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OpenMarket: Health Care

  • More Lawsuits Against Doctors, Hospitals Due To Senate Amendment 3215 To NDAA

    December 4, 2012 12:26 PM

    Earlier, I wrote about a proposed amendment to the National Defense Authorization Act for 2013, which would dramatically increase lawsuits against schools and colleges by allowing them to be sued for "disparate impact" and for punitive damages under Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. But I forgot to mention another area where the amendment, SA 3215, would have a huge impact: doctors and hospitals, which also are commonly subject to liability under Title VI.

    The disparate-impact/punitive damages provision buried in the amendment several Senate Democrats want to add to the Defense Authorization bill (Amendment #3215) also would harm doctors, hospitals and other healthcare businesses by making it easier to sue them for failing to provide bilingual translators free of charge to patients. (Doctors or hospitals who lose Title VI lawsuits also can be forced to pay hundreds of thousands of dollars in attorneys fees, under the so-called Christiansburg Garment rule.)

  • Obamacare Will Increase Health Insurance Costs In California, Washington, D.C., And Elsewhere

    October 31, 2012 4:59 PM

    California officials concede that their state's Obamacare exchange will hike premiums for policyholders by up to 25 percent. In the District of Columbia, small businesses are being forced to buy overpriced insurance on an Obamacare exchange by the "District of Columbia Health Benefit Exchange Authority," which "voted . . . to require D.C. small businesses to buy coverage through the exchange. Although President Obama falsely claimed when Obamacare was enacted that "if you like your present health insurance, you can keep it," Washington's small "employers can stick with their current health insurer" only "if that provider opts into D.C.'s exchange." Even if it does, employers "may see their rates increase . . . experts said." The forced participation in the exchange will "apply to any company that has an office in the District with 50 or fewer employees.

  • FDA Delay Likely Killed Thousands, Imposed Billions In Costs

    July 13, 2012 11:37 AM

    The FDA didn't approve a home test for HIV until 24 years after it first received an application. According to an FDA advisory committee, the test "holds the potential to prevent the transmission of more than 4,000 new HIV infections in its first year of use alone." That means thousands of people likely got infected with AIDS as a result of the delay in approving it. As Roger Parloff of Fortune notes, the FDA's delay in approving the home HIV test is a "scandal." It likely caused the deaths of thousands of people, given the mortality rate from AIDS.  It may also have caused billions of dollars in additional costs for taxpayers, given that AIDS is a costly and debilitating disease to treat, resulting in treatment costs of perhaps $600,000 per AIDS sufferer.

  • Dietitian Licensing Board Attempts To Limit Free Speech, Silence Bloggers

    July 11, 2012 2:33 PM

    Have you ever given someone advice on how to lose weight through dietary changes? Have you ever recommended that certain foods could be consumed or avoided to aid in sleep, stress, or intestinal issues? Well then, according to the North Carolina Board of Dietetics and Nutrition, you should be thrown in jail for up to a month and a half. Now, newly leaked documents prove what many suspected from the beginning: the effort to silence unlicensed dietitians and online bloggers giving nutritional advice is all about eliminating competition for the Board of Dietetics’ licensed members.

    The issue received national attention earlier this year after Steve Cooksey, an online blogger promoting the “Paleo” diet, received a letter from the Board of Dietetics telling him that his blog violated state law. By providing advice on his blog for free  and also providing coaching for a fee, the Board of Dietetics claimed he was guilty of practicing unlicensed dietetics, a crime worthy of fines, court orders to cease and desist, and even jail time. The Institute for Justice has taken up Cooksey’s case and they are fighting the charges of the Board on the grounds that such application of the law violates his First Amendment right to freedom of speech. According to IJ, not only did the Board demand that Cooksey cease his only advice giving, but that he may not even provide nutritional advice in private! According to IJ, the Board of Dietetics and Nutrition also told Steve that his private emails and telephone calls with friends and readers were illegal. The Board also ordered him to shut down his life-coaching service.

    And while Cooksey is being challenged by a state board of licensed dietitians, it is important to remember that there is a nationwide effort to clamp down on unlicensed competition through legal and legislative means.

  • Court's Obamacare Decision -- What Would John Locke Say?

    July 2, 2012 12:46 PM

    Richard Epstein of the Hoover Institution and the University of Chicago Law School gives the Chief Justice some tough love in "What Was Roberts Thinking? The Chief Justice was neither an umpire nor a statesman. Only a lawyer."

    There are many wise words in Prof. Epstein's column, which I heartily encourage anyone visiting this site to read.

    My only quibble is that the professor could have been harsher on the Honorable John Roberts. Really, Roberts held that the Obamacare individual mandate is a penalty not a tax so the Court could take jurisdiction but that the mandate is a tax not a penalty so the Court could uphold mandate's constitutionality. Why do Congress’s words (“penalty”) not the provision's alleged function (“tax") count for determining standing but the alleged function not the words count for determining constitutionality? This is "too clever by half," as Epstein observes. The only "logic" operating here is political: pick and choose which meaning is convenient to get the outcome you want.

    Even this ruse fails, as Epstein argues, because the mandate is in fact a penalty, not a tax. In the dissent, Justice Antonin Scalia notes that the word “penalty” occurs 18 times in the portion of the statute dealing with the individual mandate, whereas “tax” occurs in other provisions, demonstrating that Congress chose “penalty” deliberately, because, after all, the thing so labeled is not a tax. As Scalia argues, Roberts “saved” the Affordable Care Act (a.k.a. Obamacare) by “rewriting” it. Thus, Roberts’s “judicial modesty” was actually a case of “judicial overreach.” Roberts joined the liberals to legislate from the bench.

  • The Good, the Bad, and the Broccoli

    July 2, 2012 10:11 AM

    Most people thought that the health care decision would hinge on the Court’s interpretation of the Commerce Clause. That’s why I wrote the first three posts in this series; to catch everyone up on the clause’s history before the ruling. Thankfully, the Roberts Court ruled the right way on commerce. They decided that forcing someone uninvolved in commerce to enter into it is not legitimate regulation. That’s good. But they still upheld the mandate under Congress’ power to lay and collect taxes. That’s very bad.

    The now-infamous broccoli question -- whether it would be constitutional for Congress to require all Americans to eat broccoli -- turned out not to be a yes-or-no question. Technically, the answer is no. Practically, the answer is yes. While the government can’t force you to buy broccoli, it can now penalize you with taxes if you don’t. Whatever your opinion of the health care bill, nobody in America should feel comfortable with this precedent. Soon the power to tax your inaction will be out of Obama’s hands, out of the Democratic Senate, and into the tool-box of someone you don’t like.

    Still, this outcome is better than if the mandate was upheld under the commerce clause. “Tax” is a dirty word for voters, and Congress will be reluctant to pass laws that employ a behavioral tax, as opposed to the readiness -- giddiness, almost -- with which they pass laws claiming to regulate interstate commerce.

    For individuals concerned about the massive growth of federal power, this decision is bad news overall. But the limit placed on the commerce clause is a definite victory, and the biggest of its kind since the Lopez case nearly two decades ago. It’s a spoonful of sugar, if you will, to help the broccoli go down.

  • Obamacare Lives. So, Now What?

    June 29, 2012 11:44 AM

    Former CEI scholar Tom Miller (now with AEI) has some thoughts on the Obamacare decision in today's Los Angeles Times. Tom summarizes the meaning of yesterday's decisions, but the meat of his article is spent asking, in his very thoughtful way, "What's next?"

    "We have already heard cries for repealing the law in Congress, but the fact is that most of the healthcare industry is resigned to shrugging its shoulders and falling back into line with the political deals it cut with the Obama administration several years ago. The political case for repeal will become much stronger among grass-roots voters — particularly independent ones — outside the Beltway this fall if it is combined with a credible, attractive alternative that offers better solutions to chronic health policy problems."

    The challenge now for free market advocates is to map out a course forward.

    Logical or not, the ruling underscores the dangers of relying too heavily on the Supreme Court to solve policy problems. Conservatives should have used the time that the court was deliberating to formulate attractive legislative proposals to both repeal and replace this unpopular law.

    But they didn't. So where does this leave us? ...

    The country needs a more competitive healthcare marketplace that encourages more entry and less command-and-control regulation. New insurance purchasing vehicles such as the exchanges called for under Obama's law should remain optional, not exclusive, and should welcome all willing buyers and sellers. By providing better and more usable information about the "value" of healthcare options — including how different healthcare providers perform — but without dictating decisions, the federal and state government could empower consumers to make more responsible choices on their own.

  • CEI Podcast: June 28, 2012: The Obamacare Decision

    June 28, 2012 2:09 PM

    General Counsel Sam Kazman shares his thoughts on the Supreme Court's health care decision, the Commerce Clause, Congress' taxation power, and more.

  • Supreme Court Concocts New "Rational (Tax) Basis" Test in Upholding Health Law

    June 28, 2012 2:08 PM

    In a move that seems to have surprised many observers, the Supreme Court today upheld nearly all of the Patient Protection and Affordable Care Act by a 4+1 to 4 majority (I'll explain the math below). Chief Justice John Roberts, who wrote the Court's opinion, joined with the four liberal justices in affirming the individual mandate and essentially all of the Medicaid provisions. The Court's three reliable conservatives, plus Justice Kennedy, wrote in dissent that the entire law should be ruled invalid. The opinions can be read in their entirety here.

    Addressing the question of the individual mandate, Roberts agreed that the mandate was not a proper exercise of Congress's commerce power:

    "The power to regulate commerce presupposes the existence of commercial activity to be regulated. ... As expansive as this Court's cases construing the scope of the commerce power have been, they uniformly describe the power as reaching "activity." ... The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce bypurchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority."

    That's the good news. A majority of the Supreme Court Justices recognize that Congress's commerce power is not totally unbridled. Predictably, Justice Ruth Bader Ginsburg wrote a concurring opinion expressing her belief that the mandate WAS in fact a constitutional exercise of the commerce power (explaining the 4+1 majority I mentioned above). Although Justices Breyer, Sotomayor, and Kagan concurred with parts of Roberts's majority opinion, they concurred with Ginsburg on the extent of Congress's commerce power.

    The four-Justice majority also rejected the government's backup argument that the mandate could be justified under Article I, Section 8, Clause 18 (what grade schoolers are taught is the "elastic clause") as "necessary and proper" for effectuating the rest of the Affordable Care Act:

    "The individual mandate ... vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is "necessary" to the Affordable Care Act's other reforms, such an expansion of federal power is not a "proper" means for making those reforms effective."

  • Obamacare Upheld, 5-to-4: A Perverse Decision That Undermines Political Accountability

    June 28, 2012 12:45 PM

    Today, in a really perverse ruling, the Supreme Court upheld Obamacare's individual mandate as a tax in a 5-to-4 decision, even though Obamacare's supporters repeatedly denied when they were passing it that it was a tax. (The Court did concede that the individual mandate wasn't valid under the Constitution's Commerce Clause, so it instead relied on Congress's tax power.) This ruling lets politicians avoid the political heat by denying that something is a tax in order to pass it (as President Obama and congressional leaders did, to deny that they had broken Obama’s pledge not to raise taxes on anyone making less than $250,000 a year), even if they intend for it to be upheld later as a tax. That undermines political accountability, and gives cover to fork-tongued politicians seeking to bamboozle their constituents.

    To uphold Obamacare as a tax, the Court twisted itself into a pretzel, first treating Obamacare as not a tax for purposes of the Anti-Injunction Act in order to rule on the merits of the challenge, then upholding it as being a tax for purposes of the Constitution. (The Anti-Injunction Act prevents the courts from ruling on constitutional challenges to taxes before they are collected.) I explained earlier how upholding Obamacare cannot be justified under the Commerce Clause, since it would effectively remove any limit on federal regulatory power, violating principles of federalism.

    Some press accounts have claimed that Roberts, who authored the Court's opinion, is a “conservative” justice (his ruling was joined in large part by the Court's most liberal justices). I’ve never considered Roberts a “conservative justice.” Whatever his personal inclinations may be, he is subject to the peer pressure of being in a largely liberal milieu. (And his decisions reflect that, since he has joined in many liberal rulings). The Supreme Court bar, Supreme Court reporters, and lawyers in general are largely a liberal bunch. Lawyers are much more Democratic-leaning than the general public (the Harvard Journal of Law and Public Policy once noted that Clinton beat Bush by a nearly two-to-one margin among lawyers, despite winning by only several points among the general public). And even so-called “conservative” justices are products of the liberal legal community. Being a "conservative" lawyer is like being a "conservative" Democrat -- conservative only in relative rather than absolute terms. The fact that the legal community is much more liberal than the public at large results in peer pressure for judges to uphold laws backed by liberal politicians even in the face of well-grounded constitutional challenges.


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