The spectre of senior citizens choosing between food and prescription drugs has been used by politicians so many times, it's become a cliché. For one Cleveland couple, it could turn into a reality.
Wister Adrine, 85, takes a lot of medicines to treat his prostate cancer, congestive heart failure, hypertension and high cholesterol, said Brenda Adrine, his 61-year-old wife. Wister Adrine, a retired carpenter, has Medicare benefits that cover his health care expenses but last July, they came up short: He ran into the infamous "doughnut hole," a gap in Medicare's prescription drug coverage in which beneficiaries must pay the full cost for their medications.
"Once he hit that doughnut hole, I was shocked when we went to pick up his medications," said Brenda Adrine, a retired Department of Defense employee. Drugs that had been covered with no co-payments suddenly cost $140.
Things changed this year, when her husband's Medicare drug plan notified him that President Barack Obama's health care reform law offered bigger discounts for those in the doughnut hole. The law provided $250 rebate checks to Medicare beneficiaries who reached the doughnut hole in 2010, introduced discounts last year and phases out the coverage gap altogether by 2020. Enrollees get 50 percent discounts on brand-name drugs and 14 percent discounts on generic drugs during the doughnut hole in 2012. From March 2010 through April 2012, 5.1 million people on Medicare saved $3.2 billion on their prescription drugs due to these changes, according to the Obama administration.
These enhanced prescription drug coverage for Medicare enrollees would disappear if the Supreme Court overturns the health care reform law on constitutional grounds. A ruling is expected next week.
"There is no way I would allow him to cut back on his medication, so we would probably cut back on groceries and stuff like that," Brenda Adrine said. She and her husband live off their pensions and his Social Security benefits, which they also use to support his 48-year-old son, who has lupus. The bad economy wiped out their savings and their assets and forced them to file for bankruptcy two years ago, Brenda Adrine said.
President George W. Bush enacted the prescription drug benefit for Medicare in a 2003 law. Prior to that, seniors and people with disabilities on the program had to pay out of pocket, buy supplemental "Medigap" insurance, join a private plan that paid for medicines through a program now known as Medicare Advantage or go to Canada, where medicines are cheaper.
But the doughnut hole limits the benefit. Under that policy this year, beneficiaries must meet a $320 deductible. Then, Medicare covers 75 percent of expenses until the combined drug costs for a beneficiary and Medicare reach $2,930. From that point, until a person's out-of-pocket costs reach $4,700, the beneficiary pays full price. If costs rise even higher than that, Medicare covers 95 percent for the rest of the year.
"It was something that begged to be fixed from the very beginning," said Dan Adcock, the director of government relations and policy for the National Committee to Preserve Social Security and Medicare.
If the Supreme Court strikes down health care reform, re-filling the doughnut hole would be tough, said David Certner, the legislative policy director for the AARP.
"Hyper-partisan activity has really made it difficult to get anything done," he said. "When we're talking about something as big and controversial as health care, it's hard to have a great deal of confidence."
Then there's the price tag: Closing the doughnut hole is estimated to cost $24.4 billion from this year through 2019, according to a 2009 Congressional Budget Office analysis of the health care reform law -- and that doesn't account for the discounts drugmakers agreed to provide in the law. If the law gets struck down, pharmaceutical companies may not be able to copy the big health insurance companies that vowed to voluntarily retain elements of reform. The law establishes the "legal structure" that permits drug companies to sell drugs at a discount, Matthew Bennett, a senior vice president of the Pharmaceutical Research and Manufacturers of America, wrote in an email.
Older Americans are a highly motivated voting bloc that would normally be expected to pressure Congress to act, but the health care reform law has left most seniors cold. Fifty-one percent of people aged 65 and older had an unfavorable view of the law, compared to 33 percent who favored it, according to a survey conducted in April by the Henry J. Kaiser Family Foundation, a health care research institution. Among all adults, the split was 43 percent unfavorable and 42 percent favorable.
Patricia Morrison, 68, of Annapolis, Md., is one of the 33 percent. Morrison has reached the doughnut hole in each of the last two years and expects to hit it again this year. A 90-day supply of the drug she takes to treat autonomic neuropathy, a condition that causes rapid drops in blood pressure that can make her faint, costs her just $50 but the price, which gets counted against her drug coverage, is $535. "That's what's putting me in that doughnut hole," she said.
But Morrison got her $250 rebate check for 2010 and believes health care reform will cut her drug costs further as the doughnut hole gets smaller.
"If we get a decision that they're going to do away with the whole health care thing now, then I've got pretty big bills coming up for my medicine," Morrison said.
"If I have to pay 100 percent for my medicine for half of the year, then I'm either going to not take medicine or I'm not going to eat," she said. "That's the facts and that scares me."
Round 1: The District Courts Divide
U.S. District Judge George Caram Steeh, a Clinton appointee sitting in the Eastern District of Michigan, released the first major Affordable Care Act decision in October 2010. In <a href="http://www.mied.uscourts.gov/news/docs/09714485866.pdf" target="_hplink"><em>Thomas More Law Center v. Obama</em></a>, Steeh sided with the government to hold the law constitutional. "The decision whether to purchase insurance or to attempt to pay for health care out of pocket is plainly economic," Steeh wrote. "These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers and the insured population, who ultimately pay for the care provided to those without insurance."
Round 1: The District Courts Divide
At the end of November 2010, another Clinton appointee, Judge Norman Moon of the Western District of Virginia, agreed with Judge Steeh. In <a href="http://www.vawd.uscourts.gov/OPINIONS/MOON/LIBERTYUNIVERSITYVGEITHNER.PDF" target="_hplink"><em>Liberty University v. Geithner</em></a>, Moon wrote that "by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance."
Round 1: The District Courts Divide
In December 2010, however, Judge Henry Hudson, a George W. Bush appointee sitting in the Eastern District of Virginia, ruled otherwise. In <a href="http://media.washingtonpost.com/wp-srv/metro/docs/Hudson_ruling.pdf?hpid=topnews" target="_hplink"><em>Virginia v. Sebelius</em></a>, Hudson struck down the individual mandate, writing that "an individual's personal decision to purchase -- or decline to purchase -- health insurance from a private provider is beyond the historical reach of the commerce clause." Importantly, Hudson also held that the individual mandate is severable from the rest of the Affordable Care Act, which means a court can strike it down while allowing the law's remaining provisions to stand.
Round 1: The District Courts Divide
Finally in January 2011, Judge Roger Vinson, a Reagan appointee in the Northern District of Florida, evened the score but upped the ante. In <a href="http://www.scribd.com/doc/47905937/Health-Care-Ruling-by-Judge-Vinson" target="_hplink"><em>Florida v. Department of Health and Human Services</em></a>, not only did he strike down the individual mandate as exceeding Congress' power under the commerce clause, but he also took the whole health care law down with it. "The act," Vinson wrote, "like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker."
Round 2: The Appeals Courts Split
In June 2011, the U.S. Court of Appeals for the 6th Circuit <a href="http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf" target="_hplink">upheld, by a 2-1 vote</a>, Judge Steeh's decision in <em>Thomas More Law Center</em>. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, was the first judge chosen by a Republican president to reject the commerce clause challenge, writing that "no one must 'pile inference upon inference' to recognize that the national regulation of a $2.5 trillion industry, much of it financed through" national health insurance companies, "is economic in nature." He joined Judge Boyce Martin, a Jimmy Carter appointee, in the majority, while Judge James L. Graham, a Reagan appointee, wrote a vigorous dissent. In August, the 11th Circuit, reviewing <em>Florida v. HHS</em>, <a href="http://www.uscourts.gov/uscourts/courts/ca11/201111021.pdf" target="_hplink">produced a near mirror-image result</a>. Judge Frank Hull, a Clinton appointee, joined the Reagan-appointed Judge Joel Dubina to affirm District Judge Vinson's decision to strike down the individual mandate. Judge Stanley Marcus, a Clinton appointee, dissented, quoting heavily from Sutton's 6th Circuit concurring opinion. All three 11th Circuit judges found the mandate severable from the rest of the Affordable Care Act, reversing District Judge Hudson's decision to deep-six the entire law. Both appeals courts unanimously rejected the government's taxing power argument, insisting that if Congress had thought the penalty for not buying insurance was a tax, it would have explicitly called it a tax. On this issue, a third appeals court created another circuit split.
Round 2: The Appeals Courts Split
In September 2011, the 4th Circuit dismissed two challenges to the health care law, finding that the plaintiffs did not have standing to bring their lawsuits. The panel did find that <a href="http://pacer.ca4.uscourts.gov/opinion.pdf/102347.P.pdf" target="_hplink">the penalty for not buying insurance was a tax</a> -- a good sign for the government's defense of the law. But rather than hold that the individual mandate was a valid exercise of Congress' taxing power, Judges Diana Gribbon Motz, a Clinton appointee, and James Wynn, an Obama appointee, said that another federal law, the Anti-Injunction Act, prevented the plaintiffs from challenging the mandate until they actually had to pay the tax -- which cannot happen before the provision goes into effect in 2014. The third judge, Obama appointee Andre Davis, said he wouldn't have dismissed the lawsuits and would have upheld the individual mandate based primarily on commerce clause ground. Regardless of the methodology, the Obama administration was now winning 2-1 in the courts of appeals against the Affordable Care Act's challengers.
Final Round: The Supreme Court Takes The Case
The Supreme Court is most likely to choose to hear a case for one of three reasons: The constitutionality of a federal law hangs in the balance, the circuit courts disagree on the same issue, or the solicitor general advises the Court to take the case. Cases that fulfill just one of these considerations stand a good chance of reaching the justices. The health care cases had all three. In November 2011, the justices <a href="http://www.huffingtonpost.com/2011/11/14/obama-health-care-law_n_1092387.html" target="_hplink">agreed to review</a> the 11th Circuit's decision. To signal how seriously it took the challenges, the Court soon thereafter scheduled six hours of oral argument to take place from March 26 to 28, 2012. Normally, even for blockbuster cases, the justices only allot one hour for oral argument.
Final Round: The Supreme Court Hears Oral Argument
All eyes turned to the Supreme Court in late March 2012 when the justices heard oral argument and gave their first public hints of where they stood on the Affordable Care Act's constitutionality. On the first day, March 26, liberal and conservative justices alike <a href="http://www.huffingtonpost.com/2012/03/26/health-care-law-supreme-court_n_1373455.html" target="_hplink">showed little interest</a> in following the 4th Circuit's decision to throw out the challenge to the health care law on a technicality before ever reaching the constitutional merits of the individual mandate. That display of unity disappeared on Tuesday, March 27, as the Court took on the <a href="http://www.huffingtonpost.com/2012/03/27/supreme-court-health-care_n_1373469.html" target="_hplink">main event</a>: two hours of argument over the mandate. The Court's four Democratic appointees all appeared to find the mandate well within Congress' powers to regulate interstate commerce, as the 6th Circuit had held; the Court's five Republican appointees, in concert with the 11th Circuit, seemed to think otherwise. Only in the final moments did swing vote Justice Anthony Kennedy soften his tone by musing aloud whether the health insurance market is different enough, after all, to allow a mandate to prevent cost-shifting where it might not be permissible in another market. "[M]ost questions in life are matters of degree," he said. On Wednesday, March 28, the justices <a href="http://www.huffingtonpost.com/2012/03/28/health-care-case-supreme-court-john-roberts_n_1386692.html" target="_hplink">considered</a> what other parts of the Affordable Care Act would fall if they found the mandate unconstitutional. No majority emerged. Several justices agreed with the challengers that the whole law must fall. Several others agreed with the Obama administration that two key (and popular) provisions could not survive without the mandate. Still others indicated some sympathy for severing the mandate alone and allowing the rest of the law to stand. A decision is expected by the end of June.