Obamacare Embattled, Again


In 2007, George W. Bush nominated Judge Reed O’Connor to a federal court judgeship. We went on living our lives, and he his, frequently making controversial rulings on how the law interprets sexual orientation, gay rights, and yes, the merits and demerits of Obamacare.

Then, late on Friday afternoon, December 21st, 2018, when we were all going about our business, preparing for holiday parties, driving home from work, wishing motorists ill or well, reluctantly shopping, or simply looking forward to a vacant weekend before Christmas really asserts itself, he produced a hostile 55-page opinion deciding against the constitutionality of Obamacare. Our phones dinged. We collided with other disheveled shoppers—there were fender-benders. We released a long pensive exhale, and asked, Again?

As we will recall, when the ACA appeared before the Supreme Court in 2012, Chief Justice John Roberts, casting the deciding vote, interpreted the individual mandate as a constitutional exercise of Congress’s taxing power. Well, the 2017 Republican Tax Bill got rid of the individual mandate penalties, and on 12/21/18, its absence became the deciding factor in O’Connor’s courtroom.

According to O’Connor, it is “essential and inseverable from the remainder of the ACA,” and without it, “[the] architectural design [of the Bill] fails.” In conclusion, O’Connor wrote, “[t]he court finds the individual mandate can no longer be fairly read as an exercise of Congress’s tax power and is still impermissible under the interstate commerce clause—meaning the individual mandate is unconstitutional.” This means that once again the ACA will have to sit through months and months of dissection, defense, mutilation, insults, and heralding before the various courts likely punt it back to the Supreme Court, where that venerated body will either agree to review it or not.

Be on the lookout come Christmas, 2019.

Shortly after O’Connor’s decision, praise and disapproval came surging out of the various camps. President Trump hastened to Twitter to dispatch his sense of vindication: “As I predicted all along, Obamacare has been struck down as an Unconstitutional disaster… [g]reat news for America.” (At least someone feels predicative and comprehending these days.) And its usual supporters put out vehement promises of appeals and fights.

Since the ruling marks an immediate termination of the law, to quell fears for those insured through ACA exchanges, Seema Verma, administrator of the Centers for Medicare and Medicaid Services, wrote on twitter that “the recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.”

In 2010, the ACA introduced voters to imperfect medical insurance while also, crucially shaping up and admonishing the industry for its decades of profitable misconduct. Whether the issues come from the compromises and provisions Democrats had to stuff into the law to get it passed in 2010, or Obama’s signature legislation is altogether hogwash, no bill faces nearly a decade of enmity without having at least something wrong with it. In it each party finds the reflection of everything they dislike about the other side and revere about themselves—Democrats protect it, and are often obtrusive about its limitations, because it marks a signature achievement that, in theory, advanced the livelihood of many Americans. Republicans abjure it because every recollection illustrates government overreach, the countless failed attempts to block and appeal it, its reputed costliness, etc. This is why it neither thrives nor dies.

But as the midterms reiterated, healthcare is a bipartisan concern for voters. Those who don’t have access to medical insurance through their employers would like to avoid crippling financial difficulties if and when they face health problems and as the polls indicate, prefer the humble safeguards offered by the ACA over returning to the unsustainable system pre-ACA, or indeed, the healthcare bills proposed during Trump’s presidency.

In any event, we can only hope that O’Connor’s ruling, tiresome as it may be, will help spawn a resolution that might end in either an enhanced version of the ACA or something altogether different—and better.  

A Season of Mergers


Over the past few years a number of odd partnerships have formed between leading companies from different industries. Most notable among them might be Amazon’s acquisition of first the Washington Post and a bit later Whole Foods. It doesn’t take a professional cynic to see that more appealed to the corporation than plain intrigue about the grocery business or recommitment to the integrity of investigative journalism during a period when the freedoms of that institution seem in jeopardy.

Such ventures provide, or at least suggest the hopes of providing, some kind of future asset to the company absorbing them. On the one hand Whole Foods gives Amazon crucial data on the shopping habits of an affluent and targeted consumer population—the silver lining should be clear enough here. As for the newspaper business, historically a print medium slow to assert its place in an increasingly web-centric era, the procurement laid a foundation for Amazon to apply its unparalleled expertise in The Internet of Things (IOT) to an antiquated media platform.

In recent months, and perhaps with more cause for suspicion, there have been a series of mergers between the mammoths of the medical insurance industry and their equivalents in the pharmaceutical field—Cigna and Express Scripts, UnitedHealth Group and OptumRx. And just last month the Justice Department approved Aetna’s $69 billion acquisition of CVS Health granted Aetna divest of its private Medicare drug plans. However, this deal remains under review as a federal judge raises questions.

For many these mergers mark more tenuous ethical ground. Whereas Amazon’s eclectic side-projects are geared, ultimately, toward consumer satisfaction and profitability the consolidation of a large insurance company like Aetna, with $60 billion in revenue in 2017 and 22 million people on its health plans, and a large pharmaceutical house like CVS, with $185 billion reported revenue last year and 94 million customer prescription plans, further centralizes power in an industry that lacked competition and transparency to begin with.

While Aetna and CVS, and the long list of other insurance and pharmaceutical companies that have recently struck up partnerships, cite a diversifying industry as catalyst for the mergers, many outside the industry fear that the partnerships will harm patients in two central ways: (1) they will have even less oversight and control in the pricing of drugs and care, and (2) those with Aetna insurance plans (or Cigna etc.) might be confined to CVS retail clinics and consumers without Aetna care might face yet higher drugs costs. But advocates of the merger claim just the opposite, arguing that with the diversification the two industries can pool resources in an effort to better address patients’ needs.

To get behind the advocates of the mergers is no easy feat: the insurance industry has had a persistently poor reputation for a while now and largely well-deserved and due to its years of shameless denying of care to those with pre-existing conditions, its stinginess toward both doctors and patients, its fatal refusal of crucial and effective treatment plans for patients with rare cancers and other survivable diseases, amid countless other questionable practices. And the pharmaceutical people have fared little better in recent years: while the nation got hooked on its supposedly non-addictive drugs and started perishing in the streets the distributors boasted record profits.

People tend to get grouchy over such disparities, and that these two misbehaving conglomerates, on which we all, for good or ill, must rely, have decided to form such a brazen compact, should, with due reason, give us pause. But maybe we should do just that: maybe we should reserve judgment until full appraisal of what these partnerships might mean for the often uncourted and well-paying patients unfolds. And in the immortal words of the English poet Philip Larkin, for better or worse, “We shall find out.”

Mistakes Somewhere


Years ago, one of my friend’s wife managed their checkbook, always going through it at the end of the month and attempting to making sense of the money. Sometimes, it turned out there was more income than sense when she sat down at the desk in the laundry room and sharpened her pencil. She would often be confronted with whether she dutifully penciled in the amount and check number after handing the paper to the cashier in the checkout line, or tallied the amounts mailed away to the utility providers, the details. It’s always tempting not to keep track of these expenses because it’s a bit tedious. But a lot of money is spent over a thirty-day period and if you don’t have a talent for compulsive self-supervision you can be encumbered by the frightening fact that some of the money gets stalled out in some netherworld, can’t be unaccounted for—that, indeed, she failed to manage the details.

And then more disconcerting after a quick review of the bank statement, my friend would begin to think that some of the fruits of his labor— late nights and the kind of omnipresent stress that makes hair go gray—can’t be explained by a given purchase or expenditure, there was something “off.”  He wanted to know, at least, where the money went; it helped make sense of all the long hours and sacrifices. Part of the joy of work is earning the money and then assigning lumps of it to the manifold expenses inherent to life. You have to buy stuff and you have to remember what. But if you don’t maintain some kind of organization, when it’s time to balance the thing it can appear as if, somehow, the cash has been misplaced.

One day, after not understanding why things were “off” for one too many times, my friend went into the laundry room to look over the checkbook. Turning to the ledger he kept encountering “MSW,” an enigmatic acronym, written frequently.  He had no idea of its meaning so he called his wife who told him, with a shrug, it meant, simply, “Mistake Somewhere.” Even the fact that she’d divided “somewhere” into two words pointed at a kind of bad mix-up, but the tokenism, MSW, it must be admitted, was a neat way for a sensibility to reckon with what it couldn’t explain. The term didn’t exactly clarify any specific aberration or oversight but it at least gave a name to a rogue sum. So for a long time the term had falsely steadied the accounts, that is, until my friend looked for clarification.

People lose track of expenses, what’s owned, what’s due—it’s natural. But it’s important to rectify the lopsidedness before it starts showing with more permanence and frequency, as it had in my friend’s finances. If you’re an upper-middleclass woman tending to the family account at the end of the month in your laundry room there’s a certain freedom and margin-of-error not afforded a large business. Whether from inattention or ongoing clerical or accounting glitches if there’s a pattern of fault lots of money could be needlessly at risk, as shown by Edward Elmhurst’s[i] grueling ninety-two million dollar “accounting error.”

So, Mistakes Somewhere— today, third party payors are using disparate code classifications to communicate their rationale for payment reductions and denials.  If the back office staff shrugs it off, significant sums of money could be at stake.  Details matter, keep track, ask questions… At the beginning when the error doesn’t feel so pressing and you want to get home for the night there is an immediate and attractive convenience to accepting your version of MSW. But don’t do it, don’t do it— address the problem so it doesn’t become a distended unmanageable thing and you could have to admit a peccadillo to your partner, board or the public.

No one wants that.

[1] Hospital accounting error adds up to $92 million

By Kristen Schorsch