What Happens If The Supreme Court Strikes Down The Affordable Healthcare Act?

What Happens If The Supreme Court Strikes Down The Affordable Healthcare Act?
By Bill Cockrell

There’s an old saying: “Be careful what you wish for.”  This month, I will have been in healthcare management for 31 years.  During that period I have seen us pass from the days of payments based on UCR (usual, customary and reasonable) to the participating provider fee for service model, the comings and goings of HMO’s (still a preferred model in some markets), medical management companies rising and falling, and a myriad of other delivery system changes.  Now we have the Accountable Care Act (ACA), or “Obamacare”, as the Act has been become known and there are many who are wishing for its demise.  

While its goals of making sure quality, affordable healthcare is available to all, is hard to fault, the Act itself is fraught with problems ranging from its complexity to its legality.  There’s not enough space here to go into all the details but the Supreme Court is now considering four issues.  These are:

1.       Whether the Anti-Injunction Act bars challenges to the requirement for individuals to obtain insurance (the individual mandate) until the mandate is implemented in 2014,

2.       The constitutionality of the individual mandate,

3.       Whether the individual mandate, if found constitutional, is severable from the rest of the ACA, and

4.       The constitutionality of the Medicaid eligibility expansion to a new segment of the population.

If the Supreme Court strikes down any one of these provisions, that action will have a significant impact on the whole Act.  While there are plenty of experts who are making predictions as to which way the Court will rule, the fact is, we won’t know until sometime this summer.   That means plans for Insurance Exchanges, Healthcare Co-ops, and the many other methods on the drawing board for the implementation of the Act, must move forward while not being sure if the will be able to operate under some legal structure.  Of course, for physicians used to the annual SGR cliff concerns, individual third party payer rules and increased scrutiny of quality issues, this uncertainty is just another unknown to have to deal with.

The issue now is, going back to my opening statement, what happens if the Act goes away.  Do we go back to the “good old days” of four years ago?  And were the “good old days” really that good?  We still had the SGR issues, there were concerns about Medicare insolvency, more control of the healthcare delivery process by payers through benefit management programs and wide variations in the availability of diagnostic services.

So now, if the Act goes away (and rest assured I am not a proponent of all of it) what takes its place?  We probably will be dealing with some or all of the following:

Medicare funding will continue to dry up if we continue with the current fee for service model continues.

Wide variations in access to care will continue.

Payers will continue to be forced to reduce payments because their customers, industry purchasers of benefit plans, will demand it because their costs will be too high for their pocket books.

Reporting on the cost of healthcare to payers and patients will expand.  (Check out the Aetna out of pocket cost tool which, interestingly, has no mention of quality measures.)

There will continue to be efforts to find some national guidelines for care (despite wide socio-economic variations).

In essence, if the ACA goes away, we still face the same issues.

So, what do we do to deal with the future?

We continue the push to implement more technology (EMR’s, better links to transmit patient information, more accurate testing, etc.) to save money by being more efficient.  The EMR train has already left the station so, if you are not on board, it’s time to start running.

We try to control operating costs by purchasing more efficiently.  That means standardizing and negotiating prices, something that we historically have not done well on the provider side.

We try to improve on quality to control costs.  This means finding ways to measure quality and the willingness to address issues.

We, as providers, will need to work together to find ways to improve quality and accessibility so we can accomplish all of the above.

So, while the ACA is the plan many of us love to hate, we still have to deal with many of the same issues no matter what happens.  Ultimately, we have to avoid ’throwing baby out with the bath water”.  We have to be the drivers of improvement meaning we have to communicate and deal with uncomfortable subjects (quality, utilization rates, etc.).   I was recently on a call with a national medical specialty organization discussing the availability of cost and quality information when some on the call expressed concern over presenting the information because the information is “sensitive”.  That’s despite the fact (unrelated to the ACA), in 2013 Medicare will make the same information available to the general public through its Physician Compare website.  The fact is the information in question is based on claims and documentation data submitted by providers and has some inherent problems based on things such as patient demographics, coding expertise and other reporting issues.  Wouldn’t we be better served by improving that information instead of arguing about the sensitivity?

The reality is we have to find ways to work together.  Forget the ACA, health plans, payers and other influencers.  Providers have to figure this out themselves or accept what is handed to them.