Monday, July 9, 2012

Vandy Law Professor Responsible for ACA's "Opt Out" Mechanism

Posted By on Mon, Jul 9, 2012 at 5:04 AM


Following the Supreme Court's ruling on the Affordable Care Act, it was only a matter of time before conservative governors across the country would denounce the constitutionally sound law and vocalize their intent to opt out of the ACA's Medicaid expansion provision simply because they could.

Within days of the SCOTUS ruling, governors in Louisiana, South Carolina, Florida, Mississippi, Iowa and Wisconsin have now either levied criticism toward or offered full-throated rejection of expanding Medicaid access for uninsured citizens up to 133 percent of the poverty line because, they argue, the poor aren't worth the relatively higher state-level spending that such expansion would entail (despite the long-term savings which they neglect to mention). Of course, this is horseshit, but it's horseshit that plays well with ObamaCare's opponents on purely ideological grounds regardless of facts.

But like the ungrateful children they are, they've yet to thank the man who gave them the means to look tough on post-SCOTUS ObamaCare while screwing over the poor: Vanderbilt University Law School professor and "free" market cheerleader James F. Blumstein.

According to a Vanderbilt News press release, "An amicus brief filed by James F. Blumstein, University Professor of Constitutional Law and Health Law and Policy, provided the legal argument relied on by Chief Justice John Roberts in his decision that the ACA’s Medicaid mandate on states was unenforceable."

“The Supreme Court had previously held that the relationship between the states and federal government under Medicaid was analogous to a contract,” Blumstein said in the presser. “Then the federal government decided to change the deal in mid-stream, linking states’ acceptance of the new terms to states’ eligibility to receive federal support for the Medicaid programs they had long had in place. This looked like excessive or predatory leveraging to me."

As the oft-quoted guru of conventional legal wisdom in Tennessee media, Blumstein was influential in the so-called "tort reform" craze that swept the state last year by helping frame debate not in terms of limiting the citzenry's access to the court system, or shielding companies from damages large enough to actually make them lower the temperature of their coffee, but because it would provide stability for businesses and help create jobs.

Now, his influence on the health care reform debate could prove just as specious.

Last year, with Blumstein's help, the state effectively made it harder to hold health care providers accountable for negligence (because it's bad for business, commie!) and capped at $1 million the amount of damages you could sue a company for if they were found liable for the following: "spinal cord injury resulting in paraplegia or quadriplegia; amputation of two hands, two feet or one of each; third-degree burns over 40 percent or more of the body as a whole or third-degree burns on 40 percent or more of the face; or the wrongful death of a parent leaving a surviving minor child or children for whom the deceased parent had custody."

As a result of Blumstein's input on the ACA front, factually challenged leaders like Florida Gov. Rick Scott are now empowered to screw over thousands of their constituents simply because it's good rhetoric. Says Scott, another supposed free-marketeer:

I believe we need more choice for patients, more free-market competition, increased accountability for providers, and incentives for personal responsibility. These are the things we can do that will hold down health care costs and make it affordable for more people. Unfortunately, ObamaCare doesn’t do any of those things. In Florida, we are focused on becoming the number one place for businesses so that Floridians have more jobs.

Horseshit, of course. But if Scott makes good on his word, Florida — like Tennessee — would stand to lose gobs of federal money that would not only bring hundreds of thousands of uninsured constituents into the market, but actually create jobs funded by the federal government. Thanks to Blumstein, the only thing Floridians will get is the shaft.

If Gov. Bill Haslam decides to adopt the Blumstein Defense, then the state could squander up to $612 million in potential savings by 2020, all because of an ideology that presupposes to do otherwise somehow violates the principles of the free market in an industry that's hardly free or fair.

"My primary issues with ObamaCare are that it takes away the flexibility for states to encourage healthy behavior, will cost Tennessee hundreds of millions of dollars, and does nothing to solve the crisis of the cost of health care in America," Haslam said. "What was unanticipated is the section of the opinion that says states cannot be forced to expand their Medicaid program. This particular portion of the ruling is significant, but it is premature to know the exact ramifications."

This, also, is horseshit. According to the Urban Institute: "Total state savings would exceed states’ new costs, as federal dollars substitute for projected state and local spending without the ACA, and as states eliminate current Medicaid eligibility for adults who qualify for federal subsidies in the exchange. Overall, the federal government would spend $704 billion to $743 billion more under health reform than without it. The states, on the other hand, would spend $92 to $129 billion less under the ACA than without it over the same time period, between 2014 and 2019."

Further, as WaPo's Greg Sargent noted (via the Urban Institute study):

The argument that opting in could devastate state budgets is grounded in the idea that while the federal government will cover the full cost for the first three years, by 2020 that number drops to 90 percent — and there’s no guarantee that the feds will continue footing the bill.

But that elides several important ways the Medicaid expansion could save money for states in other areas, the Urban Institute study concluded. First, the expansion could mean significant numbers of mental health patients now covered will soon be covered almost entirely by federal Medicaid funds. Second, the expansion could move many patients out of categories where states are currently paying a large matching share of Medicaid costs — such as pregnant women or people receiving long term home care — into Medicaid coverage that’s almost entirely paid for by the feds.

And third, the Affordable Care Act overall — partly because of the Medicaid expansion, and partly because of subsidies and exchanges — will cut down the number of uninsured in ways that could significantly reduce “uncompensated care” — i.e., care that patients don’t pay for, such as emergency services — thus reducing the amount of money states pay to hospitals to reimburse such care.

Let's be clear, then: The next time you hear a politician crying about the Medicaid expansion, you can thank Dr. Blumstein. If your state pisses away billions of dollars in federal money that could save lives and create jobs, Dr. Blumstein is your man.

Depending on how many states opt out, however, the good doctor's voicemail might not be able to handle several million angry messages — assuming the callers are healthy enough to scream.

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