Legislative Update Week of December 3rd

View of the wait into the House gallery.

Week two of the lame duck session of the legislature continued to offer excitement, fireworks, and even an arrest or two around the Capitol. The week started out with not knowing what the House was going to do with the Blue Cross mutualization legislation that was in the House Insurance committee. Rumblings of Right to Work legislation lead to an all out confrontation between union and legislators on Thursday. Lets review the week:

House:

The House Insurance committee finally meet after session on Wednesday to bring the agreement that the House, Senate, and Governor could agree to. The committee passed the legislation to the House Floor where it was amended again with final language that needed to be added. What was added? A fix for those who have medigap policies. The bill now requires the fund set up by the conversion to pay $120 Million yearly to subsidize the medigap policies until 2018. The House also added an elective abortion amendment that would require those who want to have coverage for an elective abortion to "opt in" for that coverage. The package will now head to the governor's desk for his signature.

The House Health Policy committee was scheduled to meet but with the Right to Work legislation being worked on that day, the committee was canceled.

Senate:

The Senate had a couple other items on their agenda that was health related this week, but as it was with the House, it was all about Right to Work. The Senate passed a series of three bills that made it illegal for those in the health insurance exchange to offer coverage for elective abortions unless the patient purchased an "opt in" coverage for the procedure. The package was sent to the House where it could be taken up since the House did consider some other controversial abortion regulations earlier in the year.

The Senate also considered and passed Senate Bill 975 despite some objections from the major medical groups. What this legislation would do, would provide protections for a physician who chooses not to treat a patient based on their religious beliefs. This raised several concerns to Senator , Kahn, a cardiologists, on the Senate floor saying that it goes against the oath that physician's take before entering into practice. The bill will now be sent to the House where with limited time in the legislative year probably will stay.

The House and Senate have one more week to consider items before they leave for the year. Tort Reform is expected to be taken up this week. Stay with MSMS at http://www.msms.org/advocacy to get the latest information on all of the action happening at the Capitol.

Legislative Update: Week of November 19th

With elections finally over and the legislature facing its final weeks in Lansing, the chaos of lame duck is about to start. With the House Republicans losing five members, those leaving have agenda items that they would like to see get done in these short weeks. Those members find themselves fighting against the Governor who also has issues that he would like to see completed before the House and Senate head home for the holidays.

Let’s take a look at what we feel will be the top five projects the legislature will be working on in this coming lame duck session:

1.      Blue Cross/Blue Shield Mutualization: With the Senate pushing through their legislation before Election Day, we find that the House has a different story. Hearings have started in the House Insurance committee and have been marathon meetings starting last week and going through this week discussing issues surrounding Medigap and having the Attorney General Bill Schutte testifying that with this package we are pushing Michigan senior towards a cliff, possibly leaving them without the some of the coverage seniors need. MSMS has amendments it will be looking to introduce in the coming weeks to the package protecting some the privileges offered under PA 350.

2.      Personal Property Tax Reform: This is a request and an issue that is important to the Governor and the Lieutenant Governor. This has been an interest to this administration in the past. While LG Calley was a member of the House he was the minority chair for the House Tax Policy committee where eliminating the PPT was an interest to him at that time. A good thing for the LG is that Speaker Bolger is of the same opinion as him, I would imagine that the House will work to get the PPT off the books before they head home.

3.      Health Care Exchanges: With the Senate tackling this issue earlier this year, the House had a wait and see attitude when it came to the exchanges, first waiting for the United States Supreme Court to render its decision then waiting to see the outcome of the elections, the House now faces either federal implementation for work hard over the next few weeks to get a state exchange in place. We'll see what the legislature can accomplish when the majority feels that this isn't the program they wanted to deal with.

4.      Regional Transit Authority: With Detroit dealing with several financial problems, the thought of a regional transit authority would ease those concerns that surround the transit system. This issue has come up time after time and has never been able to make it out of the legislature, maybe this time it could.

5.      PA 4 Replacement: With Michiganders choosing to take the Emergency Financial Manager act off the books we find the state going back to the Emergency Manager act taking away some powers that some would argue were able to get some off the cities and school districts back on better footing. Now some feel there needs to be a replacement that would still provide the authority that the managers need to get these municipal units back on course.

Other items on the horizon could be mining taxes, educational achievement authorities, and the discussion that with the failure of proposition 2 and 4 if that is a signal to the legislature that Michigan is ready to be a Right to Work state.

MSMS will be making our final push for this legislative session on Tort Reform. We still continue to feel positive that we could get some movement on this during lame duck. We also will be working on getting our impaired drivers legislation moved from the House floor and to the Governor's desk and hopefully seeing movement on Expedited Partner Therapy by sine die.

Stay with MSMS throughout this lame duck session to get the latest information affecting you at http://www.msms.org/advocacy.

Legislative Update: Week of June 25th (Special Edition)

Back in late March the Supreme Court of the United States took up the four suits surrounding the Patient Protection and Affordable Care Act. The four major questions that were considered by the court over the three days were:

1.      Is the penalty fee for not complying with insurance mandate considered a tax and if it is not if the Anti-Injunction Act, which does not allow persons to sue the government over taxes, to have jurisdiction over this penalty?

2.      Is the mandate to purchase health insurance unconstitutional?

3.      If the mandate is determined unconstitutional does the rest of the bill still have standing (severability)?

4.      Does the expansion of Medicaid coerce the States to participate in the expansion?

Today the court renders its decisions on these questions, let's review the opinion:

Chief Justice John Roberts delivering
the Court's opinion (courtsey of AP)

The court today issued its opinion combining all of the cases together and rendered its opinion in National Federation of Independent Business v. Sebelius, Chief Justice John Roberts issued the opinion of the court which affirmed some parts of the act and reversed other parts of the act. Lets break down the issues:

Anti-Injunction Act:

The question that was raised whether the penalty imposed for not buying insurance is protected under the Anti-Injunction Act (AIA). The AIA provides protections to the government limiting the ability of someone to sue the government over taxes. The taxes need to be in effect before a suit may be filed for harm by the tax. Arguments were that since this was a penalty and not a tax the people had the ability to sue before the penalty took effect to stop the future harm it could have caused. Chief Justice Roberts along with Justices Ginsberg, Kagen, Sotomayor and Breyer disagreed with that argument says that the government claims for protection under the AIA was upheld due to the next issue.

Individual Mandate:

Arguments against the mandate claimed that the commerce clause of the Constitution did not give Congress the authority to compel the purchase of goods and services and that the ACA compelled the people to purchase health insurance. The government disagreed with this argument and also argued that Congress also had the authority to mandate the purchase of health insurance since the penalty is a tax to those who do not purchase and Congress has the authority to levy taxes under the Constitution.

The majority of the court agreed that the commerce clause of the Constitution did not have the authority to compel the people to purchase a product but the court did uphold the mandate agreeing with the government's second argument that the penalty was a tax and Congress has the authority to levy taxes and that the government is taxing the people either through the purchase of insurance or those choosing the pay the penalty for not purchasing.  Chief Justice Roberts writes,

"The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax."

Since the Court ruled that this was indeed a tax the arguments for the AIA issue above by those against the ACA fall.

Severability:

This was a non issue due to the mandate being upheld.

Medicaid:

This section is where those who were against the government actually won their arguments with the Justices. Those against the ACA stated that the Government did not have the ability to "bully" States into the Medicaid expansion by stating their entire funding would be taken away providing the opportunity to be coerced into expanding their Medicaid programs. The Government argued that this was a Government program and Congress had the ability to create any condition and terms for the program it saw fit. The Court disagreed with that opinion. The Court opined that the Government could not keep existing Medicaid funding away from the States that choose not the expand their Medicaid program.

Chief Justice Roberts stated, "The threatened loss of over 10 percent of a State's overall budget is economic dragooning that leaved the States with no real option but to acquiesce in the Medicaid expansion." This now leaves the option to the States whether they choose to expand their Medicaid coverage to the population requirements set in the ACA.

At the end the decision was 5-4 with Chief Justice Roberts and Justices Ginsberg, Breyer, Sotomayor and Kagen concurring and Justices Scalia, Kennedy, Alito and Thomas dissenting.

Chief Justice Roberts finished his opinion with this:

"The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that is the judgment is reserved to the people."

For the entire opinion from the court click here.

Legislative Update: Week of May 21st (Midweek Update)

Kenneth Elmassian, DO

Today the Senate Insurance committee took testimony on Senate Bill 1115, 1116, 1117, 1118, affectionately known as the "The Patients First Reform" package. This effort, spearheaded by MSMS and the physician community, is the first significant tort reform package since the early 1990's.

Elmassian and Chafty testify for
the Senate Insurance Committee

MSMS offered testimony from two different avenues during the hearing, first coming from MSMS Preident-Elect Kenneth Elmassian, DO and Michael Chafty, MD, JD, who chairs the MSMS Board Legislative Policy Committee. Both of the physicians commented on how the having these reforms for Michigan's physicians puts Michigan in a category that it has never been accustomed to: a destination for physicians to practice. "Like many other states, prior to the adoption of meaningful tort reform in 1993 Michigan was a state in crisis," said Dr. Elmassian. Elmassian went on to say, "Those of us who live through this crisis are obligated to be vigilant to maintain the intent of the reforms passed in 1993. Senate Bills 1115-1118 seek to do just that."


Michael Chafty, MD, JD

Opponents against the legislation said that it would hinder the patent's or the patent's family's ability to gain recourse for a mistake of a physician. They also say it would take away the ability to provide for the services that a person needs to counter the pain and suffering sustained by the injury. Another argument against the bills was that the tort reforms would not help an impending physician shortage in Michigan because we simply don't have one. Referring to a study from the AMA from 1995, as was pointed out by Dr. Chafty in his testimony, the amount of physicians Michigan has is the right number to serve the population that needs health care. Dr. Chafty noted that with the increasing amount of physicians getting closer to retirement and the growth in the amount of people that are going to need care, the need for physicians will grow to an amount of 4,500 by 2020.

The committee continued taking testimony until 4:30pm today, and it will reconvene again in a week to continue taking the testimony from all of those wishing to testify. MSMS will continue to offer coverage of the proceedings.

Legislative Update: Week of March 26th (Special Edition)

This week the Supreme Court of the United States took up the four suits surrounding the Patient Protection and Affordable Care Act. The four major questions that were considered by the court over the three days were:

1. Is the penalty fee for not complying with insurance mandate considered a tax and if it is not if the Anti-Injunction Act, which does not allow persons to sue the government over taxes, to have jurisdiction over this penalty?
2. Is the mandate to purchase health insurance unconstitutional?
3. If the mandate is determined unconstitutional does the rest of the bill still have standing (severability)?
4. Does the expansion of Medicaid coerce the States to participate in the expansion?

Let's review the activity of the court:

Monday:

View of the Court on Monday

On Monday the court heard argument surrounding the penalty that Congress had placed in the Affordable Care Act for those individuals who do not purchase health insurance. The main question of the matter was whether this penalty was subject the a law called the  Anti-Injunction Act. The general summary of the act states that no one may file suit to stop the collection of tax from any person for any purpose.

The Government had submitted to the court that since there were some penalties that had been defined in the IRS code were able to fall under the auspices of the act since in other cases from the court they had determined that if the penalties were able to be defined in the IRS code they were able to be under the jurisdiction of the injunction act. There is a caveat to this point though, those penalties were found the be revenue generating for the government and were specifically written that way by Congress.

The counter was just the opposite. Since this was written in a way that if every person complied with the statute the government would not produce any revenue. Justice Ginsberg solidified that point stating just that, if the everyone complied with the act no revenue would be generated due to the penalty. After the arguments it was plain to see that the government had struggled making their case to all of the justices.  Transcripts and audio of the proceedings are available online for your review.

Tuesday:

Tuesday was the big day at court as both parties argued the merits of the individual mandate provision of the Affordable Care Act. This day found the government again on their heals trying to make their claim that the mandate was constitutional. The crux of the government's argument stems over Congress's ability to extend the  Commerce Clause to compel citizens to participate in a market. The Commerce Clause is found in Article I of the Constitution stating that Congress has the authority to regulate commerce between the states.

Paul Clement in front of the Supreme
Court in Washington D.C. on Tuesday
as the court continued hearing
arguments on the health care law.
(Credit AP./Dana Verkouteren)

The Government stated for Congress to achieve their goals of creating an environment to create affordable care that they needed to regulate the health care market and by doing that they are compelling people to purchase health insurance and enter the health insurance market since insurance will be the way that people pay for health care. It provides stability in the health care market which will lower costs.

Counter to that argument was two fold first your are compelling people to enter a market that they may not want to enter into and if they do then purchase coverage that they do not need. Chief Justice Roberts commented on this point  stating that if he was to enter that market he would be compelled to purchase pediatric and maternity coverage which he would never be able to use. By doing that that he would be supporting the rest of the pool that would need more coverage by paying for services he didn't need. Secondly respondents say that this is truly not interstate commerce but intrastate commerce. States have always had the ability to control their individual insurance markets including government programs like Medicaid.

The Government again took the brunt of the questions and contradictions from the Justices concerning their case. Transcripts and audio of the proceedings are available online for your review.

Wednesday:

Wednesday saw the court handling the final two issues, one if the mandate falls does the rest of the act have to fall as well and does the Medicaid expansion  coerce the states to engage in that expansion? This day listening to arguments, you found the court more politically divided and finding the Government on the Medicaid claim on stronger ground to support the Affordable Care Act.

Attorney Paul Clement speaks before
the Supreme Court on Wednesday
(Credit AP/ Dana Verkouteren)

The Government made the claim that if the mandate was eliminated from the Act the provisions such as prior conditions exclusion and community based services will still be allowed to stand along with others. Justices Breyer agreed with some of these arguments stating that the law did have items that were not attached to the mandate provisions and that States were already doing. But Justice Scalia on the other hand did not agree stating that if you take the guts out of the bill or the heart can it really survive?  Petitioners stated that when you look sever the issue you create a huge problem for insurers that have to meet a mandate to provide coverage at certain levels and to certain individuals with out having the assurance that people will get insurance. It places an unfair burden on business and insurance if the issues is not severed. Transcripts and audio are available online for your review.

 

 

With Medicaid, you found the Government at its strongest during the three days of hearings. There has been previous court precedent along with congressional precedent that provided Congress the ability to expand the Medicaid program and provide funding for such an expansion. The counter argument from the Petitioners was the the States were being coerced to enter into the Medicaid expansion since the funding that the States currently used for the existing program could be in danger if they did not accept the funding for the increase in population in the program. This is where the Justices has a hard time understanding the arguments of the Petitioners. Justice Kagen stated that if you were given a boatload of free money wouldn't you take the free money? The argument back was no since it was not known where the money had originated from. With the Medicaid expansion it was the people that are paying for the expansion through tax dollars and were being coerced to support a program that they did not want to in the first place. Transcripts and audio can be found online for your review.

What's Next?

The court will now consider the arguments it heard and the briefs that were submitted to the court and issue an opinion. Usually opinions are issued from the judicial session of the court in early June but due to the sensitivity of the issue and with States waiting to now have an opinion, the court could issue an opinion earlier than June.