Bring back the PPACA!

A reader writes: 

It is two years out [from Trump's election] and every major press outlet uses "Obamacare." That just polarizes things.

They should have come up with a better name than Affordable Care Act. That does not even capture modified community ratings – guaranteed issue –essential benefits – private enterprise (the  Republican plan). This is why Medicare for All getting better polling. 

My first thought was, imagine trying to get across "guaranteed issue,"  "modified community ratings" and "essential health benefits" in a bill title. Then a near-forgotten set of syllables popped into my head: the Patient Protection and Affordable Care Act (PPACA). "Patient protection," of course, is all about guaranteeing access to comprehensive coverage to all who want it -- including people with pre-existing conditions, who constitute somewhere between a fifth and half the population.

Nancy Pelosi famously/infamously said "we have to pass the bill so that you can find out what's in it," and people do understand and like the protections for people with pre-existing conditions. A Kaiser Family Foundation poll released today makes that clear:

Will business lobbies save the PPACA?

I take some cheer from National Underwriter's report on the worries of insurance producers (agents and brokers):

Congressional affairs experts at some producer groups are wondering whether Republicans hate the Affordable Care Act so much that they will avoid making serious efforts to fix obvious problems. 

One problem that's very obvious to producers is that their fees are the first sacrifice to the PPACA's requirement that insurers spend a higher percentage of premium dollars on health care:

The issue getting the most attention from producer groups is PPACA medical loss ratio (MLR) provisions that will require health insurers and health plans to spend 85% of large group premium revenue and 80% of individual and small group premium revenue on health care or quality improvement efforts.

NAHU says the MLR provision, which took effect, Jan. 1, is particularly unworkable.
Health insurance agents and brokers say their commissions have been cut 50% starting this year because the MLR formula classifies commissions as an administrative expense.

Producers argue that the formula should exclude commissions, because customers pay the commissions, and health insurers collect commission payments merely as a convenience to the customers.

I find this heartening not because I want to see agents lose their livings, but because I want to see Republicans start acting like Republicans and get to work bargaining to protect their oldest constituents, various business interests. That's what insurance producers want:

Is the individual mandate in the PPACA enforced by a tax or a penalty on those who forgo insurance?

Jonathan Cohn's extended defense of the constitutionality of the individual mandate in the Affordable Care Act makes me nervous.  

That's not because I don't agree 100% that the authority to impose such a mandate is essential to providing near-universal insurance and holding down costs. It's because, of the two chief legal arguments in favor of the mandate -- one relying on Congress's power to tax, the other on Congress's power to regulate interstate commerce -- Cohn seems to lean heavily on the power to tax.  The PPACA is

defensible on constitutional grounds—starting with the power to tax, the same authority that undergirds Social Security and its health insurance analogue, Medicare. With Medicare, the government demands that people help finance the cost of society’s medical treatment through payroll taxes. With the Affordable Care Act, the government demands that people help finance the cost of society’s medical treatment either by paying for a reasonably comprehensive insurance policy or writing a check to the government. The form of the payments is different but, argue the act’s defenders, the basic concept is the same.

The applicability of that power depends on convincing judges that the sum paid by those citizens who can afford health care insurance but choose not to buy it is in fact a tax, not a penalty. And one Federal judge who has strongly upheld the mandate on the basis of the Commerce clause in the Constitution also quite definitively rejected the argument that the cost imposed on those who choose not to buy insurance is a tax.

The judge, Norman K. Moon in the Western District of VA., in Liberty University v. Timothy Geithner, rejected the argument that the mandate is enforced by a tax rather than a penalty. He did so on dual grounds: because the bill itself dubs the required payment a "penalty" in most instances, and because substantively, "the assessments function as regulatory penalties -- they encourage compliance with the Act by imposing a punitive expense on conduct that offends the Act" (p. 20). That, to Moon's thinking, places the mandate under the rubric of "penalty" as defined by the Supreme Court in various cases, including Dep't of Revenue v. Kurth Ranch (1994): "Whereas fines, penalties, and forfeitures are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue-raising, rather than punitive, purposes" (p. 19).

Election 2010: How marginal was the messaging?

Today Brendan Nyhan hammers home his signature theme: presidents don't move public opinion by speechifying.  He has been relentless about this for years. Reagan couldn't move the public to support the Contras; Bush couldn't do it for social security privatization; and Obama didn't do it with his Sept. '09 speech promoting health care reform.

A natural corollary is that elections are determined mainly by structural factors: the state of the economy, the number of seats the in-party has to defend, the proportion of those seats that are in the opposing party's traditional territory, etc.. On the eve of the last election, Nyhan had a memorable post cataloging every oft-recited narrative about Obama's imagined failures of messaging or strategy, with links to past posts debunking most of them.

As it turned out, the Republicans out-performed the structural models, the most commonly cited of which, by Douglas Hibbs, forecast a gain of about 45 seats. Why?  Aspects of the current economic woe that the model could not capture?  Extraordinary GOP messaging that maximized the structural advantage? 

On November 11, Nyhan and colleagues Eric McGhee and John Sides published an Election Postmortem reporting some preliminary numbers crunching. No dominant explanation emerged.The Tea Party's impact seems to have been marginal. Money was not decisive. Structural factors explained much, but not the size of the victory margin.

The authors did find one factor, though, that raises more questions than it answers, and that I found astonishing on its face: that most House Democrats paid dearly for every 'yes' vote they cast on major legislation.  The writeup of this finding should be digested in full:

Olympia Snowe, put up or shut up on healthcare reform's flaws

In George Packer's long dossier of Senate dysfunction, Olympia Snowe repeats for the umpteenth time that she voted against the healthcare reform bill because she was shut out of merging the Finance Committee bill, which she help forged and voted for, with the HELP Committee bill:

Snowe also voted for the Finance Committee’s health-care-reform bill last October, the only Republican to do so. But in December, at the pivotal moment, she voted against the version that went before the full Senate. “I wasn’t interested in expanding this program beyond the Finance Committee version—it grew by a thousand pages,” Snowe said. She wasn’t included in the negotiations with White House officials that took place in an elegant conference room across from Reid’s suite of offices, and said that the Democrats “did not accept any of my proposals. As I said to the President, it was all windup and no pitch.” 

Snowe here resorts to the Republican fallback position of ridiculing numbers of pages rather than specifying what she didn't like in substance.  The enacted health care reform law is similar in its essentials to the Finance Committee bill -- about which Snowe had this to say to Ezra Klein on October 16, 2009:

High risk pools within 3 months? How?

Considering it will take four years to get the health insurance exchanges set up, I'm a little mystified how the Patient Protection and Affordable Care Act can get a program offering catastrophic coverage for people with pre-existing conditions up and running within three months, as the law mandates. Equally mystifying: how can the budgeted $5 billion cover the program?

The basics, as stipulated in Section 1100 of the PPACA and contextualized by Kaiser Health News, are as follows. People with pre-existing conditions who have been without coverage for at least six months can buy coverage in the high risk pool at rates comparable to those available to people without such conditions. The oldest people eligible may pay up to four times as much as the youngest (as opposed to a 3 to 1 ratio in the exchanges).  Their yearly out-of-pocket expenses are capped at  $5950 for individuals and $11,900 for families.  The plans must cover at least 65% of total costs. The program is a stopgap that will end in 2014, when people with pre-existing conditions will be able to purchase insurance from the exchanges on the same terms as everyone else. It is unclear whether the Federal government will set up a single pool or whether The National Association of State Comprehensive Health Insurance Plans will adapt and expand existing state plans.  Nonprofits may also be tapped to administer the plans.