By ANDREA LOUISE CAMPBELL Published: April 4, 2012
Cambridge, Mass.
ON the second day of oral arguments over the Affordable Care Act, Solicitor General Donald B. Verrilli Jr., trying to explain what sets health care apart, told the Supreme Court [ http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html ], “This is a market in which you may be healthy one day and you may be a very unhealthy participant in that market the next day.” Justice Antonin Scalia subsequently expressed skepticism about forcing the young to buy insurance: “When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance, like the rest of us.”
May the justices please meet my sister-in-law. On Feb. 8, she was a healthy 32-year-old, who was seven and a half months pregnant with her first baby. On Feb. 9, she was a quadriplegic, paralyzed from the chest down by a car accident that damaged her spine. Miraculously, the baby, born by emergency C-section, is healthy.
Were the Obama health care reforms already in place, my brother and sister-in-law’s situation — insurance-wise and financially — would be far less dire. My brother’s small employer — he is the manager of a metal-fabrication shop — does not offer health insurance [ http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/index.html ], which was too expensive for them to buy on their own. Fortunately, my sister-in-law had enrolled in the Access for Infants and Mothers program, California’s insurance plan for middle-income pregnant women. AIM coverage extends 60 days postpartum and paid for her stay in intensive care and early rehabilitation.
But when the 60 days is up next week, the family will fall through the welfare medicine rabbit hole. As a scholar of social policy at M.I.T., I teach students how the system works. Now I am learning, in real time.
When the AIM coverage expires, my sister-in-law will be covered by Medi-Cal, California’s version of Medicaid, because she is disabled and has limited income. But because my brother works, they are subject to cost-sharing: they pay the first $1,100 of her health costs each month. Paying $1,100 leaves them with a monthly income of just 133 percent of the federal poverty level. If my brother makes more money, their share of the cost increases.
They must also meet the Medi-Cal asset test: beyond their house and one vehicle, they can hold $3,150 in total assets, a limit last adjusted in 1989. They cannot save for retirement (retirement plans are not exempt from the asset test in California, as they are in some states). They cannot save for college (California is not among the states that have exempted 529 college savings plans from their asset tests). They cannot establish an emergency fund. Family members like me cannot give them financial help, at least not officially. If either of them receives an inheritance, it will go to Medi-Cal. Medi-Cal services that my sister-in-law uses after age 55 will be added to a tab that she will rack up over the rest of her life. When she and my brother die, the state will put a lien on their estate; their child may inherit nothing. Even my brother’s hobby runs afoul of the asset test: he enjoys working on old cars, which he can no longer keep.
These are the limitations under which 7.5 million Medi-Cal recipients live. Nationwide, more than 50 million people are covered by their states’ version of Medicaid. Some states are more lenient in their income and asset tests, others less so. Nowhere is life in these programs a picnic.
That said, Medicaid is an important safety net for the poor, and the Obama reform would expand the program to cover all Americans under 133 percent of the poverty level (currently one has to be both poor and categorically eligible — a child or a pregnant woman, for example). But for the middle class who are thrust into Medicaid by circumstance, the program’s strictures are truly life-altering. My brother and sister-in-law desperately wanted to buy insurance and now wonder how to escape Medi-Cal’s forced penury. My sister-in-law will qualify for Medicare [ http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/medicare/index.html ] after the mandatory 24-month waiting period for disabled people, but Medi-Cal will be the secondary payer.
Their best hope is the survival of the Obama reform. Perhaps my brother can get a job that offers health insurance for the family, but without the reform’s protections, like the prohibition on denying coverage for pre-existing conditions, removal of annual and lifetime insurance caps, and reinsurance for large claims, there is no guarantee that they could obtain insurance. More likely, they would buy insurance on a health exchange. Here in Massachusetts, where such an exchange is in place, they could have purchased a plan with an affordable premium (at their income level, the monthly premiums range from $39 to $91 per adult). And these money and insurance issues would not have added to the other stresses in their profoundly changed lives.
Instead, their financial future is shattered. Family and friends are raising money to buy a wheelchair van and to renovate their home for accessibility. The generosity of the local community is stunning. One incident in particular struck me to the core. A woman from a small community nearby had something for us. A cancer survivor, she had decided to “give back” by placing donation cans in stores around town. She had finished her drive and consolidated the money. The small coffee can she handed over to me and my sister-in-law had a slit in the lid and was decorated with pink felt and ribbons, now a little smudged from handling. Inside were several hundred dollars in small bills. We burst into tears. This is social policy in the richest nation in the history of the world.
LOS ANGELES (AP) California regulators have formally declared an April 1 rate hike from Aetna on small employers ``unreasonable,'' but the insurer isn't backing down from the hike.
Insurance Commissioner Dave Jones said Thursday that he doesn't have the authority to outright reject Aetna's 1.8 percent average quarterly rate increases.
Jones says annually, the hike amounts to an average 8 percent increase.
Jones determined the hike to be unreasonable after state actuaries found that Aetna's projections about medical cost increases weren't supported by actual claims.
Jones says Aetna made a 27.7 percent profit in 2011, paying $1.7 billion in dividends to its parent company.
Aetna did not immediately return a call seeking comment.
Jones says small employers shouldn't be hit with the rate increase.
In his written opinion on a recent case regarding the constitutionality of suspicionless, forced strip searches of inmates, U.S. Chief Justice John Roberts pointed at one way he could come down on the side of upholding President Obama’s health care law and assuage libertarian fears of federal over-reach, some court-watchers speculate.
The constitutional questions in Florence v. Board of Chosen Freeholders of County of Burlington are different than those in the health care case. But experts see a potential connection in the broader philosophical point Roberts made in his concurring opinion. .. http://www.supremecourt.gov/opinions/11pdf/10-945.pdf
Last week the Supreme Court held 5-4 that prisons may strip-search inmates, even those who are jailed for minor infractions, arguing that security concerns trump privacy in such an environment. Roberts wrote a short aside emphasizing that the court may later place limits to that power when necessary. The caveat suggests that Roberts is concerned about tarnishing his court’s legacy by issuing opinions that reflect poorly on his tenure as chief justice in retrospect. And it highlights the fact that future courts can circumscribe federal powers — including the one at stake in the fight over “Obamacare.”
“The Court makes a persuasive case for the general applicability of the rule it announces,” Roberts concluded. “The Court is nonetheless wise to leave open the possibility of exceptions, to ensure that we ‘not embarrass the future.’”
“‘Embarrass the future’? The quote, from a 1944 opinion by Justice Felix Frankfurter .. http://supreme.justia.com/cases/federal/us/322/292/case.html .. in a tax case, is usually offered to mean that the court shouldn’t encumber itself by declaring solutions to problems that have yet to emerge,” she wrote. “Maybe that’s all the chief justice meant. But John Roberts is both a careful prose stylist and a man acutely conscious of his and the court’s place in history. There are so many other ways of expressing a minimalist impulse than this unconventional use of the word ‘embarrass’ that I have to wonder whether he didn’t have in mind the prospect of institutional embarrassment, and not only in the case at hand.”
The notion is counterintuitive because in the strip-search case, Roberts sided with the court’s other four conservatives, as the right wants him to do in the Affordable Care Act case. But it’s his larger point about the nature of jurisprudence, as well as his nod to the court’s reputation and legacy, that has other experts thinking along similar lines.
“Nothing would ‘embarrass the future’ more than a decision in the health care case [to strike down the law] that’s driven by a concern over a far-fetched broccoli mandate,”
Insert cartoon ..
said Adam Winkler, a constitutional law professor at UCLA. But unlike Greenhouse, Winkler isn’t convinced Roberts worries much about the legitimacy of the court.
Constitutional scholars have overwhelmingly predicted, for two years, that the “Obamacare” individual mandate will be upheld, because it’s consistent with longstanding precedent and judicial deference to Congress on economic laws. Although public disapproval of the mandate could give cover to Roberts’ legacy if he decides to strike it down, Supreme Court historians say that would ultimately paint the five Republican-appointed justices as partisan actors as opposed to neutral arbiters of the law.
The majority decision in Florence, written by Justice Anthony Kennedy, held that the plaintiff’s 4th Amendment rights were not being violated. But the idea of rubber-stamping blanket strip-searches troubled Roberts — as well as Justice Samuel Alito — enough that he went out of his way to assert that the court reserves the right to carve out exceptions to this rule. It’s a logic that defines the central struggle of the health care case.
The Obama administration argues that the health care market is unique in critical ways that make this mandate necessary and proper — unlike requiring people to buy broccoli or gym memberships — on the grounds that those who fail to purchase insurance impose direct costs on the system. Roberts’ logic in his Florence opinion could hint at one way of upholding “Obamacare” while affirming that the court may later limit what the government can mandate.
“Clearly the court can hold that the mandate is constitutional without deciding about broccoli, or even saying that the health insurance situation is unique,” Timothy S. Jost, a law professor at Washington and Lee University, told TPM. “It seemed to me Justice Kennedy was heading that way by the end of the argument.”
It’s too early — and perhaps too speculative — to say this logic will extend to the health care reform law. But an important context to the Florence opinion is that it was issued after the justices cast their initial round of votes on the “Obamacare” case. And with the four liberal-leaning justices all but certain to vouch for its constitutionality, Roberts is uniquely positioned to determine the outcome. A decision is expected by the end of June.
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