| Four New Challenges to Obamacare: Can Any of Them Possibly Work? Posted: 29 Oct 2013 07:03 PM PDT A few days ago an article the LA Times announced LA Times More legal trouble for Affordable Care Act. The Affordable Care Act proposes to make health insurance affordable to millions of low-income Americans by offering them tax credits to help cover the cost. To receive the credit, the law twice says they must buy insurance "through an exchange established by the state."
But 36 states have decided against opening exchanges for now. Although the law permits the federal government to open exchanges instead, it does not say tax credits may be given to those who buy insurance through a federally run exchange.
Apparently no one noticed this when the long and complicated bill worked its way through the House and Senate. Last year, however, the Internal Revenue Service tried to remedy it by putting out a regulation that redefined "exchange" to include a "federally facilitated exchange." This is "consistent with the language, purpose and structure … of the act as a whole," the Treasury Department said.
But critics of the law have seized on the glitch. They have filed four lawsuits that urge judges to rule the Obama administration must abide by the strict wording of the law, even if doing so dismantles it in nearly two-thirds of the states. And the Obama administration has no hope of repairing the glitch by legislation as long as the Republicans control the House.
This week, U.S. District Judge Paul Friedman in Washington, a President Clinton appointee, refused the administration's request to dismiss the suit. Instead, he said the challengers had put forward a substantial claim, and he promised to issue a written ruling.
"This is a problem," said Timothy Jost, a law professor at Washington and Lee University. "This case could have legs," although "it was never the intent of Congress to establish federal exchanges that can't do anything. Might Such a Challenge Work? After reading the LA Times article, I pinged a couple of very bright lawyers and asked if there was any chance such a strategy might work. One of them replied .... Hello Mish
It's hard to say, especially since there were probably matching changes in the Internal Revenue Code as well.
Usually you can make arguments to help interpret language like this from its context by reading other sections of the law. But what if other sections of the law are worded similarly?
I tend to think that no one intended this result. Will the court rule on intent?
This is highly political charged and tight legal analysis goes out the window when politics enters the room.
It will be interesting to see what happens. More Constitutional Challenges In addition to the above legal challenge, the Constitution Daily discusses three additional complications. Please consider Is Obamacare's legality still in doubt? From the very day in March 2010 that the President signed that measure into law, it has been under assault on three fronts: in the courts, in Congress, and in nearly three dozen states. Its central feature is a mandate that individuals obtain health insurance, or pay a penalty to the Internal Revenue Service. Many Americans believe, and even President Obama has been known to say, that the Supreme Court has upheld that mandate. Perhaps only lawyers and judges can draw a point so finely, but the Court last year actually upheld the penalty without explicitly upholding the duty to obtain insurance, and now both are scheduled to go into effect next year.
One of the reasons why Obamacare cannot escape repeated challenges in court is that it has so many parts to it, and arguments can be made against a good many of them. And one of the reasons that it may continue to be vulnerable, in a potentially devastating way, is that so many of the parts are interacting, and a court decision against one may have a spreading impact on others.
The reality is that the Supreme Court has only begun to be asked to reject key parts of the law, with more cases making their way through the lower courts. There are four potentially very significant new challenges under way.
Within coming weeks, the Justices are expected to act on the first of this new round of challenges. That is a case being pursued by Liberty University, the religious college in Lynchburg, Va., which contends that the individual insurance mandate interferes with its and its workers' religious beliefs – a point that the Supreme Court did not consider last year.
The administration itself has asked the Court to review, in the current term, the part of Obamacare that requires employers with more than 50 employees to provide their workers with coverage for a variety of birth-control drugs and pregnancy screening methods. This second challenge developed in more than five dozen lawsuits across the country, with conflicting results that the Supreme Court is likely to step in to resolve.
The third new legal protest that may reach the Justices in coming months is a claim, now under review by a federal appeals court in Washington, that the penalty provision that the court upheld last year is itself unconstitutional. The argument is that, since the Constitution requires that all tax and revenue measures must get their start in the House of Representatives, this provision is invalid because it originated in the Senate. A federal judge blocked that claim, on procedural grounds.
The fourth new challenge is just getting started in several federal courts around the country, and it apparently has major potential for disrupting Obamacare's interdependent scheme of coverage and thus is growing in popularity with the law's critics.
Under the law, if individuals' income is too low for them to afford insurance coverage, they are exempted from the mandate to buy it and can expect to be eligible for government-provided medical care for the poor.
But the government wants many of those individuals to be able to shop for affordable coverage on the new "exchanges," or insurance marketplaces, that the law creates. To make them eligible, Obamacare provides a tax credit they can apply toward insurance premiums. The tax credit offer is considered vital to making the exchanges work, to assure that many of the nation's lower income families get covered, and to assure that there are enough customers to keep insurance companies offering affordable policies in those exchanges.
The Internal Revenue Service has ruled that this tax credit will be available to lower income people in every exchange across the country. But the new lawsuits contend that the IRS has simply misapplied the law. The law, as they read its wording, says that the tax credit only applies to those shopping at an exchange run by a state government, not at the federal substitutes. Will Any Challenges Work? I am not a lawyer, but the first two attacks presented in the Constitution Daily seem narrow enough in scope the court could easily uphold Obamacare but allow individuals to opt out of aspects of the law for documented religious beliefs. If someone has no insurance now, corporate or otherwise, and can prove on religious grounds that religion is the reason, let those persons opt out, under the proviso they never take medical care at taxpayer expense. How many individuals will that be? The second attack is even sillier. After all, the law does not force anyone to take birth-control pills or undergo pregnancy screening. If a person does not want those procedures, the remedy is easy: Don't take birth control pills and don't undergo medical procedures you don't want! The second challenge is so ridiculous it's no wonder Obama actually wants as Supreme Court ruling. The fourth challenge is the same one presented by the LA Times. My friend offered an educated guess worth repeating " This is highly political charged and tight legal analysis goes out the window when politics enters the room." I suggest the same may apply to the third argument " Obamacare is invalid because it originated in the Senate". It is the third and fourth challenges that may have legs. Second Thoughts? One California resident with second thoughts says " I was all for Obamacare until I got the bill". Recall that the Supreme court ruling was 5-4. Is it inconceivable that one of the 5 has second thoughts? If so, Obamacare may die a sudden death and we can start all over. Let's hope so. This law, as passed is a clear boondoggle in more ways than one. As many as 16 million Americans will lose their existing coverage that they want to keep. For details, please see More Obamashock! Glitches Hit Paper, Phone Applications; Obamacare Glitch Great Quotes. Mike "Mish" Shedlock http://globaleconomicanalysis.blogspot.com |
| Need a Hand? Boy Gets Prosthetic Hand Made by 3-D Printer (Cost $5 vs. $30K Medical Device) Posted: 29 Oct 2013 02:02 PM PDT What do you do when you cannot afford a $30,000 prosthetic hand that your son needs? Two years ago, Paul McCarthy began searching for an inexpensive yet functional prosthetic hand for his son Leon, who was born without fingers on one of his hands. McCarthy came across a video online with detailed instruction on how to use a 3-D printer to make a prosthetic hand for his son. McCarthy made a prosthetic hand for his son for a cost of $5 and free time on a 3D printer. Link if video does not play: prosthetic hand made by 3-D printer Large Mechanical Hand A "large mechanical hand" invention by Ivan Owen is what kicked off the technological progression to "Robohand".  Here is an interesting, 49 second Video on Owen's Mechanical Hand Dexterity To Children With No Fingers As noted by NPR, 3-D Printer Brings Dexterity To Children With No Fingers followed "Mechanical Hand". Here are a couple of images.   From NPR ... Richard Van As was working in his home near Johannesburg, South Africa, in May of 2011, when he lost control of his table saw.
The carpenter lost two fingers and mangled two more on his right hand. While still in the hospital, he was determined to find a way to get back to work. Eventually, solving his own problem led him to work with a stranger on the other side of the world to create a mechanical hand using a 3-D printer. Other prosthetics, including a lower jaw, have been made with the technology before, but making a hand is particularly tricky.
In time, Van As from Ivan Owen. In the video, Owen, a special effects artist and puppeteer in Bellingham, Wash., was demonstrating one of his creations, a big puppet hand that relies on thin steel cables to act like tendons, allowing the metal digits to bend.
The two began working together long distance — Skyping, sharing ideas, even sending parts back and forth. Finally, Owen flew to South Africa to finish the work in person with Van As. And today, Van As has a working mechanical finger to assist him with his work.
But something else happened on Owen's visit to South Africa: While he was there, Van As received a call from a woman seeking help for her 5-year-old son, Liam Dippenaar, who was born without fingers on his right hand. The cause was a rare congenital condition called amniotic band syndrome. In ABS, fibrous bands can wrap around a hand or a foot in utero and cut off circulation.
Van As says he and Owen looked at each other and were of one mind: " 'Yeah, easy, no problem.' "
Within days, they developed a crude mechanical hand for Liam, with five aluminum fingers that opened and closed with the up and down movement of Liam's wrist. Owen still remembers the 5-year-old's reaction when they rigged up the device for the first time.
"He bent his wrist and made the fingers curl," Owen says. "You could see the light bulbs go off and he looked up and said, 'It copies me.' It was really an incredible moment."
When Owen flew back to the United States, he wondered if the device could be turned into printable parts.
So he emailed MakerBot, a firm that makes 3-D printing equipment, to see if the company would help out. It did, offering both Owen and Van As a free 3-D printer. "Then there was no stopping us," Van As says.
What had previously taken the pair a week's time or more — milling finger pieces, adjusting and tweaking parts — now took 20 minutes to redesign, print and test.
Eventually, Liam's crude hand was replaced with the improved 3-D printed version, which Van As and Owen call "Robohand."
"After practicing with it for a little while, Liam was able to pick up a coin, grab objects of different shapes and sizes," Owen says. "He's a really determined little guy." Need a Hand? If you literally "need a hand" you can Download the Plans and Instructions for Robohand on Thingiverse. With a 3-D printer and about $150 in parts, you can make a hand. It will work better than the $30,000 prosthetic hands you can get from medical sources. Strike that. 3-D printers can now make a newer "Lego-style" Snap Together Hand for about $5. Here is an image.  Before any insurance companies approve $30,000 devices, they ought to look into what they can get for $5. Mike "Mish" Shedlock http://globaleconomicanalysis.blogspot.com |
| Senator Harry Reid Supports Giving Illegal Aliens Tax Credits for Kids Not Even Living in US Posted: 29 Oct 2013 11:09 AM PDT U.S. Rep. Sam Johnson, R-Texas, left, wants to end the practice of giving illegal immigrants tax credits for kids, but U.S. Sen. Harry Reid, D-Nev., won't let the House-approved measure H.R. 556 through the Senate. " The System is Working Fine" says Senator Harry Reid, even though the Joint Committee on Taxation calculates that enactment of H.R. 556 would save taxpayers $24.4 billion over the next decade. The House of Representatives repeatedly has passed an IRS bill that could save U.S. taxpayers up to $24.4 billion over the next 10 years — but Harry Reid's Democratic Senate will not hear it.
The Refundable Child Tax Credit Eligibility Verification Reform Act, or H.R. 556, would require tax filers to provide Social Security numbers to claim child tax credits.
Currently, the IRS allows undocumented residents to collect the $1,000 credits for dependents not even living in the country. Watchdog reported that illegal immigrants received $4.2 billion from the tax agency in just one year.
"My bill (targets) billions of dollars in waste, fraud and abuse. Instead of hitting up taxpayers for even more taxes, Washington needs to go after these billions of dollars," said U.S. Rep. Sam Johnson, R-Texas.
Though the GOP-controlled House has passed Johnson's measure three times, Senate Majority Leader Reid, D-Nev., refuses to allow the bill to come up for a vote in his chamber.
"The IRS has been doling out the credit to tax filers claiming children who do not even live in the country," Johnson charged.
Tax preparers agree that the system is broken — and that the IRS must fix it. They say the agency has to stop disbursing ACTC refunds based on Individual Taxpayer Identification Numbers, which are available to undocumented residents.
Tax preparers told Watchdog they have seen clients from Guatemala, El Salvador, Honduras and Nicaragua claiming Mexican children as dependents.
A 2009 TIGTA audit concluded that the child tax credit "appears to provide an additional incentive for aliens to enter, reside, and work in the U.S. without authorization, which contradicts Federal law and policy to remove such incentives."
Johnson's bill would impose a 10-year ban on tax filers who commit fraud and a $500 penalty on tax preparers who knowingly bilk taxpayers through the ACTC program.
"I just think the child tax credit is working just fine, and there's no need to punish children," the Democratic leader told the Associated Press in February. Better Ideas Johnson's bill would impose a 10-year ban on tax filers who commit fraud and a $500 penalty on tax preparers who "knowingly" bilk taxpayers through the ACTC program. Proving that a tax preparer "knowingly" sent in a fraudulent return would be next to impossible. What if we paid tax preparers $250 for every illegal immigrant removed from the system? Active incentives to weed out existing fraud would certainly work better than passive incentives to stop further abuse. If Johnson's bill would save $24 billion, my idea would surely save more. One could reasonably go further and kill the program in entirety. Hypocricy and Partisan Politics One would hope that with budget deficits wildly out of control and with interest on the nation's debt piling up even with historic low interest rates, that common sense measures to save $24 billion would get easy passage. But such hopes are dashed on the hard rocks of partisan politics. What one party wants, the other doesn't. Moreover, I am quite sure enough Democrats would vote for this bill if they were allowed. But they aren't. Reid has blocked the measure. Recall the outrage by Senator Reid, the media, and the Democrats when House Speaker John Boehner would not allow a vote on a clean budget resolution bill. Now Reid is doing the same thing, and it's costing taxpayers $24 billion. Where's the media outrage? Mike "Mish" Shedlock http://globaleconomicanalysis.blogspot.com |
| Unnecessary Surgeries? You Bet! Doctors Treat Patients as ATMs; US Healthcare System Explained in Six Succinct Points Posted: 28 Oct 2013 11:16 PM PDT There is little to no incentive in the healthcare industry to hold down costs. Worse yet, the rewards for performing unnecessary surgeries is huge, while the risks of doing them are essentially nonexistent. Here are a couple of articles that show what I mean. Prostate Cancer Radiation Therapy Rises as Doctors Profit Bloomberg reports Prostate Cancer Radiation Therapy Rises as Doctors Profit. Urologists who buy their own equipment to provide expensive radiation treatment are more likely to use it to treat prostate cancer even when the benefit for patients is unclear, research shows.
Prostate cancer is the most common tumor diagnosed in the U.S., where an estimated 238,590 men were told they had the disease this year. While only about 12 percent, or 29,270 men, will die from it this year, all will have to decide how, and whether, they want to treat the cancer.
A study published in the New England Journal of Medicine suggests that profits urologists make from referring patients to their own radiation facilities play an outsized role in the treatment decisions. One third of men whose doctors own radiation equipment get the therapy at a cost of about $35,000 per treatment course. The same doctors prescribed the therapy for just 13 percent of their patients before they had their own equipment and could profit directly.
"The results are striking," said Jean Mitchell, the author of the report and a professor of public policy at Georgetown University in Washington, D.C. "It does appear that what's driving this is financial incentives linked to ownership. Their behavior changes dramatically."
Claims Data
Using claims data from the U.S. government's Medicare insurance program for the elderly, Mitchell found that urologists who didn't own the equipment prescribed IMRT for 15.6 percent of their patients in 2010, compared with 14.3 percent five years earlier. Its use among the NCCN doctors stayed constant at about 8 percent, while it soared to 44 percent among a matched-group of doctors who started to refer patients to their own radiation treatment facilities.
Self-Referral
"It's crazy the way the system is set up," Mitchell said in a telephone interview. "The patients are going to do what their physician tells them to do. The patient becomes almost like an ATM machine, with the doctor extracting as much revenue as they can."
Ethical Practices
Physicians in general aren't allowed to refer their patients for treatment in facilities that they also own, because of the financial conflict of interest. However, radiation, as well as in-office ancillary services, such as doing blood work and x-rays, are exempted under U.S. law.
The analysis found that doctors who owned the IMRT therapy were treating men ages 80 and older just as aggressively as younger men with early stage prostate cancer. Since the cancer is generally slow-growing, and radiation can carry immediate side effects, including erection problems and urinary symptoms, the older patients may experience only the harms and no benefits.
The study bolsters similar findings with other forms of self-referral. In fact, some urologists have incorporated pathology labs into their practices, boosting the number of biopsies they perform, Mitchell said. Research has found similar results in other areas, including advanced imaging and surgery at physician-owned specialty hospitals. Spinal Fusion Cash Cow The Washington Post reports Spinal fusions serve as case study for debate over when certain surgeries are necessary. By some measures, Federico C. Vinas was a star surgeon. He performed three or four surgeries on a typical weekday at the Daytona Beach, Fla., hospital that employed him, and a review showed him to be nearly five times as busy as other neurosurgeons. The hospital paid him hundreds of thousands in incentive pay. In all, he earned as much as $1.9 million a year.
Yet given his productivity, some hospital auditors wondered: Was all of the surgery really necessary?
To answer that question, the hospital in early 2010 paid for an independent review of cases in which Vinas and two other neurosurgeons had performed a common procedure known as a spinal fusion. The review was conducted by board-certified neurosurgeons working for AllMed, a company accredited to audit health-care businesses.
Of 10 spinal fusions by Vinas that were selected, nine were deemed not medically necessary, according to a summary of the report.
More than 465,000 spinal fusions were performed in the United States in 2011, according to government data, and some experts say that a portion of them — perhaps as many as half — were performed without good reason.
The rate of spinal fusion surgery has risen sixfold in the United States over the past 20 years, according to federal figures, and the expensive procedure, which involves the joining of two or more vertebrae, has become even more common than hip replacement.
Washington Post analysis of 125,000 patient records also shows that roughly half the tremendous rise in spinal fusions in Florida has been on patients with diagnoses that experts and professional societies say should not routinely be treated with spinal fusion.
In 2009, a former compliance official at the hospital filed a whistleblower lawsuit alleging illegal financial incentives for doctors. The court filings make available an array of documents — e-mails, testimony, audits. These and other sources allow a fuller depiction of the financial rewards and relationships that depended on treatment decisions. They also show how hospital administrators responded when suspicions arose that a doctor, who was generating millions in profits, may have been performing unnecessary surgery.
Vinas and his colleagues in neurosurgery earned as much as thousands of dollars extra — above their base salaries — for each procedure after a certain threshold. The vast majority of Vinas's earnings came from such incentive pay, according to legal filings.
According to government estimates, each neurosurgeon at Halifax Health was generating more than $2 million a year in hospital profits. The hospital charged fusion patients an average of about $80,000, according to Florida records on Halifax Health analyzed by The Post, ranking the procedure as one of the more expensive.
Baklid-Kunz detected Vinas's rapid pace of work in an audit and asked for further review of his surgeries, documents show.
But she was discouraged from investigating further, she said.
"Hospital administrators didn't want to touch Dr. Vinas," she said in an interview.
Instead, they referred to Vinas and the hospital's two other neurosurgeons as "our high rollers," she said, and told her that rather than cracking down on their billing that "we need to make them happy."
Medicare In the Spotlight
Medicare, the nation's health-care system for people older than 65, is at the center of the debate.
The agency estimated the amount of money spent improperly on spinal fusions was more than $200 million in 2011, for example, and most of that was because the treatment was deemed unnecessary, often because a more conservative course hadn't been tried, officials said.
How could this happen?
The answer, in part, is that the Medicare system is not designed to discourage doctors from performing it, according to past and present Medicare officials.
At a very practical level, the bureaucracy offers little incentive to weed out unnecessary treatment: Medicare hires contractors to issue payments to doctors, and those contractors are paid based not on how many claims they reject but on how many they approve. above emphasis mine US Healthcare System Greased for Fraud Medicare pays contractors based on how many claims they approve. Good grief! Very expensive prostate radiation therapy is conveniently exempt from self-referral laws. Although physicians in general aren't allowed to refer their patients for treatment in facilities that they also own (with the exception of radiation therapies), the problem of incentives is universal, across the board. Physicians paid on an incentive model, like spinal fusion star surgeon Federico C. Vinas, have every financial incentive to perform needless operations. Every step of the way, the US medical system is greased to perpetuate fraud against taxpayers, against patients, against insurers. US Healthcare System Explained in Six Succinct Points - A constant battle is underway between insurance companies that do not want to pay any claims, even legitimate ones, and doctors and hospitals incentivised to rip off patients, insurers, and taxpayers with unnecessary surgeries and Medicare fraud.
- Insurance companies demand massive amounts of paperwork out of rational fear of fraud and unnecessary treatments. Doctors perform for-profit (as opposed to for-patient) procedures that guarantee more explanations and more paperwork.
- Doctors and hospitals have direct personal contact with patients, but insurance companies don't. In cases where doctors put patients at huge risk with needless procedures and surgeries, it's easy for hospitals and doctors to point their finger at insurance companies. On the other hand, many sincere, honest doctors have difficulty getting patients the care they should have because insurers believe they are getting ripped off by unnecessary procedures, even when they aren't.
- Doctors make needless tests out of fear of being sued for not doing them.
- The vast majority of healthcare costs occur in final last year or so of someone's life. Politicians who want to do something sensible about this issue get accused of "rationing healthcare".
- Doctors not only have a financial incentive to prolong life needlessly, they also worry about not prolonging life out of fear of being sued by family members unless there is a living will, and perhaps even if there is a living will.
Obamacare Failings It would have been nice if Obamacare fixed some of the above problems. Unfortunately, Obamacare did not fix any of them. Fraud, ridiculous amounts of paperwork, and incentives to do the wrong thing were everywhere you looked before Obamacare. The same problems exist now. Worse yet, Obamacare added to the mess by over-charging millennials and their kids, and undercharging smokers and others with unhealthy lifestyles. Except for those below certain wage thresholds, insurance costs are likely to increase. Mike "Mish" Shedlock http://globaleconomicanalysis.blogspot.com |
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