ObamaCare in the wake of King v Burwell at SCOTUS

From The New Yorker:

Why Obamacare’s Future is Secure
BY JAMES SUROWIECKI

...Chief Justice John Roberts’s successive opinions in defense of the Affordable Care Act—National Federation of Independent Business v. Sebelius, in 2012, and then, last week, King v. Burwell—have definitively ended the debate about the legality of Obamacare. And just as the earlier Roberts’s decision paved the way for the New Deal safety net to become permanent and widely accepted, King may well go down in history as the moment when Obamacare’s long-term survival was guaranteed.

In part, that’s because Roberts’s defense of the law was broad rather than narrow. Many observers had assumed that if the A.C.A. was upheld, it would be under the so-called Chevron doctrine, which says that when a statute’s meaning is ambiguous, courts should defer to the administrative agency’s interpretation of it, as long as that interpretation is reasonable. In the case of King, Chevron would have had the Court defer to the I.R.S., which had read a disputed sentence of the law to mean that people in states that had not established insurance exchanges, and who instead signed up on the federal one, were still eligible for subsidies. Instead, Roberts chose a different tack, ruling that when it comes to matters of deep “economic and political significance,” it is the Court’s responsibility to decide what a statute means. And that cleared the path for Roberts’s sensible judgment that, regardless of the careless way the law was drafted, when you looked as the A.C.A. as a whole, it was plain that the intent of Congress was that any citizen of the United States, assuming they met the income criteria, should be eligible for health-insurance subsidies.

"it was plain that the intent of Congress was that any citizen of the United States, assuming they met the income criteria, should be eligible for health-insurance subsidies."

 That's what I've been saying all along. I'd even predicted, albeit with some hesitancy, a 6-3 vote to Uphold.

More Surowiecki:

[The ACA] actually embodies the principles that most Americans think a health-insurance system should have. That may seem hard to believe, given how much flak the law has taken; even today, in most polls a plurality of those surveyed oppose it. But the data also show that Americans overwhelmingly think it’s important to have health insurance. They believe that insurance plans should have “guaranteed access,” meaning that insurance companies should not be able to deny coverage to people because of preëxisting conditions. In a 2013 New York Times poll, for instance, a remarkable eighty-six per cent of those surveyed opposed discrimination against preëxisting conditions. They also believe in community rating, meaning that women and men should pay the same premiums and that insurance companies should not be able to charge higher premiums just because someone has a preëxisting condition. A sizable majority of Americans also think that low- and middle-income people who don’t have health-care coverage through their employer should get subsidies to help them pay for insurance.

Americans still don’t like the individual mandate requiring them, in most circumstances, to get coverage. But if you want the aspects that are popular, you’re most likely going to need some form of a mandate, which gets younger and healthier people into the system—driving down over-all costs by helping pool risks—and prevents them from gaming it by waiting until they’re sick to buy insurance. You also need subsidies, since there’s no point in mandating that people buy insurance if they can’t afford it. The result may seem kludgy and inelegant. But if you want—and, again, most Americans do—a system that has guaranteed access, community rating, and that keeps insurance relatively affordable for the average American, you’re likely going to get something like Obamacare...

...So with every day that passes, repealing Obamacare gets tougher. Indeed, that’s why the plaintiffs in King mounted a lawsuit that was, as Jeffrey Toobin recently put it, so blatantly cynical—they knew that their best chance of scrapping the law was to have the Court do it for them. And that’s why Roberts’s refusal to do this was so momentous. It would not be surprising to learn that John Roberts thinks Obamacare is a terrible idea. But he’s done his best to insure that it’s going to be around for a long time to come.

I'd eventually started to wonder whether SCOTUS agreeing to hear King v Burwell was a Roberts Rope-a-Dope -- i.e., "be careful what you ask for." A 5-4 would have Kept (anti-ACA) Hope Alive. 6-3 is quite another matter.

"Like, enough, already! Take this back to the Hill if you want redress; quit bothering us with this weak stuff..."

In my view, the King decision was entirely consistent with the clear intent of the law. Justice Scalia was left to poignantly splutter incoherently (and rudely) in dissent. His retirement can't come soon enough for me.

OK, NOW WHAT? WE STILL HAVE MUCH WORK TO DO

All of the advances in medical science (and clinical pedagogy), health IT, and progressive delivery process QI we can muster will still be hemmed in by national policy. Will we continue to experience our health care in the "Shards" of my recent characterization? Will the ACA be complicit in that chronic fragmentation?

Below: I came to this book via the online recommendations of some of those whose work I respect. This has gotta get an award for "Ugliest Book Cover of 2015 Thus Far" (I know they're just attempting some allusive red/blue graphical metaphor stuff, but, ugh).

It's a pretty good read, and, at $2.99 Kindle edition price, an excellent value. Some summary excerpts:

Introduction 
For all the great reporting on and analysis of the Affordable Care Act done by journalists and healthcare policy wonks, the complexity of the law’s many moving parts and the high-stakes political battle surrounding it have defeated any efforts to tell a cohesive story. Yet such an accounting – one that navigates the maze of ObamaCare’s positives, negatives and alternatives with a compass unskewed by politics or ideology – is needed to make sense of the mostly unconstructive debate surrounding what may be the most far-reaching piece of legislation in nearly a half century.

While Republicans too often resort to hyperbole in criticizing the law, Democrats meet substantive complaints with a mixture of denial (ObamaCare critics are peddling myths), defensiveness (Republican ideas would cause bigger problems) and resignation (Sure, the law could be better, but the GOP will never let that happen). The American people have pretty clearly had enough of this circular conversation. Polling shows that they don’t hold ObamaCare in very high regard, but they want the law fixed, not scrapped.

This small book aims to change the conversation about ObamaCare in a meaningful way, and that begins by explaining why the American people are right: The law is sorely in need of reform. While there is no doubt that ObamaCare accomplished a world of good in its first year and a half, and there are many, many successes worth celebrating, I will show that its shortcomings are widespread, profound and very likely to grow worse over time.

This is the logical and necessary starting point for two simple reasons: 1) The first step in reaching a consensus that the Affordable Care Act must be reformed is broad recognition that it falls far short of its promise for far too many of those it was supposed to help; and 2) A clear understanding of what is wrong with the law is an essential guidepost in figuring out how it should – and shouldn’t – be fixed.

While the first half of the book is devoted to explaining what’s wrong with ObamaCare, the real purpose – and the focus of the second half – is to map out a path that can better achieve the goals of the Affordable Care Act.

Chapter 1: Swiss Cheese will explain why the Affordable Care Act is a misnomer for people in a wide variety of circumstances:

The Medicaid Gap: Millions of poor people in 21 states earn too little to qualify for exchange subsidies, yet they remain ineligible for Medicaid because their state political leaders have opted to spurn the Affordable Care Act’s expansion of the program to everyone earning up to 138% of the poverty level.

The Bronze-Plan Trap: Rather than paying an individual mandate penalty, many low-income households are opting for bronze plans that may have the appearance of being pretty cheap. Yet those high-deductible plans could have families pay as much as 40% of their annual income to cover health spending before they begin receiving any help from ObamaCare. To call these households underinsured is an understatement.

The Family Glitch: For families in which one spouse happens to have an offer to buy health insurance through an employer, the rest of the family is ineligible for exchange subsidies, potentially putting coverage financially out of reach for well over a million spouses and children.

The Middle-Class Cliff: A couple in their early 60s with earnings just above the $ 62,920 cut-off for ACA exchange subsidies may have to pay as much as 40% of pre-tax income on premiums and medical bills if they buy the cheapest-available bronze plan.

The “Skinny” Plan Loophole: In order to limit their own liability under ObamaCare, some employers are offering so-called “skinny” plans to modest-wage workers that provide no coverage for surgery or hospitalization. This is the kind of health insurance in name only that ObamaCare was supposed to supplant.

Graham, Jed (2015-06-23). ObamaCare Is A Great Mess: A View of the Affordable Care Act Without Partisan Blinders & How to Fix It (Kindle Locations 27-63), Kindle Edition.

Chapter 1 takeaway
Judging the Affordable Care Act by how many people get coverage or based on its many, many success stories isn’t sufficient. It also needs to be evaluated based on whether it lives up to its promise of ensuring that pretty much every American household is offered the opportunity to access affordable health care. On that score, it falls far short of its goal, and only partly because the Supreme Court made the Medicaid expansion voluntary.

Millions of low-income individuals and families who are eligible for ACA subsidies are finding that the only ACA coverage they consider affordable won’t protect them from financial distress. Many other households from the working class to the middle class are cut off from much-needed help, either because an offer of employer coverage puts exchange subsidies off limits or because their income puts them just on the wrong side of the subsidy cliff. (Kindle Locations 334-343)

Chapter 2 takeaway
All of the evidence points to the conclusion that the ObamaCare employer mandate has had a measureable, though less than dramatic, effect in limiting the work hours of low-wage employees. Yet there are a host of other less-obvious ways in which the mandate also works against the goal of reducing inequality, leading employers to hold back on wage gains and possibly limit hiring, CBO has said.

The ACA, by providing bigger subsidies to those with lower incomes and making affordable health care less dependent on work, provides both the opportunity and incentive for people to choose to work less. Yet at certain points of the income spectrum, ObamaCare goes overboard in punishing work, sometimes leaving a stark choice: Earn less or forgo affordable coverage. A more careful approach is needed to balance the imperative of an effective safety net and the value of work, in part because ACA work disincentives carry a budget cost – an estimated $ 200 billion through 2024. (Kindle Locations 599-607)

Chapter 3 takeaway
While exchange enrollment will continue to ramp up over the next couple of years, design problems with ObamaCare are likely to make lower participation among the young and healthy a chronic condition, leading to premiums that are higher than necessary. Moderate-income young adults are asked to pay 75% more for a bronze plan than is charged to much older adults at the same income level. Yet ObamaCare’s individual mandate penalty is at its weakest for these young adults, amounting to less than one-third of premiums for high-deductible bronze plans, which will encourage them to gamble on staying healthy.

The negative impact on premiums of a relatively older group of enrollees is likely to be exacerbated by the way ObamaCare subsidies divide up the risk pool, sending low-income enrollees with greater health needs to the deep end, bronze purchasers to the shallow end and catastrophic buyers into a separate kiddie pool. Yet, because catastrophic coverage isn’t proving to be an affordable option in much of the country, many moderate-income young invincibles are more likely to stay out of the pool altogether. (Kindle Locations 820-829)

Chapter4 takeaway
The big test of the ACA’s ability to deliver adequate patient access to care and restrain premium increases has just begun. Some $ 8 billion a year in funding to facilitate patient access is disappearing, and temporary government programs are running low on firepower to bolster the bottom lines of insurers who price premiums too low.

The breadth of double-digit premium hikes proposed for 2016 by market-leading insurers has underscored concerns that the exchanges are attracting a population with higher average medical costs than expected. As premiums, both before subsidies and after, increase faster than income – and faster than the individual mandate penalty – the risk is that the robustness of the insured pool will deteriorate over time as the relatively young and healthy gravitate to high-deductible plans or opt to go without coverage. (Kindle Locations 1043-1051)

Chapter 5 takeaway
Although the Affordable Care Act falls short in many respects, it sets the right goal of ensuring affordable access to health insurance that provides a reasonably appropriate level of coverage. While some ideas for fixing or replacing the ACA would help some people – sometimes at the expense of others – none of the approaches target that goal of broad access to affordable coverage, whether one is young or old; healthy or sick; male or female; near-poor, working class or middle class. (Kindle Locations 1278-1282)

Chapter 6 takeaway
Improving upon the ACA’s affordability problems and making government tax subsidies for buying coverage contingent upon remaining insured can make the individual mandate obsolete. A series of reforms proposed in this chapter would cut the price of a bronze plan by up to 48% for moderate-income young adults and make not-quite-so-high-deductible coverage free, or very close to free, for everyone earning up to 200% of the poverty level. (Kindle Locations 1506-1509)

Chapter 7 takeaway
The employer mandate’s heavy burden on low-wage employers and its firewall that keeps low-wage workers from accessing exchange subsidies are inimical to the goals of the Affordable Care Act. A more rational approach to making employers responsible for contributing to workers’ health coverage could eliminate the glaring problems with the mandate, while providing a modest degree of protection for the employer-sponsored insurance market from sudden disruption. Yet, because moderate-income workers would ultimately bear much of the cost of even a reformed employer mandate, getting rid of it would be the best option. (Kindle Locations 1720-1724)

The author's argument is buttressed by a ton of data, though some of the examples bring to mind the admonition "the plural of 'anecdote' is not 'data'." Nonetheless, Mr. Graham does a pretty good job detailing the maddening complexity of the administration of the ACA and its myriad unintended consequences.

Missing from the book is any substantive discussion of the fundamental actuarial misalignment that continues to bedevil U.S. healthcare policy ("community rating" notwithstanding). As I wrote down near the end of my "Shards" post,

One of my ongoing concerns goes to the "shards" of U.S. health care that comprise the central theme of this post. IMO, it's debatable (and likely unknowable) whether the ACA has increased the prevalence of "broken glass" in the delivery system. Health care "insurance" remains only partially "insurance" in the actuarial sense. The bulk remains woefully inefficient 3rd party (parasitical?) intermediated pre-payment. The ACA is largely a huge, hypercomplex "insurance" reform law with a few QI and payment "improvement" initiatives tossed in.

One thing is clear. Without the ACA, someone like me would now be an actuarial leper --  "uninsurable." Going public with my condition absent the constraints of the ACA would have been unthinkable. (It gave me pause, I have to say, to start this post prior to today's SCOTUS announcement.)

Nonetheless, certain fundamental elements of contention remain. We know that medical actuarial utilization risk is a ~60 year proposition (speaking just of adults), highly and curvilinearly correlated with age. Yet we continue to sell health "insurance" in one-year chunks. Someone like me is now regarded by the likes of BCBS/RI as a "medical loss ratio" loser. Any clinical benefits that accrue to me are a loss to them economically during any one policy period. Those who underwrite clinically effective px's/tx's will in many cases see other parties benefit down the line (in econ-speak, "first mover disadvantage").

Again, we've known this stuff for a long time...

I remain skeptical that we're going to see any constructive, sustained bipartisan attempts at "fixing ObamaCare" with the 2016 White House race now ramping up. I would love to be wrong.

SENATE HELP COMMITTEE HEARING UPDATE, JULY 7TH

Senator Bernie Sanders calls for Single Payer. Much of the ensuing discussion (watching live right now) resonates precisely with Jed Graham's book. Lots of griping about continuing insurance unaffordability, health delivery price opacity, ACA hypercomplexity, etc. No prepared statements, hope there will be a published transcript. Acting Chair Senator Mike Enzi (R-WY) opened with a mostly rambling reminiscence about his having worked on health care issues with the late Senator Kennedy. He then essentially repeated the story in his closing remarks.

UPDATE: Witness statements (pdf) have been posted, here, here, here, and here. 
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TECH SIDE UPDATES

Just up at Dr. Carter's EHR Science:

Clinical Software Engineering, Part I: Moving from Generic to Specific
by JEROME CARTER on JULY 6, 2015

There is no standard method or process for creating clinical software, and this bothers me – a lot. There is no information model that everyone agrees on, no object names or properties or methods. Even though clinical care is a collection of processes, we have no standards for naming those processes, the steps that comprise them, nor any standard way of demarcating process boundaries. Despite the years and dollars that have been dedicated to creating clinical software, little has been done in the way of saying how clinical software is best designed and built. It is now time to take up that challenge.

When HITECH went into effect in 2009, EHR systems were seen as the ultimate in clinical software and the centerpiece of HIT. Six years later, we realize that care coordination and patient engagement require much more than an electronic chart, that data exchange must occur between a range of computing devices, that data can arise from any number of sources, and that influencing clinical processes requires software support. The range of processes, users, and data that clinical care systems must support is growing, resulting in new requirements that no one imagined 10 years ago...

 And, from Wired:

Medicine Is a Battlefield. Here’s How to Stay in the Know

SCIENCE, IT’S BEEN said, is a full-contact sport. Even when it doesn’t reach the Supreme Court—from whence a crucial decision upholding Obamacare rumbled forth late last week—health care is constantly tangled up with policy.

And that war in medicine is long tenured. The road to basic research is a gauntlet. Translational medicine is in a mosh pit of competing interests. Clinical trials shift end points like a juking boxer. And if you’re following these streams you won’t miss a moment of the action...

Great links in this article.
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More to come...