What do rock stars, great athletes, and your health insurance company have in common?  Ghostwriters.  We know, instinctively, that a paid professional collected the recollections of the guitar slinger or the Hall of Fame running back and crafted a readable book, but we expect our insurers to write their own client letters.

That all changed this past spring.

My June 27^th post, And Now A Note From The Department of Gobbledygook, detailed the fear and confusion caused by a letter sent by the insurance companies this past June.  The letter, sent to insureds with non-grandfathered pre-2014 policies, was not written by Medical Mutual or Anthem Blue Cross.  It was authored by the Department of Health and Human Services (HHS).  The insurers were not allowed to edit the letter for clarity.  They were not allowed to move a comma.

It turns out that the people who gave us the Patient Protection and Affordable Care Act (PPACA) had other career goals.  They wanted to be writers.  A new government penned letter is on its way.  And this one is no better than the last one.

The new letter, due out any day now, will be sent to people who purchased a policy on the Exchange. It will encourage you to revisit healthcare.gov to update your info.  It will not, however, tell you that your 2014 policy has been changed for 2015.  No, the letter will state that your policy has been DISCONTINUED.

Any change – deductible, co-payment, maximum out-of-pocket (MOOP) – will generate this scary notification. I have not seen the letter, but if it is anything like June’s, a quick reading will give you the impression that you are being thrown out into the cold.  You are not.  You will have plenty of options.

1. Do nothing. The insurer will move you to the 2015 policy closest to your current coverage.
2. You can go back to the Exchange and look at your current insurer’s other offerings.
3. You can go back to the Exchange and look at all of your choices.
4. You can purchase an off-Exchange policy and skip the whole healthcare.gov process. There is no tax credit subsidy with this option.

Please remember:

• All 2014 and beyond policies will renew on January 1^st no matter when you make your purchase.  That even includes policies acquired in the last few weeks.
• The 2015 rates for both renewals and new business have yet to be released. We might not see those numbers until after the election.
• If you purchased a policy through healthcare.gov, you must go back to the Exchange to make any change, even a change of address.

We are only a few weeks away from our second try at open enrollment. By default, this year will go more smoothly than last.  Stay calm.  Don’t get too aggravated by the ghostwritten letters or the system crashes.  Like last year, we will persevere.

In the words of John Lennon, “Everything will be okay in the end.  If it’s not okay, it’s not the end.”

There will be no phone calls and I am not expecting an email. I still, for no apparent reason, believe that our elected representatives will rise above the pettiness of partisan politics and do their jobs.  It is, in part, what makes me a Democrat, this faith that our government of the people will always come through in the end.  The end may be far, far away and we may be forced to take the long way to get there, but I believe, I honestly believe, that we, as a country, will always make it to the finish line.

Otherwise, if we are just another banana republic, I’m going to trade up to a place with better weather.

This blog has a long history of calling out members of both political parties. We have witnessed politicians attempt to occupy both sides of the debate even after they had made their choices.  In 2009 and 2010 it was particularly easy to skewer Representatives Marcia Fudge and Dennis Kucinich and Senator Sherrod Brown.  After all, the Democrats were the only ones doing anything.  But then the 2010 elections shifted the balance of power.  John Boehner has starred in many of these posts, first in highlighting the opportunities he had as he became the Speaker of the House and later as we dealt with the reality of him being the Speaker of the House.  Paul Ryan, VP candidate and prince of unworkable budgets, has also appeared a time or two on these pages.

It is not enough to be for something or against something. That may be OK if we are just a bunch of guys discussing football over a couple of beers.  But if you are in Congress it is your job to solve problems.  And if you don’t like the current system, it is up to you to come up with an alternative.

I bumped into a representative from Congressman David Joyce’s office.  I introduced myself as a health insurance agent and asked a simple question: “If the Republicans gain control of both the House and the Senate in November, will Congressman Joyce support the repeal of the Patient Protection and Affordable Care Act (PPACA) when it comes up for a vote in January?”  Without a moment’s hesitation she said “YES”.  She answered so quickly, so unthinkingly, that I decided to ask the question again.  The answer was still a resounding “YES”.

“OK”, I continued, “what do I tell my clients the next day”?

She promised to have someone from the Congressman’s legislative committee contact me. I made sure that she understood the question and provided her with a business card.  And unless this blog is brought to their attention, there is virtually no chance that I will get a substantive answer to that question.  That is a huge problem.

Please don’t be confused. The PPACA will not be repealed.  Neither the Democrats nor the Republicans would want that, especially the elected Republicans.  As long as the PPACA remains the law of the land, the Republicans have an issue to inflame their base and fill their coffers.  AND, they don’t have responsibility for anything.  Repeal the law and the Republicans would own healthcare and 20% of the economy.  It is a lose / lose proposition.  The law won’t be repealed.  The filibuster in the Senate will keep both parties safe.  The President will never be force to veto a repeal.

Don’t believe me? I visited the websites of several members of the Ohio Republican Congressional Delegation.  Their sections on healthcare were missing in details, or in the case of John Boehner, missing entirely.  David Joyce, two years in Congress, is just happy to have voted for repeal.  He likes tort reform, but what Republican doesn’t?  Jim Renacci is an even bigger fan of tort reform, and thinks that the savings from frivolous law suits would fund most of the cost of improving our system.  A couple of downstate Republicans, Mike Turner and Steve Stivers haven’t bothered to update their healthcare pages for 9 months or more.  Don’t look for solutions on any of these pages.  Don’t look for meaningful alternatives.  It is easy to be against something.  It is really hard to make something work.

I am not expecting a phone call from the Congressman’s office. Why should they call?  Nothing they have to say would change anything.  I’ve already cast my vote.  And in the two years he has been in office, he has cast his votes to repeal the Patient Protection and Affordable Care Act.  The House will waste even more time in January and the Senate may be forced to waste time in April, while wars are waged in the Middle East and Ebola spreads unchecked.

The absence of intellectual honesty threatens the future of our country. I still believe that our elected officials will one day work together to solve our country’s problems.  Of course, I could be just lying to myself…

DAVE

phone for sale

I have referred to this contest, the seemingly endless series of one-upmanship as the GAME.  Picture, if you will a pendulum that swings not just back and forth but actually between three points.  One point is the medical providers.  Another point is the insurance companies.  And the third point is the government.  Equidistant from each other, power shifts from one to the other smacking us in the ass every time it passes through the middle.

We address these issues, not with unwarranted cynicism, but with the clear eyes of a realist. If you don’t understand how the game is played you are destined to lose.  The stakes are high.  Health and money ride on your ability to make good, unemotional decisions.  Are the tests and procedures being ordered necessary for my health or for the practitioner’s bottom line?  Is the politician working to solve a problem or to collect campaign donations?  Does the insurer’s new network of providers give me access to the doctors and facilities I may need to use?  These are just a few of the important questions we need to answer on a regular basis.  But these aren’t the only issues.

Take, for example, Elisabeth Rosenthal’s excellent reporting in the New York Times.  In this article, partially reprinted in the Plain Dealer, Ms. Rosenthal details the way out-of-network physicians and drive by doctors are beating the system and costing the consumers of this country (us!) millions.  Utilizing loopholes that none of us would have ever thought existed, the unscrupulous have figured out a way to over bill the patient for services that were not rendered, did not require a specialist, or were  intentionally provided by someone out-of-network to evade the only cost controls our system allows.

We are all at risk.

The main subject of the article, Peter Drier, was the model of diligence. He carefully verified that his surgeon, hospital, and tests were all covered prior to his neck surgery.  How was he to know that his doctor and hospital would intentionally bring in out of network providers to juice the bill?  The biggest surprise was the assistant surgeon, an out-of-network sharpy named Dr. Harrison T. Mu.  Dr. Mu billed $117,000 for his services!  The negotiated fee for the primary surgeon was $6,200.  But Dr. Mu (probably beyond shaming, but I’m willing to try) was under no obligation to accept anything less than the full billed amount.  Luckily for Mr. Drier, his insurer, Anthem Blue Cross, paid the full amount.  I’m not sure that Anthem had to since the bill was above anything that could have passed as reasonable.

We talk about consumer directed health care as if we, the patients, have the opportunity to make real choices. We don’t.  Can you shop for a deal when they are wheeling you in to the hospital with a blocked artery?  “Hold up Mr. EMT. I just got a text alert that Hillcrest is having a sale on bypasses this week.”  But even if your procedure is not an emergency and you have the time to vet the key providers, there are still hidden deals with labs, technicians, and assistant surgeons.  And that is before we get to fraud and bogus claims.

I recently received a call from an irate client. She used to receive services from a doctor in his Ashtabula offices.  The price was under $200.  The same services, now performed within a Cuyahoga County medical palace, were over $3,500.  Her insurer, Assurant, allowed the claim to be processed unchallenged and applied the full amount to her $6,000 deductible.  In other words, she paid the whole excessive amount.  But only once.  She is looking for a Cuyahoga County physician willing to accept Ashtabula like payments.  Or she will drive further for a better deal.

I don’t think that The Patient Protection and Affordable Care Act (PPACA) does anything to combat these issues.   There is nothing to force providers to honor the patient’s network or to even pretend to be concerned about cost.  And nothing, absolutely nothing in the law, will stop patients from being abused by doctors like Harrison Mu.  Stopping that is up to us.  We are being forced to play this game.  We have to learn how to win.

The bus stopped right in front of my office.  I knew this because the driver often blocked the exit from our Chagrin Blvd. building.  And there I was, about a dozen years ago, riding the RTA to work.  I had already walked a half a block from my Shaker Hts. home to the Rapid and waited in the rain to transfer to the bus.  All of this because of my reliance on technology.  Our electricity had been knocked out in the storm.  My garage door opener, a first generation behemoth, wouldn’t disengage and I couldn’t get my car out of the garage.

I contacted a client, Smooth Door, a week later and replaced the opener.  The new garage door openers, built with a better understanding of what the consumer needed, allowed me to manually lift the door when the power failed.

My last post, The Not Ready For Primetime Players, detailed the problems I have had in getting the government to help me insure a newborn.  I have exciting news: As previously noted, Senator Brown’s office has been a real asset.  I can now report that there are people doing their jobs at both The Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS).

Last Friday. August 29^th, an HHS employee left a message on my client’s cellphone.  A Special Enrollment had been granted for the client’s baby son and was made retroactive to his birth.  My client was told that “The Plan” would contact him early the next week and advise him on the next steps he would need to take to get the baby added on to his policy through the Exchange.

There were no further contacts and the HHS employee, a Mr. Ryan had blocked his number.  We could not call him back.

On Friday, September 5^th, the client and I called Healthcare.gov.  We reached a helpful, professional woman who was able to verify everything that had been left on the client’s voicemail.

• A Special Enrollment had been granted
• It was retroactive
• There were notes detailing the efforts of the Senator’s office and CMS

Success?    NOPE!

If the goal was to get the federal government to recognize that a baby had been born in Cleveland in April, we did it.  But insuring the child is still beyond our grasp.

The system crashed four times.  Our helpful professional became as frustrated as the client.  She rebooted, cleared histories, and begged for help from her supervisors.

One hour and forty-five minutes into the call our contact was forced to provide the required statement.  I was told the Healthcare.gov will provide “support feedback to Technical Support and that the individual should try again in 72 hours”.

And I was back to where I had been in May.

I have already heard from on CMS employee, thrilled that this is no longer on her desk.  “I understand your frustrations with this whole process, but please try to continue to touch base with the Call Center from Marketplace to effectuate the babies (sic) enrollment.  We cannot process enrollments.  I hope this helps.”

The Technology that was supposed to make the acquisition of health insurance quicker and easier is preventing my client from covering his child.  As part of the Patient Protection and Affordable Care Act (PPACA), the government has created these unnecessary, inefficient Exchanges.  They are populated by well-meaning workers who are scandalously unprepared and who know nothing about insurance.  And, the government has failed to design a way to manually fix the inevitable problems of their glitch ridden computer system.

Our unwarranted faith and over-reliance on technology has again left us stuck on the bus.

It was another one of those meetings.  The regional manager of some insurance company spoke for two hours.  No handouts.  No collateral.  Two hours of power point.  The important stuff was glazed over or skipped entirely.  He returned to the irrelevant again and again.  I was in a room full of agents desperate for the news that this company, or any company, had found a clear path through the Patient Protection and Affordable Care Act (PPACA).  Would this insurer solve our clients’ problems, provide access to the best doctors, and be reasonably priced?

Yes and No.

This particular insurer will be a great answer for a limited number of people in our market.  But it won’t be just the people well served by this insurer and its products who will be carrying that card next year.  For some the coverage and the medical providers will be OK, at best.  And some Ohioans will make a bad decision based on their familiarity with the company’s name or the price on the government’s website.

Unprepared.  Rushed by a timetable that neither the insurers nor the government seem capable of meeting, we emerge from our summer stupor to confront the upcoming open enrollment and renewal season.  In fact, even the insurance company executive noted that this year, 2014, was going to be a bigger mess than last year’s initial healthcare.gov debacle.

Insurance agents are people who have figured out how to monetize empathy and problem solving.  The following are some of the pressure points, issues, and concerns that we have as of the end of August 2014.

1.  We haven’t solved last year’s problems!  Healthcare.gov, which appears to default to Medicaid, is still incorrectly blocking Ohio women from regular, subsidized, health policies.  It has been less than a week since I last encountered this issue.  Women who have recently given birth seem to fight this more frequently.
2. Speaking of babies… I noted in April the difficulty I was having adding a newborn to an exchange policy.  The problem was solved in May’s Climb Into The Ring.  NO IT WASN’T.  The baby has yet to be added to the policy.  The client is frustrated.  I’m beside myself.  Our senator’s office doesn’t understand why the Centers for Medicare and Medicaid Services (CMS) can’t resolve this and can’t seem to provide any of us with an answer or the courtesy of a returned call.  We’ve all given up hope.  To the shock of my peers. I was forced to write a short term major medical policy for the baby this week.  The child will have coverage if he suffers, G-d forbid, a major accident or illness.  I mailed the application to the insurance company and mailed a check for the $25 I made on the sale to a charity.  I can’t keep that money.  I’m embarrassed that I was forced by the government’s incompetence to write the application.
3. Perfect Storm… My peers are justifiably concerned about the 24 hour day.  There just isn’t enough time.  Senior citizen (65+) Medicare Open Enrollment is October 15^th through December 7^th.  A large percentage of our group health policies renew January 1^st.  Client meetings will be held during the months of October and November with everything finalized, if we’re lucky, by the first week of December.  AND, all individual PPACA compliant policies renew January 1^st.  The Open Enrollment Period for individuals and families (under 65) is November 15^th through February 15^th.  Because of the subsidies and changes, most people should resolve their 2015 coverage prior to December 15^th.  30 Days.  The overlap of all of our senior business, most of our group clients, and every single individual policyholder under age 65 converging on our offices in time for Thanksgiving dinner has more than a few of us nervous.
4. Lack of concern… At least one of our insurers has, effectively, eliminated the reinstatement of lapsed policies.  All of our new individual policies are due on the first of the month.  This particular insurer sends a late notice on the 3^rd if payment wasn’t received on time.  Policies not sold on the exchange have a 30 day grace period and only have to be eligible for reinstatement to the 30^th day after the first late notice.  Yes, you are seeing that correctly.  If the policy was due September 1^st it would be permanently terminated by October 3^rd.  Once terminated for non-payment, the individual or family is not eligible for comprehensive major medical coverage until the next Open Enrollment Period in November.  Have they met their clients?  This has already had a big impact on some of my clients.  And this will get worse as the premiums rise.
5. Subsidies and tax returns… Christmas comes twice a year for some retailers.  There is the traditional excitement of December and there is the joy of March and April, when W-2 wage earners receive their income tax refunds.  That money is immediately plowed back into the economy.  Jewelry!  Clothing!  Appliances!  New and Used Cars!  We have no idea what is going to happen this coming spring as many people will be receiving smaller tax refunds due to adjustments from the subsidies.
6. Deductibles… As the deductibles for individuals on our new policies rise to $6,000+ and families face out of pocket liabilities well in excess of $10,000, we will soon face a new reality.  How many families can afford both the premiums and the deductibles of the PPACA?  This is not about health.  Never has been.  This entire enterprise is designed to (efficiently?) transfer money to doctors and hospitals.  The current system implodes if they don’t get paid.  Sure, your insurer may cover $88,000 of that $100,000 hospital bill, but what about the $12,000 that you failed to pay?  Will you be forced to provide your MasterCard in the emergency room?  Copy of the deed to the house?  This is going to get ugly.

There’s more, but there is a limit to how stressed any of us should be on Labor Day weekend.  In the end it is about faith.  Our faith in our systems, our government, and our leaders will be tested.  And they will disappoint us, but this will get resolved.  It has to be.  Healthcare is almost 20% of our economy.  And though health is seldom a consideration, there are real impacts from decisions made in Washington and our state capitals.  We just need to remind them every now and then.

The Not Ready For Primetime Players became legends at what they did best.  Who knows?  One day we may look back in appreciation at some of our current politicians and bureaucrats.   It could happen…

DAVE

www.cunixinsurance.com

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Juan (name changed) used to have health insurance.  Over the years Juan had been covered by his employer, his wife’s employer, and for the last several years he had been insured through an individual health plan that he had paid for himself.  Juan dropped his policy in March 2013.  It doesn’t matter why.  He just did.  And he has been uninsured since.

On Wednesday, August 6, 2014, Juan decided to buy a policy.  He called his agent (me!) and asked to get a policy like the one he used to have.  And I was forced to say, “Nope, not today”.

Four years since the passage of The Patient Protection and Affordable Care Act (PPACA) and eight months into 2014 and all of this year’s changes and we still have a large number of Americans unaware of the law’s basics.  Here are a few of the most important:

• It’s all Obamacare.  The good.  The bad.  On or off the government’s online sale’s portal.  Whether you are celebrating the success of Kentucky’s Kynect or flailing about with healthcare.gov, it is all Obamacare.
• You no longer have to answer health questions.
• Preexisting conditions are now covered.
• The premium is determined solely by your age, your address, and whether or not you smoke.
• We now fully cover annual physicals and preventive care.
• Maternity is covered the same as any other medical condition.
• Since we don’t ask questions, the only time most of us can buy a policy is during the Annual Open Enrollment Period.
• If you lose your policy or have a major life event, you are granted a Special Enrollment Period and allowed to buy a policy.
• Medicaid was expanded to help the working poor acquire needed coverage.
• There are tax credit subsidies to help a surprisingly large portion of our country pay for their policies.
• You will be fined if you don’t have coverage.

There’s more.  Of course there’s more, but the above hits the high points and covers most of what you really need to know.  What Juan needed to know was that he couldn’t simply wake up one morning, dig out my card, and buy a comprehensive major medical policy.

 Nope, not today

Juan was able to purchase a short term policy to cover himself for the rest of 2014.  He and I will talk again in the middle of November during the Annual Open Enrollment Period.

Everyday used to be a great day to buy insurance.  Those days are gone…

The Chase.  The endless effort to reach that which is just beyond our grasp has piqued our imagination since we, as small children, watched the Coyote try to capture the Roadrunner.  We knew, instinctively, that the Coyote would never succeed.  But what if he did?  What if the Coyote actually had his arms wrapped around the Roadrunner?  Would he know what to do?

The Coyote’s struggles are humorous entertainment.  The Republican’s efforts to eliminate or destroy the Patient Protection and Affordable Care Act (PPACA) have been just as entertaining if your tastes run towards political drama.  John Boehner and the Republican controlled House of Representatives have been chasing the PPACA for nearly four and a half years.  What would Boehner do if he actually got his hands on the PPACA, if the law was crippled or repealed?  We may soon find out.

This blog has long contended that the PPACA is a poorly written law in desperate need of tweaking.  Today’s problem revolves around the issue of subsidies.  The law was designed, in part, to help the working poor to acquire and PAY for quality health insurance.  The law’s framers envisioned individuals and families accessing a system of simple, online, state-based marketplaces and, when appropriate, tax credit subsidies to help with the premiums.  The process wasn’t all that easy and over two thirds of the states decided not to build an exchange.

Creating a state-based exchange requires an incredible amount of time and energy.  Some states see this as a huge waste of resources.  Others, like Oklahoma, have no interest in participating in the PPACA.  The federal government created the much beloved healthcare.gov so that the millions of residents in states like Ohio could purchase coverage and qualify for the tax credit subsidies.

This past Tuesday the U.S. Court of Appeals for the District of Columbia ruled (2-1) that people purchasing coverage through the federal exchange are not eligible for the subsidies.  Sure, a couple of hours later the 4^th U.S. Circuit of Appeals in Richmond, Virginia reached the opposite conclusion (3-0) on a similar case, but the door had been flung open.  One side or the other can still appeal, but the conflicting decisions, alone, may be enough to get this matter before the Roberts’ Supreme Court.

Could the Supreme Court eliminate the tax credit subsidies, the only way millions of Americans can afford to pay for health insurance?  Yes, they could.  Would the Supreme Court gut the PPACA?  Who knows?  Based on the Court’s recent decisions, any outcome is possible.

If the Supreme Court takes this case, I suspect that it won’t be until the fall of 2015.  That means that a decision would be handed down in June 2016, right in the middle of a Presidential election.  So let’s explore what would happen if the Supreme Court ruled that tax credit subsidies were only available on policies purchased on state-based exchanges.

• The immediate effect would be the elimination of assistance to approximately 5 million Americans.
• The Employer Mandate, a rule predicated on the availability of affordable (subsidized) coverage, would be shelved.

Republicans, having finally caught the PPACA, would be forced to actually do something.

There would be nowhere to hide.  Both parties would have to state clearly how they would solve this problem.  The quickest way to solve this specific issue would be to amend the law and allow subsidies for policies purchase on either the state or federal exchange.   Another option would be for the states could form their own exchanges or contract with a third party to piggy back on the federal exchange.  OR, we could just let everyone fend for themselves as we review the long-awaited Republican alternative.

The Republicans lose under all these scenarios.

If they fix this and a half dozen other major flaws in the law after six years of demonization, they will appear to be weak and hypocritical to their base.  The few Republican members of the House and Senate needed to pass the legislation will be pilloried on FOX and by the right-wing opinion makers.  It was Eric Cantor who originally introduced the “Repealing the Job Killing Health Care Law Act” HB 2 in January 2011.  He will be long gone before the summer of 2016, but Paul Ryan and Ted Cruz will still be in Congress and neither could let a fix get through Congress if they still have Presidential aspirations.

The state governors face a similar problem.  Republicans pushed through constitutional amendments in Ohio and other states that make the creation of a state-based exchange difficult if not impossible.  Many of the Republican governors are defined by their anti-Obama/Obamacare position.  They can’t bend.

The average tax credit subsidy is $5,000 per year, over $400 per month.  I’m not sure which would be worse, the actual suffering caused by the repeal of the subsidies or the inevitable hair on fire commercials about the suffering.  Hell, I’m suffering just thinking about it.

The Patient Protection and Affordable Care Act is almost within John Boehner’s grasp.  The House has voted to repeal or change the PPACA over 50 times.  But it may be the framers’ own mistakes, punished by a highly politicized Supreme Court, that will be the law’s undoing.  A victory he doesn’t want over a law he loves to hate.  Poor Mr. Boehner.  No matter where he goes the only sound he hears is “Beep Beep”.

The late George Carlin had a great bit about the Champ, Muhammad Ali, who was prosecuted by the federal government for refusing to participate in the draft and take a free trip to Vietnam.    As Carlin pointed out, Muhammad Ali’s career involved beating people up.  The government wanted him to change jobs.  They wanted him to kill people.  Ali said that that was where he drew the line.  He’d beat them up, but he wouldn’t kill them.  So the government said, “if you won’t kill ‘em, we won’t let you beat them up”.

The House of Representatives has voted to repeal the Patient Protection and Affordable Care Act (PPACA) over fifty times since January 2011.  Repeal.  Tear it up.  Throw it away.  The Republicans hate the law and want to eliminate it.

Last July the Administration chose to postpone for a year one of the most complicated and confusing portions of the new law, the employer mandate. So what do the Republicans want to do about President Obama choosing to hold off part of the implementation of this law that they hate?  The Speaker of the House, John Boehner, wants to sue the President.

Even though the House has tried to postpone and/or eliminate the employer mandate, the Republicans are really offended that the President did it without them.  It doesn’t seem to matter to the Boehner and his team whether this was necessary.  It is strictly political for them.

All or nothing.  Enforce the entire law including all of the mandates, or none at all.  Except contraception, but that’s a different issue.

No President has ever delayed the implementation of a law, especially a health care law, on his own without Congressional approval.  None, as long as you don’t count George Bush and the Medicare Part D (Rx) rollout in 2006.

At some point we are going to get a Congress interested in governing.  This sideshow does nothing to solve the problems with healthcare.gov.  This lawsuit or threat of legal action will not help even one more American have access to care.

The Supreme Court’s decision of June 28, 1971 recognized the Champ’s Conscientious Objector status.  We have faith, as a country, that the Supreme Court will normally get it right.  Normally, but not always.

And soon we will have the spectacle of John Boehner – a man who doesn’t want to be President, he just doesn’t want anyone else to be President – suing Barack Obama.  And we are left to wonder if all of this could have been avoided if the President had just taken Boehner golfing more often or if he had invited him to build a snowman.

I know George Carlin would have been amused.

You are cordially invited to a very special Bar Mitzvah as Bogart, Cunix & Browning LLC becomes a man.  Please join us at Temple Azrikim Hamochdim (Temple Citizens United) on Saturday, January 7, 2023.  Services begin at 10 AM.  The Torah will be removed from the Ark at 11.  A Kiddush and Reception in the Romney Social Hall will follow the conclusion of services.

It was Mitt Romney who famously declared that corporations were people.  He was derided for that comment.  So many of us knew that corporations, especially closely held corporations, were artificial entities created by people for tax or liability purposes.  Few of us ever imagined that this small stack of paperwork, $1,000 of attorney’s fees, would one day be considered to have the same rights and religious convictions of its creators.

And soon Bogart, Cunix & Browning LLC, our little BCB, will be a man.

The actual definition of corporation (click here) from Merriam Webster doesn’t speak of Bar Mitzvahs or Christenings.  In the old days (pre-Citizens United January 2010) corporations were mainly entities created to help businesses function efficiently.  Political spending by corporations in candidate elections had been prohibited.  The immediate impact of the decision was the deluge of corporate sponsored attack ads over the last four years.  The Hobby Lobby decision is simply the next step to dehumanize individuals while we anthropomorphize corporations.

In a 5-4 decision, the Supreme Court has decided that closely held corporations are capable of having sincere convictions and that providing all twenty forms of federally mandated contraception imposes a “substantial burden” on Hobby Lobby’s ability to exercise its religion.

I have included the link to the actual Supreme Court decision as well as to Amy Howe’s excellent analysis on ScotusBlog.  As I have noted in previous posts, ScotusBlog is the first place to visit after any important Supreme Court decision if you want a plain English explanation.

Bad Law

Oliver Wendell Holmes, Jr. opined that great cases like hard cases make bad law.  In its fight against a few forms of birth control, Hobby Lobby may give birth to numerous bad laws.  Justice Kennedy wrote in a separate concurring opinion that this ruling was narrow and limited.  Justice Ruth Bader Ginsburg is probably closer to the mark on this point.  Why won’t every business owner with strong opposition to blood transfusions, same-sex marriage, or even women driving not seek to have their day in court?  And how will the Supreme Court decide what is a “substantial burden” and what is not?

Even before the decision was read I had heard from clients interested in opting out of certain coverages.  Some of this, as noted in Isn’t That Convenient (May 2012), is simply about employers looking to save a buck.  But not all.  Some business owners now see a way to express (PUSH?) their values through their business.

The first out of the gate may be businesses concerned about the Employment Non-Discrimination Act and whether it may force federal contractors to not discriminate against lesbians, gays, bisexuals and transgenders (LGBT).  Will businesses owned and controlled by Christian Scientists eliminate coverage for blood transfusions?  It is too early to say and there is nothing up on the Church’s official website.

It is important to remember that this is a fight that the Obama Administration wanted.  Not once does the Patient Protection and Affordable Care Act (PPACA) mention an IUD.  The law included 100% coverage for Preventive Care.  It was Kathleen Sebelius, then the Secretary of Health and Human Services, who chose to define birth control pills, IUD’s, and the morning after pill as part of Preventive Care.  Good decision?  Bad decision?  Either way it is important to note that it was a DELIBERATE DECISION.  This, as is the case with so many of the sticking points of the PPACA, is a regulatory issue.

Hard Cases + One sided Regulations = Really Bad Law

Today the ruling applies simply to closely held corporations, but Ted Olson, the attorney who successfully argued the Citizens United case before the Supreme Court scoffs at the notion.  And one day we will have corporations of any size and any religion.  And these corporations will need the free exercise of their sincerely held beliefs.

Will future theologians debate whether a Christian corporation’s pathway to Heaven is through Grace or Works?   And speaking of Heaven, if a Muslim corporation executes a successful hostile takeover, are there 72 shareholders waiting for it in Heaven?

I am positive of one thing.  Should Hobby Lobby ever decide to convert to Judaism, there will a long line of people volunteering to perform the Bris.