While all eyes focused on the presidential race, the ultimate fate of the Affordable Care Act (ACA) could depend on the Senate contests in the states.
Even if Mitt Romney were elected, he alone could not overturn major provisions of healthcare reform. Only Congress can pass the legislation needed to change the ACA.
Republicans are expected to maintain control of the House, but if Democrats hold the Senate, they will be able to block House bills aimed at eviscerating “Obamacare.”
What is at stake
If Republicans take the Senate, the two chambers could pass legislation that would:
· eliminate the premium subsidies designed to make health insurance affordable for middle-income and low-income families
· bring an end to Medicaid expansion, and
· rescind the individual mandate that everyone buy insurance or pay a tax.
Under “budget reconciliation,” Republicans would need only a simple majority to pass such legislation. In the Senate, 51 votes would do it. Today, Republicans hold 47 seats.
The electronic medical record (EMR) is here to stay. Its adoption was initially slow, but over the past decade those hospitals that do not already have it are making plans for implementing it. On the whole this represents progress: the EMR has the ability to greatly improve patient care. Physicians, as well as all other caregivers, no longer have to puzzle over barely legible handwritten notes or flip through pages and pages of a patient’s paper chart to find important information.
With the EMR, it is easy to see what medications a patient is taking, when they were started, and when they were stopped. Physicians can easily find key vital signs – temperature, pulse, respirations, and blood pressure – plotted over any time frame they wish. All the past laboratory data are displayed succinctly. But it is not all gravy.
There is a Problem
I use the EMR every day, and I am old enough to have trained and practiced when everything was on paper. While overall, I am happy to have electronic records, there is a problem: The EMR is trying to serve too many masters. The needs of these various masters are different, and sometimes they are incompatible, even hostile to one another. These masters include other caregivers, the agencies paying for the care, and those interested in medico-legal aspects of care. What can happen, and I have seen it many times, is that the needs of the caregivers take a back seat to the needs of the payers and the lawyers. The EMR is supposed to improve patient care, but sometimes it makes it worse. Physician progress notes illustrate how this happens.
A young doctor and his wife had just moved to the mountains of eastern Kentucky, near the border of West Virginia. The small town was nestled among the coal mines of the region. Nearly all of his patients would be coal miners or family members of a miner. Bill would practice family medicine. His wife, a veterinarian, hoped to build a small-animal practice.
Liz McWherther, the forty-seven-year-old wife of a miner, came to see the young doctor. Over several weeks, she had developed a curious set of complaints. Each morning she woke with a dry mouth and slurred speech. She also noted blurred vision and difficulty urinating. Within a couple of hours of waking, she was completely free of any symptoms. These symptoms had been occurring each morning and going away by afternoon.
Liz had had a series of tests done by the previous physician, but none of these tests were abnormal. The physical examination by Dr. Hueston was entirely normal. She denied drinking alcoholic beverages or using illicit drugs. Hueston had briefly considered some unusual response to marijuana or other drugs that were prevalent in the area. Liz had not been down in the mines, nor did her husband bring back anything unusual into the house.
The male body has long been considered the “standard” for health care coverage. Having a woman’s body is seen as an expensive anomaly, and women pay dearly for being different.
When they buy their own health insurance in the individual market, women must lay out an extra $1 billion a year, simply because they are women. Some argue that this is fair: after all, a woman could become pregnant, and labor and delivery are costly.
But the truth is that, even when maternity benefits are excluded, one-third of all health plans charge women at least 30 percent more, according to a report released just last month by the National Women’s Law Center.
In 36 states, “92 percent of best-selling plans charge 40-year-old women more than 40-year-old men,” the Center reports, and “only 3 percent of these plans cover maternity services … One plan in South Dakota charges a woman $1252.80 more a year than a 40-year-old man for the same coverage.”
Pricing based on gender also plagues the small group market, where insurers frequently jack up premiums if a small or mid-size business employs too many women. This means that many of these employers just can not afford to offer insurance. Only 17 states address the problem.
By expanding Medicaid, the state-federal partnership that offers health insurance to low-income Americans, the Affordable Care Act set out to cover some 17 million uninsured – or roughly half of the 34 million who are expected to gain coverage under reform. But when the Supreme Court ruled on the Affordable Care Act in June, it struck down a key provision which threatened that if a state refused to co-operate in extending Medicaid to more of its citizens, it could lose the federal funding it now receives for its current Medicaid enrollees.
In a 7-to-2 decision, the justices ruled that this punishment was too coercive: “withholding of ‘existing Medicaid funds’ is ‘a gun to the head’” – that would force states to acquiesce.
As a result, states can, if they choose, opt out of the Medicaid expansion, and some governors are threatening to do just that – even though the federal government has committed to pay 100 percent of the cost from 2014 to 2017. After that, the federal share would gradually decline to 90 percent in 2020, and remain there. This is a generous offer; today the federal government now picks up just 57 percent of the Medicaid tab.
Nevertheless, some states claim that the 10 percent that they would have to ante up after 2020 is more than they can afford. A few go further and admit that this isn’t just about money: by rejecting the federal funds, they are voicing their objection to “Obamacare.”
Personally, I am delighted that Chief Justice Roberts voted to uphold the Affordable Care Act. But, I am troubled that the fate of U.S. healthcare turned on one man’s opinion. This is not how things are supposed to work in a democracy.
Healthcare represents 16 percent of our economy. It touches all of our lives. If we don’t like the laws our elected representatives pass, we can vote them out of office. The Supreme Court, on the other hand, doesn’t have to worry whether its decisions reflect the will of the people. The Justices are appointed for life. This is why they are not charged with setting public policy.
How then, did the Court wind up with the power to affirm or overturn the ACA?
The media shapes our expectations
As I suggested when oral arguments began back in March, a “media narrative” drove the case to the Court – a fiction that caught on, in the press, on television, and in the blogosphere, where it began to take on a reality of its own. A handful of “state attorneys general and governors” saw “a political opportunity” and floated the idea that the law might be unconstitutional. The media picked up the story, repeated the heated rhetoric, and “fanned the flames … Before long, what constitutional experts thought was a non-story became a Supreme Court case.”
The Federal government will push forward to establish health insurance exchanges regardless of how the Supreme Court rules on the Affordable Care Act in the weeks to come, argues THCB contributor Maggie Mahar. The only sensible conclusion? The states should accept Washington’s help and open up the market for insurance online.
The Affordable Care Act (ACA) calls on the states to create health insurance exchanges – marketplaces where individuals and small businesses can shop for and compare health insurance plans. Beginning in 2014, insurers peddling policies on an exchange will have to meet the ACA’s standards by covering “essential benefits,” capping out-of-pocket expenses for individuals, and offering more transparent information about costs and benefits.
Best of all, insurers will not be able to turn down customers suffering from chronic diseases, or charge them higher premiums.
“I think the vote will be 6:3 in favor with Kennedy and Roberts voting for.” There is “No doubt it is constitutional,” he declared. “Legally, this is an open and shut case.”
Emanuel, now chair of the Department of Medical Ethics and Vice Provost for Global Initiatives at the University of Pennsylvania, also revealed that he recently had dinner with Supreme Court Justice Antonin Scalia. Emanuel says Scalia will not vote for the reform bill. (No surprise there.)
For reasons I have explained in earlier posts here and here, I tend to share Emanuel’s optimism. Nevertheless, I could easily be wrong.
Conservatives call it the “malpractice crisis.” Public Citizen, a liberal non-profit consumer organization based in Washington D.C., calls it “The Great Medical Malpractice Hoax.”
No doubt you have read that ambulance-chasing lawyers have escalated their assault on health care providers, and that as a result, malpractice insurance premiums have been levitating, along with malpractice suits, further hiking the cost of medical care.
Various solutions have been floated, including “caps” on compensation for pain and suffering; “health courts” where expert judges replace juries; immunity for doctors who follow “best practice guidelines;” and “full disclosure” policies which urge doctors and hospitals to move quickly to disclose errors, apologize, and offer compensation.
In the end, the best solutions would make malpractice reform part of heath care reform. Our malpractice system should be redesigned to reduce medical mistakes, fully compensate patients who are injured by human error, reward doctors and hospitals that disclose errors, and penalize those that try to “cover up.” When it comes to the cost of malpractice, reform should slash the exorbitant administrative costs built into an adversarial process that moves at a snail’s pace, while subjecting both plaintiffs and defendants to what a recent report from the American Enterprise Institute rightly describes as “inhumane.”
A few days ago, I found myself involved in a debate over malpractice suits on The Heath Care Blog. One reader on the thread explained why, in his view, we need some type of tort reform: “What drives physicians to practice defensive medicine is the total lack of objectivity, fairness and consistency both across jurisdictions and even within a jurisdiction as to how medical disputes are decided. Juries of lay people who cannot understand the often conflicting scientific claims in these cases can be easily swayed by emotion and sympathy for injured plaintiffs.
“The inclination to practice defensively is especially prevalent in ER’s when the doctor and the patient often don’t know each other and there is time pressure to determine a diagnosis and send the patient on his or her way,” he added. “I’ve heard from plenty of doctors who work in inner city ER’s that even poor people are not shy about suing when there is a bad outcome if they can find a lawyer to take their case which they often can.”
This comment pretty well sums up the conventional wisdom about medical malpractice cases: Juries are not objective, don’t understand the evidence, and tend to sympathize with the patient. Meanwhile, doctors should be wary of those low-income patients in ERs. Americans are litigious by nature and if patients are not entirely happy with the outcome, they’ll jump at an opportunity to turn misfortune into a payday. Poor people, who need the money, are even more likely to try to “score.”