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Old 03-04-2015, 02:04 PM   #61
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The only way to avoid that is to re-instate underwriting and have insurance companies be able to impose pre-existing conditions again. Google the study.
No, a false dilemma. There are many of ways to skin this cat. Medicare has no subsidies and no underwriting. And what is at issue in this case is the linkage of subsidies to "state establishment of exchanges" and that also affects the requirement to buy insurance (because without the subsidies, the premiums are unaffordable and therefore the person isn't fined for not buying insurance). It would be easy to break that chain in several ways.
If the Court rules for Burwell, the affected states will have the option of establishing their own exchanges (with lots of Fed help) or doing something else. Maybe the "something else" will be terrifically good. There may be legislation to facilitate this alternative, and we'd see some smart alternatives emerge.
Many of the offered alternatives on the table have subsidies (to the patient to the insurer, or as directly provided services)--it's got to be that way in one form or another. And all address prior conditions--either through lack of underwriting (guaranteed issue) or risk pools.
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Old 03-04-2015, 02:17 PM   #62
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Don't fool yourself into believing that because you don't receive a subsidy that it won't impact what you pay for insurance.. it will because many lower income healthy (typically young) people will not subscribe. Their participation is helping to pay for colder, sicker subscribers. Insurance rates will increase, including what employers are providing.

Hospital systems will loose (sp) money forcing them to increase their rates across state lines.

I didn't see them lowering their rates the past couple of years when they should have. Heck, does anyone actually know what hospital rates are anyway?

Hospital administrators are greedy, just like most folks. Especially the for-profit systems. They don't ever lower their rates unless forced through legislation and regulation.

The billing system was a complete mess before ACA, but I don't think the ACA actually made it worse.


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Old 03-04-2015, 02:38 PM   #63
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I will be following this issue on Scotusblog. They have a good track record of covering the legal issues before the supreme court, the hearings, as well as the decisions when they come out.
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Old 03-04-2015, 02:53 PM   #64
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I found this interesting as well.
So..if the Court sides with Burwell this Justice feels the net affect is the Supreme Court would be responsible for enforcing something that is unconstitutional or has unconstitutional consequences....which is "coercion" on the states to set up exchanges - something they specifically said last time could not be done.

Regarding the "standing" issue, I had previously read that it was only required that one of the plaintiffs has standing. And I gather that one does.

Interesting concept that if they rule for Burwell they can stay it until the end of the year.

Going to be tricky. Interesting but tricky.

p.s. Rodi: Thanks for that link to the Scotusblog
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Old 03-04-2015, 03:54 PM   #65
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I don't have anything to say about the topic, but just wanted a chance to post in it before it closed. I'm always missing the chance on these political threads.
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Old 03-04-2015, 04:03 PM   #66
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According to a recent study by the Rand Study in conjunction with Kaiser, eliminating the subsidy would leave only the sickest people clinging on to policies, with a loss of the healthy middle and lower income folks, and have a very significant effect on the cost of insurance across the board for everyone.
The only way to avoid that is to re-instate underwriting and have insurance companies be able to impose pre-existing conditions again. Google the study.
They have the penalty to consider unless it is continuously deferred.
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Old 03-04-2015, 04:04 PM   #67
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Originally Posted by sheehs1 View Post
...

So..if the Court sides with Burwell this Justice feels the net affect is the Supreme Court would be responsible for enforcing something that is unconstitutional or has unconstitutional consequences....which is "coercion" on the states to set up exchanges - something they specifically said last time could not be done.

.....
That argument caught me by surprise. The "coercion" issue together with the fact that this specific 'requirement' is not in the legislative history or discussed by representatives in the Senate or House of Representatives (in fact the reverse was claimed by some) leads me to conclude that Burwell will not upheld.
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Old 03-04-2015, 04:08 PM   #68
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The billing system was a complete mess before ACA, but I don't think the ACA actually made it worse.
I was going to say "talk to your doctor" but you are one. There is a major code revamp to go into effect later this year driven by the ACA. Doctors that run their own practices are complaining about the costs involved and the lack of knowledgeable people to implement the change. It is another force driving doctors into consolidating their practices into a physicians' owned entity or going to work for Big Med.
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Old 03-04-2015, 04:15 PM   #69
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My WAG after reading about today's oral arguments is 6-3 to uphold, with Kennedy joining the 2012 5-4 majority. But predicting SCOTUS has always been a crap-shoot
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Old 03-04-2015, 05:57 PM   #70
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Given the political history of this court I have no idea how they will rule. It would be particularly upsetting if this major case was decided by an issue tangential to ACA itself. On the other hand given the general dysfunction in our healthcare system and the pre-emminent role of insurance companies in that system part of me would like to see things start over from scratch. Sorry for the last sentence .
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Old 03-04-2015, 07:07 PM   #71
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My WAG after reading about today's oral arguments is 6-3 to uphold, with Kennedy joining the 2012 5-4 majority. But predicting SCOTUS has always been a crap-shoot

You might be right.... but as I said earlier I bet that the 6 you predict will not all agree on the majority opinion.... maybe a 4-2-3 decision....
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Old 03-04-2015, 07:09 PM   #72
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A ruling in the case is months away. Nothing to get excited about in the near term.

One of the most intriguing points about this case, and apparently one the plaintiffs have not really thought through, is the case law that would be established by the plaintiffs having the Court concur with their point. It would be a Pyrrhic victory such as rarely seen in the existence of this country.

Plaintiffs position is that the Affordable Care Act intended for income tax linked subsidies to be available only to persons who purchase health insurance through state run exchanges, and the subsidies should not be available to those purchasing insurance through the federally run exchange.

Specifically, accepting plaintiffs position means that the Federal government is permitted to set differing effective levels of the Federal income tax in different states, as an incentive or penalty regarding compliance with Federal programs. That's quite a precedent to be putting into case law. It's very different from existing programs such as Federal highway funds, where the cash flows to the states if they implement certain basic requirements.

This could really impact the decision making process for folks trying to pick the optimal state(s) to retire in. "Hmmm... Which state is least likely to rock the boat regarding Federal policies for the next 30 years or so?" Good luck guessing THAT!

Executive summary: Be careful what you wish for. You just might get it.
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Old 03-04-2015, 08:37 PM   #73
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The plaintiffs argument is weak, attempting to take a specific sentence out if context. They refer to "established by the state" but the leave out it is "established by the state under 1311". Section 1311 covers the "state" exchange, but following is section 1312 which covers the Fed exchange which is established if the state fails to do so. Specifically 1312(c)

the Secretary shall (directly or through agreement with a notfor-profit
entity) establish and operate such Exchange within
the State and the Secretary shall take such actions as are necessary
to implement such other requirements.


The term "such exchange" means the state exchange. Another way to think about it is there are two ways for a state to create an exchange as required by the law. They can use their own resources or default to a federally facilitated one. Whatever choice the state makes, they have created an exchange for their state.
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Old 03-04-2015, 08:45 PM   #74
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Last week's "Slate's Amicus" podcast discusses this case. Both sides get a chance to speak and I found it a nice introduction to the issue.

(I am a SCOTUS neophyte and not an attorney, so the Amicus podcast is just my speed)
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Old 03-04-2015, 08:48 PM   #75
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Interesting to see how the market interprets SCOTUS remarks. See the reaction to Justice Kennedy's comments:
Health Care stocks rise following Justice Kennedy's comments in ACA case - NASDAQ.com

Makes for thoughtful analysis as to what financial interests are involved and what public interests are served.
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Old 03-04-2015, 08:58 PM   #76
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The plaintiffs argument is weak, attempting to take a specific sentence out if context. They refer to "established by the state" but the leave out it is "established by the state under 1311". Section 1311 covers the "state" exchange, but following is section 1312 which covers the Fed exchange which is established if the state fails to do so. Specifically 1312(c)

the Secretary shall (directly or through agreement with a notfor-profit
entity) establish and operate such Exchange within
the State and the Secretary shall take such actions as are necessary
to implement such other requirements.


The term "such exchange" means the state exchange. Another way to think about it is there are two ways for a state to create an exchange as required by the law. They can use their own resources or default to a federally facilitated one. Whatever choice the state makes, they have created an exchange for their state.
This is the guy who ruined 1312c. from standing on it's own. His name is Johnathan Gruber who was one of the architects of the ACA, who gave this seminar in 2012. However, with the new abjection just raised. It seems that if this were true, it would fall under coercion.

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Old 03-04-2015, 09:11 PM   #77
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The plaintiffs argument is weak, attempting to take a specific sentence out if context.
Seems like this weak case has made it pretty far.

We'll know what the judges make of the arguments and reasoning in a few months. I wouldn't bet that the court will find for the plaintiff's, but it is possible.

Regarding the "coercion" line of reasoning: Interesting and unfortunate that Mr Gruber's comments about the formulation of the ACA did not come to the attention of the SCOTUS before their ruling in National Federation of Independent Business vs Sebelius. If the intent of the law was to coerce the states into setting up exchanges (as he clearly alleges), maybe things would have gone differently there. It seems too late now for the court to question the law's Constitutionality on that point now. So ironically, that now becomes an argument for the defense ("denying the residents of a state subsidies if the state doesn't establish exchanges would be coercive and unconstitutional. SCOTUS already ruled that the law is constitutional. Therefore, the law's drafters must have not intended to be coercive--they intended to allow the subsidies for exchanges established by the federal government (thought they didn't write that))."
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Old 03-04-2015, 10:35 PM   #78
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Seems like this weak case has made it pretty far.

We'll know what the judges make of the arguments and reasoning in a few months. I wouldn't bet that the court will find for the plaintiff's, but it is possible.

Regarding the "coercion" line of reasoning: Interesting and unfortunate that Mr Gruber's comments about the formulation of the ACA did not come to the attention of the SCOTUS before their ruling in National Federation of Independent Business vs Sebelius. If the intent of the law was to coerce the states into setting up exchanges (as he clearly alleges), maybe things would have gone differently there. It seems too late now for the court to question the law's Constitutionality on that point now. So ironically, that now becomes an argument for the defense ("denying the residents of a state subsidies if the state doesn't establish exchanges would be coercive and unconstitutional. SCOTUS already ruled that the law is constitutional. Therefore, the law's drafters must have not intended to be coercive--they intended to allow the subsidies for exchanges established by the federal government (thought they didn't write that))."

I think you make a mistake in assuming that a prior ruling on a different question about constitutionality would force them to keep that same thinking on a this question....

IIRC, they threw out the part on expanded medicaid on constitutional grounds.... but upheld the law on the penalty saying it was a tax... this is a new question that has not yet been answered...

But then again, I could be wrong...
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