Kansas State University


Issues in Health Reform

Category: SCOTUS rulings

What does it mean when politicians say health care is a right?

Of late President Obama and others have been touting the recent Supreme Court (SCOTUS) decision in King v Burwell that upholds tax subsidies for every state as proving health care is a right. Hmmm. That’s still a stretch. Let’s look at who is likely to either have health care paid for with the assistance of insurance, or have health care directly provided to them and who is still left out.

We have the public plans that do make health care a right for those who fit the eligibility criteria. There is:

  • Medicare for those over 65, the disabled, and selected other special disease interest groups (End Stage Renal Disease, Lou Gehrig’s disease).
  • Medicaid for those poor enough who are over 65, or under 19 (those who are in the state Children’s Health Insurance Programs (CHIP)), and now adults under 138% FPL ($27597 for family of four) in the 31 states that have expanded their Medicaid programs (as of July 2015)
  • The Veteran’s Administration system that provides care directly to veterans.
  • The Tricare system for active military that also provides care directly; and
  • The Indian Health Service for members of tribal nations that also provides care directly. Members also have access to all of the insurance options available for others (Medicare, Medicaid, CHIP, employer sponsored insurance, marketplace plans and plans in the private market)

We have a complicated private insurance system that now does offer health care as a right to all who qualify or can afford it. The “right” parts are the consumer protections where no one can be turned down because of a pre-existing condition, have a policy cancelled or maxed out, and because certain large employers are mandated to provide insurance. People covered under this “right” are:

  • Those who work for employers with over 100 employees, since January 2015 mandate
  • Those who work for employers with over 50 employees, mandate begins (if still in effect) January 2016
  • Those not covered through work who can afford private insurance without assistance if they are over 400% FPL ($97000, family of four), or between 100-400% if they can afford insurance with subsidies

That leaves out the 126000 in Kansas (Families USA data) who are like the 6.4 million others in states that also have chosen to not yet participate in the ACA supported Medicaid Expansion. Those folks fall between a state’s standing maximum eligibility to qualify for Medicaid (33% in Kansas for parents, 0% for childless adults) and 138% FPL. These folks are too poor to qualify for financial assistance paying for a marketplace insurance plan and too “rich” to qualify for Medicaid in states with very stringent criteria for eligibility.

Therefore, while it is true that things would have been even more difficult for the 80-90% of people in the marketplaces who depend on those tax subsidies to afford those insurance plans had the Supreme Court ruled otherwise in King v Burwell, to say that the SCOTUS decision means that health care is a right is more than a stretch of the implications of that ruling.

The SCOTUS has ruled on tax subsidies: What does this mean and can we now move on to fixing things?

On June 25, 2015 the Supreme Court of the United States ruled to uphold the health law tax subsidies. (Here is full ruling) One might easily say all is as it was before the ruling. That is, in the new marketplaces of insurance that began in January 2014 because of the Affordable Care Act, things would continue as they were. Anyone who was eligible to receive a tax subsidy and had been receiving those subsidies for assistance in paying for insurance purchases through those marketplaces would continue to do so. The threat had been to consumers in the almost 3 dozen states (34) where the federal government was facilitating their marketplaces. The ruling for those subsidies to continue for all allows implementation in a “more certain and predictable environment for the health care industry, states, and consumers.” (WSJ)

Over 11 million previously uninsured Americans are now insured (Kaiser Family Foundation). Approximately 80% of those enrolled in marketplace plans (some previously insureds included) are receiving financial assistance (Kaiser Family Foundation in JAMA). Tax credits to help pay premiums for those plans are available to those with income less than 400% federal poverty level (FPL) ($97,000 family of 4). Those with incomes less than 250% FPL ($60,625 family of 4) qualify for additional assistance in paying out of pocket expenses. That financial assistance to an estimated 6.4 million was what was in jeopardy.

If you are looking for a good resource showing a state-by state effect with a map to accompany it (showing numbers of potential lives that were affected and the amount of dollars at stake), see this Kaiser Family Foundation brief.

Others have well described the intricacies of the ruling discussing such issues as why the 6 justices who ruled in favor of the administration thought it was important to see the law in its full context. There were 3 fairly strongly worded descents and there are many who continue to see this ruling as a political decision. Conservative media were outraged though I was surprised to see even Fox News op ed piece by a physician/health care executive focusing on trying to improve health by giving access to care.

Here are some words representing opposing and supportive views,

  • Brookings Brief that explains well the ruling and talks about upcoming challenges.
  •  Washington Post article was accepting of the ruling and includes a video on what you need to know about it.
  • In this National Journal piece the focus was on the argument of one of the most vocal dissenters, Justice Scalia.
  • CBS summed up the Republican point of view in this article.
  • Media Matters for America focused on balancing the conservative media reactions.

What I would like to point out is:

  1.  I’ve been surprised that I’ve not seen talk about what state marketplaces really are. In fact, whether facilitated by the feds or or in partnership with the feds, operated solely by a state all marketplaces are state based. They include insurers who offer policies specific to that state’s population and only a particular states’ residents can buy those policies. The insurers had to get approval from the states’ insurance commissioners offices to offer insurance products in those states. Yes, in the federally facilitated exchanges the feds had to do a lot of the work, especially the website aspects, but all state insurance offices were fully engaged in the discussions with the insurers.
  2. That we have spent a lot of time and energy worrying over the potential implication of a ruling that would have been detrimental to residents of those living in federally facilitated exchanges/marketplaces states. Given the particular wording in the decision, that is up to the SCOTUS to sort this out, this aspect can’t go back to Congress, though other parts could and I suspect might. As this aspect of the national conversation is put to rest, others may arise.
  3. Even those who believed the contested language referring to state Exchanges was precise–written with the intent to push states toward setting up their own exchanges else their residents would be ineligible for those tax subsidies (a major stick approach)– understood that major turmoil would ensue if 6+ million or so newly insured were suddenly in jeopardy of having that insurance become unaffordable again.

There are many who now say that with this latest legal challenge behind us, the focus can be on improving the law, and these suggested improvements are from both supporters and non.

  •  For a perspective on not “surrendering” but block granting ACA instead see US News and Forbes
  • See the Wall Street Journal for a perspective on how the ruling raises the bar for Obamacare opponents, basically requiring political movement to improve on the perceived failings of the law.
  • See the National Center for Policy Analysis for more specific changes the author believes would improve the insurance aspects of the law
  • For a list of possible improvements, including improving the value of the care we receive (see Health Affairs)
  • For an understanding of ongoing challenges such as the costs of the subsidies (and the price of health care in general), see The Hill.

And there are still some who prefer a single payer for all system, an expansion of Medicare. Some of us recall that the reason we got the ACA from a Democratic President is that Obama believed an expansion of the private insurance industry would garner bipartisan support. We’ve seen all too clearly through the years with a law that passed with not one Republican legislator supporting, through dozens of repeal attempts, that that bipartisanship did not materialize. Check out this Huffington Post site for a collection of essays on the perspective of Medicare for All.