Ezekiel Emanuel says he has been betting on how the Supreme Court will decide the case challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA).
Speaking at the annual meeting of the Jewish Social Policy Action Network in Philadelphia not long ago, Emanuel, who served as Special Advisor on Health Policy to the Obama administration when the bill was being drafted, confided that he has placed five wagers expressing his optimism that “the mandate will survive” along with the rest of the legislation.
“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.
President Obama’s push for near-universal health insurance coverage may be harder to kill than most zombies.
If the Supreme Court decides to take a metaphorical stake to Obama’s health-care overhaul law and tosses the individual mandate out on the front steps of the court, there could still be life left in that battered and bruised corpse.
Bloomberg Government senior health policy analyst Peter Gosselin took a close look at various alternatives to the individual mandate, should the court rule against it. Gosselin’s study, “A Plan to Replace the Individual Mandate If the High Court Strikes It Down,” finds that a voluntary, auto-enrollment process — similar to that used to enroll employees in corporate 401(k) retirement plans –could be an effective substitute.
Gosselin found that “even if auto-enrollment performs at a lower level of its effectiveness in retirement savings, it could offset much or all of the non-group enrollment loss of six million people expected if the mandate is overturned.”
As important as the sheer numbers of people, the study found that auto-enrollment “could largely restore the mix of young and old, healthy and unhealthy people that the mandate was intended to ensure and that’s needed to make an insurance system work well.”
Depending on how the high court rules, we may need to rename the much fought-over law to Ozombie Care.
Like waiting outside the Vatican for the puff of white smoke, the nation sits on edge awaiting the Supreme Court’s ruling on the Affordable Care Act. The ruling, which is likely to be announced next week, could toss out the entire healthcare reform bill, chop off one of its limbs (probably the so-called individual mandate), or leave the ACA intact. Whatever the ruling, it will be chum for the blogosophere, particularly in the heat of presidential silly season.
The two fundamental challenges to American healthcare today are how to improve value (quality divided by cost) and how to improve access (primarily by insuring the tens of millions of uninsured people). The bill sought to address these twin challenges in ways that were complex and intertwined. I’ll argue that a decision by the Court to throw out all or part of the ACA will have a profoundly negative effect on the access agenda, but surprisingly little impact on the value agenda. To understand why requires that we focus less on the bewildering details (mandates, insurance exchanges, PCORI, CMMI, IPAB, etc.) and more on some big picture truths and tradeoffs.
The job of any healthcare system is to deliver high quality, safe, satisfying care to patients at the lowest possible cost. Although America certainly does specialty and high tech care like nobody’s business, on all of the key dimensions of value we aren’t very good. The numbers tell the sorry tale: we provide evidence-based care about half the time, there are huge variations in how care is delivered, we kill 44,000-98,000 patients per year from medical errors, and we spend 18% of our gross domestic product on medical care, far more than any other country.
This post is intended for those who do not follow the Court’s work closely, but are tuning in now largely because of the ACA decision. (For avid Court watchers, this stuff is terribly obvious, so I apologize.) My goal is just to briefly explain what work is left for the Court this Term, and how it might affect the timing of when HHS v.Florida (and Florida v. HHS and NFIB v. Sebelius) are handed down.
First, the numbers. Setting aside the ACA cases, the Court essentially has twelve other decisions to hand down. (I say essentially, because Miller v. Alabama and Jackson v. Hobbsare separate cases, though they raise the same basic Eighth Amendment question. Thus, they are sure to be decided together, whether in two opinions or one, and probably with the same majority opinion author.) Those are, in the order of argument:
1. First American Financial Corp. v. Edwards (argued November 28)
2. Williams v. Illinois (argued December 6)
3. Knox v. SEIU (argued January 10)
4. FCC v. Fox Television Stations (argued January 10)
5. United States v. Alvarez (argued February 22)
6. Southern Union Co. v. United States (argued March 19)
7. Miller v. Alabama and Jackson v. Hobbs (argued March 20)
8. Christopher v. SmithKine Beecham Corp. (argued April 16)
9. Dorsey v. United States (curvelined with Hill v. United States) (argued April 17)
10. Salazar v. Ramah Navajo Chapter (argued April 18)
11. Match-E-Be-Nash-She-Wish Band v. Patchak (curvelined with Salazar v. Patchak) (argued April 24)
12. Arizona v. United States (argued April 25)
The Court will hand down one or more opinions–almost certainly more than one–this coming Monday, June 18. The Court will then announce–probably on Monday, probably before noon–whether it will hand down any more opinions later next week. Of course, it will not announce which opinions, just whether it will hand any more down.
Soon the healthcare blogosphere will be filled with reactions to the Supreme Court decision on the Affordable Care Act. Rather than see my own blog lost amidst hundreds of others, I thought it best to preempt the competition, so to speak, and offer my reactions now.
The 5-4 decision should not have surprised anyone. Many Americans will conclude (and not without reason) that most justices based their vote on whether they supported the ACA and not on whether its provisions violated the Constitution. I also have little doubt that as we move forward, many Americans will blame the court’s majority and their political allies if healthcare spending continues to rise unabated.
The justices offered thought provoking arguments on both sides of the case. While the media has focused on a couple of snarky comments written by Justice Scalia, I was particularly struck by an economic argument made by Justice Ginsberg. She notes that there is no meaningful economic difference between collecting a general tax from the entire population and then offering a rebate to individuals who purchase a specific good, and collecting a limited tax from individuals who do not purchase that good.
The public’s growing disdain of the Supreme Court increases the odds that a majority will uphold the constitutionality of Obamacare.
The latest New York Times CBS Poll shows just 44 percent of Americans approve the job the Supreme Court is doing. Fully three-quarters say justices’ decisions are sometimes influenced by their personal political views.
The trend is clearly downward. Approval of the Court reached 66 percent in the late 1980s, and by 2000 had slipped to around 50 percent.
As the Times points out, the decline may stem in part from Americans’ growing distrust in recent years of major institutions in general and the government in particular.
But it’s just as likely to reflect a sense that the Court is more political, especially after it divided in such partisan ways in the 5-4 decisions Bush v. Gore (which decided the 2000 presidential race) and Citizen’s United (which in 2010 opened the floodgates to unlimited campaign spending).
Americans’ diminishing respect for the Court can be heard on the right and left of our increasingly polarized political spectrum.
A few months ago, while a candidate for the Republican presidential nomination, Newt Gingrich stated that the political branches were “not bound” by the Supreme Court. Gingrich is known for making bizarre claims. The remarkable thing about this one was the silence with which it was greeted, not only by other Republican hopefuls but also by Democrats.
Last week I was on a left-leaning radio talk show whose host suddenly went on a riff about how the Constitution doesn’t really give the Supreme Court the power to overturn laws for being unconstitutional, and it shouldn’t have that power.
Not everything about improving health care is breathlessly hanging on one high stakes decision.
The Supreme Court will rule soon enough on the constitutional challenges to the Affordable Care Act. Meanwhile, even amid the drama and bitter struggles, progress can occur in health care improvement—like the ever increasing adoption of health information technology. Believe it or not, there is broad agreement about using this technology in health care. Scott Gottlieb and J.D. Kleinke in a recent Wall Street Journal opinion said it well, “. . . promotion of health information technology is one of the only demilitarized zones in Washington—consistently attracting bipartisan support . . . .”
So, this rare consensus seems real and durable, but what is actually happening in the hallowed HIT ground where both sides have somewhat oddly come to a policy truce?
Since May of 2004 when President George W. Bush established the Office of the National Coordinator for Health Information Technology (ONC) we’ve witnessed a slow but relentless upturn in adoption. That progress dramatically accelerated with attention and funding in the American Reinvestment and Recovery Act in 2009. Since 2006, the Robert Wood Johnson Foundation (RWJF) in collaboration with ONC has supported an ongoing, independent effort to monitor the national adoption of the electronic health record.
As health reform evolves, I’ve been watching multihospital systems grow in size and power and speculating what their gigantic size means.
Here, as of 2008, were the 10 largest systems in revenue size
1. Veterans Administration Hospitals, $40.7 billion
2. Hospital Corporation of America, $28.4 billion
3. Ascension Health, $12.7 billion
4. Community Health, $10.8 billion
5. New York Presbyterian, $8.4 billion
6. Tenet Health, $8.3 billion
7. Catholic Health Initiatives, $7.8 billon
8. Catholic Health West, $7.6 billion
9. Sutter Health, $6.9 billion
10. Mayo, $6.1 billion
What strikes me about this list are that such giant systems like Kaiser, the Cleveland Clinic, Johns Hopkins, Duke, and Health Partners in Boston don’t even appear, and the large number of Catholic multisystem chains. The revenues of multihospital systems has undoubtedly grown since 2008. In 2011, hospital mergers and acquisitions hit an all time high.
When I’m not writing pieces here, my “day job” is working with healthcare providers recognized as Disruptive Innovators who are reinventing healthcare and slaying the healthcare cost beast as a byproduct. In some cases, these are entrepreneurs. In others, they are pioneers within existing healthcare providers.
Even though this is the month that the Supreme Court is supposed to rule on the constitutionality of Obamacare, it is striking this fact rarely that ever comes up in discussions with healthcare providers.
Philip Betbeze described this in a HealthLeaders Media piece entitled “Disruptive Healthcare Innovations Trump SCOTUS Worries“ when he asked senior executives about their perspective regarding upcoming the Supreme Court decision.
But when you ask one question, you might get an interesting answer about something else entirely. That’s the way my sources for this off-the-record conversation surprised me. They agreed they are much more concerned about disruptive innovation than what nine people in black robes are going to say at an indeterminate date sometime this month.
The roundtables, set up for me by the good folks at Premier Inc., which is holding its annual “Breakthroughs” conference here in Nashville this week, revealed that these leaders fear less what the government may do in response to whatever decision the Court makes, and more what nontraditional competitors may do to their resource and capital-heavy healthcare delivery systems.
The Supreme Court has already decided the fate of the health reform law, and in a few short weeks the rest of us will know whether it is upheld, struck down entirely, or badly damaged. Of the possible decisions, four are the most likely and each would have significant ramifications.
1) The Court could uphold the law. Prior to oral arguments, this was the conventional wisdom. Justice Anthony Kennedy’s stinging questions led many to change this view, but he has surprised Court watchers before.
If he springs another surprise and supports the individual mandate, the law’s implementation would continue unabated. States that have waited for the Court’s decision would start moving on exchanges and essential benefits.
HHS would issue more regulations: on subsidies, employer penalties, insurance requirements, and others. However, it is common knowledge that many of the more controversial rules are being slow walked until after November 6th so as to not complicate President Obama’s reelection chances.
Upholding the law would certainly raise the stakes of the November elections. Should Democrats hold the Senate and/or President Obama win reelection, it’s likely the law would be permanently ensconced. On the other hand, should Republicans control the House and Senate and Governor Romney win the presidency, they will try to repeal the law or gut it through budget reconciliation before major provisions take effect in 2014.
But based on the “train wreck” of oral arguments, it seems unlikely that the law will escape the Court unscathed. It is more likely that the law will be damaged. The question is, to what extent?