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Friday, October 29, 2010

Health Care: Constitutional Rights and Legislative Powers


Kathleen S. Swendiman
Legislative Attorney

The health care reform debate raises many complex issues including those of coverage, accessibility, cost, accountability, and quality of health care. Underlying these policy considerations are issues regarding the status of health care as a constitutional or legal right. This report analyzes constitutional and legal issues pertaining to a right to health care, as well as the power of Congress to enact and fund health care programs. Following the recent passage of the Patient Protection and Affordable Care Act, P.L. 111-148, legal issues have been raised regarding the power of Congress to mandate that individuals purchase health insurance, and the ability of states to “nullify” or “opt out” of such a requirement. These issues are also discussed.

The United States Constitution does not set forth an explicit right to health care. While the Supreme Court would likely find that the Constitution provides a right to obtain health care services at one’s own expense from willing providers, the Supreme Court has never interpreted the Constitution as guaranteeing a right to health care services from the government for those who cannot afford it. The Supreme Court has, however, held that the government has an obligation to provide medical care in certain limited circumstances, such as for prisoners.

While the United States Constitution and Supreme Court interpretations do not identify a constitutional right to health care for those who cannot afford it, Congress has enacted numerous statutes, such as Medicare, Medicaid, and the Children’s Health Insurance Program, that establish and define specific statutory rights of individuals to receive health care services from the government. As a major component of many health care entitlement statutes, Congress has provided funding to pay for the health services provided under law. Most of these statutes have been enacted pursuant to Congress’s authority to “make all Laws which shall be necessary and proper” to carry out its mandate “to … provide for the … general Welfare.” The power to spend for the general welfare is one of the broadest grants of authority to Congress in the U.S. Constitution. The Supreme Court accords considerable deference to a legislative decision by Congress that a particular health care spending program provides for the general welfare.

Recently, Congress enacted comprehensive health care reform legislation, P.L. 111-148, which includes a requirement, effective in 2014, that individuals purchase health insurance, and which significantly expands the Medicaid program. Several lawsuits have been filed challenging several provisions of this new legislation, including the power of Congress to enact an individual mandate under the Commerce Clause or other provisions of the U.S. Constitution. In addition, several states have passed laws, or proposed state constitutional amendments, attempting to “nullify” or “opt out” of the federal individual health insurance mandate. Direct conflicts between federal and state laws would raise constitutional issues which are likely to be resolved in favor of federal law under the Supremacy Clause of the U.S. Constitution.

A number of state constitutions contain provisions relating to health and the provision of health care services. State constitutions may provide constitutional rights that are more expansive than those found under the federal Constitution since federal rights set the minimum standards for the states.



Date of Report: October 18, 2010
Number of Pages: 18
Order Number: R40846
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Interactions Between the Social Security COLA and Medicare Part B Premiums

Jim Hahn
Analyst in Health Care Financing

Alison M. Shelton
Analyst in Income Security


On October 15, 2010, the Social Security Administration announced there will be no Social Security cost-of-living adjustment (COLA) in 2011. In addition, there was no Social Security COLA in 2010. The last positive Social Security COLA took effect in January, 2009 and was 5.8% for all of 2009. Meanwhile, over the past five years, Medicare Part B program costs have increased an average of 8.3% per year and are expected to continue to grow. By statute, Part B premiums, which are automatically deducted from Social Security checks for those who receive Social Security, must cover 25% of projected Part B costs for aged beneficiaries. The Social Security Act includes a provision that holds most Social Security beneficiaries harmless for increases in the Medicare Part B premium: affected beneficiaries’ Part B premiums are reduced to ensure that their Social Security checks do not decline from one year to the next. In a typical year, the hold harmless provision affects a small fraction of beneficiaries and has a limited impact on program finances. However, in a year when Medicare Part B premiums increase but Social Security benefits do not, the effects of the hold harmless provision are larger and more complex.

The absence of a Social Security COLA affects Medicare Part B premiums in two ways under current law. For about three-quarters of Part B participants, the hold harmless provision prevents their Part B premiums from increasing and so the amount of their Social Security checks remains flat, all other things being equal. Under current law, the only way to collect the 25% of Part B costs that are required to be covered by beneficiary premiums is to increase Part B premiums on beneficiaries who are not protected by the hold harmless provision. The one-quarter of beneficiaries who are not held harmless therefore shoulder the entire beneficiary share of the increase in Part B costs. In other words, their collective premium increase can be nearly four times greater than if there were no hold harmless provision.

The one-quarter of Part B enrollees to whom the hold harmless provision does not apply can be divided into three groups: (1) low-income beneficiaries whose Part B premiums are not withheld from their Social Security benefits but instead are fully paid by the Medicaid program (currently about 17.5% of Part B enrollees, expected to increase); (2) high-income beneficiaries who are subject to income-related Part B premiums (about 5% of Part B enrollees); and (3) beneficiaries for whom there is insufficient history of Social Security payments with corresponding deductions for the Part B premium (about 5% of Part B enrollees), which would include both new enrollees to either Social Security or Medicare and Part B enrollees who do not participate in Social Security. The substantial majority of Part B enrollees (17.5%) not held harmless in 2010 were low-income beneficiaries whose Part B premiums are paid by Medicaid. As a result, in the absence of any intervention by Congress, most of the cost of the increase in Part B premiums in 2010 and 2011 will be paid by the federal-state Medicaid program, not directly by beneficiaries.

As of the date of this report, Congress has not passed legislation to address this issue. Speaker of the House Nancy Pelosi has announced that she will ask the House to consider H.R. 5987, which would provide a one-time, $250 payment to Social Security beneficiaries (including persons on Social Security disability) and retired veterans and railroad workers, when Congress returns after the November elections. On October 15, 2010, the White House press office announced that the President supports efforts to provide a $250 payment to seniors, veterans, and people with disabilities.



Date of Report: October 20, 2010
Number of Pages: 17
Order Number: R40561
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Legal Issues Relating to the Disposal of Dispensed Controlled Substances

Brian T. Yeh
Legislative Attorney

According to the White House Office of National Drug Control Policy, the intentional use of prescription drugs for non-medical purposes is the fastest-growing drug problem in the country and the second-most common form of illicit drug abuse among teenagers in the United States, behind marijuana use. Young adults and teenagers may find their parents’ prescription drugs in unsecured medicine cabinets or other obvious locations in the home, or they may retrieve expired or unwanted medication from the trash. It is believed that properly disposing of unwanted medications would help prevent prescription drug abuse by reducing the accessibility and availability of such drugs. Yet throwing prescription medications into the trash or flushing them down the toilet may not be environmentally desirable. In response, many local communities and states have implemented pharmaceutical disposal programs (often referred to as drug “take-back” programs) that collect unused and unwanted medications from patients for incineration or other method of destruction that complies with federal and state laws and regulations, including those relating to public health and the environment.

Prescription drugs may be categorized as either controlled substance medication or noncontrolled substance medication. Pharmaceutical controlled substances, such as narcotic pain relievers OxyContin® and Vicodin®, are among the most commonly abused prescription drugs. However, community take-back programs usually only accept non-controlled substance medication, in compliance with the federal Controlled Substances Act. This statute comprehensively governs all distributions of controlled substances, and it currently does not allow for a patient to transfer a controlled substance to another entity for any purpose, including disposal of the drug. (Federal regulations provide a limited exception to this general prohibition— local law enforcement may obtain a waiver from the federal Drug Enforcement Administration to collect unused controlled substances from patients and destroy them.) As a consequence, patients seeking to reduce the amount of unwanted controlled substances in their possession have few alternative disposal options beyond discarding or flushing them.

The 111
th Congress has considered legislation that would create a legal framework governing disposal of controlled substances that have been dispensed to patients. On October 12, 2010, President Obama signed the Secure and Responsible Drug Disposal Act of 2010 (S. 3397) into law (P.L. 111-273). P.L. 111-273 amends the Controlled Substances Act to allow a patient to deliver controlled substances to an entity that is authorized by federal law to dispose of them, providing that such disposal occurs in accordance with regulations issued by the Attorney General to prevent diversion of controlled substances. The Attorney General is required, in developing those regulations, to take into consideration the public health and safety, as well as the ease and cost of drug disposal program implementation and participation by various communities. Also, P.L. 111-273 gives the Attorney General discretion to issue regulations that authorize long-term care facilities to dispose of controlled substances on behalf of patients who reside in those facilities.

Other related bills in the 111
th Congress include the Safe Drug Disposal Act of 2010 (H.R. 5809), the Safe Drug Disposal Act of 2009 (H.R. 1191, S. 1336), the Secure and Responsible Drug Disposal Act of 2009 (H.R. 1359, S. 1292), and the Safe Prescription Drug Disposal and Education Act (H.R. 5925).


Date of Report: October 19, 2010
Number of Pages: 18
Order Number: R40548
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Tuesday, October 26, 2010

Final Rules Pursuant to the Patient Protection and Affordable Care Act During the First Six Months of Implementation


Curtis W. Copeland
Specialist in American National Government

This memorandum identifies the final rules that were issued pursuant to the Patient Protection and Affordable Care Act (PPACA, P.L. 111-148, March 23, 2010) during the first six months of implementation (i.e., as of September 23, 2010).


Date of Report: October 6, 2010
Number of Pages: 4
Order Number: M-100610
Price: $19.95

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Mandatory Coverage of Certain Preventive Health Services Under Section 1001 of the Patient Protection and Affordable Care Act


Kathleen S. Swendiman
Legislative Attorney

This memorandum discusses the impact of Section 1001 of P.L. 111-148, the Patient Protection and Affordable Care Act (PPACA), as amended, on certain preventive services covered by private health insurance plans, and on the discretion of the Secretary of Health and Human Services (HHS) with regard to breast cancer screening, mammography, and prevention services.


Date of Report: September 29, 2010
Number of Pages: 2
Order Number: M-092910
Price: $19.95

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