Hours after the SCOTUS verdict and about the same time as a feisty (and not too productive) shouting match on the NY Times site between Maggie Mahar & Michael Cannon with commentary from Bob Reich and “expert” Grace Marie Turner, a real health care expert dissected the future of health care.
Here’s Jeff Goldmsith‘s talk (done for Eliza with Queen Bee/Chairman & Chief Visionary Officer Alexandra Drane refereeing). And it’s excellent. (It also has a tad of rambling from me at the very end….). I suggest you spend a chunk of your Saturday morning listening to Jeff tell you more.
What a cliffhanger! It is an historic decision, found on the narrowest possible grounds, with a majority agreeing on the result, but not broadly on the reasoning.
Effects: The principal effects of the finding, from the point of view of the system: They have just avoided enormous chaos over the coming years. The system is chaotic enough already, at a tipping point into an unclear future, with the huge shift in underlying economic factors. These factors include especially the various ways of shifting some economic risk from the payers and employers to the providers and the patients/customers.
Stabilizing: The Supreme Court finding stabilizes the future of the system. The affirmation, combined with the fact that a gridlocked polity in Washington is unlikely to come up with any major change or repeal of the law, and that the major parts of the law are self-funding, means that everyone now knows at least the general outline of what the rules are for the foreseeable future.
Permanent: The law is now likely permanent. To overturn it, you would need President Romney with a filibuster-proof majority in the Senate and a majority in the House. The major parts of the law are self-funding and not dependent on Congressional outlays. By 2016, most people will have experienced the results of the law, and found its benefits far outweigh its costs. Business owners will find that it is not as burdensome as some have feared. It will have become obvious that the experience of the actual law is far different and more benign than the fears that have been drummed up about it politically. Once people experience its benefits for themselves, it will be very hard to gin up a campaign to take it away from them.
Today a majority of the Court upheld the constitutionality of the Affordable Care Act, otherwise known as Obamacare in recognition of its importance as a key initiative of the Obama administration. The big surprise, for many, was the vote by the Chief Justice of the Court, John Roberts, to join with the Court’s four liberals.
Roberts’ decision is not without precedent. Seventy-five years ago, another Justice Roberts – no relation to the current Chief Justice – made a similar switch. Justice Owen Roberts had voted with the Court’s conservative majority in a host of 5-4 decisions invalidating New Deal legislation, but in March of 1937 he suddenly switched sides and began joining with the Court’s four liberals. In popular lore, Roberts’ switch saved the Court – not only from Franklin D. Roosevelt’s threat to pack it with justices more amenable to the New Deal but, more importantly, from the public’s increasing perception of the Court as a partisan, political branch of government.
Chief Justice John Roberts isn’t related to his namesake but the current Roberts’ move today marks a close parallel. By joining with the Court’s four liberals who have been in the minority in many important cases – including the 2010 decision, Citizen’s United vs. Federal Election Commission, which struck down constraints on corporate political spending as being in violation of the Constitution’s First Amendment guaranteeing freedom of speech – the current Justice Roberts may have, like his earlier namesake, saved the Court from a growing reputation for political partisanship.
The Supreme Court has upheld the Affordable Care Act (ACA), a frustrating situation in which conservatives won the policy battle, but lost the war over the Act. In particular, the Court held that Congress cannot use the Commerce clause to compel commerce. The individual mandate qua mandate is unconstitutional. However, the Congress has the right to impose taxes (if not punitive and excessive), which permits the Obama administration to add a tax on millions of uninsured Americans in addition to the ACA’s already-massive tax burden on the middle class.
The Court ruled that a Medicaid expansion could be an unconstitutional federal coercion of the states, but this expansion does not have a penalty large enough to pass that threshold. Interestingly, the Court opened up the possibility that governors could refuse the Medicaid expansion. Those same individuals would then be eligible for subsidies in the exchanges. If all the governors refused the expansion, and if individuals take up subsidized insurance the federal cost heads even farther north.
In a bit of a pyrrhic victory, the Forum’s amicus briefs, signed by over 200 economists, were cited twice in the Court’s dissenting opinion. (See my amicus brief.)
The field of play now shifts from a legal battle to a policy debate. In addition to the Court’s endorsement of the policy foundations of the challenge to the ACA, the fundamental policy flaws remain.
Patient-centered care and patient engagement have become central to the vision of a high value health delivery system. The delivery system is evolving from a fee-for-service transactional payment model to a value-based purchasing model using outcome data and quality improvement and attainment. The Centers of Medicare and Medicaid Services (CMS) and private payers have spurred delivery redesign of networks that focuses on a set of clinical quality measures and patient care experiences along with efficiency measures.
However, the questions we ultimately really care are: “Did I get better? Am I healthier?”
With the advent of Facebook, PatientsLikeMe® and Avado, consumers and patients are sharing their healthcare experiences openly with their support system and strangers with similar illnesses. Our delivery system has yet to leverage the power of patient/consumer reported data in feeding back to care deliverers in the quality improvement cycle.
Clinical quality measures have traditionally consisted of process or surrogate measures and centered on providers and hospitals. As we move toward a system based on value, the measurement system must shift as well. Part of this movement will be utilizing outcomes directly reported from patients and their caretakers and incorporating these outcomes into quality improvement initiatives and payment models. The widespread adoption of standardized and validated patient-reported outcomes measures (PROMs) would accelerate the development of a patient-centered health system. However, new standards; patient-friendly, digitally-enabled instruments; secure portals; and more research will be required to facilitate adoption.
In the battle over health care that lies ahead, how strongly will the public rally around the need for innovation in confronting health care costs? Does the public view innovation as relevant to the challenge in the first place?
These aren’t idle questions. The news that growth in overall national health care spending has been moderating has raised speculation that innovations in payment and health care delivery are already paying off, notwithstanding the unquestioned impact of the Great Recession.
Looking ahead, uncertainty over the fate of the Affordable Care Act and the likelihood of federal budget cuts yet to come has many fearing that innovations will be vulnerable. And it is not just federal spending that will be at risk. Hospitals and health plans will all be watching their margins carefully to assess how far and how fast they can keep making investments that support innovation (such as investments in healthcare IT, analytics and care coordination) but that may take months or years to generate a return.
All of which places the role of innovation in controlling costs center stage. After all, this is what undergirds the Triple Aim that so many health care leaders have embraced as the only realistic alternative to arbitrary cutbacks in health care services and spending. Health care leaders can defend innovation if they have public support. But do they?
Americans believe in second chances. Mitt Romney will get his if the Supreme Court rules to throw out part, or all, of the president’s federal health insurance law. Should Romney propose replacing it with a federal version of the Massachusetts health law or a federal mega-bill that mandates a one-size-fits-all free-market solution?
The question is now central to the election — the high court has made that certain — and eclipsed in importance only by the debate over jobs and the economy.
President Obama may cite Romney’s Massachusetts reform as an inspiration for his own efforts, but there are profound differences between the laws — the size and reach, financing, the underlying philosophy. Romney sought an open marketplace for individuals to purchase benefit plans ranging from catastrophic to generous. Romney’s successor, Democratic Governor Deval Patrick, has obscured those differences by taking a big-government approach to implementation, drastically limiting choices and mandating minimum coverage levels beyond private-market norms.
Even with weak implementation, the Massachusetts law has yielded some positive results, including broadening insurance coverage, especially for minorities, and decreasing premiums for individual purchasers of insurance.
Any day now the Supreme Court will issue its opinion on the constitutionality of the Accountable Care Act, which even the White House now calls Obamacare.
Most high-court observers think it will strike down the individual mandate in the Act that requires almost everyone to buy health insurance, as violating the Commerce Clause of the Constitution — but will leave the rest of the new healthcare law intact.
But the individual mandate is so essential to spreading the risk and cost of health care over the whole population, including younger and healthier people, that some analysts believe a Court decision that nixes the mandate will effectively spell the end of the Act anyway.
Yet it could have exactly the opposite effect. If the Court strikes down the individual mandate, health insurance company lobbyists and executives will swarm Capitol Hill seeking to have the Act amended to remove the requirement that they insure people with pre-existing medical conditions.They’ll argue that without the mandate they can’t afford to cover pre-existing conditions.
But the requirement to cover pre-existing conditions has proven to be so popular with the public that Congress will be reluctant to scrap it.
This opens the way to a political bargain. Insurers might be let off the hook, for example, only if they support allowing every American, including those with pre-existing conditions, to choose Medicare, or something very much like Medicare. In effect, what was known during the debate over the bill as the “public option.”
“It is a measure of how dysfunctional the system has become,” says the editorial, “that these successful experiments — based on medical sense, sound research and efficiencies — seem so revolutionary.” It goes on to describe several of the kinds of new ventures in efficiency and effectiveness that make up the core of Healthcare Beyond Reform, in different healthcare systems and health insurers across the country.
The news here is not that these things are happening, or that they are so widespread that they can be called a “grass-roots movement.” The real news here is that the movement has gained such momentum that big, mainstream media organizations outside of healthcare, well beyond the policy wonk orbit, have begun to surface what may turn out to be the biggest story of our times: The largest sector of our economy turning inside out, like some movie transformer, on the way toward providing all of us with far better care for far less than we could possibly imagine. Better healthcare for half the cost.
If conservative Supreme Court justices are determined to overturn the Patient Protection and Affordable Care Act (ACA), then why not look to the Court’s famous ruling on school desegregation for what comes next? Couple the declaration that the signature legislative achievement of the nation’s first black president is unconstitutional with the enforcement urgency that followed Brown v. Board of Education in 1954.
In other words, tell the federal government to dismantle the ACA with “all deliberate speed.” Given the history of how putatively law-and-order Southerners responded, that should give health reform breathing room until at least the middle of the 21st century.
There are similarities between Brown and the ACA case. Both are rooted in controversies over state versus federal power and both, coincidentally, involve Kansas. In Brown, it was the Topeka Board of Education that said the Constitution allowed it to maintain separate schools for whites and blacks. In the ACA, it’s the Kansas state attorney general who has joined with 25 others to say that the Constitution protects state from having to expand the Medicaid program for the poor.
Brown was a landmark ruling that initially prompted little concrete change. When civil rights advocates returned to the Supreme Court in 1955 seeking better enforcement, the Court set a standard of “all deliberate speed” that in effect winked at much deliberate disregard. It wasn’t until 1969, in Alexander vs. Holmes County Board of Education, that the Court ruled that desegregation had to proceed immediately.