Virginia ruling Could affect Obama’s Health Care Law

A federal judge has ruled on behalf of the state of Virginia that a key part of President Obama's health care law, passed in March, is unconstitutional.
What might be the next steps for the Obama White House as the law gradually goes into effect.
How big a blow is this to supporters of the law?
"It's a huge deal," Randy Barnett, a professor of constitutional law at Georgetown Law School who has played a key role in efforts to get the law struck down, told The Lookout. Barnett argued that the ruling offers further evidence that the momentum in the dispute over the law's constitutionality is with his side. "A year ago, my law professor colleagues were all saying this is a slam-dunk" in favor of the Obama administration, he said. "And now it turns out to be a slam-dunk the way that WMDs were a slam-dunk."
But the law's supporters downplay the significance of the ruling. They point out that two other district courts one in Michigan, one in Virginia  have rejected similar challenges to the law. They also note that District Court Judge Henry Hudson, who issued Monday's ruling, is a George W. Bush appointee, and that he had already appeared highly skeptical of the Obama administration's argument in support of the law. They even point to Hudson's financial ties to the Virginia official pushing the lawsuit.
Still, most observers have long expected that the case will ultimately be decided by the U.S. Supreme Court, and Monday's decision puts things one step closer to that happening. In that sense, it's unquestionably good news for the law's opponents.

What's the nub of the legal dispute?
Lawyers for the state of Virginia argue that the "individual mandate" portion of the health care law that is, the part that requires Americans to have health insurance or else pay a fine -- is unconstitutional. Imposing a penalty on people merely for declining to buy insurance, they charge, is outside the scope of Congress' power under the Commerce Clause, which says that the federal government can regulate issues only that relate in some way to interstate commerce.
There's precedent for this view, the law's opponents say. They cite a 1995 case in which the Supreme Court invalidated a law making it a crime simply to possess a gun near a school. In that decision, the court found that the law didn't regulate economic activity, and thus fell outside Commerce Clause protections.

Lawyers for the Obama administration counter that the individual mandate is well within the scope of what the courts have defined as interstate commerce, in part because people who don't get insurance and rely on emergency rooms for care are burdening other taxpayers. The law's supporters point to a 2005 case in which the Supreme Court found that the federal government could criminalize the growth and possession of medical marijuana, even when the end product was sold and consumed within a single state, on the grounds that doing so was part of an effort to control the interstate drug trade.

What would happen to the law if the Supreme Court ultimately rules for Virginia? Would the whole health care law go out the window?
That's hard to say. The case concerned only the individual mandate portion of the health care law, and that disputed portion of the law is what the Supreme Court would ultimately rule on, as well. That means that other parts of the law -- the expanded access to Medicaid, for instance -- could potentially survive, even if the Supreme Court strikes down the mandate.

But there's no guarantee. That's because the law doesn't contain a "severability clause," which would have made it explicit that if one part of the law were struck down, other unrelated parts would still stand. As a result, the White House appears to have already conceded that regulations governing the insurance industry can't be separated from the individual mandate, since both would fundamentally affect the insurance industry.

In his ruling, Judge Hudson did explicitly sever the individual mandate from the rest of the bill -- a disappointment for the law's opponents, and a source of hope for the law's supporters. But that doesn't mean the Supreme Court would necessarily do the same.
How does the ruling affect the law's implementation, currently underway?
Hudson declined Virginia's request to block implementation. So for now the work of implementation -- in which federal and state officials draw up specific regulations -- is going forward. And, it's worth noting, the individual mandate isn't scheduled to go into effect until 2014, by which time the issue will probably be resolved.

Who's behind the effort to get the law overturned?
The Virginia case is spearheaded by state Attorney General Ken Cuccinelli, a conservative Republican. Along with several other controversial and high-profile initiatives, the health care challenge has helped turn Cuccinelli, elected in 2009, into a rising conservative star. Cuccinelli's campaign website already touts today's victory.

What happens now in the legal process?
A federal appellate court will hear the government's appeal of Hudson's ruling. If that court, too, rules in favor of Virginia, then the Obama administration would appeal to the Supreme Court, which would almost certainly take the case.
Meanwhile, other legal challenges to the law are making their way through the court system. On Thursday, a Florida district court will hear a lawsuit brought by a group of state attorneys general. If this case, too, goes in favor of the law's opponents, then the Supreme Court would probably merge it with the Virginia case, and rule on both challenges together.
So, how is the Supreme Court likely to rule, assuming things get that far?
That's the $64,000 question. Orin Kerr, a professor of constitutional law at George Washington Law School, told The Lookout that despite Monday's ruling, he expects the Supreme Court "will uphold the statute fairly easily." But Barnett, not surprisingly, sees things differently. Last year, he noted, the law's supporters derided the legal challenge as frivolous. "It's not frivolous anymore," he said.

10 Things Primary-Care Physicians Won't Say

1. 'Good Luck Getting an Appointment'

Patients feeling a cold creeping up shouldn't wait too long to call their primary-care physician since there's probably already a long line of patients waiting to see him or her.
A good primary-care doctor -- someone to coordinate your health care, help choose your specialists, and be the first to diagnose just about any problem -- is the key to good medical treatment. But they're getting harder to visit. Twenty-three percent of patients say they waited six or more days to see their physician the last time they were sick and needed to see a doctor, according to a 2008 survey by the Commonwealth Fund, a private foundation that promotes high-performing health-care systems. The longer wait in part is attributed to the slow-growing profession of primary-care physicians, which includes family medicine, general practice and internal medicine doctors. Currently, just a third of all doctors in the U.S., are primary care physicians, about 240,713 in total, up from 200,862 five years ago. "We're not really getting the best and brightest in primary care," says Kevin Pho, a Nashua, N.H., physician who writes the blog Kevin M.D. "And that's where they're needed."
2. 'I'm the Pauper of My Profession'
One big reason fewer medical students are specializing in primary care is simple economics. In 2009 primary-care doctors -- specifically those practicing family medicine and internal medicine -- earned an average of $201,548, according to Cejka Search, a physician and health-care executive search firm.
That might sound like a lot to most working people, but in the same year, dermatologists made $350,627, gynecological oncologists made $460,000 and doctors practicing neurological surgery made $548,186. "Students are not dummies," says Pho. "They graduate with $130,000 in debt; why should they go into primary care?"
When a primary-care doctor examines a patient with private health insurance, the doctor will get a payment on a scale that's similar to Medicare reimbursements, says Dr. Martin Shapiro, a professor of medicine and public health at the David Geffen School of Medicine at UCLA. It's even lower when they see Medicaid patients. "Reimbursement is a lot lower for primary-care physicians given the amount of time that a visit will take relative to the amount of time needed to do a procedure [for specialists]," he says. Reimbursements put a premium on volume, not on spending time with patients, he says.

3. 'You Asked to See a Doctor but You'll Likely See an Assistant'
These days it seems like a visit to the doctor involves little contact with an actual doctor. Instead, most of the time is spent explaining problems to assistants and having blood drawn by nurses. Many doctors have been beefing up their support staff -- physician assistants and nurse practitioners -- to help them squeeze in more patients, says Dr. Shapiro. "They need support staff; the primary-care doctor is dealing with patients all the time and they have to deal with emotional problems, their families' responses and doctors have to try to motivate patients to not get sick," he says.
While this system isn't inherently bad, it can have negative impacts for patients. Assistants may have a different philosophy from the doctor, leading them to treat problems differently. Communication can break down, causing confusion about medications, and a misdiagnosis by an assistant is always possible.
For their part, physician assistants and nurse practitioners say they have the necessary qualifications to meet with patients and that they consult with the primary-care doctor about patient care. They also say they can address oversights made by busy doctors.

4. 'I Hawk for Big Pharma in My Spare Time'
Your physician relies on his best judgment when deciding what drugs to prescribe. And influencing that judgment is big business. IMS Health, a research and consulting services company for the health-care industry, found that the pharmaceutical industry spent $6.8 billion in 2008 targeting doctors with ads and sales representatives. "The introduction to pharmaceutical representatives starts as early as medical school, and it never really stops," says Pho.
The real amount is certainly much higher, since these figures include only journal advertising and salaries of sales reps, not their expenses. Drug reps give away pens, hats, and shirts, and buy office staff lunch, all in hopes of nabbing time with the doctor. Drug companies know doctors are more likely to take their cues from other doctors, so they sponsor weekend seminars at expensive resorts featuring presentations by physicians, says Pho. Drug companies pay these docs to give informative talks about medical conditions--for which the company's drug gets pitched as the best remedy.
Pharmaceutical companies that follow the Pharmaceutical Research and Manufacturers of America's "Code on Interactions With Healthcare Professionals" are not permitted to give out pens, hats, t-shirts or other promotional materials that don't advance disease or treatment education.

5. 'Sore Throat? You Might Be Better Off Going to the Mall'
Walk-in clinics are springing up across the country. Currently, there are about 1,200, up from 850 in 2008 and 250 in 2007, according to the Convenient Care Association, a trade association for retail-based convenient care clinics.
They're run by hospitals, retailers like CVS and Walgreen, community health centers, or nursing schools who diagnose simple maladies, like strep throat or flu, and provide prescriptions, medical advice, or referrals if the problem is beyond their scope. These clinics have caught on in part because they don't require an appointment and tend to be less expensive than visiting the doctor or an emergency room visit. Some take insurance.
When visiting one, says Dr. Lori Heim, president of the American Academy of Family Physicians (AAFP), ask to have your records forwarded to your doctor, and be sure to tell him about any medication prescribed at the clinic. She says the organization doesn't recommend walk-in clinics for treatment of chronic medical problems.

6. 'I Hate Technology'
It's almost impossible to imagine anyone doing his job these days without a computer -- except your doctor. Although billing and other systems may be computerized, when it comes to medical records, some family physicians still prefer pen and paper. A 2009 AAFP survey found that just 53% of family physicians have adopted electronic medical records. New electronic medical-record systems can print out clear prescriptions that are cross-referenced with medical databases to avoid incorrect dosages or dangerous drug combinations; hospitals can access patient histories in case of emergency; and care can be better tracked over time.
For most patients the benefits of the technology are huge. It eliminates prescription errors due to illegible handwriting. It ensures that patients get the right dosage. Records won't get lost. It reminds doctors when they need to monitor their patients. And specialists can easily forward electronic records to your primary-care physician.

7. 'Your Insurance Company Is Calling the Shots'
These days, doctors have more freedom to send you to a specialist or order expensive tests than they once did under managed care. But that doesn't mean the system is mended. For starters, your insurance provider's pool of doctors may lack the subspecialist you need to see, says Heim. And with increased deductibles, it's often the patient who foots the bill for a referral or an expensive test.
Insurers also still wield the power when it comes to hospital stays, says Jerome Epplin, a geriatrician and clinical professor at the Southern Illinois University School of Medicine; he has recommended that a patient spend four days in the hospital only to have the insurance company overrule him, refusing to pay for the last day and sticking the patient with the bill. "We are powerless over it," Epplin says. Industry trade groups respond that patients have some recourse. "In most states, patients can appeal to an outside third party – generally it's a panel of physicians and the doctor always has the ability to talk to health plans," says Susan Pisano, a spokeswoman for the trade organization, America's Health Insurance Plans.

8. 'My Legal History Is None of Your Business'
Today's insurance plans give patients a wider range of doctors to choose from, but they don't necessarily give patients any more information to help them decide between doctors. To start, patients should call a doctor's office to find out what his or her specializations are, and if there's a certain age range of patients they primarily focus on.
Patients who want to dig around a bit more -- especially when it comes to a doctor's legal past like lawsuits -- can try the National Practitioner Data Bank, which state medical boards and hospitals use to do background checks; it includes information on disciplinary actions and malpractice payments.
In most cases, to find out if your doctor has been sued, you'll have to go down to the local courthouse, but if your doctor has moved around, you'll get only part of the picture. The best publicly available information is tracked by state medical boards, many of which publish this information on their web pages. If yours doesn't, you can pay a nominal fee for a report from DocInfo.org, a site run by the Federation of State Medical Boards.

9. 'If You're Over 65, I Don't Think I Can Help ...'
As troubling as things are in primary care, the situation is worse when it comes to treating elderly patients, especially those on Medicare. Doctors who specialize in geriatrics are certified by the American Board of either Family or Internal Medicine, and they're increasingly rare. Right now there is just one geriatrician in the U.S. for every 5,000 seniors, about half of what there should be, according to the American Geriatrics Society.
The problem is that fewer medical students are choosing this subspecialty: Last year only two-thirds of geriatric fellowship programs were filled. That's because treating older patients who have multiple, often complex problems is about the worst way a doctor can make a living. Medicare doesn't compensate much more for a 45-minute appointment with a patient with dementia, hearing loss and a half-dozen other maladies than it does for seeing someone for a simple checkup. "It is fiscal suicide to go out there and say, 'I am a geriatrician,'" says Dr. Bruce Robinson, who practices geriatric medicine and internal medicine in Sarasota, Fla. "You get the patients that require the most time that pay the worst."

10. '... Unless, of Course, You're Willing to Pay Extra'
Unfortunately, the shortage of geriatricians is worsening. As med students shy away from geriatrics, the number of people over 65 is set to grow faster than ever as boomers retire. The American Geriatrics Society estimates that by 2030, there will be a shortage of about 36,000 geriatricians in the U.S., up from 7,000 today.
Though the situation seems dire, there are ways to guarantee qualified care. One approach is to see a good primary-care doctor who is also a geriatrician long before you need one. Epplin says that in southern Illinois, not many doctors accept new Medicare patients, but when their existing patients go on Medicare, they keep them. Other approaches can be costly. In Sarasota, where Robinson practices, many doctors provide "concierge" service: Patients pay an annual retainer of about $6,000 in exchange for their doctor's cell number and upgraded access. Other physicians in Florida have begun asking patients to pay an annual administrative fee of about $200 or $300 to help them continue to provide individualized care. These pricey options aren't what most people have in mind when they think of health-care reform, but they may be the only way to maintain ready access to a good doctor.

1 Million Workers Lose Out on Better Coverage

Friday, October 1, 2010 Close to a million insured workers will lose out on a significant bump in insurance coverage promised by health reform next year.
Courtesy of CNN

McDonald's (NYSE: MCD - News), Jack in the Box (Nasdaq: JACK - News) and other companies won a one-year exemption from a new rule requiring them to raise the maximum amount of coverage they offer employees.
All told 30 companies, also including insurers Cigna (NYSE: CI - News) and Aetna (NYSE: AET - News), received the waiver, affecting 968,765 enrollees.
Companies affected by the law were threatening to drop coverage completely or raise employees' premiums by as much as 200% in order to comply with next year's deadline, according to a government official familiar with the matter.
"We were in a situation where if we didn't take action, folks could lose their only source of coverage or pay an outrageously high premium. That wasn't acceptable," the official said.
White House spokesman Robert Gibbs explained the Obama administration's position Thursday.
"We want to ensure that in the time that it takes to implement the law, workers don't find themselves at the mercy of insurance companies jacking up rates," Gibbs said at a press briefing.
Beginning 2011, the new health law mandates that insurers and employers gradually remove annual dollar limits on an individual's insurance coverage and eventually eliminate these limits by 2014.
Cigna said the waiver applies to a plan that covers about 250,000 people. The company also said it plans to ask for an additional waiver each year until 2014.
In order to phase in this change, the law says that employers and insurers have to offer an annual coverage limit of least $750,000 by next year. The limit would increase to $1.25 million in 2012 and to $2 million in 2013.
Companies that hire a significant number of part-time workers — such as retailers — typically offer low-cost, low-coverage plans, called "mini-med" plans. Mini-med plans typically restrict individual insurance coverage to a few thousand dollars a year.
"We remain in conversations with our current provider and are confident that we'll continue to provide health care coverage for our 30,000 hourly restaurant employees," McDonald's said in a statement on Thursday. "We're pleased and encouraged by the progress that's been made by the Federal government on this issue."
The Department of Health and Human Services said waiver applications were taken on a "case by case basis." Among the factors officials consider are how much premiums would increase or how many employees would lose coverage without a waiver.
HHS spokeswoman Jessica Santillo said companies would again be able to apply for waivers next year.