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Key Provision of Affordable Care Act Challenged in Supreme Court

The U.S. Supreme Court hears arguments Wednesday over whether the federal insurance subsidies allowed under Obamacare are legal. Challengers argue the wording of the health care law allows only for subsidies under exchanges set up by states, not for people in the 34 states that use the federal exchange, The Supreme Court's decision would not directly apply to California, since the state set up its own exchange, Covered California. But millions nationwide could lose their health insurance if the court sides with the challengers.

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PBS NewsHour

Health care of 8 million on the line as Supreme Court hears ACA case

Supreme Court Hears Case Challenging Obama's Affordable Health Care Act

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JUDY WOODRUFF: A major challenge to the health care law at the Supreme Court today.

NewsHour contributor Marcia Coyle of The National Law Journal was there.

And this is the day everyone’s been waiting for.

MARCIA COYLE, The National Law Journal: Big case, Judy.

JUDY WOODRUFF: So, Marcia, we know the court has already weighed in on the constitutionality of the health care law. So, remind us, who brought this complaint and what was it about?

MARCIA COYLE: All right, Judy, this is what we call a statutory interpretation case. It involves the justices looking at a provision in the Affordable Care Act and deciding what it means, what Congress intended in the context and text of the law itself.

This challenge to it was brought by four Virginia residents who claim that there is a provision in the law that says federal subsidies or tax credits for low- and middle-income Americans are available only on exchanges established by the state. They claim that that doesn’t include subsidies for purchases on exchanges that the federal government creates.

The act allows the federal government to step in and create exchanges when a state opts not to. And, as you probably know, only 16 states have created their own exchanges; 34 states opted for the federal government to come in and set up an exchange.

JUDY WOODRUFF: So it sounds like — and it sounds like the justices just jumped right in and started asking questions right away.

MARCIA COYLE: I’m going to boil down Mr. Carvin’s very lengthy argument, and with apologies to him, and say he made basically two arguments here.

First, the language, exchanges established by the state, the plain language dictates a result in favor of his client. His second argument was Congress intended to limit the subsidies to state exchanges in order to induce the states to create their own exchanges. Basically, you don’t create the exchange, you don’t get the federal money.

His plain language argument immediately drew fire from Justices Breyer, Kagan and Sotomayor. Justice Kagan said, it’s not so simple that you focus just on a few words in a phrase. The court looks at the phrase in the context of the entire statute to see if it’s harmonious, if it makes sense.

Justice Sotomayor pointed out that, under Mr. Carvin’s and his clients’ interpretation of the act, there would be consequences that Congress could not have intended and, in fact, the law was designed to avoid. Without federal subsidies on federal exchanges, those exchanges would have no customers. There would be a death spiral. Healthy people wouldn’t buy insurance. Insurance costs would skyrocket.

JUDY WOODRUFF: Now, what is the government’s response to this when it was their turn?

MARCIA COYLE: The government represented by Solicitor General Donald Verrilli.

And he agreed with the more liberal justices that the traditional way to interpret a statute is to look at the phrase at issue in the context of the entire statute. He said the consequences that Justice Sotomayor enunciated clearly show that this was — that the challengers’ interpretation wasn’t the statute that Congress intended.

But he faced his toughest questioning from Justices Scalia and Alito. Justice Scalia said, well, it may not have been the statute Congress intended, but the question, is it the statute that Congress wrote? And where the language is clear, he said, the court — clear and unambiguous — the court doesn’t rewrite the statute.

JUDY WOODRUFF: And you were just telling me, Marcia, that it looks as if two justices, in particular, are going to be the ones to determine what happens here.

MARCIA COYLE: I think, at the end of the argument, it looked as though the decision might well rest with Chief Justice Roberts, who said virtually nothing during the arguments — he was very quiet — and Justice Anthony Kennedy, who raised with the challengers what he called a serious constitutional problem with their argument that the Congress intended to induce the states to create exchanges by limiting subsidies to state exchanges.

This, he said, could be coercion, the kind of coercion of the states that violates the Constitution. So I think those two justices are the ones that may well hold the balance here.

JUDY WOODRUFF: Marcia Coyle at the court, thank you.

MARCIA COYLE: My pleasure, Judy.

GWEN IFILL: We take a broader look now at the case with Michael Cannon, director of health policy studies at the Cato Institute, and Neera Tanden, president of the Center for American Progress. She is a former senior adviser to President Obama and helped write the Affordable Care Act.

Let’s take a little con — let’s go for a little context here. Was the administration, in putting these four words that Marcia was just talking about, into this act, was it intentionally trying to conceal or was it an unintentional loophole?

NEERA TANDEN, Center for American Progress: I actually think it’s neither, if you look at what we were deliberating on.

And, again, there was hundreds of hours of hearings, thousands of hours of discussion in Congress on this issue. The debate that we were having at the time was about where the exchanges, the parameters of the exchanges would be. And we were discussing regional exchanges, the national exchange and the state exchanges.

And this is very clear. The word is — the concept was state exchange. And the reason there was the creation of the federal fallback was to have subsidies available to everyone, regardless of whether a state chose to establish its own exchange or not.

GWEN IFILL: But, Michael Cannon, your argument is that federal fallback itself is the problem.

MICHAEL CANNON, Cato Institute: Well, the problem is that the IRS tried to expand its power under this law by imposing the law’s mandates, its taxes on about 57 million people who are by law exempt, and by issuing the disputed subsidies in states with federally established exchanges.

The law is very clear. It says in multiple places that were added in multiple stages during the legislative process that those subsidies and the taxes that they trigger occur only — quote — “through an exchange established by the state.”

There’s no similar language authorizing those measures in federal exchanges. In fact, the statute is quite clear that state-established exchanges and when the federal government establishes an exchange, it’s established by the secretary of health and human services, who is not a state. And so there’s a clear bifurcation between the two when it comes to the subsidies.

GWEN IFILL: Let me ask you both about Justice Kennedy, who is the one person today in the arguments who made everybody on both sides probably nervous, in your case because he said he was concerned about the impact if suddenly these subsidies had been made available in a couple of, three dozen states suddenly went away.

MICHAEL CANNON: Well, that doesn’t make me nervous for a couple of reasons.

One, he only gets to that analysis if he has agreed with the plaintiffs that the text of the statute is clear. And it appeared that he does agree, and he had a lot of skepticism for the government’s argument that the court should defer to the IRS’ interpretation and expansion of the statute.

But even if he finds that the statute is clear and the plaintiffs are correct, if he says that that’s an unconstitutionally coercive condition that Congress placed on these exchange subsidies, well, then that would create new constitutional law, that would call into question the constitutionality of any number of programs, including the Medicaid program.

GWEN IFILL: Obviously, you can respond to that, but I also want you to respond to Justice Kennedy’s concerns about IRS overreach.

NEERA TANDEN: You know, I was actually very heartened by Justice Kennedy’s arguments, because I think he asked some questions about the IRS. Solicitor General Verrilli responded very clearly.

But he, both in his questions to the plaintiffs and to the government, raised this issue that a number of the — a number of justices followed up on, which is the conception that the plaintiffs want us to believe is that the federal government, that the Congress passed a law that basically said to every state, you’re going to have all these requirements on insurance. If you don’t choose not to — if you don’t set up an insurance exchange yourself, you still have to have those requirements on your insurers, which will raise the cost of insurance in your state and could create death spirals, and according to insurers who have filed will raise costs for people outside the exchanges, and, at the same time, there will be no subsidy for them.

So you’re going to leave millions of people harmed in these states. And the most important point — one of the most important points, I think, came out in the solicitor general’s arguments, is that not a single state during the rule-making process noted, complained, said a word about this problem ,because they didn’t see it, because it has been, frankly, an argument made out of whole cloth by judicial activists who have not been able to get their Congress to pass what they would like to have happen, so they have used the courts.

GWEN IFILL: Michael Cannon, is there a legislative remedy, instead of the courts?

MICHAEL CANNON: Well, certainly.

In fact, one of the benefits, I think, of ruling for the plaintiffs in this case is it would create an opportunity for better health care reforms than what we have seen over the past five years.

GWEN IFILL: And you base that on what, on what action that Congress has taken so far?

MICHAEL CANNON: What would happen if there’s a ruling for the plaintiffs is that a lot of people would see the full cost of the regulations, the mandates that the Affordable Care Act imposes on them, and there would be a lot of dissatisfaction with that.

And the would create an impetus for reform, for change. Now, a lot of the people who supported the passage of this law don’t like that idea. They don’t want those costs to be transparent. They want the law to operate another way. What that basically tells us is, they’re having buyer’s remorse. They didn’t know what was in the law before they passed it.

Now that they see how it works, they don’t like it any more than anyone else does. But if there’s more public dissatisfaction about the law, then that does create an opportunity for low — for reforms that actually lower health care costs.

GWEN IFILL: There are very — only a few seconds left, but I want you both to clear something up for people watching this at home. Is this a political debate that is happening at the Supreme Court about the worth itself of Obamacare after the Supreme Court upheld it or is this something else?

NEERA TANDEN: So, could I just briefly respond?

GWEN IFILL: Very briefly.

NEERA TANDEN: Very briefly respond that it’s not that someone else is doing this. The Supreme Court would decide to take health care away for millions of people. Nearly nine million people would lose health care coverage.

So, that is the result of the — what the Supreme Court would do. If you look at what has happened in the Congress in the last several months, including last Friday, it’s hard for me to believe that they would do a quick fix. And I think that’s one of the reasons why we see this as a political fight.

GWEN IFILL: Mr. Cannon, brief final word.

MICHAEL CANNON: If that happens, that’s because that’s what the Affordable Care Act is. That’s how the Affordable Care Act works and we should change it.

GWEN IFILL: Michael Cannon of Cato and Neera Tanden of the Center for American Progress, thank you both very much.


NEERA TANDEN: Thank you.

The post Health care of 8 million on the line as Supreme Court hears ACA case appeared first on PBS NewsHour.

Arguments on Obamacare’s future provide few clues about Supreme Court decision

Michael Carvin, 2nd R, lead attorney for the petitioners and partner at Jones Day, speaks to members of the media as
         Attorney General of Oklahoma Scott Pruitt, R, listen outside the U.S. Supreme Court after oral arguments March 4, 2015 in
         Washington, DC. The Supreme Court heard oral arguments in the case of King v. Burwell. Photo by Alex Wong/Getty Images

Michael Carvin, 2nd R, lead attorney for the petitioners and partner at Jones Day, speaks to members of the media as Attorney General of Oklahoma Scott Pruitt, R, listen outside the U.S. Supreme Court after oral arguments March 4, 2015 in Washington, DC. The Supreme Court heard oral arguments in the case of King v. Burwell. Photo by Alex Wong/Getty Images

For the second time in three years, the federal Affordable Care Act went before the Supreme Court on Wednesday. And before a packed courtroom, a divided group of justices mostly picked up right where they left off the last time.

Once again, commentators and experts were left to wonder where Chief Justice John Roberts and Justice Anthony Kennedy, considered swing votes in the case, stand. A decision is expected by the end of June.

Unlike in 2012, the current case, King v. Burwell, doesn’t challenge the constitutionality of the law’s centerpiece that requires most Americans to have health insurance or pay a penalty. In a 5-4 ruling, the court that year decided the law could continue, albeit with a twist: states could elect not to expand Medicaid. But the latest case does challenge another piece that’s pivotal to making the law work: Whether tax credits to help moderate-income Americans afford coverage can be provided in the three dozen states where the marketplace is being run by the federal government.

The court’s most conservative justices seemed to side with the challengers, who say that a sentence in the law stipulating that tax credits are available only on health insurance exchanges “established by the state” means just that. In other words, credits would not be available in the three dozen states that are using, the federal exchange.

“If Congress did not mean ‘established by the state’ to mean what it normally means, why did they use that language?” asked Justice Samuel Alito.

Liberal justices, however, seemed much more comfortable with the Obama administration’s argument that the phrase encompasses both federal and state-run exchanges — and that reading the text to allow tax help only on state exchanges runs counter to the rest of the law.

If they were to read the law the way the challengers argue, said Justice Elena Kagan, “there will be no customers and no products” on the federal exchange, because no one would be eligible. “When you’re interpreting a statute generally, you try to make it make sense as a whole,” she said.

But almost nothing could be gleaned from the questioning and comments of Roberts and Kennedy.

Kennedy had hard questions for both sides. He suggested at one point that withholding tax credits from states that failed to set up their own insurance exchanges could pose “a serious constitutional problem,” because it could disrupt insurance markets in states that do not set up their own exchanges. Giving states such an unpalatable choice would be unfair coercion by the federal government, Kennedy said.

But Kennedy also questioned whether, in the absence of more specific language, Congress intended to let the Internal Revenue Service decide how to distribute billions of federal tax dollars. “That’s a lot of responsibility,” he said. The question specifically before the court is whether the IRS overstepped its authority in interpreting the law to allow tax credits in both state-run and the federal exchange.

Roberts, meanwhile, was uncharacteristically quiet during the nearly hour and a half argument. In 2012, it was the chief justice who surprised many observers by joining the liberals to find the law constitutional because Congress was using its taxing power.

Outside the court, standing in a light rain, those on both sides predicted victory.

“It looks good for the plaintiffs,” said Michael Cannon of the libertarian Cato Institute. Cannon, who helped push the court case – and travelled the country working to persuade states not to set up their own exchanges – said he was pleased by questions about the IRS’ interpretation. “It’s absurd to give the IRS that kind of authority,” he said.

But Elizabeth Wydra of the Constitutional Accountability Center, which supported the administration’s position, said she thought the arguments leaned her side’s way. “If the court follows the plain text of the law and prior precedents, then it’s clear tax credits are available to all Americans no matter what entity runs the exchange,” she said.

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Flu winds down as FDA aims for better vaccine next winter

Frances Mandina, 90, gets her flu shot from nurse Kin Robbins at the Albertson Super Market in Bossier City, Louisiana
         on Oct 12. Photo by Mario Villafuerte/Getty Images

Frances Mandina, 90, gets her flu shot from nurse Kin Robbins at the Albertson Super Market in Bossier City, Louisiana on Oct 12. Photo by Mario Villafuerte/Getty Images

WASHINGTON — The miserable flu season is winding down but not quite over yet, health officials said Wednesday, even the government picked what it hoped would be a better vaccine recipe for next fall and winter.

If it seems early to worry about the next flu season, well, producing 140 million doses of vaccine requires starting months in advance.

It’s a process that’s part science, as researchers track what flu strains are spreading in different parts of the world to predict what may come here. And it’s part luck, as this year showed when a surprise new version of an aggressive flu strain — one that arose too late to be added to the vaccine — swamped the country.

Wednesday, advisers to the Food and Drug Administration urged the government to explore ways to improve how each year’s flu vaccine is created.

“It’s hard for me to believe that we cannot do better,” said Dr. Pedro Piedra of Baylor College of Medicine in Houston.

Meanwhile, the panel recommended that next winter’s flu vaccine be sure to include the new H3N2 strain, as influenza cases around the world suggest it’s still spreading.

The flu season peaked in January and is steadily declining but there’s still a lot of illness around the country, Dr. Lisa Grohskopf of the Centers for Disease Control and Prevention said Wednesday.

This year’s vaccine was only about 18 percent effective against that H3N2 strain, CDC’s Dr. Lisa Grohskopf said. The vast majority was caused by a nasty version of Type A flu, the so-called H3N2 branch of the viral family that tends to trigger more pneumonia and other complications than other forms of influenza and is particularly risky to seniors. Indeed, this winter’s flu-related hospitalizations of people 65 and older were at their highest since the government began tracking that in 2005, Grohskopf said. And while it’s too soon to know the death toll, the CDC does closely track flu-related child deaths, now at 92, close to the yearly average of 100.

Part of the problem: This year’s vaccine was only about 18 percent effective against that H3N2 strain, Grohskopf said.

Why? Flu viruses constantly mutate, and the vaccine is changed yearly to keep up based on what scientists see circulating in other countries. Each year it contains protection against two Type A strains — a version of H3N2 and a version of H1N1 flu, such as the swine flu that was so common a few years ago — and, depending on the brand, protection against either one or two versions of milder Type B flu.

Last February, FDA’s advisers recommended the recipe for this year’s vaccine. Then in March, the CDC noticed a few cases of a slightly different H3N2 strain starting to circulate, a strain just different enough that the vaccine wouldn’t provide protection against it — but no one knew if enough would spread for that to matter.

The so-called drifted strain slowly grew more common over the summer. By late September, it accounted for half the strains in a global count, but U.S. vaccine production was already finished.

It’s the fourth time in 20 years there’s been an important mismatch with the vaccine. Wednesday, FDA’s advisers asked how to better guard against that happening again.

“Were there any signs we could have picked up that it was drifting?” asked Dr. Patrick Moore of the University of Pittsburgh.

Not in time to change vaccine production, responded CDC acting deputy flu director Jacqueline Katz. A few flu strains pop up every year that don’t react well to the flu vaccine, but most fade away and there’s no good way to predict which may be a real threat until they spread more widely, she explained.

Since H3N2 is the harshest type, why not postpone a decision on which strain to include in the vaccine while manufacturers get started brewing the rest? That would take a lot of coordination to work, Katz cautioned.

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If you avoid these 3 risk factors, scientists can count how many healthy years you’ll add

A new study suggests that a person who is obese, has high blood pressure and has diabetes on average is diagnosed with
         heart failure more than a decade earlier than someone with none of these chronic illnesses.

A new study suggests that a person who is obese, has high blood pressure and has diabetes on average is diagnosed with heart failure more than a decade earlier than someone with none of these chronic illnesses.

For the first time, scientists have quantified how many heart failure-free years you add to your life when you avoid risky habits that harm your body and contribute to chronic illness.

A study released today says that on average, people who are diagnosed with obesity, hypertension and diabetes can expect to be diagnosed with heart failure 11 to 13 years earlier than people who have none of those chronic illnesses. The study is scheduled to be presented before the American College of Cardiology later this month.

These stark numbers allow doctors to address more directly the risks their patients face if they do not practice a healthy lifestyle, said Faraz Ahmad, the lead author of the study and a cardiology fellow at Northwestern University.

“In the clinic, we often give patients metrics of risk that are relative and abstract,” Ahmad said in a released statement. “It’s a much more powerful message, when you’re talking to patients in their 30s or 40s, to say that they will be able to live 11 to 13 years longer without heart failure if they can avoid developing these three risk factors now.”

In the study, people with obesity, hypertension and diabetes, on average, were diagnosed with heart failure by the time they reached their late 60s or early 70s. Men with none of these risk factors were diagnosed with heart failure at age 80, and women received that diagnosis by age 82, according to the study.

Although researchers have made advances about treating heart disease over the last four decades, the pattern of heart failure diagnosis does not change, Ahmad said.

When someone experiences heart failure, that means their heart is so weak that it can no longer pump enough blood to the body’s organs.

Nationwide, more than five million people have heart failure, a condition that annually costs the health care system about $32 million, according to the Centers for Disease Control and Prevention.

Roughly one out of every two people who are diagnosed with heart failure die within five years, the CDC reported.

Habits that enhance the risk of heart failure include smoking tobacco, eating foods rich with fat, cholesterol or sodium and living a sedentary lifestyle without physical exercise, the CDC says.

The post If you avoid these 3 risk factors, scientists can count how many healthy years you’ll add appeared first on PBS NewsHour.