Monthly Archives: August 2025

Affordable Care Act

Health Care Reform: The Laws May Soon Be Changing

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Darryl Weiman, M.D., J.D.

Despite the passage of the Affordable Care Act (ACA), people are still paying ever higher prices for, what appears to be, a lesser quality of care. Physicians are also struggling. It has been estimated that 13% of practice expenditures are dealing with insurance billing and reimbursement. It is not surprising that, with republicans now in control of the White House and both the House and Senate that plans are being made to replace many aspects of “Obamacare.”

In fact, under the “One Big Beautiful Bill” recently passed and signed into law, the insurance companies will no longer be able to keep patients in narrow networks with limited choices as to physicians and health care facilities.1 This is the first of what may be far reaching changes for health care.

Both republicans and democrats agree that health care costs are too high and that there are too many people that are not covered by health care insurance. Both the Affordable Care Act passed during the Obama administration and several plans being discussed by the republicans have remarkably similar goals. If the republicans follow through on their promise to “repeal and replace” the Affordable Care Act, then they must carefully tailor their plan to (1) decrease costs of health care, (2) allow everyone to have access to some form of health insurance, (3) allow patients to have choices in tailoring their individual plans, (4) place an emphasis on preventative care so as to keep more patients out of the hospital, and (5) have some medical malpractice tort reform.

There were several good ideas embedded in the Affordable Care Act. For example, pre-existing conditions are no longer used to deny a person health care coverage. Small businesses (defined as a business with less than 50 employees) are given tax credits for up to 50% of employee premiums. The cut-off age for young adults covered by their parents’ insurance was raised to 27. This was especially good for recent college graduates who were finding it difficult to get jobs in the depressed economy.

The ACA also eliminated the “donut hole” for Part D medication expenditures in January 2025. Now, any medication expenditure over $2,000 is covered by Medicare.

Lifetime caps on health insurance expenditures were eliminated by the ACA. Previously, insurers could cut off patients whose bills exceeded a certain amount. With the ACA, insurers had to keep paying for health care so long as the patient was not dead.

Under the ACA, all insurance plans had to include preventative care without co-pays by 2018. Preventative care is important in keeping patients with chronic conditions out of the hospital where the costs are highest.

There are several models being presented as to what might replace the ACA and it is worthwhile looking at some of these ideas. Whichever plan they choose, it would be wise for the Congress to keep the good aspects of the ACA in place if they are to garner broad-based support.

As physicians, we need to keep up with what is being debated in Congress and the White House so we can better support the ideas that would be best for our patients.

Here are some thoughts on what a new health plan might incorporate.

Most republican plans will eliminate the community rating where everyone in a community are charged the same premiums. The community rating was needed to keep premiums down for people with pre-existing conditions, but it forced others to pay higher premiums. Also, mandatory benefits in the ACA health plans forced people to pay for benefits they would never use. The republicans argue that people should not have to pay for plans mandating care for such things as in-vitro fertilization, cosmetic surgery, and abortions. The ACA required this coverage so that the higher premiums could be used to offset the costs of patients who needed these benefits and other benefits that few would use.

There are several other ideas that are being discussed to make health care insurance more affordable. For example, vouchers of $5,000 for the purchase of health insurance with tax-free dollars would allow people to shop for policies that would meet their budget and needs. This would not require a large bureaucracy; it would only require the people to process the forms and police the system for fraud. People would have a vested interest in their health care policy and, hopefully, the free market would decrease the costs. The use of vouchers would be a good way for those with pre-existing conditions to purchase policies without having everyone else pay higher premiums for coverage for things they would never need.

Currently, the states regulate health care insurance. This leads to large cost disparities. If people could cross state lines to buy insurance, then they could shop for the best deals to meet their needs. I believe the Commerce Clause would allow Congress to pass a law to allow for this. This would probably lead to an overall decrease in premiums as the insurers would have to compete with more companies in other states.

Another way to cut health care costs is to put people in charge of their own routine care. One way to do this is to let people set up health savings accounts where tax free dollars are used to pay for routine care. Medical providers will have to compete for these dollars by offering the best service for the lowest price. Once the free market is back in play, drug companies, hospitals, and providers will not be able to raise prices without losing patients.

The health savings accounts should not be used for over-the-counter remedies and there would be tax penalties for those patients who make non-medical withdrawals.

Premiums for health insurance should be tax deductible. If companies can do it (and they can) then individuals should be allowed to do this also. This would allow most of the 176 million enrolled in company owned plans to buy their own insurance and force the companies to compete by offering supplemental tax-free compensation to allow the consumer to buy more

insurance if they see the need. This would be another way to allow those with pre-existing conditions to get coverage without having everyone else pay higher premiums.

Health coverage should be portable. Employees should be able to control their own health plans and should be able to take these plans with them from job to job. This would force employers to treat their workers better since the worker would not be locked into the job for fear of losing their health care insurance.

Health care insurance should be like other insurance i.e., auto, life, home, and fire. The plans would be private property, and they would allow for maximum choice. They should be flexible and creative, allowing the consumer to buy a policy they deem necessary to meet their needs. This would remove big business, labor unions, and politicians from the health insurance business and let the free market control the costs.

Updating Medicare by allowing each senior $250,000 to purchase some form of elder care insurance would encourage older patients and their caregivers to shop for their own health care. Again, it is hoped that the free market would lead to decreased costs as this patient population would be empowered to look for the best deals.

Unfortunately, under the Affordable Care Act, many providers stopped caring for Medicare and Medicaid patients as the costs exceeded the payments the providers were getting for providing this care. If the government would allow charitable care to be tax deductible, health care providers would be more inclined to treat the low income or uninsured patient. This would be much cheaper than having these patients rely on the ER for their primary care. It would also lead to a predictable continuity of care which would be beneficial for the patients and the providers. Providers who have patients for the long term are more likely to reap the benefits of managing chronic conditions in the out-of-hospital setting.

The Affordable Care Act had no provisions pertaining to tort reform. Most republican plans recognize that tort reform is critical if health care costs are to be decreased. Malpractice insurance is costly. For some specialties, premiums can be over $200,000 per year and these costs are transferred to the patients. Defensive medicine as a strategy to defend against potential malpractice claims raises the cost of health care for everyone. Estimated costs for defensive medicine is about $124 billion per year and each year, this estimate is going up.

Some states limit the payment for non-economic damages in a malpractice suit to control malpractice premiums. Some states may soon try to take malpractice claims out of the hands of juries by using alternative forms of resolution such as Health Courts.

Limiting attorneys’ fees is another strategy being looked at to decrease the costs of malpractice premiums, but attorneys are lobbying against this; since many legislators are themselves attorneys, this would be an uphill battle.

The ACA was over 2,000 pages long and was very complex. The republican plan should not try to fix everything at once. They should start with some laws that are understandable and

allow some choice for the patients. The providers also need some protection to keep all the cost cuts from falling on their shoulders.

No matter what elements are incorporated in a republican plan, it looks like they recognize the fundamental fact that optimal health care is a very personal experience between the patient and his provider. This experience must be affordable, and patient centered.

We should study the details of any new health care plan. The patients and their providers should lobby for what is best for them. 1 Bobby Jindal, Wall Street Journal, August 1, 2025.

1 Bobby Jindal, Wall Street Journal, August 1, 2025.

In the Courtroom

Advice and Consent for Article III Judges

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Darryl S. Weiman, M.D., J.D.

Since the re-election of President Trump, several federal district courts have issued national injunctions which have blocked several of his executive orders. The United States Supreme Court finally stepped in and ruled that the federal district courts could not issue national injunctions. Any district court injunction could only apply to the parties involved in that court’s jurisdiction. How did we get to the point that the courts felt they could wield such enormous power?

Article II, section 2 of the United States Constitution states the president “…shall nominate and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme court.” Eventually, all Article III judges had to go through a confirmation process in the Senate. Not surprisingly, with the increasing politicization of the courts, the importance of placing judges whose judicial philosophy is consistent with the president’s has become paramount. Issues such as health care, abortion, freedom of religion, political speech, gun control, results of an election, and affirmative action have become so contentious that control of the Supreme Court and the lower federal courts as political tools has taken on critical importance.

It used to be that the legislative powers as defined in Article I of the Constitution were vested in the Congress and the executive power, under Article II, was outlined for the President. Judicial power was defined in Article III and was meant to keep the executive and legislative bodies from extending their designated powers and from taking freedoms designated to the states and the people in the Bill of Rights and subsequent amendments. This was the intent of separation of powers and the concept of federalism.

Over the last few decades, it has become clear that the courts are making more decisions relating to legislation and to executive powers. As such, the politics of judicial appointments have become increasingly contentious with the minority party resorting to the filibuster to block a presidential appointment that they felt would be detrimental for their legislative goals. With the filibuster, the minority party only needed to muster 41 votes to block a nomination instead of a majority of 51.

Since the filibuster is not part of the Constitution, how did this procedural rule come to take on such importance? Dating back to the 1830’s, a simple majority in the Senate was not enough to confirm a judicial appointee. This was due to a senate procedural rule which allowed for a “filibuster”—defined as a “dilatory tactic, esp. prolonged and often irrelevant speechmaking, employed in an attempt to obstruct legislative action” (Black’s Law Dictionary, seventh edition). The Constitution allows the House and Senate to set their own rules, and, in the Senate, a rule was made to allow for a debate to continue for an unlimited time. The only way to end the debate was for passage of a motion for “cloture” which required a three-fifths majority of the senators duly sworn. With the present senate, this meant that 60 senators are required to pass the motion for ending the debate.

In its original form, the filibuster allowed for a group of senators to speak for as long as they could on the senate floor to prevent a cloture vote from ever taking place. This tactic can still be done today; if the vote for cloture is very close, the minority can prevent any voting on an issue if the filibuster is on-going in hopes of garnering more votes for their position.

To keep the senate from becoming completely paralyzed from the one issue being filibustered, subsequent rules allowed for the issue to be tabled if it is obvious that there are not enough votes for cloture. This allowed for other business to be done while the issue generating the filibuster is effectively blocked.

The history of Senate confirmation of Article III judges is interesting and is worth reviewing.

The Constitution does not specify how many votes are needed to confirm a judicial nominee. Numbers for confirmation are enumerated in other areas of the Constitution such as ratifying a treaty (2/3 majority), voting to convict someone who has been impeached (2/3 majority), expelling one of its members (2/3 majority), and concurring on a proposed Constitutional Amendment (2/3 majority). Since no number is specified, the Advice and Consent role is, arguably, met with a simple majority vote.

Over the years, there were several threats to end the filibuster, especially as it related to judicial appointments. The move to end this procedural tool was called the “nuclear option” although many people preferred to call it the “constitutional option” as they claimed the Constitution only required a majority vote to meet the requirements of “advice and consent.”

The first opinion written in support of ending the filibuster was done in 1917 by Thomas Walsh, a Democratic senator from Montana. Walsh argued that each new Senate could write its own procedural rules and did not have to abide by the rules of previous terms. These rules could be put in place with only a majority vote.

In 1957, then Vice President Richard Nixon wrote an opinion stating that the Constitution allows for the presiding officer of the Senate—the Vice President—to override Senate rules with subsequent rules put in place with only a majority vote. No action was taken on this written opinion.

The first Senator to use the term “nuclear option” was Trent Lott, a Republican from Mississippi. Lott coined the term during President George W. Bush’s first term after the Democrats blocked several of the President’s judicial nominees. Lott used the term because he recognized that it was a last resort and would probably result in negative consequences for both sides.

Bill Frist, a former heart surgeon and then senate Majority leader, threatened to use this nuclear option later in 2005 in hopes of ending Democratic filibusters of judicial nominees of

President Bush. A group of seven Democratic and seven Republican Senators, later referred to as the “Gang of 14,” joined to oppose both the nuclear option and the filibusters of judicial nominees except in rare circumstances. The seven Democrats agreed to vote for confirmation of most of the pending nominees and, in turn, the seven Republicans agreed to vote against the nuclear option. The Republicans in the Gang of 14 recognized that the Democrats might someday become the majority party in which case the Republicans would need the filibuster for unacceptable nominees of a Democratic president. Senator Frist agreed to honor this compromise.

Despite the long history looking to end the filibuster, it remained as a procedural option to block a presidential judicial nominee unless at least 60 senators supported him. Things finally changed in November 2013 when Harry Reid let the Senate vote to change the cloture rule. Senator Reid pushed for the nuclear option because of frustration with the Republicans who had blocked three of President Obama’s nominations to the United States Court of Appeals for the District of Columbia. By a 52 to 48 vote, the filibuster cloture requirement was changed for all nominations, except for justices of the Supreme Court, to only require a majority. All Republicans, the minority at that time, and three Democrats voted against the change. The three Democrats recognized that the change could dilute their power when the Republicans became the majority and they were right.

When Antonin Scalia died, President Obama nominated Merrick Garland to replace him on the Supreme Court. The Republicans held off on hearings for the nomination in hopes of winning the 2016 presidential election and then getting their own nominee. The Democrats, believing they would win the election, did not push for the necessary hearings thinking they would get their appointment when Hillary Clinton became president.

With the surprising win of Donald Trump, the Republican strategy turned out to be correct. Neil Gorsuch was nominated for the position and, predictably, the constitutional option was passed so that the Republicans could assure confirmation of the appointment. It was foreseeable that the Republicans would extend the option to include nominations to the Supreme Court when it became obvious they would not get cloture on the threatened filibuster. At least for now, any nomination for a judgeship in an Article III court, even a Supreme Court justice, will only need a majority vote in the Senate for confirmation.

With the politicization of judicial appointments, it is not surprising that some federal judges felt they had the power to block some executive orders and new laws with the injunction power until such time that the cases were litigated and appealed. Since the litigation could take years, they were effectively blocking the laws until a more favorable President could be elected.

This change in confirming justices for the Supreme Court and other Article III judges will have significant importance for health care providers as the constitutional questions of parts of the Affordable Care Act, such as the Independent Payment Advisory Board, and other health care related issues make their way to the Court. All health care providers need to stay informed to be better able to advocate for their patients’ best interest.