Early Indications Are Leaning Toward a Favorable SCOTUS Decision for the ACA

One thing I learned as a Constitutional Law prof many years ago is to not give full faith and credit to the comments and questions of Justices during oral argument. Sometimes they are simply testing out ideas that they plan to write against when the dust settles. All that said . . . 

Early reports from today's oral argument in the Supreme Court suggest that Justices Sotomayor, Kagan, and Breyer may be joined by Chief Justice Roberts and Justice Kavanaugh in upholding the ACA against the attack mounted by 20 GOP-led states. Policy wonks decry the possibility that 20 million people in this country could lose their health insurance if the ACA is struck down, and millions more will lose coverage if other underwriting reforms go down the tubes, including the prohibition against discriminating on the basis of pre-existing conditions, the ban on annual and lifetime caps, and the option for children to be covered by their parents' health insurance until they turn 26. The Supreme Court doesn't get to make health policy, but consequences as Draconian as these have to figure into their reading of the law, especially in a case in which congressional intent controls the issues. 

There are two issues in play. The first is whether the individual mandate can survive Congress's decision in the 2017 tax law to reduce the penalty tax for failing to secure health insurance all the way down to $0. Without a tax, the plaintiffs have argued, the constitutional basis for the mandate disappears. Maybe. I seem to remember from Income Tax I (Summer 1975) that Congress has from time to time elected not to collect a tax, and the Court has upheld the regulation attached to the tax nonetheless. Even if I recollect incorrectly, it should be at least a close question whether Congress intended to wipe out the individual mandate when they reduced the tax. It seems supremely silly to me 

If the Court answers the first question in the affirmative, the second question shouldn't be close at all: whether the end of the individual mandate means the entire ACA should be tossed out as well. The question is one of severability, and it shouldn't even pass the smile test, although the district court and the Fifth Circuit opined that the ACA could not be saved if the individual mandate were taken out. 

Stay tuned . . . 

Everything You Wanted to Know About Liver and Lung Transplant Allocation Policies But Were Afraid to Ask

The Government Accountability Office has issued a detailed letter report on recent changes to the allocation policies for these two organs. Over the years, this has been a difficult subject to teach in my Bioethics & Law course. I hope this will be a good resource for anyone seeming an overview of the manner in which these scarce resources are allocated, as well as a brief summary of the responsibilities of HHS, HRSA, and UNOS in maintaining the national Oran Procurement and Transplantation Network.

President Maligns Physicians and Hospitals in Midst of Third Wave

Out on the campaign trail last week, Pres. Trump had this to say:

“[O]ur doctors get more money if somebody dies from covid.” 

“You know that, right?” Trump said at a Michigan rally on Friday. “I mean our doctors are very smart people. So what they do is they say, ‘I’m sorry, but everybody dies of covid.’” [Wash. Post, 11/3/2020]

The American Medical Association and American Hospital Association have branded this accusation "offensive" and "unfounded." The Washington Post article quotes Chip Kahn, a spokesman for the Federation of American Hospitals: "That would be fraud — and something the Department of Justice could prosecute. 'It’s unethical, it’s illegal and it’s inappropriate,' Kahn said.

There's no question that hospitals may be reimbursed for testing and treating uninsured COVID-19 patients. Three of the relief statutes passed by Congress in March provide for reimbursement at Medicare rates for these services. A few points deserve mention:

• There is no reimbursement under these laws if the patient is insured.
• Medicare payment rates are, on average, about half of the rates paid to hospitals by private insurance plans. It's quite possible that Medicare-level payments don't cover the hospitals' costs for treating these very expensive cases (though there are few things on the planet more complex than Medicare cost-accounting).
• Hospitals (and physicians) aren't getting rich off the pandemic. Quite the opposite: hospital layoffs and bankruptcies have increased under the financial strain experienced over the past 9 months.
• Many states prohibited elective procedures during a long period of the pandemic (and may do so again if the third wave -- or fourth wave -- is as horrific as Dr. Birks has predicted). These procedures are the day-in and day-out bread-and-butter sources of income that keep hospitals' balance sheets out of the red. Most health and hospital systems are struggling to keep going.
• There is no bonus for a COVID-related death. The "bonus" is that health care professionals (HCPs) experience increased exposure to infected patients and increased risk of becoming infected themselves. As a result 800 or more HCPs have died from COVID-19.
• As for the president's assertion that doctors and hospitals are gouging the system with false diagnoses of COVID-19: No comment.