All too soon, ObamaCare will give us 'Standing'
Among the many blessings granted us by ObamaCare (PPAHCA), a new one will be coming soon, starting in January 2014. We will acquire "standing."
Legally, the word standing refers to the "ability to initiate a lawsuit." There are three requirements for Article III (tort code) standing: (1) demonstrable injury in fact, not in the future, not hypothetical or conjectural; (2) proof of a causal link between the injury and the challenged conduct or specific legislation (when suing the government); and (3) "likelihood that the injury will be redressed by a favorable [Court] decision."
Despite all the weeping and wailing on every media outlet, ObamaCare has not given us "standing" for the obvious reason that it has not actually affected anyone yet. All those insurance cancellations take effect some time in 2014. All those additional costs will be felt starting in 2014 and escalating from there. All that care denied or deferred will happen next year and beyond.
True, Washington is already spending money we do not have and appears to be welshing on the promises made, but any harm accruing is conjecture at present, not fact.
Ignore the overwhelming mass of contradictory details. Look beyond the failures of healthcare.gov. Pay no attention to the inherent contradictions in the law, the repeated changes in deadlines, and the constant ad hoc crisis management. Give no credence to the political posturing on both sides of the aisle. Eschew all those loaded phrases like medical injustice, economic redistribution, greedy bastards, and Father Knows Best. Put aside (for a moment) your personal financial circumstances.
Even put aside, if you can, the president's grandiose (and grandly mendacious) promise, "...for the 85 to 90 percent of Americans who already have health insurance... their only impact is that their insurance is stronger, better, more secure than it was before. Full stop. That's it. They don't have to worry about anything else."
Focus on just two questions: What do we need, and What is ObamaCare doing to those needs, starting in January 2014? "We" and "us" refer to We the Patients, to all Americans, not just to Republicans or Democrats.
What we need from healthcare?
We need three things from our healthcare system. (1) We expect to receive the appropriate medical care to stay healthy, or to restore our health if sick, when we need it. (2) As individuals, we need to be able to pay for our care without going broke. (3) As a nation, we need to stop spending more than a sound economy should spend.
Everything else asserted on this issue is smoke-and-mirrors, intentional data overload and obfuscation, trivial detail, and unnecessary complexity all for the purpose of keeping We the Patients confused. As long as we remain confused, we need a guide to help us through the maze. Please note that the guides -- call them bureaucrats, administrators, Navigators, or in-person assisters -- work for the same people who created the smoke, set up the mirrors, obfuscated the straightforward, and wrote a law even they don't understand, that has a 10,000+ page rule book.
What we are getting (January 2014) from ObamaCare?
(1) We need the medical care stay healthy, or to restore health if sick, when we need it.
Whatever estimate you use, as few as four million, over seven million, or tens of millions of Americans who currently have insurance, will lose it. If insurance is a gateway to medical care, then directly as a result of ObamaCare, fewer people will be able to open the gate. That will give them standing to sue the federal government. Review the requirements above to satisfy yourself.
As ObamaCare shifts hundreds of billions of dollars from doctors to bureaucrats, there will be fewer providers of healthcare. UnitedHealth is already laying off thousands of physicians, citing "substantial funding pressure from the federal government" [ObamaCare]. Further, more and more doctors cannot afford to accept government insured patients or are simply retiring, as I did. Even if you have insurance, care will be less available and take longer to acquire.
Then there is the medical rationing that will occur under the IPAB (Independent Payment Advisory Board), recently renamed Health Technology Assessment Commission. Whatever it calls itself, this PPAHCA-created agency will decree which treatments your doctor can prescribe and which she or he cannot. Those treatments deemed "Not Cost Effective" will become unavailable, even when that care is what you need to stay alive.
Thus, insured or uninsured, as a direct result of government action, you are less able or unable to get the care you need in 2014 after ObamaCare implementation.
You now have legal standing.
(2) As individuals, we need to be able to pay for medical care without going broke.
Before ObamaCare, complex medical care was unaffordable out-of-pocket for almost all Americans. Even medical insurance was costly-to-unaffordable for the majority. The legal title of ObamaCare is "Patient Protection and Affordable Health Care Act." That is what we were promised: affordable insurance that would pay for our medical care needs. We were told we deserved it and that President Obama's reform bill would provide it.
What we got was the opposite. The costs of healthcare itself continue to rise. The cost of insurance is going up anywhere from 30% to as high as 179% (in Nevada) of pre-ObamaCare costs. Paying out of pocket for health care itself remains impossible and insurance is even less affordable than before. This gives you more standing before the Court.
Supporters of PPAHCA, up to the president, remonstrate that, "Yes, it might seem to cost more, but you will get better insurance and besides, the federal government will subsidize your payments." "Better" insurance includes care services we may not want or need but are required to buy, and with whose dollars are they subsidizing our increased insurance costs? Answer: ours, or more accurately, our children's.
(3) As a nation, we need to stop spending more than is good for our economic health.
Finally there is the third need cited above: dealing with national overspending. Recall that in 2008, the president started the entire reform snowball stating (correctly) that we are spending too much as a country on healthcare.
His solution to this problem is to spend an additional $1.3-2.7 trillion dollars, adding this insane amount to the federal deficit. I have seen no proof from anyone, even the most ardent ObamaCare supporters, to show how spending more will spend less. And of course, we are spending this money to pay for additional bureaucracy, not for additional health care. What value are we getting for these trillions? Answer: none, except even more standing.
In 2014 as a direct result of ObamaCare, We the Patients will acquire legal standing before the Court. We can then prove (1) "injury in fact," caused by (2) the government's actions (ObamaCare), that can be (3) resolved by repealing PPAHCA. As per the First Amendment to the U.S. Constitution, those with legal standing should "petition the government for redress of grievances."
Deane Waldman MD MBA is a regular contributor to AT; author of "The Cancer in Healthcare" and the newsletter "The Health of Healthcare;" Emeritus Professor of Pediatrics, Pathology and Decision Science; Adjunct Scholar for the Rio Grande Foundation; and a member of the Board of Directors of the New Mexico Health Insurance Exchange.