Home / Medical-Legal / More Analysis of Healthcare Reform Bill

More Analysis of Healthcare Reform Bill

I put the blog on autopilot while I was away for a few days.

I was a little surprised by the reactions to the Health Reform Bill post. My intent in posting that e-mail was to generate discussion and encourage everyone to actually read what our elected officials are putting forth as the law controlling our health care for the foreseeable future. I had planned to do a point-by-point analysis, but didn’t have the time before I left, so I picked the end-of-life issue to comment because the comments made by the person who created the e-mail sounded inflammatory. They were.  It seems as if the mere fact that I posted the e-mail meant to most people that I ratified all of the contents. Not true.

However, some of the comments were still on point.  Had hoped that others would analyze the wording similar to what I did with the  end-of-life issue. Oh well.

For those who did look at the bill and post specific comments, I want to address them.

“Page 22: Mandates audits of all employers that self-insure! (Section 142(b))”
Here’s the exact text:

(A) IN GENERAL – The commissioner shall, in coordination with States, conduct audits of qualified health benefits plan compliance with Federal requirements. Such audits may include random compliance audits and targeted audits in response to complaints or other suspected non-compliance.

The language “shall” is a mandate, it is not permissive. The wording of the remainder of the sentence is poor, but it appears that the mandate requires the commissioner to conduct audits of whether qualified health benefits plans are complying with federal requirements. Unlike Shadowfax’s assertion, the wording does not “require[] ‘random compliance audits and targeted audits in response to complaints.'” Instead, the plain language states that the mandated audits “MAY INCLUDE” random compliance audits and targeted audits. The language does not limit the audits to those vehicles and states nothing about the degree or extent of the audits.
Little different, don’tcha think?

Since Shadowfax also picked out the “All non-US citizens, legal or not, will be provided with free health care services” statement, let’s look at that one, too.
Section 401 changes Chapter 1 Subchapter A of the Internal Revenue Code to impose a 2.5% tax on a portion of the adjusted gross income any individual who does not have acceptable health care coverage. The exact language is

‘(a) Tax Imposed- In the case of any individual who does not meet the requirements of subsection (d) at any time during the taxable year, there is hereby imposed a tax equal to 2.5 percent of the excess of–
‘(1) the taxpayer’s modified adjusted gross income for the taxable year, over
‘(2) the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer.

Section 6012(a)(1) of the IRS Code is here and it makes no mention of what the “gross income specified” should be, so I am unclear how the 2.5% tax will be computed.

However, the language of the Act creates exceptions for certain classes of people who have to pay this tax. Those exceptions include

(2) NONRESIDENT ALIENS- Subsection (a) shall not apply to any individual who is a nonresident alien
(5) a “RELIGIOUS CONSCIENCE EXEMPTION” where individuals do not have to pay such tax if their religious tenets make them conscientiously opposed to receiving benefits of any private or public insurance.

Another part of the Act, Section 246, states

Nothing in this subtitle shall allow Federal payments for affordability credits [note: See Section 241] on behalf of individuals who are not lawfully present in the United States.

Now let’s do a little critical thinking.
EMTALA requires hospitals to provide a screening exam and stabilizing treatment to any patient coming to the emergency department and requesting care. Hospitals are mandated to evaluate and stabilize regardless of ability to pay.
According to this new Act, nonresident aliens are statutorily exempt from paying into the system.
Also according to this new Act, the federal government will not pay for care of individuals unlawfully in the United States.
Adding these three things together, who ends up paying for the care of undocumented/nonresident aliens and those who express a religious exemption?


Frydoc commented about a National ID card. Guess what? I think it would be a great idea. How much money could we save if every patient could be tracked from hospital to hospital and we could pull up previous testing whether the testing was done down the street or across the country?  No repeat testing because you didn’t know the same test was done a week ago. Drug seekers that doctor shop – eliminated.
I think that a national ID card would vastly improve the continuity and quality of healthcare in this country.

Nick Dupree brought up the issue of Special Needs Plans and “restricting enrollment”. The title of this section in the Act is actually misleading. The title is “SEC. 1177. EXTENSION OF AUTHORITY OF SPECIAL NEEDS PLANS TO RESTRICT ENROLLMENT”
On first blush, it may seem as if the special needs patients may have their enrollment restricted. Actually, according the Social Security Act section that the Act references, the Act allows some plans to restrict enrollment only to patients who have special needs. In effect, the Act tries to create more available care for special needs patients.

Surprised to find several people who criticized the post by making a general statement about the bona fides of the e-mail when they didn’t put forth any factual data to support their statements. Isn’t that exactly what you criticized me for doing?

At least I got some people to look at the proposed legislation – myself included.

Even after reading all 2541 sections, I still have a lot of concerns.

Want to respond to the questions Mass posted in one of the comments after I get some sleep.

No comments

  1. Yeah, still BOOOOOGUUUUUS.

    For the audits: the claim was that “all” plans would be audited. The language of the bill does not require all plans to be audited. It says that audits shall occur, and gives examples of types of audits. You are kind of right, that it’s possible that the government could try to expand the audits to all plans; it’s not prohibited. Having said that, the email’s claim was that HR 3200 “Mandates audits of all employers that self insure.” It does not. I await your apology.

    Also, your illegal aliens objection is just silly. HR 3200 does not require “free care” to be provided to illegals, which is the thrust of the email’s claim. EMTALA still applies to emergency care as it always has, but the email was not titled “the evils of EMTALA.” The email was about the house health reform bill, and it made a patently false claim about this bill that is explicitly contradicted within the text of the bill.

    Truth be told, I didn’t even look at the rest of the list. When the first two things my eye fell upon were absolute lies, I stopped reading and concluded the other 99 points were no more likely to be true.

    You also backpedal greatly away from this email, which you claim was only posted to generate discussion. Your language was more approving at the time: “they are generally on point, although some of the commentary isn’t entirely accurate.” Fair enough, you had a disclaimer. My advice: don’t uncritically disseminate half-true stuff. Promote that with which you agree, debunk that which is untrue, but don’t weasel with the “I dunno, looks OK, you decide” approach.

    • This is amusing. You call me out because you said that all of the points made in the e-mail are bogus, yet you didn’t read the text of the bill to confirm the facts.
      Everyone should take you at your word because of your gut instinct about 98% of the Act’s provisions, but no one else can disseminate half-true stuff without full citations.

      The issue with audits turns on the word “all”. Yes “all” employers have the potential to be audited.

      If the Act excludes certain parties from paying into the system, but care is still mandated when those parties fall ill, tell me who pays for the care.

      On several occasions I have posted e-mail “spam” messages I have received and made general comments about them. Just like you do with all the YouTube videos on your blog. Guess what? I’m going to do it again this weekend, too. Don’t really get the whole backpedaling thing, but don’t care too much, either.

      You want an apology? I’m sorry that the rose-colored glasses appear to be permanently transfixed to your cranium.

  2. just a very small comment here on the National ID card. I thought that was the point of instituting electronic health records. Immediate access to medical history.

    • True. If you want to game the system, though, you just claim to be someone else. With a national medical ID card, your history follows you.

  3. “Shall … conduct audits” doesn’t mean much in a practice sense. The language is there to show that “audits” are a mandatory duty of the commissioner.

    What does “audits” mean? It means what the commissioner says it means: as a matter of law, a regulatory agency charged with enforcing a law is entitled to great deference in its interpretation of that law.

    The “may” is there to show that Congress is hunky-dory with those particular “audits,” but if the commissioner chooses to “audit” plans by conducting a simplistic statistical analysis of what they can find on Google, anyone who wants to say “audit” should mean something else carries a heavy burden in court.

  4. In response to the non-resident aliens bit, doesn’t such language generally cover folks who are vacationing or otherwise visiting the US? I’m not sure they would be expected to pay US taxes of this sort in any case. And would also expect many/most such to already have coverage or the ability to pay for care.

    And I’m guessing that the IRS (or whoever is supposed to write the regs implementing this) would interpret the religious exception about as narrowly as the current social security exemption for communities such as the Amish. Do such groups actually have a habit of not paying for care received?

    • In terms of accounts receivable, the Amish are among the most reliable patients in the country. The entire community pools their resources to pay off medical bills in a prompt manner.

  5. WC,

    Read this:

    In my opinion a very well thought out view of the fight for healthcare dollars and the future of healthcare in the US. The MD that wrote the opinion is a pediatric ophthalmolgist who appears to have been in practice for about 35 years.

    • Excellent article.
      Comments section is equally enlightening.

    • I don’t need to see anything more than the boogeyman of “rationing” to know we’re dealing with an unsophisticated thinker who hasn’t bothered to really consider the issues.

      Care is already “rationed,” even in the private insurance world. Take his antibiotic example: is that antibiotic approved by the insurers?

      It’s a trick question. The answer doesn’t matter. Point is: the insurers ration just the same, approving and denying as they see fit.

      But they do it for profit.

      More interesting to me are Dean Kamen’s views: http://bit.ly/11ADRL

      He gets it. Rationing has always been here and will be here to stay.

  6. A bit of anecdotal history on national i.d. cards – when social security was created (1935) and #’s were issued congress specifically excluded requiring them to be used as national identity cards. The controversy being that national identify papers are used by totalitarian governments to monitor and restrict the activities of their citizens. Be careful what you wish for – there is the Law of Unintended Consequences to consider.

    • I was unclear.
      National medical ID cards – similar to what we have for the banking industry.
      Any centralized database will affect individual privacy, but we also have to weigh the risks and the benefits of action versus inaction.
      If we do nothing the system fails. If we have a central repository of medical information, costs decrease, repetitive testing decreases, fraud decreases, and continuity of care improves.
      HIPAA is pretty strict about using medical data outside of medical treatment.
      I’d be willing to give up some medical privacy to improve/save the system.

  7. You won;’t see valid health care reform without tort reform. Considering that Congress is something like 80% lawyers, do you really see that happening.

    I also don’t see why the Hell you even worry about ShadowFax’s opinion. He’ll enthusiastically swallow any shit sandwich that this bullshit administration sends out, and the order a double portion to take home in a doggie bag.

    • Silliness. Tort reform isn’t a federal issue unless you go to single payer. Then you’ll simply have some govt review board which will dock your pay and you can appeal through some Byzantine bureaucraticQ maze.

      The thought that Congress is going to protect plaintiffs and their attorneys simply because some members have law degrees is even sillier than conditioning federal healthcare on state tort reform.

      • It may be silly to think that Congress wants to protect plaintiffs attorneys but they are trying to isert into other bills provisions that allow contingency fee attorneys to deduct expenses as they accrue. These expenses include their hourly rate. We as physicians can not deduct our expenses and time for taking care of the indigent or the EMTALA mandated care that we provide.

        I wonder how much “access to healthcare” would be improved if physicians and other healthcare providers could deduct from taxes the free or un-reimbursed care they provide? Congress wants to do this for attorneys so they can “give more people access to the courts”.

      • Throck, I’d have to see the bill to respond to that, but what you’re telling me doesn’t make sense. I don’t know how you’d calculate it. However, one proposed bill doesn’t mean it passes. If 80% of the people in Congress were protecting plaintiffs and their lawyers, things like unlimited ERISA subrogation would never pass.

        Correct me if I’m wrong, but for uncompensated EMTALA care, isn’t it the hospital that suffers the loss? Aren’t most of the ED physicians on salary, and thus don’t suffer any out of pocket loss? Are you sure the hospital can’t deduct its uncollectible debt?

        As for the indigent, I cannot take a taxable loss, except for the hard expenses I spend (like filing fees, deposition costs, etc) for my hourly time when I take Legal Aid cases. At least if I can my accountant hasn’t told me about it.

  8. Here is a website PolitiFact.com that is very interesting. The site covers all parties, some groups and tons of subjects. The second one is the link to correct what they refer to as a chain email about the House healthcare bill. We all need to read it…it is important we get the facts.



  9. White Coat, you make a good point about EMTALA, which requires that ERs admit and stabilize anyone who shows up without regard to ability to pay — including undocumented aliens. The government long ago noticed this problem, and created a program called Emergency Medicaid to deal with it. Emergency Medicaid pays for emergency room treatment of immigrants, both illegal and legal, who would be eligible for regular Medicaid if they were citizens. It is not a huge program — a study done a couple of years ago in North Carolina found that it accounted for about 1 percent of the state’s total Medicaid budget — but it does deal with the problem you spotted. I have actually read H.R. 3200, the health care bill (instead of relying on an anonymous email created by someone with a right-wing political agenda) and there’s nothing in it that would change this program.

  10. WC…
    When I read about the 2.5% tax in that section, and others, I was irate. What people seem to miss is the fact other people will get away scott free while we are stuck because the government gets to determine what is “acceptable” in private plans.

    My BIL is a neurosurgeon in MS. He has been in practice for about 4 years. I cannot imagine that he would stay in practice should this bill pass. His education will be wasted and the risks in his field are deep and costly, so why would he?

    He wrote about the military as well. There are many who fall by the wayside. I lost a friend to breast cancer because the Army docs kept denying she had a problem. This was in the 90’s. She did go home on leave and was seen privately. It was too late and after a year of fighting, she passed away at 32. I received great care for myself while serving as did many of my friends.

    My point is why are people denying what physicians know and why are they not being utilized for this? I use the examples from what you write to tell people that the gov’t hand in your care is crazy. Until they put physicians in charge of patient care and protocol or “rationing” it will never be a system that provides equal opportunity for care.

    • I don’t understand why your brother in law would have to leave medical practice if the health reform bill passes. How would his life be any different? In fact, if he’s in Mississippi, he’ll have more customers because more people will have health insurance. I sincerely can’t find anything in the bill that would change the doctor-patient relationship from what it is today.

      I also think you misunderstand what the government’s role would be in setting standards for private plans. Right now, a lot of health insurance is truly substandard, especially in the individual market. It has huge gaping holes in coerage, or extremely low coverage limits, and leaves people with horrible debt if they ever get anything serious wrong with them. Rather than LIMITING what insurance will cover, this reform bill proposes to make sure that all insurance covers all medically necessary care. Again — this can only improve the doctor-patient relationship, because the doctor will be able to prescribe treatments, tests, medication, etc. without having to worry that this or that isn’t covered.

      • Nancy there is no way the govt can define what is “medically necessary” and not ultimately then become the only insurer in the market. Especially since the govt plan does not have to turn a profit.

      • Because it doesn’t respond to market forces. There’s no cap on available funds for the govt. to spend and thus losses do not matter. Not to mention tht many of the admin costs are will not be factored into the healthcare entity’s bottom line either.

      • The proposals for a public plan that have the greatest chance of passing say that they have to balance their books just like a private plan would. It seems to me that opponents of reform want to have it both ways — say that the government is wildly inefficient & wasteful compared to private enterprise, but that a public plan will, by definition, outcompete private insurers. Which is it, guys?

        Also, if you don’t want the reform that’s there now, what DO you want? The status quo, in which 50 million Americans have no access to health care? In which we spend more per capita than any other industrialized country but are no healthier in the end? In which tens of millions more have coverage so meager that a single serious illness could send them into bankruptcy?

        What do you propose instead? And don’t tell me it’s to let “private enterprise” work its magic. Private enterprise is what we have had all this time. And it isn’t working.

      • Nancy, if you were arguing for more clarity in what insurance one is buying, that’s fine. But your belief that the government will “balance the books” defies history. When has government ever done such a thing? Particularly with something that has such a direct effect on voters?

        ” The status quo, in which 50 million Americans have no access to health care?”

        Who has “no access” to health care? Simply because you’re uninsured doesn’t mean you don’t have care. You know this.

        “In which we spend more per capita than any other industrialized country but are no healthier in the end?”

        Life expectancy is not the only measure of health. And of course, you neglect to mention that those other countries profit off of the innovations of our free market, without having to spend the money in the first place.

        “In which tens of millions more have coverage so meager that a single serious illness could send them into bankruptcy?”

        This fact, while sad, does not mean we need government healthcare. Tens of millions are facing bankruptcy due to the housing crisis – are you proposing we give them all a house with taxpayer dollars? (putting aside the fact that it is essentially what Fannie and Freddie did).

        “What do you propose instead? And don’t tell me it’s to let “private enterprise” work its magic. Private enterprise is what we have had all this time. And it isn’t working.”

        We do not have “private enterprise”. Govt. pays 1/2 of all healthcare expenditures now. How’s that working out?

        What I would propose is to remove government from the equation altogether, and end the employer tax benefits. Let people shop for their care directly, and insurers market directly to these people, rather than their employers. Remove the third party payors, like the government. Sure, there will always need to be a baseline of care, which taxpayer dollars should support. But beyond that, let’s make the market more transparent and make the consumer the purchaser, not their employer.

        There is no point in adding another massive drain on the economy in a clearly unfunded mandate when there’s no evidence the care will improve.

      • Matt,

        * Who has “no access” to health care? Simply because you’re uninsured doesn’t mean you don’t have care. You know this.*

        You mean “access” like this?

        or this?


        or this?


        “In which tens of millions more have coverage so meager that a single serious illness could send them into bankruptcy?”

        *This fact, while sad, does not mean we need government healthcare.*

        The fact that you believe this suggests that we will never agree on this issue. I think this fact absolutely means we need universal health care. To paraphrase Sarah Palin, I don’t want to live in an America that thinks it’s okay for people to endure financial ruin because they have the bad luck to get seriously ill. I believe health care is a basic human right.

        *We do not have “private enterprise”. Govt. pays 1/2 of all healthcare expenditures now. How’s that working out?*

        Actually, very well for the people who have it. THEY don’t have to worry about getting health care they can afford, when they need it. Medicare is such a popular social program that even the most dedicated free-market conservatives don’t dare mess with it. So popular, in fact, that a lot of Americans seem to believe it can’t possibly be a government program.

        It’s the rest of us who are having the problems.

        *Let people shop for their care directly, and insurers market directly to these people, rather than their employers.*

        Matt, the fact that you think this would work suggests to me that you have either never shopped for insurance directly, or are young and healthy enough that your insurance is cheap. Here is what happens in the real world to people to whom insurers “market directly.”



        *Sure, there will always need to be a baseline of care, which taxpayer dollars should support.*

        What is a “baseline of care”? Checkups? Doctor visits? Where do you draw the line at the baseline (or, to put it another way, at what point does rationing begin)?

        I think I’m about talked out on this. Just please look at the links.

  11. Sorry…I deleted a sentence and “He” refers to the American Thinker column.

  12. “I think it [a national ID card] would be a great idea. How much money could we save if every patient could be tracked…”

    So as long as we can save some money, it’s OK to invade people’s privacy? Suppose we could save trillions if we tracked the medical records and spending habits of all citizens and eliminated those citizens who didn’t meet a certain threshold of usefulness for society. Does it follow logically that this would be a good thing to do?

    Is “saving some money” always adequate justification for any policy we wish to implement? At what point does ethics matter to you, sir?

    The ACLU has consistently objected to such “ID cards” as they pose a serious threat to the preservation of personal liberty and privacy. People like you, who make illogical arguments in favor of more government control, are the problem.

    • I clarified my misstatement. Medical ID cards.

      I thought about it. You’re right. The government probably sends out secret mercenaries right now to get rid of Medicare patients that cost the system too much money.

      We should destroy all the banking industry records, burn state ID cards, shred passports, and forfeit all frequent flyer miles. Then we should cover over our license plates and wear masks everywhere we go. Oh yeah, and make everyone’s social security numbers 999-99-9999.
      How dare our government know anything about us.

      If you don’t want to be a part of a national medical database, then opt out. Find an ultra-conservative physician who deals only in cash and pay for care out of your pocket, including all the repeat testing because previous data wasn’t available to your treating health care providers.

      I’m all for keeping tabs on governmental prying eyes, but if you’re saying it’s appropriate to have separate medical records at each of thousands of hospitals and tens of thousands of doctor’s offices throughout the country all for the sake of “privacy”, then you need to get a clue.

  13. Time for a reality check! For the last 40 years, millions of Americans have had a “health ID card.” It’s called the Medicare card. Unlike private insurance cards, it entitles them to essentially a nationwide choice of providers. No networks. No pre-authorization.

    As a result of this, Medicare has amassed an immense claims claims ithathas provided countless researchers with an invaluable source of longitudinal, diagnostic and price information that has been put to extremely good use in analyzing outcomes and utilization patterns. All this has been done without exposing a single Medicare beneficiary to invasion of privacy. How? By stripping all personally identifiable information out of files before they are made available to researchers. By suppressing small datasets that could identify individuals even with personal identifying information stripped out (such as an unusual diagnosis in a small-town hospital, for instance).

  14. The American Gov. is killin’ me. Why can’t everybody get that this monster of a bill is going to increase taxes for everybody and even create new ones for all of us?

Leave a Reply

Your email address will not be published. Required fields are marked *