By David Leeper
It’s almost a cliché now to say that the Affordable Care Act has been a massive overreach and unconstitutional power grab by the federal government. Regarding the latter, with a mere slip of his pen, Chief Justice Roberts’ majority opinion declared the ACA to be Constitutional via a wretched contrivance that will go down in Supreme Court history alongside Wickard v. Filburn. But the overreach is still very much there, it’s hurting us big time, and it’s only just begun.
Congress couldn’t manage its way out of a paper bag, let alone manage the rules and regulations for 1/6 of our entire economy. They know it, and they wouldn’t want to do it even if they could — it’s far too much work for them, and who could they blame when it all goes wrong? So after overreaching by seizing all that power through the Affordable Care Act, what do they do?
They abdicate by overdelegating their Congressional legislative power to one person, HHS Secretary Kathleen Sebelius. The Obamacare law is infamous for its 700 uses of the phrase “The Secretary shall determine … ” for all manner of then-not-yet-written rules and regulations regarding healthcare in America.
To put that much legislative/regulatory power and responsibility in one person’s hands is to invite chaos, tyranny, and corruption, and it looks like we’re going to get plenty of all three.
In particular, from this week’s New York Times (no less), we get word that subsidized health care under the ACA has been quietly and sweepingly exempted from regulations that govern other federal health care programs like Medicare. The ACA is therefore exempt from existing law that “bans rebates, kickbacks, bribes and certain other financial arrangements in federal health programs, stripping law enforcement of a powerful tool used to fight fraud in other health care programs, like Medicare.”
Why? What’s the Sebelius rationale? She didn’t give any. Says the Times:
“The secretary’s decision will have some very significant consequences,” said D. McCarty Thornton, former chief counsel to the Inspector General at the Health and Human Services Department. “The federal anti-kickback statute will, in most cases, not apply to subsidized health plans or the items and services furnished by those plans.”
“Plans and providers are very happy to be relieved of that concern,” Mr. Thornton added.
Kevin G. McAnaney, a lawyer who specializes in health care fraud and abuse cases, said Ms. Sebelius’s decision would allow drug companies to give coupons to people who buy insurance through the exchanges.
Such coupons subsidize co-payments and reduce out-of-pocket costs for consumers, encouraging them to use certain brand-name prescription drugs when lower-cost alternatives are available, Mr. McAnaney said.
The federal government has forbidden the use of drug coupons in Medicare and other federal health programs, saying they amount to a classic kickback scheme, with drug companies paying consumers to use their products.
Mark Merritt, the president of the Pharmaceutical Care Management Association, which represents benefit managers like Express Scripts and CVS Caremark, expressed a similar concern. “The coupons steer consumers away from lower-cost alternatives to more expensive drugs, increasing costs to insurers and to the government,” he said.
Coupons may drive down the co-payment for an expensive brand-name drug, but often, the insurer must pay much more than it would for a generic version of the medication.
Some drug companies and their lawyers assumed that federal insurance subsidies were part of a federal health care program.
Drug coupons offered by Merck, for example, say that they are not valid for patients covered by Medicare, Medicaid or “any qualified health plan purchased through a health insurance exchange established by a state government or the federal government.”
In a vivid demonstration of how the anti-kickback law can be applied, the Justice Department announced on Monday that Johnson & Johnson would pay more than $2.2 billion to resolve criminal and civil investigations. The government said the company had, among other things, paid kickbacks to doctors and nursing home pharmacies to promote the use of certain drugs. The company said the payments were “lawful rebates.”
Once again, like Obamacare subsidies and exemptions for Congress, Big Government proclaims What’s Good for Thee Is Not for Me. We can now expect all manner of kickbacks, fraud, and shakedowns to follow. It’s an Obama Chicago-pol’s paradise. And who pays? We do, especially our children and grandchildren as a gargantuan debt continues to pile up.
Most people think private-sector, free-market health care alternatives would be chaotic, and indeed they would be. But ironically, it is only the billions of voluntary free-market exchanges of money, goods and services that can make a nationwide health care system work efficiently. That will be the lesson we should learn from the national nightmare that is Obamacare.
Alas, most politicians and naïve citizens will think the lesson is that we need still more government regulation, and things will get much worse before they get better, if ever.
Is there a role for government in the health care industry? Of course. That role should be to cultivate full, free-market competition in health care services, not the Big Government price fixing and rationing that comes with Obamacare. Aside from enforcing contracts and existing antitrust regulations, the feds should step back and step out of health care. Excellent proposals from RSC, Heritage, or NCPA, would move us a long way in that direction.
What are the prospects for those better approaches? At present, virtually none. Instead, Congress is focused on a failed website launch. Sure, they’ll eventually get that mouse pinned down, but in the meantime, the elephants are running right past us.
This is what happens when Congress overreaches and over-delegates.
As one travesty begets another, with a supine Democrat-servile media failing to protect the people, the Obama administration will keep pushing the boundaries until Constitutional restraints on government are just a rumor and a distant memory.