This website provides readers an historical perspective on the evolution of various healthcare laws and regulations affecting healthcare freedom and privacy.
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Newsletter

Health Freedom Watch
May 2010

Contents:

Overview of the National Health Insurance Law

The new health reform law has been dubbed the “full employment act for lawyers,” noted journalism professor Gilbert Cranberg.  He was referring to lawsuits challenging the constitutionality of the individual insurance mandate, but aside from those important suits, the voluminous new law will keep many people – lawyers, HHS officials, state policymakers, and Congress – busy for years. 

In fact, an April 13 Congressional Research Service (CRS) report identified more than 40 provisions in the Patient Protection and Affordable Care Act (PPACA) that require, permit, or contemplate forthcoming federal regulations.  “The report indicates that PPACA gives federal agencies substantial responsibility and authority to ‘fill in the details’ of the legislation through subsequent regulations. Although some regulations are required in 2010, it seems likely that other regulations will be issued for years, or even decades to come,” the CRS notes. (Emphasis added.) 

Also, the Bureau of National Affairs’ Health Care Policy Report recently pointed out that the way the law was passed will create difficulty in understanding Congress’s intent.  The article stated:  “The uniqueness of congressional procedures use[d] to pass these laws also means that these laws came out of Congress without the traditional congressional reports relied upon for determining congressional intent. Consequently, it is unclear what documents the federal agencies are using to determine congressional intent….” 

It’s also worth noting that a Government Printing Office summary shows that the PPACA references more than 300 sections of U.S. Code and some 16 other public and private (civil) laws.  This means that thoroughly understanding the law will require a lot of cross-referencing. 

In case you’re interested in reading the final legislation (H.R. 3590), it is 906 pages of small print (note: the final “enrolled” version of the bill was printed with a smaller font size than the previous 2,074-page version).  The reconciliation bill (H.R. 4872) that amended PPACA is 55 pages.   

As of May 26 a final copy of the act (P.L. 111-148) had not yet been posted at the congressional website.  In the meantime one can review H.R. 3590 and its amendments at http://thomas.loc.gov.  

Sources:

  • “Health Care Reform – a Jobs Bill for Lawyers, Grist for Demagogues,” by Gilbert Cranberg, Nieman Watchdog blog, Nieman Foundation for Journalism at Harvard University, April 4, 2010: http://blog.niemanwatchdog.org/?p=1555
  • “Regulations Pursuant to the Patient Protection and Affordable Care Act (P.L. 111-148),” by Curtis W. Copeland, Congressional Research Service, April 13, 2010.
  • “Phase II of Federal Health Reform: Executive Branch Implementation and Health Care Industry Participation Now,” by Lynn Shapiro Snyder, BNA’s Health Care Policy Report, May 3, 2010.
  • Summary of H.R. 3590 (enrolled version) “Patient Protection and Affordable Care Act,” Government Printing Office (link active as of May 26, 2010): http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=&packageId=BILLS-111hr3590ENR

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Is “Show Us Your National Health-Care ID” Coming Soon?

A provision of the Patient Protection and Affordable Care Act (PPACA) calls for the development of “operating rules” for exchanging health-care financial and claims data electronically—which could mean development of a de facto national ID card or unique health identifier.  The provision reads:   

"(B) Adoption Requirements; Effective Dates.—(i) Eligibility for a Health Plan and Health Claim Status.—The set of operating rules for eligibility for a health plan and health claim status transactions shall be adopted not later than July 1, 2011, in a manner ensuring that such operating rules are effective not later than January 1, 2013, and may allow for the use of a machine readable identification card.” (Emphasis added. See Title I, Subtitle B, Sec. 1104; administrative simplification of PPACA.)

At the same time the operating rules would require the adoption of new federal rules for determining individuals’ eligibility for specific services:  

"(4) Requirements for Financial and Administrative Transactions.—(A) In General.—The standards and associated operating rules adopted by the Secretary shall—(i) to the extent feasible and appropriate, enable determination of an individual’s eligibility and financial responsibility for specific services prior to or at the point of care…” (Emphasis added.  See Title I, Subtitle B, Sec. 1104. Administrative simplification of the PPACA.)

This means that federal rules will be established for the collection of health data on individuals through a tracking ID, possibly an electronic “machine readable” beneficiary card.  It’s important for Americans to realize that the HIPAA privacy rule will apply to the forthcoming system, and as IHF has reported many times that rule denies individuals the freedom to refuse to have their health data shared for many purposes.

The forthcoming “operating rules” raise this important question:   Is “show us your national health-care ID” going to become a frequent demand in America?

Source:  H.R. 3590 “Patient Protection and Affordable Care Act,” see enrolled version of final legislation: http://thomas.loc.gov

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Tax Penalties for Not Buying Federally Defined Health Insurance

Even though Americans overwhelmingly rejected the individual insurance mandate, Congress passed it and President Obama signed it into law.  The Patient Protection and Affordable Care Act (PPACA) requires most U.S. citizens to buy federally qualified minimum essential health coverage, which is actually comprehensive.  

Individuals who don’t comply with the mandate will face the following annual penalties: 

Year 2014 - The greater of 1% of income or $95 per person annually
Year 2015 - The greater of 2% of income or $325 per person annually
Year 2016 - The greater of 2.5% of income or $695 per person annually 

The Congressional Research Service explains that “Although this is a fixed per person amount, it is capped at three times this amount per year, regardless of the number of individuals in the taxpayer’s household who actually lack adequate coverage during the year.” 

The law also includes two categories of exemptions from the mandate: (1) persons who are exempt from the definition of “applicable individual” who must carry federally defined health insurance, and (2) persons who are exempt from paying the penalty for not carrying federally defined health insurance.   

Those exempt from the term “applicable individual” include:

  • members of religious organizations whose beliefs conflict with insurance (such as the Amish) and those belonging to a Health Care Sharing Ministry;
  • individuals who are not citizens or nationals of the United States;
  • legal aliens; and
  • incarcerated individuals.

Those exempt from paying the penalty include:

  • persons meeting financial hardship requirements including those whose lowest cost plan option exceeds 8 percent of a taxpayer’s household income; and those with incomes below the tax-filing threshold (in 2009 the threshold for taxpayers under age 65 was $9,350 for singles and $18,700 for couples);
  • individuals who “have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan”; and
  • members of Indian Tribes.

The CRS explains that “the Secretary of HHS is to provide certifications to exempt individuals, based on information provided to the applicable [health insurance] Exchanges.”  It also notes that “The Secretary of HHS, in coordination with the Secretary of the Treasury, is authorized to recognize other health benefits coverage as minimum essential coverage.” 

  • Sources: 
    H.R. 3590, “Patient Protection and Affordable Care Act,” see enrolled version of final legislation: http://thomas.loc.gov
  • H.R. 4872, “Health Care and Education Reconciliation Act of 2010” (amendment to PPACA), see enrolled version of final legislation: http://thomas.loc.gov
  • “The PPACA Penalty Provision and the Internal Revenue Service,” Congressional Research Service Memorandum to Hon. Tom Coburn, April 30, 2010.

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Emord Files Constitutional Challenge to Health Care Reform Law in U.S. District Court in Ohio

The following is a press release from the law firm Emord & Associates:

(Akron, Ohio/May 12, 2010)—Attorneys for the United States Citizens Association (USCA) and five individual plaintiffs (Nathan R. Glick; Christopher Barr; Shane K. Ellison; James Grapek; and Eileen Dannenmann) filed suit [on May 12] challenging the constitutionality of the Patient Protection and Affordable Care Act (Pub. L. No. 111-148, H.R. 3590), as amended by the Health Care and Education Reconciliation Act (Pub. L. No. 111-152, H.R. 4872) (collectively, the “Health Reform Law”). Jonathan W. Emord of Emord & Associates, P.C. (lead counsel); William G. Williams of Krugliak, Wilkins, Griffiths & Dougherty Co. L.P.A.; and David Grossack filed the suit in the United States District Court for the Northern District of Ohio.

The suit challenges the Health Reform Law’s mandatory requirement that every uninsured American purchase health insurance. The suit contends that the federal government has no constitutional power to compel citizens to purchase a particular product with after tax dollars. No such power exists in Article One of the United States Constitution under the Commerce Clause (U.S. Const. Art. I, § 8, cl. 3). The suit also contends that the mandatory requirement violates the freedom of association protected by the First Amendment (U.S. Const. amend. I) by forcing Americans to obtain unwanted insurance; violates the liberty provision of the Fifth Amendment’s Due Process Clause (U.S. Const. amend. V) by forcing Americans to buy a product, insurance, that they wish not to buy; and the right to privacy protected as a liberty right under the First, Third, Fourth, Fifth, and Ninth Amendments because it compels them to divulge confidential health information to an insurer against their will.

The United States Citizens Association of Akron, Ohio seeks to promote conservative values and, in particular, to protect individual rights against government programs that violate them.

"Never before in our nation’s history has the government of the United States compelled Americans to buy a particular product, such as health insurance,” said lead counsel Jonathan W. Emord. “There is no constitutional power for the federal government to compel such a purchase; indeed, each of us has a fundamental right not only to refuse medical treatment but to refuse to pay for unwanted treatment,” he said.

"If the federal government prevails,” said Emord, “then there is no limit to what it may compel Americans to purchase with their after tax dollars, thus limiting to an ever greater extent freedom of choice. If the government can force you to buy a health insurance plan,” he said, “what is to stop it from forcing you to buy an electric car, solar heating, or recyclable products—all of which could equally be defined as indispensable by a political decisionmaker.”

Source: Press release from Emord & Associates, P.C. (www.emord.com), May 12, 2010.

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NFIB Joins Lawsuit Challenging Healthcare Law

The following is a press release from the National Federation of Independent Business:

(Washington, D.C./May 14, 2010)—Dan Danner, president and CEO of The National Federation of Independent Business, America’s leading small business association, issued the following statement.

"Today [May 14] the NFIB joined the 20 states in this historic lawsuit challenging the constitutionality of the Patient Protection and Affordable Care Act. The fundamental mission of our organization is to promote and protect the rights of small businesses and the self-employed to own, operate and grow their business, and this healthcare law directly undermines this core value.

"We didn’t enter into the decision to join this lawsuit lightly – we have been representing small business owners since 1943 and we take this responsibility extremely seriously. But the outpouring of opposition to this new law was overwhelming and our members urged us to do everything in our power to stop this unconstitutional law.

"Small business owners everywhere are rightfully concerned that the unconstitutional new mandates, countless rules and new taxes in the healthcare law will devastate their business and their ability to create jobs.

"They are also concerned about their personal freedoms. This law is the first time the federal government has required individuals to purchase something simply because they are alive. If Congress can regulate this type of inactivity, then there are essentially no limits to what they can mandate individuals to do.

"We want to make it very clear: NFIB has a long history of working on and supporting healthcare reform. We are not part of the ‘Just say no’ crowd. Small businesses DO need reforms that help to reduce costs and increase choices. We have encouraged reforms that cover pre-existing conditions, help to create effective and affordable national exchanges, provide the ability to buy across state lines, and include liability reform. But this new law resulted in more bad than good for our nation’s job creators. And this law is a bridge too far in terms of the future of our constitutional freedoms and liberties.”

For more information visit www.NFIB.com/hclawsuit.

Source: Press release from the National Federation of Independent Business (www.nfib.com), May 14, 2010.

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Obama Administration Urges Dismissal of Virginia Lawsuit Challenging Mandatory Insurance

The Associated Press reported on May 25 that “The Obama administration is urging dismissal of Virginia's lawsuit against the new health care law, arguing that Congress acted well within its authority when it passed the legislation. A court filing late Monday [May 24] in Richmond, Va., is the first by the administration in response to court challenges by various states. In the court papers, the federal government says Congress recognized that pervasive problems in the health care system require a national solution. The administration also is arguing that the federal courts would be stepping beyond the proper role of the judiciary if they were to hear Virginia's lawsuit at all.” 

Source: “Administration Urges End to VA Health Care Suit,” by Pete Yost, Associated Press, May 25, 2010: http://www.google.com/hostednews/ap/article/ALeqM5hITfom2rwHxvzXH9fMrN4pOUGrqQD9FTTMVG0

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Health Freedom Watch is published by the Institute for Health Freedom. Editor: Sue Blevins; Assistant Editor: Deborah Grady. Copyright 2010 Institute for Health Freedom.