at the top: New year, some old issues. What other issues or questions must the Congress face as this year unfolds?
MARY AGNES CAREY: I think you'll continue to hear a lot from House Republicans about the health law; they don't like it. They’ve tried numerous times to repeal it or defund it. While those attempts to repeal the law or defund it passed in the House, they're stopped cold in the Senate. And even if for some reason, it got to President Obama's desk, he would certainly veto that. But I think you'll continue to hear that. Republicans want to do as much as they can to point out what they think are the weak spots in the health law to the public. They don't like the Medicaid expansion. They don’t like the individual mandate that you have to purchase insurance. They have concerns about how high the subsidies are that allow people to purchase coverage on the exchanges in 2014. So you’ll hear a lot about that issue.
On Medicare, Paul Ryan, who is the head of the House Budget Committee may come back with his budget resolution, his Medicare proposal, again, that would provide a limited amount of money to help people purchase coverage. He’s revised that recently with Ron Wyden, a Democratic senator from Oregon, that would keep fee-for-service in the mix. But Paul Ryan’s views have been very controversial. You could expect to see that again, more discussion about it. And as we know, with the failure of last year’s super committee, there are automatic cuts set to begin next January, in 2013. You may find members of both parties very interested in looking at some way to stop sequestration. On health care, of course, we remember that in Medicare, the providers are shielded at 2 percent cuts and there’s no cuts in Medicaid. But with 50 percent of that money coming from defense and 50 percent non-defense programs, again, there'd be bipartisan interest in trying to stop that. But the problem is where do you get the money?
And of course, we talked about the individual mandate earlier. All eyes will be on the Supreme Court. Briefs are being filed this month and next month, February, oral arguments in March, a decision in June, and of course we have the elections this fall. So what the Supreme Court says or doesn’t say about the health law may very well play into the elections.
JACKIE JUDD: A full calendar.
JACKIE JUDD: Thank you so much, Mary Agnes Carey of Kaiser Health News.
Topics: Politics, Health Costs
Jackie Judd talks with KHN's Mary Agnes Carey what Medicare changes would be part of the latest proposal from super committee Republicans to strike a deficit reduction deal. Also in the background is the status of a $300 billion fix of the sustainable growth rate formula that determines how much Medicare doctors get paid.
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Topics: Health Reform, Insurance, Marketplace
Jackie Judd talks with KHN's Mary Agnes Carey about the latest in talks around the "super committee's" efforts to cut the deficit. Advocates and lawmakers are busy whispering what health programs should be shielded from cuts and which should be on the chopping block.
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Jackie Judd talks with KHN's Julie Appleby about recommendations an Institute of Medicine panel will make to help the Department of Health and Human Services determine just what "essential benefits" insurers will have to cover in health law-mandated marketplaces.
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Jackie Judd talks with PBS NewsHour's David Chalian about the GOP presidential candidates' health law repeal rhetoric, the varying level of nuance among their viewpoints and how each is attacking the President's – and each other's – stances.
You can read the transcript or listen to the audio.
-- Related: GOP Presidential Hopefuls: Where They Stand On Health Care
With the summer recess ending, Jackie Judd talks to KHN’s Mary Agnes Carey about the staffing and makeup of the deficit panel and what to expect in the coming months. The "super committee" may take a closer look reining Medicare costs in through reforming Medigap plans and provider payments to cut the deficit.
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