Once in a while, though, health policy overlaps with other areas of interest.

Today, President Obama nominated Elena Kagan for the Supreme Court.  And, while I eagerly watched to see what the minority party would say about it, this was one of the first things I saw:

- SEN. JOHN BARRASSO (R-WY): “The other issue is the health care bill that’s come out — there’s a mandate everybody in the country has to buy a product. That’s a 10th amendment issue… she is going to have to make a decision if she’s on the court about how that goes forward with these 20 states suing.” [TP, 5/10/2010]

- REP. JOHN BOEHNER (R-OH): “On this, and other issues – including the Constitutional questions arising from Washington Democrats’ new health care law – Solicitor General Kagan deserves a fair hearing on her qualifications, and her commitment to fairness, the rule of law, and interpreting the Constitution as written.” [GOPLeader, 5/10/2010]

- GOP.COM: A research document published by the GOP asks, “Where Does Kagan Stand As Health Care Overhaul Faces Variety Of Legal Challenges?” [GOP, 5/10/2010]

I’m always amazed at the hypocrisy in Washington.  There should be no “litmus tests” unless you want one.  There should be no “judicial activism” unless you don’t like the law.  And, we should stick to the exact text of the Constitution, unless you don’t think it says what you want it to.

We’ve discussed this before.  No one had a problem with the mandate before this law.  But forget that.  Even other pretty conservative judges can make arguments that the law might be constitutional:

Here, though, my colleague Igor Volsky highlights a section of Justice Scalia’s concurrence in Raich v Ashcroft:

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.

So first: That’s Justice Scalia. Second: Purchasing health insurance is clearly economic activity, and the state of the health insurance market in any given state clearly does substantially affect interstate commerce. As is generally the case with words in the English language, the phrase “regulate commerce with foreign nations, and among the several states, and with the Indian tribes” could be construed in a few different ways. But for a very long time now the Supreme Court—including its most conservative members—have construed it as authorizing general economic activity. The live legal disputes concern regulation of non-economic activity that’s alleged to have economic impacts.

Much of the press on the lawsuits to overturn the ACA hints that it’s an uphill battle.  But somehow, Republican Senators are already saying that if Kagan is not willing to say the law is unconstitutional, then that’s a problem?

So, basically, they want to apply a litmus test to check her willingness to be a judicial activist.  I’m not impressed.

When the Democrats started the health care reform process a year ago, they held the White House, The House of Representatives by a 78 vote majority, and the Senate by a 58-41 majority.

After the loss in Massachusetts, they hold the White House, the House of Representatives by a 78 vote majority, and the Senate by a 59-41 majority.

That’s a signal to give up?  In what Bizarro universe?

According to a pair of senior Capitol Hill staffers, one from each chamber, House and Senate Democrats are “almost certain” to negotiate informally rather than convene a formal conference committee. Doing so would allow Democrats to avoid a series of procedural steps–not least among them, a series of special motions in the Senate, each requiring a vote with full debate–that Republicans could use to stall deliberations, just as they did in November and December.

“There will almost certainly be full negotiations but no formal conference,” the House staffer says. “There are too many procedural hurdles to go the formal conference route in the Senate.”

I can’t help but feel a little pride in thinking this was a good idea back then.

Unfortunately, it’s not very good for conservatives.  It will not allow much room for them to debate the bill at all.  Of course, this was inevitable, since the leadership pretty much said they weren’t interested in negotiationg at all:

One reason Democrats expect Republicans to keep trying procedural delays is that the Republicans have signaled their intent to do so. On Christmas Eve, when the Senate passed its bill, Minority Leader Mitch McConnell memorably vowed in a floor speech that “This fight isn’t over. My colleagues and I will work to stop this bill from becoming law.”

Yes, Republicans are sure to complain that they’re being excluded from deliberations. But given their repeated efforts to block not just reform but even mere votes on reform, it’s not clear why Democrats are obligated to include them in discussions anymore.

The fact that the Senate and the House are discussing this seriously leads me to believe that (1) they must have a plan to get this done and (2) they want to get it done before the State of the Union address.  Things should move fast once Congress is back in session.

What I think is more likely than repeal, though by no means certain or even highly probable, is an erosion of the low-income subsidies in real terms, perhaps tied to a change in the minimum level of coverage required. A Republican congress and president might pass such changes along with a tax cut. It is very likely that Republican candidates will campaign on it.

I could see the whole thing being spun as middle class assistance: options for cheaper insurance and a lower tax bill, albeit with subsidies for the poor that don’t keep up. Since the poor aren’t a big constituency this strikes me as at least plausible.

Another wrinkle that could make this work is a weaker mandate that includes exemptions when the premium-to-income ratio is above a threshold. Put it all together and you’ve got a gradual erosion of health reform: worse insurance, less low-income assistance, fewer individuals covered, a weaker mandate.

I agree that is is more plausible than repealing the bill.  I still think it’s unlikely, however.  Can you imagine the effort it would take to do this?  I think the American public will be sick to death of health care reform.  The economy is still not good.  Terrorism keeps popping up.  We’re still in two wars.  And so on.

Moreover, any new bills would still require 60 votes in the Senate.  While it’s hard to find 60 votes to support reform, it would be just as hard right now to find 60 votes to weaken it in the future.  A lot of the Senators like reform and wish it went even further.  Just as it’s hard to replace conservative Democrats in conservative states with more progressive Senators, it would be hard to replace progressive Democrats with more conservative Senators in progressive states.  Many of those Senators won’t come up for election for years.  They won’t have the numbers – not for some time.

It’s not going to happen.

That’s not because it will be popular (and I think it will).  That’s not because a lot of people are all of a sudden going to find themselves with nice government subsidies to buy insurance.  That’s not because people on both sides will see it’s not the evil they’ve made it out to be.

It’s because it would be just as difficult to repeal it as it was to pass it.  Repealers would need (1) a majority of the House to vote to repeal it, (2) 60 votes in the Senate to repeal it, and (3) a President willing to sign the bill* to repeal it.

I suppose (1) is possible, if unlikely.  (2) is not going to happen anytime soon.  They’d need to replace at least 20% of the Senate,because NO ONE who voted for the bill will vote to repeal it; there just aren’t that many vulnerable Senators right now. (3) can’t possibly happen until 2013 at the earliest.

This is all theater.  I don’t blame the politicians for being politicians.  I blame the media for covering this seriously.

*Yes, I know that with a 2/3 majority in the house and Senate they could override the veto, but that’s NOT GOING TO HAPPEN.

There is a very insidious myth right now that there is a large group of progressive leaders who want to “kill” health care reform in its entirety. While there might be some progressive leaders out there who have advocated for this position, I have yet to hear from them. What I have heard from people like Howard Dean, Markos Moulitsas, Keith Olbermann, Jane Hamsher, etc… is that they simply want to kill the current version of the Senate bill. None of them, to my knowledge, have advocated ending all efforts to pass a health care reform bill. I believe each and every one of them have advocated for simply passing a different bill through different means. Do not heed those who are working to create a false dynamic where the only two options are passing this horrible Senate bill or passing nothing at all. The idea that there is a large group of progressive leaders trying to kill health care reform is a red herring.

The other great myth is that if this current Senate bill, thoroughly compromised to get 60 votes, does not become law it will be impossible for any health care reform to pass during this Congress. President Obama made sure to include instructions to pass health care reform using reconciliation in the budget for a reason. It is still completely possible to pass an arguably better bill with only a simple majority in the Senate using reconciliation. Progressive activists are demanding to “kill this particular Senate bill” because they know Democrats will not walk away from health care reform empty handed. If need be, they will use reconciliation. While Senator Harry Reid and Barack Obama for some reason think it is preferable to let Senators Joe Lieberman, Ben Nelson, and Blanche Lincoln gut health care reform; if they are forced to, they will use a special procedure that completely cuts these conservadems out of the debate.

That’s a legitimate plan, but darn risky.  If you want a full and thorough discussion of why that’s so, go read Nate Silver.  It’s long, but it’s thorough, and I’m not sure I could do it better.

If, however, you believe we can use reconciliation to pass a public option, or Medicare buy-in, or whatever, why can’t we just do that next year?  Or in 2011 after the midterm elections?  Of anytime before 2013 when the bills go into effect?

Why do those who support this plan believe we have to have that passed first?  Seems to me that using reconciliation might jeopardize the passage of the stuff in the bill now.  Things like the exchange, regulations on premium levels, no denials becuase of pre-existing conditions, subsidies for insurance, etc.  If you used reconciliation, I can pretty much guarrantee you aren’t going to get those things in a regular bill because you won’t get 60 votes in the Senate.  You will lose some votes.

So why not pass the bill instead of killing it, and then come back to reconciliation once those parts are safe?

Note – I’m not telling you to pass the bill.  I’m just curious why this wouldn’t be a better strategy for those who support reform efforts right now?

And – unless they are really, really terrible politicians – it means the leadership of the House and Senate know how to get a bill to President Obama before the State of the Union.  I would gladly lay money on the prospects for this bill to pass.

Ezra Klein has a good summary of the bill:

Tougher Accountability Policies for Health Insurance Companies

• Stronger medical loss ratios. Health insurers will be required to spend more of their premium revenue on clinical services and quality activities, with less going to administrative costs and profit – or else pay rebates to policyholders. These more rigorous limits will continue even after the Exchanges begin in 2011, and apply to all plans, including grandfathered plans.

• Accountability for excessive rate increases. A health insurer’s participation in the Exchanges will depend on its performance. Insurers that jack up their premiums before the Exchanges begin will be excluded – a powerful incentive to keep premiums affordable.

• Immediate ban on preexisting condition exclusions for children. Health insurers will be immediately prohibited from excluding coverage of preexisting conditions for children.

• Patient protections. Health insurers will have to abide by a set of patient protections that, for example, protect choice of doctors and ensure access to emergency care .

• Ensuring access to needed care. The use of annual limits on benefits will be tightly restricted to ensure access to needed care immediately, and will be prohibited completely beginning in 2014.

• Guaranteed opportunity to appeal coverage denials. All health insurers will be required to implement an internal appeals process for coverage denials, and states will ensure the availability of an external appeals process that is independent and holds insurance companies accountable.

Stronger Policies to Make Health Care Affordable

• Innovation. Medicare will be able to test new models and, if successful, implement them via a stronger Innovation Center, Independent Payment Advisory Board, and other authorities.

• Transparency. New requirements will ensure that insurers and health care providers report on their performance, empowering patients to make the best possible decisions.

• Small businesses. A package of improvements include starting the health insurance tax credit in 2010, expanding eligibility for the credit, and improving the buying power of small businesses.

More Health Insurance Choices

• Multistate option. Health insurance carriers will offer plans under the supervision of the Office of Personnel Management, the same entity that oversees health plans for Members of Congress. At least one plan must be nonprofit, and the plans will be available nationwide. This will promote competition and choice.

• Free choice vouchers. Workers who qualify for an affordability exemption to the individual responsibility policy but do not qualify for tax credits can take their employer contribution and join an exchange plan.

Improved Access to Quality Health Care for Seniors, Children, and Vulnerable Populations

• Quality of care in Medicare. Seniors will benefit when additional health care providers are reimbursed by Medicare for the quality of care they deliver, not the quantity of services they provide.

• Children’s health. Support will be extended for the Children’s Health Insurance Program and the adoption tax credit. Foster care children aging out of Medicaid will be able to retain its comprehensive coverage.

• Community Health Centers. A substantial investment in Community Health Centers will provide funding to expand access to health care in communities where it is most needed.

• Rural and underserved communities. Access will be expanded through funding for rural health care providers and training programs for physician and other types of health care providers.

• Vulnerable populations. A range of new programs will tackle diseases such as cancer, diabetes and children’s congenital heart disease, will improve the Indian Health System and will provide support for pregnant teens and victims of domestic violence.

Identifying Alternatives to Litigation

• Testing new models. States will be eligible for grants to test alternatives to civil tort litigation that emphasize patient safety, disclosure of health care errors, and early resolution of disputes, with a provision for patients to opt-out of these alternatives at any time. Alternatives will be evaluated to determine their effectiveness.

Of course, we’ll need to wait and see what comes out of conference.  But I bet it’s close to this.

Incidentally, this is the hallmark of peer-reviewed literature and good science.  Clear methods allow you to judge the quality and soundness of the work as well as the results.  So if you disagree with his findings, you have to explain why his thought process and computations are wrong.  You can’t just have a different opinion.

Nate went and figured out how insurance will look to a family of four in 2016 under a number of plans:

What you’re looking at is the cost of insurance to a family of four making $54,000 in 2016.  The blue portion is the amount the family pays in premiums each year.  The red part is  co-pays, deductibles, etc. that a family might not pay every year; the amount shown is the maximum they would have to pay.  The diagonal portion is made up of subsidies from the government to cover the rest.

Under the Senate plan, premiums for this family would be $4000 a year.  In a bad year, they might have an additional $5000 in expenses.  That’s a maximum of $9000 a year.  I’m not saying that’s not a lot of money.

But it’s way less than without reform.  Assuming levels of inflation much less than normal, premiums for this family in 2016 would be over $13,000 a year.  In a bad year, add in about $6500 more in co-pays, deductibles, etc.  That’s now a maximum of $19,576 a year.  And – as Nate points out – the insurance they are getting is of lesse quality thanks to the fact that the regulations in the bill aren’t in effect.

Yes, some families in this situation qualify for SCHIP for their kids.  For those families, premiums would be over $8500 with another potential $5100 in cost-sharing for a potential maximum of $13,690.  And they’re getting the crappier less regulated insurance, too.

If you think he’s fudging it, go read his methods.  He’s pretty open about them.

Once again, I’m not telling you to support of oppose the bill.  But people on the right who reform would raise their costs need to look at this.  And people on the left who claim the Senate bill is now immoral and does more good than harm need to take a deep breath, too.

Think hard before you rant.

First, the public option will now be a trigger:

As has been widely reported, one of the trade-offs will be to extend a version of the Federal Employees Health Benefits Plan to consumers in the exchanges. Insurance companies will have the option of creating nationally-based non-profit insurance plans that would offered on the exchanges in every state. However, according to the aide, if insurance companies don’t step up to the plate to offer such plans, that will trigger a national public option.

My bet is we’ll see non-profits enter the exchange, which is better than nothing.

Second, we have the Medicare buy-in:

That buy-in option would initially be made available to some uninsured people aged 55-64 in 2011, three years before the exchanges open. For the period between 2011 and 2014, when the exchanges do open, the Medicare option will not be subsidized–people will have to pay in without federal premium assistance–and so will likely be quite expensive, the aide noted. However, after the exchanges launch, the Medicare option would be offered in the exchanges, where people could pay into it with their subsidies.

As I said a few days ago, this will be attractive to many people approaching Medicare age.  Opposition to this should be interesting.  You watch, though.  The AMA and the hospitals won’t like this.

Third:

In addition to the new insurance options, the group has tentatively agreed to new, and strengthened, insurance regulations, which the aide could not divulge at this time.

I hear they may have to do with requirements on how much money from premiums must go to actual care.  That’s a good thing.

They tried to expand Medicaid to 150% of the poverty line, but didn’t get it.

And that’s where we are.  They need to get to 60, so they need Senator Lieberman or one of the Republicans to buy in (without losing Senator Nelson).  This seems promising for them, though.  Let’s watch.

Where we are right now is that the Senate is voting on their own health care reform bill.  If it passes, it obviously isn’t the same bill that the House approved.  So the Senate and the House need to sit down and create a whole new bill from those two individual bills that they believe both the House and the Senate will approve.  This will take some time.

There’s an alternative, however:

There is increased chatter on Capitol Hill about a possible “ping-ponging” of the Senate health care bill: that chamber would pass its health care bill, send it to the House and the House would be asked to pass it with no changes and send it directly to the president.

That limits the options of congressional critics — under the usual procedure, lawmakers dissatisfied with the bill pushed through their chamber can win changes through adroit political maneuvering in conference committee negotiations.

“It’s the only scenario by which we could actually get this whole thing done before the New Year. The House has indicated they’d consider it, depending on what the final bill looks like over here after we finish with the sausage-making,” said a senate Democratic aide involved in the health care fight.

Senate Majority Leader Harry Reid (D-Nev.) is currently negotiating what’s known as a “manager’s amendment.” That amendment includes large and small concerns that senators want worked out before voting to end a filibuster. If Democrats decide to ping-pong the bill, the manager’s amendment becomes, in effect, the only place to work out differences.

If Senator Reid talks to the House beforehand, and can get their concerns into the Manager’s amendment, AND it can be approved by the Senate, then the House could just immediately vote and approve the Senate bill without any more wrangling.

I’m not a political expert, and I don’t know how often this occurs, but it seems like a good idea to me.  One less chance to filibuster as well.

UPDATE: Steve Benen thinks it’s unlikely to happen.