The two New Jersey activists who are suing the government to stop the healthcare-reform bill call attention to a set of provisions that received little or no attention: limitations on administrative and judicial review of provisions that, they say, amount to price-fixing.
Nicholas E. Purpura and Donald R. Laster Jr., in their complaint (Purpura et al. v. Sebelius et al.), call attention to several provisions in HR 3590, the Patient Protection and Affordable Care Act, most of which contain this rather curious language:
There shall be no administrative or judicial review under section 1869, section 1878, or otherwise, of [any of various procedures described earlier].
The sections that the Act mentions are presumably Sections 1869 and 1878 of the Social Security Act. Section 1869 (as amended as recently as 2000) has to do with patient appeals of benefits determinations under Medicare. Section 1878 describes an appeals process for health-care providers.
This “no judicial review” phrase occurs in these contexts:
- Value-based incentive payments to hospitals (see page 630 of this document).
- Deciding which physicians might be truely said to have participated in the treatment of any given patient (p. 653).
- Value-based payments and assessments of quality of care (p. 676).
- The handling of nosocomial (hospital-acquired) infection cases (p. 680).
- Cost-effectiveness modeling (p. 725).
- Quality-of-care and payment determinations involving Accountable Care Organizations (ACOs). (p. 738.) (This provision also cuts out 44 USC 35, having to do with federal policy coordination.)
- Diagnosis-related group (DRG)-related payments and payments for hospital readmissions (p. 772)
- Reimbursements to hospitals for “uncompensated care” (for which the patient, for whatever reason, cannot pay) (p. 831).
- Direct proposals by the President to Congress concerning changes in reimbursement rates (p. 1013).
- Identification of primary-care physicians, as distinct from specialists (p. 1415).
- Determinations of the need for more hospitals (p. 1512).
In addition, these two provisions are declared not subject to judicial review (with no mention of administrative review):
- Moratoriums on the enrollment of new providers under Medicare and/or Medicaid (p. 1679).
- Determinations of “high-need cures” (p. 2303).
Every one of these contexts involves the setting of prices, the determination of who is entitled to payment, and in some cases, the erection of explicit barriers to entry. Yet the bill does not specifically abrogate the applicable provisions of antitrust law, but instead declares that no judicial review will be allowed, whether under the Social Security Act and its applicable sections, or any other body of law.
Purpura and Laster, in their role as representatives of “the people” (as named in the Preamble to the Constitution), object on two grounds:
These thirteen cutouts from judicial review essentially place the federal government above the law, and specifically above antitrust law, and in a way involving legislative subterfuge, because Congress never passed a “single-payer” system and never voted specifically to abrogate antitrust law, in this or any other bill.
Any provision forbidding judicial review of a law flies in the face of separation of powers, and removes the protection of “due process of law” mentioned in Amendment V (and also in Amendment XIV).
The complaint expresses the fear that the government will simply force private providers of medical care, and insurance, out of business or employment, so that no alternative will exist to what many observers have already suggested that the framers of this law really want: a government-run health-care service in the mold of those in Canada and the United Kingdom. And they have a point: multiple providers are already closing their doors, and many large employers are seeking waivers of certain regulations that would otherwise make the carriage of insurance on their employees impossible.
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