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June 28, 2012

Host: Ted Simons

Health Care Reform

  |   Video
  • Former AHCCCS director Dr. Leonard Kirschner and Dr. Daniel Lieberman, a Phoenix neurosurgeon, share their views on ObamaCare and what it will mean for Arizonans with and without health insurance.
  • Dr. Leonard Kirschner - Former AHCCCS Director
  • Dr. Daniel Lieberman - Phoenix Neurosurgeon
Category: Law   |   Keywords: medical, health, act, affordable, care, ,

View Transcript
Ted Simons: How does today's Supreme Court decision upholding the affordable care act affect the health concerns of Arizonans currently with or without health insurance? Here to share their views are Dr. Leonard Kirschner who served as director of Arizona's Medicaid program, known as AHCCCS, from 1987 to 1993.
He currently is the state president of AARP Arizona. Also joining us is Dr. Daniel Lieberman, a Phoenix neurosurgeon. Good to have you both here. Thanks for joining us. Your thoughts on today's decision?

Dr. Leonard Kirschner: I think it was a victory for America. And I think we're going to see more people get health care coverage than have had in the past. 50 million uninsured, 50 million underinsured, in Arizona 1.5 million uninsured. I think it's a step in the right direction. Perfect, no, definitely step in the right direction.

Ted Simons: Your thoughts?

Daniel Lieberman: Sad day for patients, Ted. The law as it is on the books right now is underfunded, it's not thought through, it's likely to change health care delivery in a way that's going to be very, very challenging for those of us who practice medicine for many years to come.

Ted Simons: Is there going to be a challenge here, because there's a lot unknown, but I know from the other side, there's a great concern on the number of doctors, the quality of care, the whole nine yards.

Dr. Leonard Kirschner: Well, we have this whole insurance accessibility, affordability, accountability this, law has dealt with the accessibility side. We clearly have to deal also with the cost side. And we need to deal with the quality of care. We still know that the most dangerous place to go in health care is to a hospital. We need to fix that. The current American health care system is chaotic, costly, inefficient, inequitable and superb, a paradox. We could do a lot better.

Ted Simons: We can do a lot better, we haven't done a lot better. Is this something that may not be perfect, but had to be done?

Daniel Lieberman: Ted, I think we solved the wrong problem. We expanded health care, I agree with the doctor, we made it a lot more available to hopefully 30 million more Americans, but what we expanded isn't working very well. No business would do what the government just did. Have you something that's inefficient, sometimes dangerous on the hospital side, often ineffective, and we just made the same thing available to a lot more people. When you really look at what makes health care inaccessible, it's the high cost. The Congress really tried to solve the wrong problem with this law, and by solving the wrong problem, we're going to get the wrong solution.

Ted Simons: Was this a solution in search of a problem?

Dr. Leonard Kirschner: No. The problems are clearly across the board. The three issues that we need -- three legs of the stool -- the cost, quality, accessibility to care. All three have to be dealt with. In Massachusetts, governor Romney dealt with the accessibility part. Massachusetts is now dealing with the cost side. You can't do it all at the same time. This was an effort clearly as you know as we go into legislation, I worked for three governors, nine chiefs of staff, as you go into legislation you never get it perfect. But what you get sometimes is the good.

Ted Simons: What is the major concern for doctors? Our -- this is your world here. What is your biggest concern?

Daniel Lieberman: I'm really worried that the relationship between the doctor and the patient is going to be adversely affected by this. As practicing physicians, we spent the last 20 years trying to deal with health care companies, health insurance, trying to help our patients get their needs met with the insurance company between us and the patient.

Dr. Leonard Kirschner The government –

Ted Simons: Hold on.

Daniel Lieberman: The government just sat down at the table. At the end of the day, if my patient is insured by a company and we can't get the right result with that company, they can change insurance companies. You can't change governments. We now have the government, the 800-pound gorilla, in the exam room participating not even on the state level, but on the federal level, in the most intimate of Americans' issues.

Dr. Leonard Kirschner: But this law actually puts constraints on those insurance companies. And I totally agree with you, there is -- I ran a fairly large insurance company called AHCCCS. There are constraints that are put on those insurance companies, particularly the for-profit insurance. The amount of money they can make, took medical underwriting, adverse selection and saying you can't come in our program. Today what we've got are about 3.5 million kids covered by the parents' care, we're closing the doughnut hole procedures, we've added preventive care. So there's a lot of really good
things in this law. Perfect, absolutely not. Needs to be worked on? Absolutely. But a step in the right direction.

Daniel Lieberman: I think each one of those represents really great ideas. But if you look at how they're being implemented under this law, the results have not been good. For example, closing the doughnut hole by maybe can medications more affordability for seniors, great idea; however, the government did it by making price controls on medications, we're now seeing shortages of specific drugs. Drugs that we've had for decades in medicine, we can't get access to. Because when the federal government controls the price of individual items, you get shortages. The preventive care services, this law creates a panel which determines which preventive care services are appropriate. Their first two decisions have been whoppers. You could find in this building a couple of women whose lives were saved by early mammograms.
Their first decision was that mammograms are unnecessary until age 50. It's just not true.

Dr. Leonard Kirschner: But that -- I've had – that doesn't go into effect until five years. You're talking about things that have been in place under previous administrations, on dealing with -- these are organizations that are around for a long time, that have made decisions on mammograms, PSA and other things. It's not part of the act.

Daniel Lieberman: It's the identical structure. The way the affordability care act, it does almost nothing for cost, which again I think is really the primary problem, the way it addresses cost is through a panel of 14 presidentially and congressionally appointed individuals who simply in their already active, they do not have the expertise which is required
to make these kinds of decisions. In addition, how can Washington, DC make protocols for practicing physicians that are valid for every individual in America? It's simply not possible.

Dr. Leonard Kirschner: I think that what we're seeing here is a step in the right direction. Evidence-based medicine moving in that direction. This panel doesn't exist until 2018. So what you're saying that they've done isn't so. They haven't even been appointed.

Ted Simons: Let me ask you a question. Another concern is you're going to have 30 million, something along these lines, folks that will now be getting insurance one way -- most of them. Some of them will still opt not
to pay, they'll pay the fine, or they'll decide they'll be -- 30 million or so on the rolls, getting health care. Do we have enough doctors?

Dr. Leonard Kirschner: No. And that's clearly one of the issues, because what we've done for so long in health care, we've paid for the wrong thing. So we end up with too many specialist and not enough primary care doctors. And clearly what we need was primary care doctors, nurse practitioners, physician assistance.

Ted Simons: What are the ramifications?

Dr. Leonard Kirschner: I think we're going to be muddling through for a while, but clearly that -- theincentives now, when we pay the primary care folks more, the incentive is to develop that primary care cadre.

Ted Simons: Market says increased demanned means better supply. Are we going to see a better supply?

Daniel Lieberman: If we tried to radically increase the number of physician we have in our market today, we're seven years out from seeing even one of those doctors see a single patient. What's at stake here is too important to muddle through. People will not lead the same lives. They will not is have the same care as these 30 million people who are presently uninsured are abruptly and shockingly brought into a system that is totally not ready to care for them. This is not the right way to do it.

Dr. Leonard Kirschner: But those people do get ill, injured and pregnant, those uninsured. And they do come in the system. They come in the worst way, they come to the E.D. That's a terrible place to provide care. I was sharing with you that 20 years ago I was in the White House proposing a plan for America in the Clinton years, receipting the Medicaid programs and AHCCCS. And so we could have said the same thing that, oh, seven years to produce another doctor, but reality is, 19 years a later woe would have had a lot of cadres.

Ted Simons: The president this morning mentioned people will have more affordability – no discrimination against preexisting conditions, can't be dropped if you're sick, premiums can't be increased without reason, women can't be charged more due to gender. Patients can't be billed into bankruptcy. Preventive care is now required. Those under 26 stay on the parents' plan, seniors get a discount. That's a lot of things that he said are now better because of this law. Do the better things he mentioned outweigh some of the concerns that bother you?

Daniel Lieberman: Those are wonderful things. Quite Frankly, we cannot afford them. We are expanding a system that already costs too much money in a way that we don't have the money to pay for these things. Look at the deficit we're dealing with right now. That's going to pale in comparison. A lot of the funding for this act was based on financial savings through the long-term insurance portion. That's already been thrown out. There's 18 new taxes in Obamacare, the first to be -- they're attempt to be throw out now is the 3% excise tax on medical devices. This is not affordable. This is a great idea, we don't have this kind of money.

Dr. Leonard Kirschner: We're the wealthiest nation in the world. There's no question we can do a health care system that is the equal of the other industrialized nations in the world. When you look at those nations, those systems, you look at ours, we failed dramatically. This is a step trying to move towards a more holistic program, a system that actually takes care of the people of America.

Ted Simons: But can you afford, especially when you've got -- folks who may not be able to afford the premiums no matter what the health care exchanges
looks like, or those who again decide they're not going to do this, maybe they'll pay a fine, but can you afford the subs education -- subsidize Asian of the folks who can't afford the premiums?

Dr. Leonard Kirschner: Absolutely. There's more enough money in the
health care system. 18% of GDP is so inefficient. This is a step to make it more efficient. I think there's more than enough financing in our health care system throughout this country to actually cover all Americans and do it in a way that is effective.

Ted Simons: Can we meet a challenge? If you -- you mentioned a lot of
challenges, can we meet those challenges?

Daniel Lieberman: Not with this act. We need to start over with reforms which are widely accepted. We need to deal with the cost side first. Once we solve the cost problem, we won't have an access problem to health care in the United States. And expanding it first really is going to throat baby out with the bath water.

Ted Simons: Do you think what happened today and the continued reforms here from the affordability care act, do you think that is worse than leaving the system in as it was?

Daniel Lieberman: Very much so. I'm sad for my patients. I'm worry today for my children. I don't know who's going to pay for all of this. I don't think my patients are going to have access to the quality care that they receive today in the United States. And this law is the reason.

Dr. Leonard Kirschner: I totally disagree. This law is a step in the right direction. There will have to be more changes, but your patients will have more access to you, there will be more with coverage, and it's going to be a positive step. Clearly the positive aspects of the president articulated today far outweigh the negatives. Is it perfect? No, it's going to be fixed, yes, it is going to be battled out in the election as we're going up to the conventions in November in the election, absolutely. But this is a step in the right direction.

Daniel Lieberman: I hope you're right.

Ted Simons: All right. Real quickly, bottom line, if you were insured right now, what

Dr. Leonard Kirschner: For me, because I'm old, I'm on Medicare, very little changes.If I had prescription drugs I would be doing better. If I had other issues I might be doing better.

Ted Simons: What changes for those on insurance right now?

Daniel Lieberman: Beginning in 2014 your access to physicians will be very, very much more difficult. As this mass number of people come in on the same terms with no relationship with physicians, they're going to absorb the resources of the system. Good luck to you.

Ted Simons: Well, thank you both for joining us. We appreciate it.

> Friday on Arizona "Horizon's" "The Journalists' Round Table," we will talk about this week's historic Supreme Court decisions regarding SB 1070 and of course health care reform. That's Friday on "The Journalists' Round Table."

> That is it for now.
I'm Ted Simons.

Supreme Court Ruling: Affordable Care Act

  |   Video
  • ASU Law Professor Andy Hessick explains the High Court’s rationale for finding the Affordable Care Act constitutional.
  • Andy Hessick - Professor of Law, ASU
Category: Law   |   Keywords: U.S., us, supreme, court, affordable, health, care, act, medical, obamacare, ,

View Transcript
> Good evening, and welcome to
"Arizona Horizon."
I'm Ted Simons.

Ted Simons: In a 5-4 decision, the U.S. Supreme Court today ruled that the affordable care act, or Obamacare as it's become known, is constitutional.
The court decided that the law's individual mandate is not a requirement to buy health insurance, instead, it's a tax on those who don't buy insurance.
Here to help us wade through the legal argument assist ASU law professor Andy Hessick and associate -- an associate dean at the Sandra Day O'Connor college of law. Thanks for joining us. We're going need help wading through this one.
How much of a surprise was this decision?

Andy Hessick: I think it was a pretty big surprise. A lot of people said after the or argument they thought the justices sounded like they would
strike it down. This was a surprise. Definitely.

Ted Simons: And the way it was announced was a bit of a surprise, caught a couple of major news networks off balance.

Andy Hessick: So everyone was saying if chief justice Roberts had the opinion, that would mean that the act was going to be struck down. And he got up and announced he said he was announcing the decision, and then he also started the decision by saying that the mandate was unconstitutional under the commerce clause, and at that point everyone is like, the act must be unconstitutional. But then he switched gears and said, but it's OK under the tax clause.

Ted Simons: He pulled the old switcheroo. Did the court consider four things, correct?

Andy Hessick: Four things.

Ted Simons: Talk about those.

Andy Hessick: It was four separate cases. The second case was the individual mandate. When everyone talks about what this case is about, that was the second case. The first case was about whether or not the court could even hear this whole challenge at this time. There is an act that says that you can't hear challenges to taxes until after the tax is assessed. In so far as the way that the mandate was enforced is to increase your taxes, people were
saying, oh, they can't hear it now, they have to wait until it goes into effect in 2014. The second was the chat evening to the individual mandate about the commerce clause and the tax clause. The third was, what happens if
the individual mandate is struck down, what happens to the rest of the act?
Because the individual mandate was one portion of a giant thousand multithousand page act. And so it could be carve out the mandate or does the whole acts to fall? And the fourth case associated with it was, had to do with Medicaid. The law expanded Medicaid eligibility. And it was whether or not that was constitutional under the spending clause.

Ted Simons: And all were OK except for that Medicaid expansion. Correct?

Andy Hessick: That's right.

Ted Simons: So why -- before we get to the individual mandate, which is the big gorilla in the room, why was the Medicaid expansion not considered constitutional?

Andy Hessick: So under the spending clause, one of the doctrines is that Congress can give money to the states in order to get the states to do things. To give money to the states and the states do Medicaid. But what Congress can't do is force the states to act by withholding money, or giving
money only if they meet very stringent conditions. So here Congress said, we want to expand Medicaid, and if you don't expand it in this way, we're going to take away your funding, not only for the Medicaid expansion we want, but
also for all other Medicaid. And the states were like, that's two course -- the Supreme Court said that's too coercive.

Ted Simons: That didn't quite make it. Didn't quite pass muster. But the individual mandate did, and not because of the commerce clause, which is what everyone argued about in oral arguments, but it's a tax -- first of all,
what's the commerce clause and secondly, how did this become a tax instead after penalty?

Andy Hessick: The commerce clause says Congress can regulate commerce among the several states. And so what the argument here was that the requiring people to purchase health insurance, which is what the individual mandate
does, the administration was saying, this is regulating commerce because people are involved in health care, they get health care from the hospitals and what not and insurance is the way you pay for it. So it's all tied up in commerce. And what chief justice Roberts said was, no, Congress isn't regulating commerce here, they're creating commerce by -- if it were regulating, it would only be if people already had insurance or were going to
buy insurance. But what they're doing here is making people buy insurance.
They're creating commerce where there wasn't commerce. That's not OK. So instead, chief justice Roberts went on the tax ground, and the reason he could do that is that if -- the way the statute is written, if you don't get health insurance, then the way -- the consequences are that you have to pay a tax penalty. So he said, oh, all this really is is a tax that's being assessed against you and you can avoid it if you get tax assessment.

Ted Simons: I saw assessment and collection was mentioned in his opinion.

Andy Hessick: M-hmm.

Ted Simons: And -- Congress, how did they -- they said this was not a
tax. The Obama administration said it was not a tax. The dissent was, a lot of stuff written about the commerce clause, did Roberts sit there and go, you know, I think I see something no one else sees?

Andy Hessick: The tax argument has been floating out there. People were aware of it. The government did make this
argument. And the -- so people just hadn't been talking about it that much because Congress didn't call it a tax, Obama administration didn't call it a tax because they didn't want to call it a tax. To call it a tax is political
poison. So -- but what the court said, justice Roberts said it doesn't matter what Congress calls it, because the tax power is something in the constitution. And Congress can't define the constitution, so even if Congress didn't think they were doing a tax, they really were doing a tax.

Ted Simons: We've already heard a lot of criticism, I want to get to this in a second, but those opposed to this are saying chief justice Roberts rewrote the law to approve the law. Is that accurate?

Andy Hessick: Some people are saying the dissent said that. There is a doctrine that says if a law is -- could be read two ways. One way is constitutional, one way is unconstitutional, the court should read the law in a way that is constitutional. And so Roberts said, I reasonably can read this law to be a tax, so that's OK in the -- and the dissent said you can't reasonably read it that way. Congress said this is not a tax.

Andy Hessick: Talk about the dissent. That was a long dissent, a group
dissent, we still don't know who wrote it. And it seemed to me, just breezing through it, a commerce clause was mentioned a lot as opposed to what this thing really hinged on. What was going on here?

Andy Hessick: The dissent is very long, the author, it's not clear, they do focus a lot on the commerce clause, presumably because that's what the argument were all about. There's also some indication that maybe the dissent was original lay majority opinion because the author is not identified, and also because they refer to justice Ginsburg's opinion, who concurred in the judgment as a dissent, which would sort of suggest that she -- that she was in the minority and that they were in the majority originally.

Ted Simons: Talk about the machinations here. How would that work to where
they're all writing the majority opinion, and you're in the minority. Did justice Roberts give them the -- how does that work?

Andy Hessick: It's possible. There's speculation. What would have happened, would have been justice Roberts would have been with the dissent, and justice Ginsburg would have -- Ginsburg would have been dissenting and he for whatever reason went and wrote this separate justification under the tax clause. And it's a possibility. There are other indications in the dissent that this might have happened.

Ted Simons: If the dissent -- it's going to be a little harsh, but debilitated, inopennable, the public didn't expect this, all these kinds of words, and a lot of it -- some are suggesting Anthony Kennedy wrote much of
this. Do we know?

Andy Hessick: I think that the reason people are saying that is that he -- I think he was the one who announced the dissent from the bench, which would indicate that maybe he had lead authorship. Though we can't be quite sure.

Ted Simons: What does this say about chief justice Roberts?

Andy Hessick: Well, the fact that he joined the liberal -- that's
unexpected, that he upheld the law is unexpected. It might indicate that he's
thinking about his legacy, he doesn't want to be known as the chief justice that struck down a major act. Maybe he wants to demonstrate he is not partisan, that he's deciding according to the rule of law, that he's not always going with the conservative block, and he's joining with the liberal block.

Ted Simons: So the impact you think -- the public perception of the Supreme Court right now is by some accounts at an all-time low. Does that factor into what the court does?

Andy Hessick: Everyone says no, but probably. Right?
I'm sure that the court does care about how the public perceives them. The court's legitimacy and power depends in large part on how the public views them.

Ted Simons: So we keep hearing this is a Kennedy court, Kennedy is the decider, he's the swing. Has this become chief John Roberts's court?

Andy Hessick: Very possibly.

Ted Simons: You were surprised?

Andy Hessick: I was surprised. Definitely surprised.

Ted Simons: It's good to have you. Great information. Thanks for joining us. We appreciate it.

Andy Hessick: Thank you.