States Seek a Middle Ground on Medicaid

Some Governors Aim to Curtail Program’s Expansion, Steer More People Toward Federally Subsidized Private Insurance



A handful of states are considering only partially expanding their Medicaid programs under the federal health-care overhaul—a new twist on how states are interpreting the Supreme Court’s ruling on the law.

Indiana, New Mexico and Wisconsin are among the states asking the federal government to let them omit from the Medicaid expansion residents whose incomes put them just above the poverty level. The states hope to take advantage of provisions in the Affordable Care Act that offer a federal subsidy to help these residents buy private insurance, starting in 2014.

The strategy is the latest fallout fromthe Supreme Court’s June decision, which let states opt out of expanding Medicaid without losing federal funding for the program. A half-dozen governors have already said they would opt out, worried their states will be saddled with extra costs.

State Medicaid-eligibility levels currently vary. Under the law, all states were to open their Medicaid programs to Americans who earned up to 133% of the federal poverty level, which is currently set at $11,170 for a single person. The law also made those with incomes 100% to 133% of the poverty level eligible to buy federally subsidized, private insurance through exchanges.

Some states, however, are asking the Centers for Medicare and Medicaid Services if they can include people in Medicaid up to 100% of the poverty level, but keep people with incomes between 100% and 133% of the poverty level out of the program and instead funnel those people toward the exchanges.

Their main reason: States wouldn’t haveto contribute to the costs of the subsidies to purchase private insurance.

“It’s more expensive for the federal government, but it’s cheaper for the state,” said Seema Verma, a top adviser to Indiana Republican Gov. Mitch Daniels. “Obviously the costs are going to play into it, not just for Indiana, but for every state.”

Allowing partial Medicaid expansions could have broad implications for how the law covers uninsured Americans and add to the cost of the overhaul. The nonpartisan Congressional Budget Office has estimated the federal government would pay about $9,000 of subsidies for each person enrolled in the exchanges, compared with $6,000 for those enrolled in Medicaid.

Federal officials are under pressure tokeep states from opting out of the Medicaid expansion. Hospitals are warning it would leave them with a high number of nonpaying customers, at the same time they are having to absorb federal payment cuts, as a result of the law. Around half of the 30 million Americans expected to gain coverage from the health-care law as it was passed were to gain it through Medicaid.

A report for Indiana’s Family and Social Services Administration by actuaries Milliman, to be released Tuesday, found the state would pay nearly $1.1 billion between 2014 and 2020 to enroll alladults with incomes up to the federal poverty level in Medicaid, but that the full expansion would cost another $326.5 million.

The Department of Health and Human Services has yet to say whether it would let states deviate from the Medicaid expansion as it stated in the law. In other standoffs with the states over the health-care law, the department has tried a conciliatory approach, including offering them the option of jointly running new insurance exchanges.

Erin Shields Britt, a spokeswoman for the department, said it was “evaluating” the question. She pointed out the law covers states’ full Medicaid expansion costs for the first three years and at least 90% in subsequent years. That offers “significant new resources” to states that the administration was “hopeful” they would accept, she said.

Edmund Haislmaier, a fellow at HeritageFoundation, a conservative think tank, criticized Republican-led states forseeking to shift health costs onto taxpayers. “You have the tragedy-of-the-commons phenomenon, where everyone does something in their own interest, but in the aggregate, it’s harmful,” he said, adding that he is advising states not to expand Medicaid at all.

Wisconsin officials have run calculations to figure out the costs of a partial expansion, among other scenarios, saidDennis Smith, health secretary to Republican Gov. Scott Walker. He said thescenario could be attractive to health providers, who want to see the number of uninsured patients reduced but would prefer to be reimbursed by private insurers rather than the government, since private insurers typically pay more.

Officials in New Mexico, led by Republican Gov. Susana Martinez, are also considering a partial expansion, along with other options, said a spokesman for the state’s human services department, Matt Kennicott.

Write to Louise Radnofsky at and Christopher Weaver at

A version of this article appeared September 18, 2012, on page A6 in the U.S. edition of The Wall Street Journal, with the headline: States Seek a Middle Ground on Medicaid.

Doctors billing Medicare patients at higher rates, report finds

By NBC News staff

Thousands of doctors and other medical professionals have added $11 billion or more to fees for elderly Medicare patients over the last decade by choosing to use more expensive billing codes and ignoring cheaper ones, a new study says.

The report “Cracking the Codes” from the non-profit investigative journalism organization Center on Public Integrity analyzed Medicare claims for a year and found thousands of providers “upcoding,” which is “the practice of charging for more extensive and costly services than delivered, according to Medicare experts, analysis of the data and a review of government audits.”

Controlling rising Medicare costs has been a hot topic in the presidential campaign. The center’s report, which was released Saturday, suggested that reforms should start with a close look at the way hospitals and doctors submit bills for patient care. For example, the study found that 7,500 doctors charged the two most expensive paying codes for three out of four visits in 2008, up sharply from the number who did so at the beginning of the decade.  The CPIs’ report said medical groups argue that treating seniors has grown more complex and time-consuming because of new technology and because seniors are living longer.  But the report found little evidence that Medicare patients as a whole are older or sicker than in past years, or that the amount of time doctors spent treating them on average was rising.  Health care providers also said the rise in fees may be a reaction to years of under-charging, and that the higher costs reflect more accurate billing. The fees are based on a system of billing codes that is structured to make higher payments for treatments that take more time and effort.  Medicare regulators worry that the coding levels may be accelerating in part because of increased use of electronic health records, which make it easy to create detailed patient files with just a few mouse clicks, according to the report.  “This is an urgent problem,” Dr. Mark McClellan, who directs the Engelberg Center for Health Care Reform at the Brookings Institution in Washington, told the CPI. McClellan, a former director of the Centers for Medicare and Medicaid Services, or CMS, said the agency must send a message that it “won’t stand by and do nothing … that they are paying attention to this.”

Primary care physician shortage looms in Louisville

Written by
Patrick Howington
The Courier-Journal
2:42 AM, Mar. 28, 2012

They are the quarterbacks of the health care system — generalists who monitor the entire body, give preventive care, spot problems early and send patients to specialists if needed.

Despite their key role, primary care physicians are in increasingly short supply, and a new study says the shortage is expected to become critical soon in Louisville — as it has been in many rural areas of Kentucky for years.

The impending Louisville shortage is due to a perfect storm of factors — an aging population that will need more care, a large number of doctors approaching retirement, and medical students shunning primary care practices for specialties with higher pay and better hours.

By 2020, Jefferson County will need 455 new primary care doctors — almost as many as the number that work in local medical practices now. The new doctors will be needed to replace current doctors who are expected to retire and to meet federal guidelines for serving the projected 2020 population, according to the study the Louisville Primary Care Association commissioned.

And that doesn’t take into account the extra demand for more doctors when health reform could cause millions more Americans to have health insurance in 2014 if upheld by the Supreme Court.

“We see a real workforce crisis in the future — in the immediate future,” said Bill Wagner, executive director of Family Health Centers, a group of community clinics serving low-income residents. “It is a perfect storm.”

Family Health Centers is a member of the primary care association. Others are the Park DuValle Community Health Centers, the Louisville Metro Department of Public Health & Wellness, and the University of Louisville’s dental school and primary care centers.

The study, conducted by REACH Inc. and based on a survey of local physicians, found that about one-third of all the primary care doctors — general internists, family practitioners and pediatricians — are 56 or older and plan to retire within 10 years.

The combination of impending retirements, expected population growth and the trend toward doctors working strictly inside hospitals or urgent-care centers rather than holding office hours means that:

• Jefferson County will need to attract 220 new family practitioners by 2020, or more than the current supply of 167 who don’t work solely at institutions such as the VA Medical Center or hospices.

• An additional 192 general internists and 43 pediatricians will be needed.

• While Louisville has 697 primary care doctors overall, only 517 of them are in typical office settings where they can have an ongoing relationship with patients — and 178 of those are expected to retire by 2020.

To replace those retirees and add other new doctors to meet federal guidelines calling for 100 primary care physicians per 100,000 people, the study projected that 455 new primary care doctors will be needed by 2020.

And not enough younger doctors are in line to fill that gap.

Shift to higher pay

Saddled with $100,000 or more in medical school loans, graduates in recent years haven’t chosen lower-paying primary care as often as older generations did, statistics show.

In the past 15 years, the number of U.S. medical school seniors who entered residencies in family medicine has fallen from 17 percent in 1997 to 8 percent last year, according to the Association of American Medical Colleges. However, the number has rebounded slightly since 2009.

The picture is similar at the U of L School of Medicine. The number of entering medical students the school believed would go into primary care upon graduation, based on statements at the time of admission, has declined 50 percent in the past 11 or 12 years, said Dr. Steve Wheeler, associate dean for admissions.

“The debt load in medical school has increased, the ability to repay debt is influenced by salary once you get out, and primary care is at the low end of that spectrum,” said Wheeler, who is also associate professor of family and geriatric medicine.

On average, primary care doctors are paid as little as half as much as specialists, such as radiologists and invasive cardiologists, according to a national compensation survey.

Yet they typically see many more patients a day and must complete exhaustive paperwork to oversee patients’ overall care.

The time demands and administrative burden are perhaps as important as the pay gap in students’ decisions to shun primary care in recent years, experts said.

“I think it has become a much more difficult environment to enjoy working with your patients in,” Wheeler said.

“It’s more difficult, more stressful, and less rewarding” than it used to be, Dr. Greg Ciliberti, a Louisville internist for 26 years. “And then you’ve got the other stress of, you’re trying to run a business and you never get a raise.”

Not just rural

In Kentucky, physician supply has typically been seen as a rural problem, given that some counties are served by a handful of doctors — while Louisville is home to large hospital companies and a university medical school.

But both in Louisville and nationwide, “I don’t think there’s any question that it’s not just a rural issue,” said Dr. Dan Varga, chair of the Kentucky Medical Association’s physician workforce committee.

“No matter where you’re talking about, we clearly have an aging primary care workforce,” because primary care has been “so unpopular” a career choice in recent years, said Varga, chief medical officer of Kentucky’s St. Joseph hospitals and a former Louisville internist.

“There just aren’t as many students who see that as their call,” Wheeler said.

Given that trend, Wagner said he doubts that medical schools will train enough primary care doctors to fill the gap.

Wagner said his clinics already have a difficult time recruiting primary care doctors in the face of competition from higher-paying hospital operations that increasingly are hiring doctors as full-time employees.

That can leave doctors at Family Health Centers and similar clinics stretched even further to handle their patient load.

“There’s not enough of us,” said Dr. Sarah Fortuna, a staff doctor at FHC’s Iroquois clinic on Taylor Boulevard, during a brief break between seeing patients, updating charts and conferring with a medical technician. “We’re getting more and more patients, but we’re not getting any more staff.”

Fortuna said she probably doesn’t get enough time with her patients.

“I try,” she said. “But is the clock ticking in the back of my head? Yes. I know I have to get to day care at the end of the day, and my techs have other things they have to get to as well.

“I try to stop long enough to give them the time, but there’s days when I go home and go, ‘I know I’ve made (patients) come back in three weeks because I want to talk to them more.’ ”

Fortuna, 39, a single mother and former Air Force doctor, said she doesn’t regret her decision to go into primary care. She likes treating a wide variety of conditions and is “a people person, so I wanted to have long-term relationships with my patients.”

Making the switch

Fortuna said it would be nice to make more money, but that’s not enough to make her switch to a specialty.

But many primary care doctors have done just that.

Fortuna said she trained in a group of eight primary care residents at Eglin Air Force Base in Florida, ending in 2003 — and four of them have since entered specialties.

“They were faced with longer and longer hours in private practice, and most of them didn’t want to do that,” she said. “They wanted to have a life. So they opted out.”

Dr. Dan Garcia, a Louisville allergist, was a pediatrician for 17 years before becoming an allergist in the early 1990s — a move he said he made for his health and to see his family.

With long hours at the office combined with hospital rounds, “I wasn’t getting to see my children” because of caring for other people’s children, said Garcia, 64.

“We had our fifth child, and I came down one morning … Patrick was about 4 months old, and he looked at me like I was a complete stranger, because I hadn’t seen him for over a week,” Garcia said.

A heart bypass operation convinced Garcia he needed a slower pace, and he underwent two years of training to become an allergist. Instead of working 12 hours or more a day, he now works 8 to 10.

“It’s been well worth it,” he said. “The tail doesn’t wag the dog any more.”

Cost of solutions

Though there is a consensus that more primary care doctors are needed, the solutions aren’t easy — and often call for money that isn’t there.

Medical associations have advocated repaying emerging doctors’ medical-school debt as an incentive for them to enter primary care. The National Health Service Corps has such a repayment program, but only for doctors who agree to practice in underserved areas.

And national proposals to increase medical schools’ federal funding for training primary care physicians have lost out to deficit-cutting measures in recent years, said Christiane Mitchell, director of federal affairs for the Association of American Medical Colleges. She said the organization’s top priority is to avoid cuts to existing funding, though it believes federal training money should actually be increased.

With pay levels persuading many doctors to leave primary care or not enter it, some private health insurers and the federal Medicare program are moving to boost reimbursements for primary care physicians compared with specialists.

Last year, the Obama administration established a Medicare pilot program, called for under the 2010 health reform law, to pay primary care doctors to supervise teams of “physician extenders,” such as nurse practitioners, to treat target populations. The so-called “patient-centered medical home” program would directly reward primary care doctors for their time-consuming role in coordinating patients’ care.

Health insurer Aetna announced a pilot program in January to give extra monthly pay to physicians whose practices qualify as patient-centered medical homes, while last July Louisville-based Humana announced a program to award nearly $10 million to primary care practices that show quality improvements.

WellPoint, the parent company of Anthem health plans, also announced a national program in January to pay more to some primary care doctors who keep patients healthy.

But Anthem’s Kentucky organization took a broader and earlier approach in 2008 by boosting all primary care office-visit reimbursements to a level higher than specialists get, said Mike Lorch, an Anthem vice president.

“What we’re counting on, and what we firmly believe, is that … as you improve reimbursement so they can take better care of the patient, you’re going to see a payback in cost of care,” Lorch said.

Without regular access to a primary care doctor, he said, “a lot of times you’re going to end up in the (emergency room), and that’s the most expensive setting.”


NY Times – Implications of Supreme Court Decision

March 24, 2012

Implications Are Far-Reaching in States’ Challenge of Federal Health Care Law


WASHINGTON — A major issue in the Supreme Court battle over the new health care law is whether Congress can force states to make a huge expansion of Medicaid, to add millions of low-income people to the rolls.

States say the federal law is unconstitutionally coercive because all their Medicaid money would be at risk if they flout the new requirement.

The states’ argument has implications that go far beyond health care. It raises questions about Congress’s ability to attach conditions to federal grants to the states for other purposes, like education, transportation, law enforcement and protection of the environment.

The implications for the health care overhaul are also enormous. The Congressional Budget Office says that about half of the people expected to gain coverage under the new law — 16 million of the 31 million people — will get it through Medicaid.

The Obama administration denies coercion and says the terms of the deal are exceedingly generous to states.

The states’ argument has “no logical stopping point,” said Solicitor General Donald B. Verrilli Jr., who will defend the health care law at the Supreme Court next week. The states’ theory, he said, “would call into question not only the extension of Medicaid eligibility in the Affordable Care Act, but also every other requirement for participation in the Medicaid program, not to mention an unspecified number of other federal spending programs.”

Senator Charles E. Grassley, Republican of Iowa, a vocal critic of the new law, offered a similar assessment, saying that a ruling for the states could “bring into question” prior expansions of Medicaid and conditions attached to other federal money.

Medicaid is by far the largest grant program, accounting for more than 40 percent of all federal aid to state and local governments, according to the White House.

The health care law offers Medicaid to people with incomes up to 133 percent of the federal poverty level (up to $14,850 for an individual and $30,650 for a family of four). Some states, like Louisiana, expect Medicaid rolls to grow by more than one-third, as many uninsured adults without children gain coverage.

In a Supreme Court brief, the 26 states challenging the law describe the expansion of Medicaid as “an extreme and unprecedented abuse of Congress’s spending power.” And they assert:

“The Affordable Care Act threatens states with the loss of every penny of federal funding under the single largest grant-in-aid program in existence — billions of dollars each year — if they do not capitulate to Congress’s steep new demands.”

The Obama administration says that Medicaid is technically a voluntary program from which states can withdraw. But states say they have “no real choice” because they depend so heavily on it to finance medical care for low-income people.

For years, governors have complained about explosive growth in Medicaid costs, and they say the expansion of the program will further drive up costs.

The administration says that Congress has often expanded Medicaid to cover additional people and services. Moreover, it says, the latest expansion will be less onerous than states assert.

The federal government normally pays 50 percent to 83 percent of Medicaid costs. But it will pay a much larger share for people who become eligible under the new health care law: 100 percent of the costs in 2014-16 and 95 percent in 2017, declining to 90 percent in 2020 and later years.

States say they cannot afford to turn down so much federal money — more than $500 billion from 2014 to 2020. But the Obama administration said this argument led to a perverse conclusion: When the federal government offers more money to states, on more generous terms, it becomes more coercive.

“That cannot possibly be the law,” Mr. Verrilli said.

Lower courts rejected the states’ argument on Medicaid, but the Supreme Court said specifically that it wanted to hear the issue debated next week.

States cite cases going back to the New Deal to support their claim that federal requirements can be unduly coercive.

In 1987, the Supreme Court upheld a federal law that required states to set a minimum drinking age of 21 as a condition of receiving their full allotment of federal highway money.

William H. Rehnquist, who was then chief justice, wrote that, “in some circumstances, the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.”

That is exactly what happened with the 2010 health care law, states say.

To support their argument, states point to two other cases as well.

In 1992, the Supreme Court said Congress could not “commandeer state governments” to carry out a federal regulatory program involving the disposal of radioactive waste. Five years later it ruled that Congress could not require state officials to help administer a federal gun control law by performing background checks of prospective gun buyers.

The Senate majority leader, Harry Reid, Democrat of Nevada, and the House Democratic leader, Nancy Pelosi of California, told the Supreme Court last month that federal judges had no business “attempting to draw a line between permissible persuasion and impermissible coercion.”

That, they said in a “friend of the court” brief, is a political question that should be left to elected officials.

The new law requires most Americans to carry insurance, starting in 2014. States say “Congress knew that no state could or would opt out” of Medicaid and therefore provided no other means for the poorest Americans to comply with the requirement.

Congress created insurance exchanges where people can shop for private health insurance, subsidized by the federal government. But the subsidies will generally not be available to people with incomes below the poverty level, who are expected to go into Medicaid.

The Obama administration says that, far from being coercive, the new law will save money for states, reducing the need for them to care for the uninsured.

Oregon and a dozen other states have filed a brief in the Supreme Court supporting the expansion of Medicaid as an example of “cooperative federalism.”

States have long wanted to expand coverage, they say, and the new law will help them do so.


The Health Law And The Supreme Court: A Primer For The Upcoming Oral Arguments

Later this month, the high court will consider the fate of the health law. Here are key points to keep in mind while watching the action.

Topics: Supreme Court, Politics, Health Reform

By Stuart Taylor, Jr.

Mar 15, 2012

How big is the constitutional challenge to the Obama health care law, which the Supreme Court will hear on March 26-28?

For starters, it’s big enough for the justices to schedule six hours of arguments — more time than given to any case since 1966. After all, the Affordable Care Act is arguably the most consequential domestic legislation since the creation of Medicare in 1965.

It’s also big enough to attract more briefs than any other case in history. At least 170, including more than 120 “friend-of-the-court” or amicus briefs, have been filed, many of which are joined by 10, 20 or more groups of every imaginable description.

And, finally, it’s big enough to cause the justices to postpone until October half of the 12 cases that they would ordinarily hear in April in order to clear time to get started on the health care opinions that they are expected to issue by the late June, or possibly, early July.


What’s it all about?
The immediate issues, in the order the court will hear them, begin with the question of whether the so-called “individual mandate” — which requires that almost all Americans without coverage buy individual health insurance policies or pay fines — is ripe for adjudication now. Or must the case be deferred until 2015 because of the 1867 Anti-Injunction Act, which bars federal courts from ruling on the constitutionality of tax laws before payments are due?

After that come the arguments about what many consider the central issue: whether the mandate, which is unprecedented, should be voided because it represents an unconstitutional exercise of Congress’ powers to regulate commerce and to levy taxes.

Next is what becomes of the law’s hundreds of other provisions, covering 2,700 pages, if the mandate is unconstitutional? Are some or all of them “severable,” meaning that Congress would have wanted them to stand even if the mandate falls? For example, what about the provisions establishing tax credits to help small businesses and individuals buy health insurance and taxing large employers that do not provide full-time employees government-approved coverage?

Apart from those issues, does the law’s expansion of Medicaid violate the sovereignty of the states by effectively requiring them to spend more of their own money or forfeit all of the federal Medicaid money they now receive?

What’s the likely outcome?
Nobody knows. It’s clear that the court’s four more liberal members, like almost all other liberal legal experts, will find the law constitutional in all respects. It’s also clear that conservative Justice Clarence Thomas will vote to strike down much or all of the law. It’s less clear what swing-voting Justice Anthony Kennedy and conservative Chief Justice John Roberts as well as Justices Antonin Scalia and Samuel Alito will do.

Kennedy, Roberts, Alito, and (especially) Scalia — whom the government’s brief quotes five times — have all joined past decisions construing federal regulatory power very broadly. Two respected conservative federal appeals court judges, Laurence Silberman and Geoffrey Sutton, who is one of Scalia’s favorite law clerks, have upheld the law.

What are the major arguments for and against the individual mandate?
Defenders say that the broad constitutional power of Congress to regulate interstate commerce, and the even broader power to “lay and collect taxes,” both provide ample authority for requiring that people buy insurance as part of a comprehensive scheme to end “discriminatory insurance practices that have excluded millions of people from coverage based on medical history,” in the words of a brief by Solicitor General Donald Verrilli.

The same brief also asserts that uninsured people consume $43 billion a year worth of emergency-room and other health care for which they do not pay, costs that are shifted to insurers and that raise insured families’ average premiums by more than $1,000 a year. Critics of the law dispute these numbers.

The 26 states challenging the law (along with a business group and four individuals) say, in the words of a brief by Paul Clement, who was solicitor general under President George W. Bush: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist. … It is a revolution in the relationship between the central government and the governed.”

Clement also stresses that President Barack Obama and his allies in Congress insisted during the debate before the measure became law that the financial penalty for failing to comply with the individual mandate is not a tax. They should not be allowed, he argues, to “enact legislation that would not have passed had it been labeled a tax and then turn around and defend it as a valid exercise of the tax power.”

The Anti-Injunction Act?
This reconstruction-era statute bars courts from considering the constitutionality of tax laws until payments are due. It will apply here if the court deems the individual mandate’s penalty provision a “tax.”

Because the mandate is not scheduled to take effect until 2014 and the first penalties would not be due until 2015, the federal courts would not yet have jurisdiction to consider the constitutionality of the penalties or the mandate. In other words, consideration of the case would be postponed until 2015, and, therefore, such a decision would convert the biggest case in decades into the biggest anticlimax in Supreme Court history.

Both sides say that the Anti-Injunction Act does not apply. But the court appointed a lawyer as “friend of the court” to argue that it does, as one federal appeals court held. This appointment signaled the court’s care to observe arguable limits on its jurisdiction even when the parties agree that it has jurisdiction.

What are the major arguments on severability?
The government says that if the court strikes down the mandate, it should defer until future cases any ruling on the severability of most other provisions. But, if it does rule on severability, the government maintains that only two other provisions should go down with the mandate. Those are the “guaranteed-issue” and “community-rating” provisions, which bar insurers from denying coverage or charging higher premiums because of medical history. Without the individual mandate, the government says, those provisions would send premiums soaring by creating incentives for healthy people to defer buying insurance until they need health care.

The 26 states argue that the mandate was deemed by Congress to be “necessary to make the other provisions work as intended,” and that the court should strike down the whole law.

The court appointed another friend-of-the-court lawyer to write a brief arguing that a decision striking down the mandate should leave the rest of the law — including guaranteed issue and community rating — intact.

What are the major arguments on Medicaid?
The government asserts that “it is well settled that Congress’s spending power includes the power to fix the terms on which it will disburse funds to the states,” that Congress has repeatedly expanded the state-federal Medicaid program, and that this new expansion will not “impose significantly onerous burdens on the states.”

The 26 states counter that the Medicaid expansion unconstitutionally coerces them because it “threatens States with the loss of every penny of federal funding under the single largest grant-in-aid program in existence — literally billions of dollars each year — if they do not capitulate to Congress’ steep new demands.”

Stuart Taylor, Jr. is an author and contributor to the National Journal and other publications.


J.D. Powers Reports Consumer Interest in Health Exchanges

J.D. Power and Associates Reports: Interest in Health Insurance Exchanges Grows in Both the Individual and Group Health Insurance Markets
Health Plans Face Challenges in Finding Simple and Understandable Ways of Sharing Costs
WESTLAKE VILLAGE, Calif., March 13, 2012 /PRNewswire via COMTEX/ — Anticipating the impact of healthcare reform, nearly four in 10 health plan members with employee- sponsored insurance say they would shop for coverage through a health insurance exchange if they had the opportunity, according to the J.D. Power and Associates 2012 U.S. Member Health Plan Study(SM) released today.
Now in its sixth year, the study measures member satisfaction among 141 health plans in 17 regions throughout the United States by examining seven key factors: coverage and benefits; provider choice; information and communication; claims processing; statements; customer service; and approval processes.
A majority of health plan members who purchase insurance on their own indicate they would likely use one of the state health insurance exchanges (55%), which are conceived, in part, to address their needs. However, a sizable percentage of health plan members who are covered under an employer-sponsored program–39 percent–also indicate they would shop for insurance through an exchange if it were available. In addition, the 2012 study finds increased levels of interest in state-sponsored health insurance exchanges, compared with the previous year. In 2012, only 37 percent of health plan members say they would not be likely to use an exchange, compared with 50 percent in 2011 who expected to continue obtaining coverage at work. “Health insurance exchanges are meant to appeal to individuals who must buy coverage on their own, yet the level of interest among those who obtain health insurance at work could have important implications for the future of employer-sponsored coverage,” said Rick Millard, senior director of the healthcare practice at J.D. Power and Associates. “Satisfaction among some health plan members may be low enough that an alternative, direct retail
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model could become more attractive than traditional wholesale purchasing by employers.” The study also finds substantial interest among health plan members in private health insurance exchanges, in which an employer might provide employees with vouchers for purchasing health insurance independently. Approximately 41 percent of employer-insured health plan members indicate they would use this approach if it were available.
“The private exchange model could further erode reliance on obtaining health insurance at work,” said Millard. “Creating new channels for purchasing insurance could trigger more changes. It could mean more attention will be paid to direct purchasers, and also make higher levels of satisfaction critically important for health plans that strive to acquire and retain members.”
In 2012, overall member satisfaction averages 702 on a 1,000-point scale, compared with 696 in 2011. There are notable gains in the information and communication; statements; and claims processing factors. “Health plans that excel in member satisfaction know how to create simpler benefit designs that members perceive to be consistent and dependable,” said Millard. “As health insurance exchanges take hold and consumer shopping for coverage increases, it will become even more critical for plans to communicate in clear and concise ways.”
Health plan members in Michigan, the Illinois/Indiana region and Ohio are the most satisfied with their health plan experience, while members in the Mountain region and Colorado are the least satisfied. Health plans ranking highest in their respective regions are (in alphabetical order): Anthem Blue Cross and Blue Shield of Connecticut; AvMed Health Plans; Blue Cross Blue Shield of Alabama; Blue Cross Blue Shield of Illinois; Blue Cross Blue Shield of Kansas City; Blue Cross Blue Shield of Texas; Dean Health Plan; Geisinger Health Plan; Health Alliance Plan (HAP); Independent Health Association; Kaiser Foundation Health Plan (which ranks highest California, Colorado, the Northwest region, the South Atlantic region and the Virginia-Maryland-Washington D.C., region); Medical Mutual of Ohio; and SelectHealth. J.D. Power offers the following tips to health plan members and consumers who are shopping for health insurance coverage:
Understand your coverage. Health insurance plans are sometimes difficult to understand, with complex rules for deductibles, co-payments, and other kinds of expenses. If you don’t
on the Affordable Care Act, which is intended to make it easier for individuals to find affordable coverage. The 2012 U.S. Member Health Plan Study is based on responses from more than 32,000 members of commercial health plans. The study was fielded in November 2011 and January 2012. For more comprehensive health plan rankings for all 17 U.S. regions, please visit . Regions Included in the U.S. Member Health Plan Study CaliforniaColoradoEast South Central (includes Alabama, Kentucky, Louisiana, Mississippi and Tennessee)FloridaHeartland (includes Iowa, Kansas, Missouri and Nebraska)Illinois- IndianaMichiganMinnesota-WisconsinMountain (includes Arizona, New Mexico and Utah)New England (includes Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont) New York-New JerseyNorthwest (includes Idaho, Oregon and Washington)OhioPennsylvania South Atlantic (includes Georgia, North Carolina and South Carolina)TexasVirginia-Maryland-Washington, D.C. Top Three Plans in Overall Member Satisfaction by Region California*Highest: Kaiser Foundation Health Plan Colorado*Highest: Kaiser Foundation Health Plan East South CentralHighest: Blue Cross and Blue Shield of Alabama Blue Cross and Blue Shield of LouisianaHumana FloridaHighest: AvMed Health PlansBlue Cross and Blue Shield of FloridaCIGNA HeartlandHighest: Blue Cross and Blue Shield of Kansas City Blue Cross and Blue Shield of NebraskaBlue Cross and Blue Shield of Kansas Illinois-Indiana*Highest: Blue Cross and Blue Shield of Illinois Michigan*Highest: Health Alliance Plan (HAP)Blue Cross Blue Shield of Michigan Minnesota-WisconsinHighest: Dean Health PlanHealthPartnersMedica Health Plans Mountain*Highest: SelectHealthBlue Cross Blue Shield of Arizona New EnglandHighest: Anthem Blue Cross and Blue Shield of ConnecticutHarvard Pilgrim Health CareBlue Cross & Blue Shield of Rhode Island New York-New JerseyHighest: Independent Health AssociationAetnaMVP Health Care NorthwestHighest: Kaiser Foundation Health PlanGroup Health CooperativeRegence BlueCross BlueShield of Oregon Ohio*Highest: Medical Mutual of OhioHumana PennsylvaniaHighest: Geisinger Health PlanHighmark Blue ShieldCapital Blue Cross South AtlanticHighest: Kaiser Foundation Health PlanHumanaUnitedHealthcare Texas*Highest: Blue Cross and Blue Shield of Texas Virginia-Maryland-Washington, D.C.Highest: Kaiser Foundation Health PlanCIGNAAetna *No other plan in this region performs above the region average.

Marcus Welby/Steve Jobs approach to Medicaid

Dave Chase, Contributor

Powering & studying the disruptive innovators reinventing healthcare

Pharma & Healthcare
3/11/2012 @ 9:49AM |1,643 views

The Marcus Welby/Steve Jobs Solution to the Medicaid-driven State & County Budget Crisis

Image via Wikipedia

Not a week goes by without seeing some headline about deficits pushing municipalities to desperation or Bill Gates describing state budgets using accounting techniques that would make Enron blush.  The common culprit: healthcare costs with Medicaid being the biggest driver.

Fortunately, there is a solution that has bipartisan support and has shown to reduce healthcare costs by 40-80% (e.g., Seattle-based Qliance). It can be described as two parts Marcus Welby and one part Steve Jobs. The federal health reform bill included a little-noticed clause allowing for Direct Primary Care (DPC) models to be a part of the state health insurance exchanges. That little-noticed clause (Section 1301 (a)(3) of the Affordable Care Act and proposed HR3315 to expand DPC to Medicare recipients) should have the effect of massively spreading the DPC model throughout the country.

The future is already here — it’s just not very evenly distributed. – William Gibson

A common myth is DPC is the same or similar to their more expensive cousin — concierge medicine. Not so. Typically one-third of DPC practices are uninsured people. AtlasMD in Wichita, KS is run by Dr. Josh Umbehr who recently mentioned to me one of his patients. Due to tough economic times, she’s living in a storage unit. Her monthly fee ($50/mth which is inclusive of all fees) is less than she was paying in co-pays at the local public health facility. Another is MedLion. One of their recent clinics is in Salinas, CA (a farming community) and caters to farm workers . The waiting rooms are nicer than a public health facility because can put their resources towards a more pleasant experience than billing systems and personnel. AtlasMD has 2 MDs and one NP. No admin staff. Zero. Everything is low cost software, etc.  DPC organizations such as WhiteGlove Health and arriveMD have even lower overhead as their practice are run as a clinic on wheels. [Disclosure: Two of the organizations mentioned, arriveMD and MedLion are customers of my software company, Avado.]

Let’s break down how it’s possible to provide such a high level of service at such an affordable price (i.e., less than a typical cable bill). It’s simple: low overhead. It’s not unusual for a primary care practice to have 3-5 administrative staff for every doctor. This is necessary to deal with the myriad insurance billing schemes that can best be described as a Gordian Knot designed by Rube Goldberg. Smart utilization of affordable technology (often in the low hundreds of dollars per month vs. many thousands and ongoing headaches) is at the heart of it. This allows the doctor to practice medicine the way they were trained, rather than pulling their hair out dealing with insurance for the medical equivalent of a trip to Jiffy Lube. In other words, the practices run similar to the fabled Marcus Welby, MD days. Yet, they are improved upon with a dose of Steve Jobs enabling enhancements that weren’t possible in the past such as virtual house calls. In anticipation of the rapid expansion of these models, entrepreneurs such as BJ Lawson, MD of Physician Care Direct have developed software to run the business side of these practices. [See more on how practices are overcoming obstacles to switching to Direct Primary Care.]

Thus far, DPC has had success in the private market. I put the question of why not use DPC for the Medicaid population (reportedly that is in the works in West Virginia) to DPC practitioners. The response below is a summary of their perspective. It is estimated that if DPC was scaled nationally it could save 20-30% off of overall healthcare costs. That would be the difference between states defaulting and sustained balanced budgets.

The issue of using DPC for the poor is from my point of view a no brainer. Why use the most expensive inflationary system available (by which I mean the insurance system, whether public or private) to take care of those with the least money and most in need of basic services? The structure that makes sense to me is to create a thriving marketplace in direct primary care, competing on price, access and quality – and working exclusively for our patients. Then add a fixed monthly stipend for primary care for every Medicaid patient in the United States – a stipend that covers the lowest priced/highest functioning primary care available. This could be a voucher or credit card account for each Medicaid patient. The allowance could only be spent on primary care and the patients could buy up to higher priced practices if they saw value worth purchasing. That would convert the Medicaid patient from being a low paying, high utilizing patient to a valued customer who can pay cash for care at a reasonable price. This makes all kinds of sense economically:

  1. No government management system to control or manage care – it manages itself with the patient at the helm.
  2. Converting dependent impoverished citizens into patients with economic clout and respectful treatment
  3. Eliminating the cost overhead of insurance billing on both the MD and the government side
  4. No more barriers to basic care for Medicaid patients – they can use all they need
  5. Eliminating the fee-for-service incentive disaster that produces massive overutilization and huge downstream expenses
  6. Financially stabilizing the primary care world with consistent monthly fee payments to cover our fixed costs while allowing those docs with better ideas or higher prices to go for the upscale patients or those wanting better art work and longer visits.
  7. Free up primary care docs to further improve their quality, access and patient centered services – not their billing savvy
  8. If the government wanted to regulate, they could demand an annual report on each patient they support, giving the actual utilization, health care outcomes and proof of appropriate management of common illnesses, immunizations and cancer screening. The government could actually pay for results, not process. Primary care practices would have to be certified as producing an acceptable level of results and patients would have access to our success profiles both in terms of cost and quality when selecting their doc for next year. [Note: A standard is being defined by the Healthcare Delivery Innovation Alliance which is seeking outside input.]
  9. The government could track the overall costs created by each practice and make those numbers public as well. The high cost practices would eventually lose certification, particularly if the money ended up in the hands of their employer (hospitals, big multispecialty clinics).
  10. If the government wants to tackle the HotSpotters patients, they just need to up the monthly ante for the sickest patients – they will get their money back with huge interest from the reduced downstream costs and reduced transaction costs that these folks generate. With the big fees they will also be able to require more complete reporting of how their chronic illnesses are being managed.

Medicare should do the same – stop paying fee-for-service for Primary Care and start paying a fixed monthly fee (allowing patients to buy up if the government gets the price wrong, as it almost certainly would). The patient should have total control over which primary care doc gets the money – remember, we want to work for the patient, no matter who pays the bill.

So that’s the solution – a simple system where the patient is in charge, the government buys good basic care and the patients can buy up. The system itself is created within a free market structure which the government is simply choosing to ride (like food stamps and grocery stores) with patients running the show, so service and quality could go up every year while prices remain stable or decline – like any real functioning market system in the world. Direct Primary Care is the only available model that could accomplish these goals. Everyone else is still trying to figure out how to “work” the insurance system. However, if the government has wisdom, they would also make the monthly fee deal available to prior fee-for-service docs – to boost competition and to accelerate the conversion to Direct Primary Care models. The right incentives produce the right results.

Reform: A trek not a sprint

Obama’s health care law: A trek, not a sprint

By RICARDO ALONSO-ZALDIVAR, Associated Press – 2 hours ago 

WASHINGTON (AP) — It took only a year to set up Medicare. But if President Barack Obama’s health care law survives Supreme Court scrutiny, it will be nearly a decade before all its major pieces are in place.

And that means even if Obama is re-elected, he won’t be in office to oversee completion of his signature domestic policy accomplishment, assuming Republicans don’t succeed in repealing it.

The law’s carefully orchestrated phase-in is evidence of what’s at stake in the Supreme Court deliberations that start March 26.

The Affordable Care Act gradually reorganizes one-sixth of the U.S. economy to cover most of the nation’s 50 million uninsured, while simultaneously trying to restrain costs and prevent disruptions to the majority already with coverage.

Despite the political rhetoric about what “Obamacare” is doing to the nation, only a fraction of the law is in effect.

“We really haven’t seen the main game,” said Drew Altman, president of the California-based Kaiser Family Foundation, a nonprofit information clearinghouse on the health care system. “The major provisions that will affect the most people and cost the most money don’t go into effect until 2014 or later.”

What has taken effect in the two years since the law was enacted has produced both successes and clunkers, and some surprises.

Few expected a relatively minor provision tacked on late in the legislative process to be its biggest success so far. But allowing young adults to stay on their parents’ insurance until age 26 has added nearly 2.5 million people to the coverage rolls, at no cost to taxpayers.

Despite Republican pledges to repeal the overhaul, it’s arguably the Obama administration that has done more to scale it back.

Health and Human Services Secretary Kathleen Sebelius decided to pull the plug on a long-term care insurance program seen as a budget drain. She also decided that Washington would not dictate a basic health benefits package for the country, allowing each state to set its own, within limits.

Medicare recipients gained more protection from high prescription costs and better preventive coverage, but older people remain the age group most opposed to the law, concerned that cuts to the program to finance benefits for the uninsured eventually will compromise their own care.

If the Supreme Court overturns the law entirely, that would present an immediate dilemma about popular early benefits such as coverage for young adults and prescription savings for seniors.

“These provisions give immediate relief to a small percentage of people, but it’s a lot of relief,” said economist Len Nichols of George Mason University in Virginia.

Other early benefits have been a mixed bag.

Millions of people are getting preventive care that now must be provided at no additional cost to patients. Birth control for women soon will be on that list. Insurance premium increases are getting more scrutiny.

But a program of tax credits for small businesses has seen little acceptance. The administration is in the awkward position of asking congressional Republicans to help fix it.

A highly promoted program that provides a lifeline to people denied coverage because they already had medical problems has probably saved lives. But enrollment in the Pre-Existing Condition Insurance Plan has been disappointing, with only about 50,000 people nationwide.

Glenn Nishimura, a consultant from Little Rock, Ark., checked it out and found his premiums would come to about $6,300 a year.

“It’s out of my price range,” said Nishimura. It makes more financial sense to take care of his high blood pressure and high blood sugars by paying out-of-pocket and gambling that his health will hold up, he reasons. In three years he’ll be eligible for better coverage under Medicare.

If the health care law is upheld, it will bring some relief against such risks for millions of people such as Nishimura.

Starting in 2014, insurers will have to accept all applicants regardless of prior health problems. Also that year, many middle-class people will qualify for federal subsidies to lower the cost of their premiums. Consumers will have access to competitively priced private insurance through new state-based markets called exchanges.

At the same time, Medicaid would be expanded greatly to cover millions more low-income people, childless adults who do not now qualify.

Between the two approaches, more than 30 million uninsured people are expected to obtain coverage. Millions more will gain the security of knowing they can’t be turned down for health insurance if they switch jobs.

That’s critical for Natalie Hough, a college sophomore from Hillsborough, N.C. An aspiring artist, Hough has a heart condition that probably would make her uninsurable if she had to apply on her own later in life. Starting in 2014, insurers will not be able to turn away people like her.

“It’s definitely peace of mind, knowing that I can go to a hospital if I need to,” she said. “I’m an art major, and I’m not going to make billions of dollars.”

But such changes hinge on whether the law’s requirement that most people have health insurance is upheld by the Supreme Court.

This individual mandate, the main target for the law’s critics, also takes effect in 2014. Without it, many experts fear that the new exchanges, the state-based markets for private insurance, won’t work. Healthy people would be tempted to postpone signing up until they get sick, raising costs for everybody.

Administration lawyers have advised the court that if it strikes down the mandate, it also should invalidate the requirement that private health insurers accept customers with health problems.

If the court leaves the rest of the law in place, the Medicaid expansion could continue.

But even if Obama’s plan to expand coverage survives its test of constitutionality, expect the law’s cost-control measures to remain under attack.

One is an independent board that would have the power to curb excessive increases in Medicare spending by ordering cuts if Congress fails to act first. Republicans call it a “rationing board,” although the law specifically bars the yet-to-be-named panel from restricting access. The health care industry opposes the board; efforts to do away with it or diminish its role seem to be gaining ground.

“It would work like a random tax on medical innovation,” said economist Douglas Holtz-Eakin, a Republican adviser. “If you were an innovator, why would you want to bring something new to market when the biggest payer in the country is periodically lopping off spending?”

The other main cost-control measure is a tax on generous health insurance plans. Labor unions oppose it.

It won’t take effect until 2018, a year after a second Obama term would have ended.

Medicaid Reduces Access – column

Avik Roy, Contributor

The Apothecary is a blog about health-care and entitlement reform.

Pharma & Healthcare
3/10/2012 @ 6:57PM |917 views

New Study: Expanding Medicaid Reduces Access to Health Care

Ted Kennedy helped to create the S-CHIP program. Image via Wikipedia

Chapin White of the Center for Studying Health System Change has published an important new paper in Health Services Research, a journal of health economics, which suggests that a critical part of the Affordable Care Act—its expansion of Medicaid coverage to 16 million more Americans—may actually reduce those individuals’ access to health care

White’s report comes to my attention from John Goodman via Jason Shafrin. It comes on the heels of numerous studies that show that patients on Medicaid, our national government-run health-care program for the poor, do far worse on health outcomes than do those on private insurance, and in some cases, worse than those with no insurance at all. (For an extremely deep dive into these studies, see my threepart series on the topic.)

Medicaid underpays doctors for their expenses

Why does this occur? The main reason is that Medicaid underpays doctors and hospitals to care for Medicaid beneficiaries. Medicaid’s reimbursement rates are around half of those paid by private insurers. In many cases, Medicaid pays doctors less than it costs to care for Medicaid patients, meaning that doctors face the choice of caring for the poor, and going broke, or shutting their doors to Medicaid patients. One survey found that internists were 8.5 times as likely to accept no Medicaid patients at all, relative to those with private insurance. Another found that two-thirds of kids on Medicaid were denied a doctor’s appointment for a serious condition, relatively to only 11 percent for the privately-insured.


Believe it or not, physicians even do better caring for the uninsured than they do caring for Medicaid patients. Two MIT economists, Jonathan Gruber and David Rodriguez, have found that three-quarters of physicians receive lower fees for serving Medicaid patients than they do for the uninsured, because many people without health insurance are still able to pay out-of-pocket for routine health expenses. (Ironically, Gruber was the intellectual father of Obamacare, and remains an outspoken advocate of the law.)

Overall, Medicaid expansions do not lead to more doctor visits

Chapin White looked into this problem by examining the State Children’s Health Insurance Program, or S-CHIP, which was created by Congress in 1997 as a way of expanding Medicaid to lower-income children who were above the income thresholds of traditional Medicaid. He found that CHIP was “not associated with any change in the aggregate quantity of physician services [consumed],” and concluded that “coverage expansions…do not necessarily increase physician utilization.”

The main reason for this non-effect, he surmised, was due to the fact that CHIP paid physicians less for their time and expenses. “Increasing Medicaid fees,” he wrote, “is…clearly related to a reduction in non-[cost-sharing]-related access problems among both low- and high-income children.”

White compared children in states which had undergone large CHIP expansions, and compared them to children in states with smaller expansions. He also examined increases versus decreases in Medicaid physician fees. He found, surprisingly, that physician utilization was lower in the states with the largest CHIP expansions, and that expansions of CHIP led many children to lose private insurance as the government program crowded out the private sector. “Supply-side effects of CHIP—either the use of managed care tools or the relatively low reimbursement rates, or both—may have limited the utilization effect of the coverage expansion,” White concluded.

PPACA’s Medicaid expansion could worsen physician access

As the below table shows, 11 percent of children in the lowest income quartile, who were uninsured, gained insurance; however, 13 percent of children in that quartile who had private insurance lost it, while Medicaid/CHIP expanded by 23 percent of children. In other words, for every two children who gained Medicaid coverage, one lost private coverage.


In the third-lowest and second-lowest quartiles, the proportion of those gaining Medicaid coverage and those losing private coverage were almost identical, suggesting that Medicaid was replacing private coverage in the majority of cases. Those individuals who are subject to the replacement will have poorer access to health care, because Medicaid pays less than private insurance. It is this cohort, represented especially by White’s third-lowest quartile, that is subject to Obamacare’s expansion of Medicaid.

White concludes: “In general, these findings argue strongly against the idea that the effect of expanding utilization can be deduced simply from the reduction in patient cost sharing…Coverage expansions by themselves do not necessarily spur increases or decreases in overall utilization.”

Put more simply, health insurance is not the same thing as health care.

(This article originally appeared in The Atlantic, where I am guest blogging for Megan McArdle for two weeks.)

Follow Avik on Twitter at @aviksaroy.

UPDATE: Kevin Outterson writes that I “focus on [Medicaid’s negative impact on access] but never [mention] the very important boosts to primary care reimbursement in the ACA.” However, Kevin must know that these reimbursement boosts are only available in 2013 and 2014, after which Medicaid reimbursement rates revert to prior levels. “The impact of the reimbursement increase likely will be limited because of its temporary nature and exclusion of other [medical and surgical] services,” writes Peter Cunningham in an excellent study on the subject.

Medicare/Medicaid laws – impossible to read?


Updated March 9, 2012, 10:00 a.m. ET

Here’s a Funny Idea: Medicare Laws That Are Easy to Read

Judges Lash Out at ‘Tortuous Text,’ Prepare for New Revisions; a Serbonian Bog


Federal judges across the country have lashed out against poorly-written, ‘tortuous’ Medicare and Medicaid text, Joanna Chung reports on the News Hub. Photo: AP.

James Madison warned in the Federalist Papers about laws “so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

If only he had lived to see the Medicare and Medicaid programs.

James Madison

“Picture a law written by James Joyce and edited by e.e. cummings,” wrote Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia, in a January ruling in a Medicare case. Last September, Judge Gilbert S. Merritt Jr. of the Sixth Circuit lamented Medicare’s “tortuous text.”

“An aggravated assault on the English language,” is how the Supreme Court characterized the Medicaid statute in a 1981 opinion, quoting a federal judge in New York.

Lots of people have strong feelings about Medicare. But some of the most passionate outbursts have come from judges trying to sort through its language. Now judges are steeling themselves for a new round of revisions, some of the most significant in years, as part of President Barack Obama’s health-care law.

A typical provision of Medicare, for instance, reads like this:

“In the case of a plan for which there are average per capita monthly savings described in section 1395w–24 (b)(3)(C) or 1395w–24 (b)(4)(C) of this title, as the case may be, the amount specified in this subparagraph is the amount of the monthly rebate computed under section 1395w–24 (b)(1)(C)(i) of this title for that plan and year (as reduced by the amount of any credit provided under section 1395w–24 (b)(1)(C)(iv) [2] of this title).”

Got that?

Congress passed the Medicare and Medicaid laws in 1965 as amendments to the Social Security Act. The laws span several hundred pages, and additional provisions are scattered elsewhere in the federal code.

The heft isn’t exotic by today’s standards. The Dodd-Frank financial law runs a brisk 2,300 pages. President Obama’s health-care law is more than 900 pages long.

Medicare and Medicaid are just part of a distinguished history of judicial disdain. Other laws have also been criticized for their dense writing.

For decades, sharp tongues on the bench have lashed at the stubborn complexity of the tax code.

Learned Hand, the famous philosopher-judge on the Manhattan-based U.S. Court of Appeals for the Second Circuit, wondered in a 1947 article whether parts of the code “have any significance save that the words are strung together with syntactical correctness.”

Judge Joseph McLaughlin, of the Second Circuit, has compared interpreting the tax code to Theseus’s journey in the labyrinth of the Minotaur “but without his ball of thread.”

Medicare and Medicaid do, however, appear to be among the most put-upon laws in recent history.

A search of court records turned up nearly 100 cases in which judges cited the complaints of other judges or found some new way to express pique at the laws’ complexity.

Maryland’s highest court, for example, said in a 1996 opinion that Medicaid reflected “Congress’s indifference to the simplicity and clarity of the Elizabethan language.”

Connecticut’s Supreme Court once likened the federal and state laws that make up the Medicaid system to a “Serbonian bog”—a reference to John Milton’s “Paradise Lost.”

Judges seem to relish what has become, more or less, an inside joke among colleagues. The Connecticut court acknowledged the “hyperbole” that infuses judges’ criticism of way the laws are written. A federal judge in Ohio, writing in 1995, stated simply: “The complexity of the Social Security Act is the stuff of legend.”

But there is truth to the matter. The late Judge Henry Friendly, another prominent Second Circuit judge, wrote in one oft-cited 1976 opinion a scathing appraisal of the laws. “There should be no such form of reference as ’45 C.F.R. § 248.3(c)(1)(ii)(B)(2),'” he wrote. “…a draftsman who has gotten himself into a position requiring anything like this should make a fresh start.”

Some judges, if not exactly praising of the draftsmanship, say the laws are difficult for good reason.

“They are trying to achieve complex ends. The more fair way to look at it is they have a lot of considerations they try to balance,” says Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. “You can’t get away from complexity. We live in a complex world.”

Michael McConnell, a former federal appellate judge, says he mainly takes exceptions to the exceptions. “What I find difficult are all the cross-references and exceptions,” says Mr. McConnell, now a professor at Stanford Law School. “I think it’s a sign that Congress is trying to micromanage things.”

On the other end of the spectrum, he says, are laws like the Sherman Antitrust Act, which amounted to two handwritten pages when Congress passed it in 1890, laying the foundation for U.S. antitrust law. “It deals with complex subject matter, but in a single sentence the law authorized the courts to go off” and create a body of interpretations, says Mr. McConnell.

To clarify his own objection to Medicare’s prose, Judge Lamberth included a footnote.

He said that his reference to James Joyce referred not to the author’s early writings, such as the quasi-autobiographical “A Portrait of the Artist as a Young Man,” but rather to his later work—specifically, the stream-of-conscious “Finnegans Wake.” He didn’t say how Medicare compares to “Ulysses.”

Write to Joe Palazzolo at

A version of this article appeared Mar. 9, 2012, on page A1 in some U.S. editions of The Wall Street Journal, with the headline: Here’s a Funny Idea: Medicare Laws That Are Easy to Read.

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