By:
Dave Kingsley
Free Rein for the Increasingly Powerful Insurance Industry in the Increasingly Privatized Medicare & Medicaid Programs
Make no mistake about it, the Supreme Court this week in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce [1] handed over supreme power to the corporations of America. These decisions didn’t just weaken federal agencies, they gutted them. OSHA, CMS, EPA, NLRB and other major regulatory agencies have been incrementally weakened for decades through legislation and raw political power. These cases are the coup de grace for our mortally wounded regulatory agencies.
In the massive healthcare sector of our economy – funded mostly by taxpayers – major corporations will now be able to ride roughshod over the rights and needs of beneficiaries who have paid for and earned qualification for benefits. For instance, UnitedHealth, which has exploded to the top of the Fortune 500 in a mere two decades and other insurance behemoths can continue their takeover of Medicare and Medicaid, reduce care, increase cash flow, and ignore attempts by HHS to rein them in.
Any attempt at regulation by CMS will be challenged in court. It is likely that regulators will lose. No matter how rational, technical and scientific the agencies’ arguments are, the Supreme Court will have the final say. Although nine justices on the court do not have the expertise, the resources, or the time to make appropriate decisions that congress and the courts have historically left to qualified experts in agencies, this Supreme Court will hand down decisions based on the majority’s perverse right-wing, religious ideology. As Justice Kagan wrote in her dissent:
“Its justification comes down, in the end, to this: Courts must have more say over regulation—over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on. A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.”
Make no mistake about it, that power will be exercised on behalf of UnitedHealth, CVS, Cigna, Molina, the Ensign Group and any other corporation wanting relief from government oversight. We are already seeing this in the American Healthcare Association’s judge shopping suit against CMS for regulations requiring adequate staffing in nursing homes (through their Texas affiliate).
The Philosophy and Structure of the U.S. Constitution Provides Ultimate Power to the People – not to the Biggest Corporations & Six Ideologues on the Supreme Court.
The people pay the taxes to fund government healthcare and elect representatives to enact and implement programs such as Medicaid and Medicare. And I believe we the people still have the power – if we are willing to exercise it. Last week I was speaking to the National Association of Attorney’s General/Medicaid Fraud Control Units Association in San Diego. My evaluation of the nursing home industry is not complimentary to say the least. At the end of my talk, I was asked what could be done about the scurrilousness of this industry. My answer to that is first things first: expose them. Expose them to the media, expose them to legislators, expose them to colleagues, friends, and neighbors. The American Healthcare Association (AHCA) and LeadingAge perpetually lie and propagandize about finance. In my view, the pushback on their claims about low nets and thin margins needs to be stepped up.
Anyone can see the income statement, cash flow statement, and balance sheet of the Ensign Group – it is public. Attorney General Jame’s suit in New York exposes a cabal of investors who are not required to disclose their consolidated financial statements. The Ensign Group has over $500 million setting on their balance sheet – that is double what they had a couple of years ago.[2] The New York AG’s suit against Comprehensive at Orleans indicates cash extraction of 22% on $86.4 million in revenue over approximately three years.[3]
Does anyone seriously doubt that these examples are exceptions in the whole scheme of things? They are not. We have plenty of other evidence to undermine the lies of AHCA and LA. We need to put that in the face of legislators. Organize, organize, organize, and relentlessly shove information at Senators and Congresspersons. No doubt, the majority on the Supreme Court will do what we know they will do. It will be ugly. But they need public support to remain legitimate and survive as a credible juristic institution. If the court continues down its current path, the citizens will eventually change the court.
[1] 22-451_7m58.pdf (supremecourt.gov)
[2] See their 2024 10K filing with the S.E.C. here: https://investor.ensigngroup.net/financials/sec-filings/default.aspx
[3] https://ag.ny.gov/press-release/2022/attorney-general-james-sues-orleans-county-nursing-home-years-fraud-and-resident