TOP

DJP Update 10-14-2010 Breaking news! Federal Judge allows individual mandate case to proceed; WSJ Op-Ed re reforming PPACA

Oct 14
Posted by Dr. Donald Palmisano in DJP Updates
DJP Update 10-14-2010 Breaking news! Federal Judge allows individual mandate case to proceed; WSJ Op-Ed re reforming PPACA

DJP Comment:  Two exciting developments today.  Federal Court decision about individual mandate:  Judge ruled to let the case continue!  The second is an excellent Op-Ed about reforming PPACA via the exchanges.  Read the entire opinion and the complete Op-Ed.
DJP

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
STATE OF FLORIDA, by and through
Bill McCollum, et al.;
Plaintiffs,
v. Case No.: 3:10-cv-91-RV/EMT
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants.
____________________________________/
Complete opinion at:    http://healthcarelawsuits.org/pdf/FloridavDHHSRuling.pdf


EXCERPT from pages 63-64 of October 14, 2010 decision
ROGER VINSON
Senior United States District Judge
Case No.: 3:10-cv-91-RV/EMT
There are several obvious ways in which Heart of Atlanta and Wickard differ markedly from this case, but I will only focus on perhaps the most significant one: the motel owner and the farmer were each involved in an activity (regardless of whether it could readily be deemed interstate commerce) and each had a choice to discontinue that activity. The plaintiff in the former was not required to be in the motel business, and the plaintiff in the latter did not have to grow wheat (and if he did decide to grow the wheat, he could have opted to stay within his allotment and use other grains to feed his livestock — which would have been most logical, since wheat is usually more expensive and not an economical animal feed — and perhaps buy flour for him and his family). Their respective obligations under the laws being challenged were tethered to a voluntary undertaking. Those cases, in other words, involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel or growing wheat, you are engaging in interstate commerce and subject to federal authority.
But, in this case we are dealing with something very different. The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive. As the nonpartisan CBO concluded sixteen years ago (when the individual mandate was considered, but not pursued during the 1994 national healthcare reform efforts): “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.” See Congressional Budget Office Memorandum, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance, August 1994 (emphasis added). Of course, to say that something is “novel” and “unprecedented” does not necessarily mean that it is “unconstitutional” and “improper.” There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.
—–
See end of case opinion:
Accordingly, the defendants’ motion to dismiss (doc. 55) is GRANTED with respect to Counts Two, Five, and Six, and those counts are hereby DISMISSED.
The motion is DENIED with respect to Counts One and Four. Count Three is also DISMISSED, as moot. The case will continue as to Counts One and Four pursuant to the scheduling order previously entered.
DONE and ORDERED this 14th day of October, 2010.
—–

Thus the following will continue in court:
(Count I)
Challenge to individual mandate as exceeding Commerce Clause (Count I)
(See page 60 for start of discussion)
(Count IV)

Coercion and commandeering as to Medicaid (Count IV)


(see page 50 of opinion for start of discussion)
——-

ITEM TWO OF DJP UPDATE:  A must read article in WSJ:  “How to Reform ObamaCare Starting Now” by Scott Gottlieb and Tom Miller
READ entire article at:    http://online.wsj.com/article/SB10001424052748704116004575521770685906984.html
It also will be posted at:  http://www.aei.org/article/102656
The approach of these two authors is more in tune with long-standing AMA policy of choice and competition etc.!

EXCERPTS:
The Republican rallying cry during this election season has been a promise to “repeal and replace” ObamaCare. The problem is that through at least 2012 President Obama would veto any law repealing his signature health-care legislation. What, then, can Republicans do in the next two years? Look to the states.
—-
The more promising option is for governors to perform as much radical surgery as possible on the exchanges until a new Congress working with a different president can do something better. By offering their own market-friendly versions of exchanges, they will establish an alternative to ObamaCare and its one-size-fits-all health plans.
——
ObamaCare intends health-care exchanges to be a regulatory dragnet to trap insurers into offering a single government-prescribed set of health benefits. State-designed exchanges could, and should, do the opposite.

Any willing insurers already licensed to operate in a state should be able to offer plans. Their operating rules would focus on providing better information to consumers, rather than limiting the types of plans available. Exchanges should also enable easier allocation of private payments and public subsidies, simplify enrollment, and reduce transaction costs.

Once inside the exchange, consumers would be guaranteed the ability to renew their coverage without regard to changes in their health status, so long as they remain continuously insured. If individuals want to switch plans, they couldn’t be hit with higher costs due to changes in health status as long as they stay within some baseline range of benefits that was largely equivalent to their previous plan. And a new Congress should make sure that consumers shopping in these market-based exchanges get the same tax advantages that employers do, eliminating the bias that now forces people to get coverage from their bosses.

Under this arrangement, there wouldn’t be the incentive for gaming the system that exists under ObamaCare, which encourages forgoing coverage until one gets sick, or buying cheap policies and upgrading only after an illness strikes.

Of course, not everyone will be able to afford to purchase insurance in these exchanges. Poor people and those with major medical problems or chronic conditions that make them largely uninsurable would certainly need to be subsidized. But today we already subsidize many of these people through a patchwork of programs.

Taxpayers can provide targeted subsidies through expanded high-risk pools to cap out-of-pocket, risk-based premium costs for the most vulnerable. In the longer term, states could get waivers to “monetize” Medicaid medical benefits and allow these recipients to shop in the same exchanges. Recipients might well prefer a voucher option to Medicaid coverage that pays most providers half as much as private insurance and fails to deliver many of the benefits it promises. Subsidies should flow directly to consumers, rather than to the health plans as ObamaCare required.

ETC.

And check out the cartoon!

———-

Stay well,

Donald
P.S. Stop by http://twitter.com/DJPNEWS and sign up for DJPNEWS to get tweet alerts that may not make it into DJP Updates.  Twitter is free and takes minutes to join.  Put email in and pick password.  Great source of breaking news and you don’t flood your email with it.  You can get free app for BlackBerry or IPhone etc and you check on tweets when you want.
Also, recent selected DJP Updates can be found at:  http://donaldpalmisano.com/djp_update/
Donald J. Palmisano, MD, JD
Intrepid Resources® / The Medical Risk Manager Company
5000 West Esplanade Ave., #432
Metairie, Louisiana USA 70006
504-455-5895 office
504-455-9392 fax
This DJP Update goes to 2309 leaders in Medicine representing all of the State Medical Associations and over 100 Specialty Societies plus some other friends.
You can share it with your members and it has the potential to reach 800,000 physicians.
To join the list, send me an  email stating “Join DJP Update”
To get off the list, state ” Remove DJP Update” in subject line.







Comments are closed.