Published on November 10, 2014
John's presentation on the legal, ethical and social implications of the Affordable Care Act
1. Patient Protection and Affordable Care Act Legal, Social and Ethical Issues John J. Sarno, Esq. 1
2. Patient Protection and Affordable Care Act March 23, 2010 A New Era for America 2
3. Insurance Reform High-risk pool created (2010) Dependent coverage to age 26 (2010) Children with pre-existing conditions cannot be denied coverage (2010) No denial for pre-existing conditions eliminated (2014) No Charge for annual wellness visit (2014) Guaranteed issue policy (2014) Modified community ratio (2014) 80 – 85% medical loss ratio (2014) Long-term insurance program (2014) No pre-existing condition exclusions (2014) 3
4. All plans must provide Essential Health Benefits “Essential Health Benefits” requires minimum set of benefits, with no lifetime of annual coverage limits Ambulatory patient services Emergency services Hospitalization Maternity and newborn care Mental health and substance abuse coverage Prescription drugs Rehab services and medical devices Preventative and wellness/chronic disease management 4
5. “Free” Preventive Care No Co-pays No out-of-pockets No deductibles 5
6. Automatic Enrollment All new “full-time” employees will be automatically enrolled, subject to regulations. Notice will include opportunity to opt out. Current employees will be auto enrolled Applies to employers with 200 or more “full-time” employees and who offer a health care plan. “Full-time” employees means on average 30 or more hours per week. 6
7. Health Delivery Reforms Research on best provider practices Research on comparative evidence outcomes Pilot program that pays for outcomes on flat fee basis rather than fee for service for treatments Medical IT Standards for extended living arrangements Hospice, home-health reimbursement 7
8. 8 Community Investment Health Care Clinics Primary Care Training Grants to States Diversity and Cultural Competency Education Curricula Development in Health Sciences Food Labeling
9. The Health Insurance Exchange Uninsured individuals not eligible for Medicare or Medicaid will be permitted to purchase insurance through state Exchanges (purchasing pools). Individuals will be eligible for subsidies. Employers with fewer than 100 employees will be permitted to enroll. Employer eligibility may be expanded in 2017. 9
10. Wellness and Prevention Programs 75 cents of every dollar is spent on chronic diseases 100 billion dollars of health care is directly attributable to behavior The Act amends HIPAA, permitting premium discounts to employees who participate in wellness programs. Insurers that sell in the Exchange must provide discounts for wellness and health promotion activities. 10
11. Smokers can be charged up to 50% more for coverage purchased in the Exchange. Employees who participate in HIPAA-approved wellness programs can receive up to 30% off in premium. 11
12. 12 Minimum Essential Coverage Requirement (the Personal Mandate 2014) A federal requirement that individuals purchase health care insurance or pay penalty up to 2.5% of income is unprecedented.
14. Florida v. U.S. Dept. of HHS 11th Cir. Court of Appeals (2011) Congress has no authority to require citizens to purchase health care insurance. Remainder of law remains intact. 14 Thomas Moore Law Center v. Obama 6th Cir. Court of Appeals (2011) Congress has authority to enact personal mandate under commence clause.
15. 15 Congressional Authority Express authority to regulate interstate commerce Express authority to tax and spend for the general welfare Power to enact “necessary and proper” laws to execute express authority
17. U.S. Constitution 17 86% - believe the constitution is important to their daily lives 14% - read entire document (4,400 words)
20. Will the U.S. Supreme Court declare the Affordable Care Act Constitutional? 20
21. U.S. Health Care Spending About 16% of the U.S. economy (in 1950, 5%) Estimated $2.24 trillion in 2009 Most health care spending per capita in the world 21
22. Health Care Spending Per Capita (2003) United States $5,711 Luxembourg $4,611 Switzerland $3,847 Norway $3,769 Belgium $3,044 22
23. Health Care Outcomes – U.S. 23 33rd among developed nations in infant mortality (6.3/1,000) 50th in life-expectancy (78-years)
24. Most people are insured through an employer-sponsored plan (177 million Americans, 62% of people are under age 65) 99% of employers with 200 or more employees offer health insurance 78% - 10 to 24 employees 49% - 3 to 9 employees 24 Who is Insured?
25. 25 Employer-Plan Crisis Premiums have grown 4-times faster than wages since 1999. Average employee contribution has gone up 200% since 2000. Out-of-pocket and co-payments have gone up 115% since 2000.
26. 26 Who is Insured (continued) About 70 million Americans are insured under a “public plan” Medicare Medicaid Government spends about 42% of every dollar spent on health care
27. Average Health Care Spending 27 by Age (2006) $8,776 $4,863 $1,508 $1,267 $1,441 $2,305 under 5 5 - 17 18 - 24 25 - 44 45 - 64 65 an older $0 $2,000 $4,000 $6,000 $8,000 $10,000
28. 28 Spending during the last year of life accounts for 27.4% of total Medicare spending.
29. Race and Medical Care (U.S.) Life expectancy for blacks is six years shorter than whites Black babies are almost three times as likely as white 29 babies to die before first birthday Blacks get bypass operations at a rate of one-quarter that of whites Blacks get angioplasties at one third the rate of whites Blacks wait longer for kidney transplants
30. According to Newsday (1998) blacks are “less likely to use a medical system that for generations has engendered a deep distrust, born of unethical medical experiments and segregated hospitals”. 30
31. 31 U.S. Public Health Service STD Students (1946-1948)
32. Medical Experiments on Inmates -1966 32
33. 33 Two weeks after Hurricane Katrina 70% of African- Americans said that the government would have acted with more urgency had the areas affected been white suburbs. 70% of whites reject that assertion. Wall Street Journal (Sept. 15, 2005)
34. 34 The Uninsured Estimated 46 million Americans lack health care insurance (15% of U.S. population)
35. 35 Who Are The Uninsured? 27 million have personal income over $50,000 66% of uninsured have family incomes of $45 - $85,000 14 million are eligible for Medicaid on the Children’s Health Insurance Program 10 million ‘illegal’ aliens 1/3 are between 18 to 29 years of age
37. “Is health care in America a privilege, a right, or a responsibility?” Tom Brokaw Presidential Debate October 7, 2008 37
38. Privacy Marriage Procreation Travel 38
39. Employment/Living Wage Housing Medical Care Education Social Security 39
40. 40 Commerce Clause “The Congress shall have power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.” Article I, Section 8
41. 41 Congressional Authority to Regulate Commerce Sherman Antitrust Act (1890) Federal Meat Inspection Act (1906) Pure Food and Drug Act (1906) Food and Drug Act (1906) Federal Trade Commission Act (1914) Pure Milk Act (1923) Import Milk Act (1927)
42. 42 Hammer v. Dagenhart U.S. Supreme Court (1918) Federal Child Labor Act violates Commerce Clause. The law aimed to set a minimum age to work in mining and manufacturing. Holding: The production of articles intended for interstate commerce is a matter of local regulation.
43. 43 United States v. Darby U.S. Supreme Court (1941) Fair Labor Standards Act upheld Minimum wage Overtime pay Child labor restrictions Court defers to Congress in determining what constitutes interstate commerce.
44. 44 Wickard v. Filburn U.S. Supreme Court (1942) Federal law regulates wheat production. Filburn, a small farmer, produces wheat over his designated allotment. The surplus was used for feeding his poultry and livestock, and was not sold in the marketplace. Holding: Congress has the authority to regulate any article or product that could be sold in interstate commerce.
45. United States v. Southeastern Underwriters’Ass’n. U.S. Supreme Court (1944) Insurance represents a “continuous and indivisible stream of intercourse among the states”. The “business of insurance” constitutes interstate commerce. 45
46. Is the Personal Mandate “necessary and proper” to regulating health care insurance? The Personal Mandate requires the individual to engage in an economic activity, which can be regulated. 46
47. United States v. Lopez U.S. Supreme Court (1995) Gun-Free School Zone Act is unconstitutional. Carrying a hand gun is not an economic activity. United States v. Morrison U.S. Supreme Court (2000) Violence Against Women Act is unconstitutional. Violence against women does not have a substantial impact on interstate commerce. 47
48. 48 Gonzales v. Reich U.S. Supreme Court (2008) Congress has power under Commerce Clause to prohibit doctors from prescribing marijuana. Homegrown marijuana could affect a national market.
49. 49 Congress and the Court Respond to Cultural Issues In 2003, Congress enacts and President Bush signs “Partial Birth Abortion” law Any physician who, in or affecting interstate commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined or imprisoned not more than two years.
50. 50 Gonzales v. Carhart U.S. Supreme Court (2007) Upholds ban on partial birth (late-term) abortions. Court defers to congressional finding that the “intact dilation and extraction” procedure is never needed to protect the health of the pregnant woman. Statute does not overly burden the due process (fundamental right) to obtain an abortion.
51. What is the basis for Congressional 51 authority to ban partial birth abortions? Court assumes congressional authority under the “Commerce Clause”.
52. Can Congress regulate a decision not to engage in commerce (purchase health care insurance)? 52
53. 53 The Power to Tax and Spend Congress has authority “to pay the debts and provide for the common defense and general welfare of the United States” and “to lay and collect Taxes, Duties, Imports and Excises”.
54. The Personal Mandate as a “Tax” Does congressional tax and spending have to be related to a specific, enumerated power? or Can Congress tax what it can’t regulate? 54
55. Bailey v. Drexel Furniture Co. 55 U.S. Supreme Court (1922) Child Labor Tax Law unconstitutional. In the name of a tax, Congress cannot penalize conduct that it can not regulate. The case cannot be distinguished from Hammer v. Dagenhart.
56. 56 Helvering v. Davis U.S. Supreme Court (1937) Social Security Act upheld. Congress can tax and spend money for the “general welfare”. Old age, relief, unemployment are national problems. Laws of separate states are inadequate. “When money is spent for the general welfare, the concept of welfare is shaped by Congress, not the states.”
57. Can Congress tax (penalize) a decision not to purchase health care insurance? 57
58. Does the Personal Mandate violate the Tenth Amendment? 58
59. 59 Child Abuse Prevention and Treatment Act of 1984 “Baby Doe” regulations require hospitals to promptly notify state authorities of suspected cases of withholding medical treatment from disabled infants. Rules allow for withholding treatment.
60. 60 Chronically and irreversibly comatose, Treatment merely prolongs dying, Treatment is futile or inhumane Requires state agencies to investigate suspected cases
61. Bowen v. American Hospital Ass’n. 61 U.S. Supreme Court (1986) Court holds that Congress has no authority to make the neglect of disabled newborns a state investigatory priority. States have sole authority to do so. Federal government cannot “commandeer” state agencies to enforce compliance on hospitals.
62. 62 Oregon voters affirm support for Death with Dignity Act in 1998. Legalizes physician-assisted suicide.
63. 63 Gonzales v. Oregon U.S. Supreme Court (2006) The Controlled Substances Act does not preempt a state law authorizing physicians to prescribe drugs to induce death of terminally ill patients.
64. 64 States have the right to determine the appropriate use of medications that are not illegal. The regulation of the medical practice belongs to the states.
65. 65 “Right to Die” Cases In re Quinlan (1976) (Right to privacy in Roe v. Wade is broad enough to encompass a patient’s decision to decline medical treatment under certain circumstances) In re Conroy (1985) (Treatment and feeding may be withheld if the burdens of treatment outweigh benefits)
66. 66 In re Quinlan N.J. Supreme Court Karen Quinlan was comatose. “The only practical way to prevent destruction of the right [to choose] is to permit the guardian and family top render their best judgment.”
67. 67 In re Conroy N.J. Supreme Court “Absent evidence of patient’s treatment preferences, treatment can be discontinued if burdens (pain and suffering) outweigh benefits (physical pleasure, emotional enjoyment, or intellectual satisfaction).”
68. 68 Cruzan v. Director, Missouri Dept. of Health U.S. Supreme Court (1990) A competent person has a liberty interest (14th Amendment) in refusing unwanted medical treatment. Stopped short of finding same right for incompetent person.
69. 69 There is a distinction between self-infliction of deadly harm (suicide) and a self-determination against artificial life.
70. 70 Quill v. Vacco U.S. Supreme Cout (1997) Right to die is not a fundamental right. There is a difference between respecting person’s wishes to withhold treatment and honoring a request to end life. New York law prohibiting physician assisted suicide does not violate 14th Amendment
71. 71 Washington v. Glucksberg U.S. Supreme Court (1997) Court holds that physician assisted suicide is not a liberty interest protected by 14th Amendment.
72. 72 At what point does a “right” to die become a “duty” to die?
73. Does requiring the states to implement the Affordable Care Act violate states’ rights? 73
74. 74 OTHER IMPORTANT ISSUES Fifth Amendment “No person shall be…deprived of life, liberty or property, without due process of law…”
75. 75 Due Process of Law Substantive Due Process – Fundamental rights Liberty to exercise rights Equal access to rights Procedural Due Process – guarantees fair procedures
76. 76 Substantive Due Process Recognizes fundamental constitutional rights: -Life -Liberty Privacy -Property Concerned with the relationship between the government and the individual Does government have a legitimate justification for the Personal Mandate?
77. 77 Substantive Due Process Burdens on Fundamental Rights - Roe v. Wade U.S. Supreme Court (1973) Right to “privacy’ is fundamental and is broad enough to encompass a women’s decision whether or not to terminate her pregnancy.
78. Griswald v. Connecticut (1965) U.S. Supreme Court Connecticut law criminalizing contraception violates 14th Amendment right to “privacy” 78
79. 79 Griswald v. Connecticut “Would we allow the police to search the sacred precincts of marital bedrooms for tell tale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”
80. 80 Jacobson v. Massachusetts (1905) Upholds compulsory vaccination. State law was legitimate exercise of state’s “police powers” to protect public health and welfare.
81. 81 Buck v. Bell U.S. Supreme Court (1927) Supreme Court upholds Virginia statute that promotes the sterilization of “mental defectives”. Court finds state’s power to promote public health, safety, welfare and morality encompasses sterilization.
82. 82 “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover the Fallopian tubes. Three generations of imbeciles are enough.” Buck v. Bell (1927)
83. 83 Buck v. Bell is based on “progressive” theories of human evolution (natural selection) Eugenics/Social Darwinism “Survival of the Fittest”
84. “While the law of competition may be sometimes hard on the individual, it is best for the race because it ensures the survival of the fittest in every department.” Andrew Carnegie 84
85. “The growth of large business is merely a survival of the fittest. The American beauty rose can be produced in the splendor and fragrance which bring cheer to its beholder only by sacrificing the early buds which grow around it.” John D. Rockefeller 85
86. 86 International Eugenics Conference promotes mandatory sterilization as the best way to prevent “defective germ-plasm” and the propagation of “mental defectives.”
90. Plessy v. Ferguson U.S. Supreme Court (1896) Louisiana law requiring separate railway cars does not violate 14th Amendment “Separate but equal” upheld as a valid way to promote public welfare. 90
93. 13th Amendment abolishes slavery and involuntary servitude. 14th Amendment guarantees full rights of citizenship regardless of race and equal protection under the law. All persons born in the U.S. are citizens. 93 Civil War Amendments
96. 96 Heredity Commission is formed to “encourage the increase of families of good blood and discourage the vicious elements in the cross-bred American civilization.”
98. Immigration Restriction League Is the United States “to be peopled by British, German and Scandinavian stock, historically free, energetic, progressive, or by Slav, Latin and Asiatic races, historically down-trodden, atavistic and stagnant?” 98
101. 101 Limitation on Congressional Power Fifth Amendment “No person shall be….deprived of life, liberty or property, without due process of law…; nor shall private property be taken for public use without just compensation.”
102. 102 14TH Amendment “No state shall make or enforce any law which shall deprive any person of life, liberty or property, without due process of law, nor deny to any person the equal protection of the laws.”
103. Limitation on Congressional Power Tenth Amendment “The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectfully, or to the people.” 103
104. 104 Lochner v. New York U.S. Supreme Court (1905) New York enacted statute prohibiting bakers from working more than 60 hours a week or 10 hours per day. Holding: Violated “liberty” protected by 14th Amendment. Employers and employees are equally free to bargain to their best advantage.
105. 105 United States v. E. C. Knight Co. U.S. Supreme Court (1895) Congress enacts Antitrust Act to curb concentrations of economic power that suppress competition. One of its provisions outlaws combinations that restrict trade. American Sugar Refinery gains control of 95% of the sugar industry. Holding: Commerce clause did not authorize Congress to regulate the manufacturing of sugar. Refining of sugar is a local activity.
106. 106 Coppage v. Kansas U.S. Supreme Court (1915) Kansas enacted law banning the practice of requiring employees to sign “yellow dog contracts.” (An agreement not to join a labor union) Holding: Violates “freedom of contract” protected by the Due Process Clause of the 14th Amendment.
107. Santa Clara County v. Southern Pacific Railroad U.S. Supreme Court (1886) Corporations are “persons” under the 14th Amendment 107
113. National Industrial Recovery Act of 1933 • Suspends antitrust laws • Permits price and wage fixing • Adopts inspection codes • 40-hour workweek/overtime pay • Minimum wage • Ends child labor • Allows collective bargaining 113
114. Schechter Poultry v. U.S. U.S. Supreme Court (1935) NIRA is unconstitutional. Exceeds Congress’ authority. 114
115. Liberty Property 115
116. “We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among them are Life, Liberty and the Pursuit of Happiness.” Thomas Jefferson (1776) 116
117. “The first purpose of government is to protect rights to property, which includes everything to which a man may attach value and have a right, including the labor that acquires daily subsistence.” 117 James Madison
118. 118 Though God gave the earth to all men in common, man creates property by mixing his labor, excluding the common right of other men. John Locke The Second Treatise on Government (1687)
119. 119 Manifest Destiny
120. 120 The American frontier becomes the metaphor for liberty and property.
130. Desegregation of Military 130 Executive order 9981 (1948)
131. 131 Brown v. Board of Education, Topeka, Kansas US Supreme Court (1954) Overrules “separate but equal” in public education. Holds that suit can be brought against school board under 14th Amendment.
134. 134 Civil Rights Act of 1964 Prohibits discrimination based on race, color, religion, sex, or national origin • public accommodations • employment • public education • voting • government services • public transportation • creates Equal Employment Opportunity Commission
135. 135 Heart of Atlanta Motel v. U.S. U.S. Supreme Court (1964) Upholds Civil Right Act of 1964. Congress can use Commerce Clause to regulate private transactions that impact “interstate commerce.”
136. Loving v. Virginia U.S. Supreme Court (1967) Virginia’s Racial Integrity Act violates equal protection under the law 14th Amendment’s 136
137. Bowers v. Hardwick (1986) Georgia sodomy law violates 14th Amendment 137
138. Perry v. Schwarzenegger (2010) Proposition 8 amending California Supreme Court which bans same-sex marriage violates equal protection under the law under 14th Amendment 138
140. 140 Eugenics is discredited when evidence of racial experiments conducted by Nazi doctors is uncovered.
142. 142 Americans with Disabilities Act Invokes the “sweep of congressional authority…to regulate commerce…”
143. 143 Substantive Due Process Equal Enjoyment – Bolling v. Sharpe U.S. Supreme Court (1954) Racial segregation in public schools of District of Columbia “constitutes an arbitrary deprivation of students’ liberty in violation of Due Process Clause” of the Fifth Amendment.
144. 144 Bolling v. Sharpe (continued) Liberty is not confined to mere freedom from bodily restraint. “Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”
145. Does requiring an individual to purchase health care insurance violate the right to privacy (i.e.: to deny health care)? 145
146. Does the Patient Protection and Affordable Care Act create a public entitlement to care? How are limited resources to be allocated? 146 Equal access v. equal outcomes
147. 147 Harris v. McRae U.S. Supreme Court (1980) Hyde Amendment, which prohibits the use of Medicaid funds to subsidize medically necessary abortions, does not violate the equality component of the Due Process Clause.
148. Due Process Clause does not create an entitlement to funds to realize the advantages of freedom. Congress can make a value judgment favoring childbirth over abortion and implement that judgment by allocating public funds. Government can encourage certain activity without direct interference with a fundamental right. 148
149. Affordable Care Act will provide subsidies and tax breaks to purchase insurance 149
150. 150 Procedural Due Process Goldberg v. Kelly U.S. Supreme Court (1970) Before welfare is suspended, person must be afforded a fair hearing. Welfare is an “entitlement”, which is a type of “property”.
151. 151 What about age? “Unlike allocation by sex or race, [health care] allocation by age is not invidious discrimination…Treating 65 year olds differently because of stereotypes or falsehoods would be ageist; treating them differently because they have already had more life-years is not.” Ezekiel Emanuel (2007)
153. 153 What About Rationing?
155. 155 Scarcity is replaced by Affluence
157. 157 U.S. Department of Defense human radiation experiments 1946-1974 (16,000 subjects) • Prisoners • Soldiers • Alaskan Villagers • Retarded and Institutionalized Teenagers • Cancer Patients
158. 158 CIA funded Georgetown Medical School’s research that administered LSD to mental patients.
159. 159 Human Genome Project
160. 160 What are the ethical implications? Test to determine predisposition to disease? Testing a fetus for precondition? Testing fetus for intelligence?
161. 161 What about altering genes? stronger faster taller smarter
162. 162 The Culture Wars Engineering Right to Die Stem Cell Euthanasia Cloning
163. 163 Liberty, Property, Equality Power of Government to Regulate 1900 2000 Blue: Economic and Social Affairs Red : Personal Affairs
164. Liberty 164 Property Equality
165. 165 Constitutional Analysis Commerce Clause Taxing Power Tenth Amendment Fifth Amendment: Due Process Clause Procedural Substantive
166. Questions? 166