As the ACA Turns

So now what?

If the Affordable Care Act was a soap opera – and who’s to say it’s not – I think even Susan Lucci would have lost faith by now in the merits of a plot leading to any type of long-term resolution, clarity or certainty.

The U. S. Court of Appeals for the D.C. Circuit ruled today in the Halbig v. Burwell decision that the IRS had incorrectly allowed the subsidization of insurance premiums to millions of Americans covered under the Act’s health insurance exchanges. Then about an hour later, the U.S. Court of Appeals for the Fourth Circuit, in Richmond, argued that the IRS was within their legal power because the subsidies they provided were, “a permissible exercise of the agency’s discretion.”

Following along?

The Act provides that subsidies be provided to “state-run” exchanges, but whether through political objection or inability, 27 states opted to have the federal government establish and operate their exchanges while another 9 states opted to have their exchanges jointly ran by state and federal agencies. So by an interpretation of the letter of the law subsidies are unavailable to individuals living in those 36 states.

In writing the 2-to-1 majority opinion on the Halbig decision, Judge Thomas Griffith noted that, “we reach this conclusion, frankly, with reluctance.” Why? Because according to the Robert Wood Johnson Foundation an estimated 7.3 million people — about 62 percent of those expected to enroll in federal-run exchanges by 2016 — could lose out on $36.1 billion in insurance subsidies. Over 7 million individuals could be losing an average of $4,400 in annual subsidies (based on Congressional Budget Office estimates for the current year).

What each court had to wrestle with was whether it was Congress’ intent to provide expanded access to healthcare insurance through premium subsidization irrespective of whether the exchanges are ran by state or federal governments. Judge Griffith wrote that, “the fact is that the legislative record provides little indication one way or the other of congressional intent, but the statutory text does. Section 36B plainly makes subsidies available only on Exchanges established by states.”

And there’s the rub. Looking back to the summer of 2010, the legislative process leading to passage of the Affordable Care Act was ridiculously chaotic, incredibly politically charged and fraught with misinformation being spewed in all directions by nearly every stakeholder who could find a media outlet. All (as in both) parties being equally complicit in disinformation

John Earnest, White House press secretary noted, “you don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who were running the marketplace. I think that is a pretty clear intent of the congressional law.”

I think he is wrong. It’s not clear because the legislative process leading up to and through passage was anything but. In fact, it can be effectively argued that lack of clarity was a direct result of favoring political expediency over legislative pragmatism. The Act is very poorly written and is fraught with these types of examples where implementation wasn’t very well thought through. But that lack of clarity – and legislative ambiguity in particular – is not grounds for overturning legislative intent.

Writing today in The New Republic, Brian Beutler argues that applying Supreme Court Justice Antonin Scalia’s concept of “overall statutory scheme,” that, “the words of a statute must be read in their context,” it is unambiguous that it was Congress’ intention through the ACA to provide insurance subsidies a priori of the means and mechanisms of the exchanges. Even if the argument could be made that it was ambiguous, Beutler notes that there is still the need to determine whether the law has been interpreted plausibly. In either case, it seems unlikely this latest attempt to derail the ACA will ultimately succeed.

But let’s assume that it does. I think it could easily be a case of be careful what you wish for because you might just get it for republicans. By the time this issue would make it through the Supreme Court there will be at least over 7 million individuals that are going to be told they will suddenly lose what then could reasonably be a $5,000 a year benefit. All that would be required to maintain the benefit would be an administrative language modification, which republicans could refuse as a plausible effort to cripple the Affordable Care Act. They would be in a politically very difficult spot – but then that seems to be a self-inflicted level of comfort they’ve grown accustomed to.

So stay tuned, as they say . . .


Picture credit: Time Magazine

Death Panels Just Won’t Die

Death Panels IISince this continues to be the number one searched post of Sparky’s Policy Pub, the timing seemed right for reposting (originally posted on 11/23/12).

I thought this would be a fitting topic for Black Friday. This post was inspired by a conversation I had yesterday with several of my Medicare-eligible family members who are adamant in their conviction that President Obama’s election victory meant the wonderful dinner we enjoyed would most likely be our last Thanksgiving together.  Of course I’m just using hyperbole, right?  Not as much as you might imagine.

Actually, it wasn’t much of a conversation at all.  As the lone Democrat among a group of 12 that feel I am just an unfortunately misguided soul being controlled by the Dark Side, I really do more listening.  And I watch, carefully – for any hidden cues they might send to one another signaling a political intervention that I am sure would include some form of immersion.  But I digress.

At issue here is these intelligent, caring and concerned retirees harbor a genuine fear and loathing of the Affordable Care Act – in ways that I frankly believe are just not supported by reality.  But why? The specific case in point is the promulgation of a piece being circulated around the Internet (enough said?) that apparently is encouraging seniors who may be contemplating knee replacement to have that surgery done soon because the procedure won’t be available in the near future due to rationing under Obamacare.

Now, someone with a working knowledge of healthcare would look at such a story and immediately question what on earth is that all about.  Are the surgeons going on strike? Have hospitals and outpatient surgery centers determined the procedure is too risky? Have the part replacement manufacturers run out of titanium? I wanted to find out for myself, so I went to Google and searched for the news items in question.

And this is what I learned: this is a poignant example on how easy it is to start with a factual piece of evidence-based journalism from a well respected source and pervert it into fodder for conspiracy theorists and those hell bent on advancing a political agenda at the expense of innocent seniors.  It also highlights the incredibly challenging task before us to educate the public on ACA implementation: the easy and the tough – and the realities that future demand on our healthcare system will bring about irrespective of public policy.

In the September 26, 2012 issue of the Journal of the American Medical Association can be found the article, Increasing Use of Total Knee Replacement and Revision Surgery.  The article examines the increase in TKR surgeries (having grown from 93 thousand procedures in 1991 to 226 thousand procedures in 2010).  It discusses several of the key drivers of the increase: e.g., the aging population, knee stress caused by  a growing incidence of obesity, seniors’ desire to lead a more active lifestyle.  It also addresses the rate of hospital readmission after TKR, increase in infection cases for revision cases and shifts in post-discharge care settings.

What the AMJA article doesn’t talk about is care rationing or death panels.

From this journal article, however, the Breitbart News Network’s Dr. Susan Berry created (and I do mean, “created”) a September 29th, 2012 story (note – this was before the election) entitled, Study: Obamacare May Make Knee Replacements Less Available to Seniors.  In that article she referenced the JAMA study above and combined it with a quote from a Wall Street Journal article regarding the same research, entitled, Rise in Knee Replacements Boosts Federal Health Cost

In the WSJ article, Dr. Peter Cram, the lead JAMA article contributor and a health-policy researcher and internist at the University of Iowa Carver College of Medicine, is quoted as saying, “Ultimately there’s going to be [only] some number of these we can afford,” The article also attributes the observation to Dr. Cram that, “how to limit the procedure or who should get it will be a ‘really contentious debate,’ .”

Dr. Cram makes a very reasonable point that is certainly worthy of discussion and debate – and has been for a long time before the Affordable Care Act among those who understand demographics and the reality of limited resources.  He doesn’t even intimate, however, what might be the long-term result of that debate.  But from that quote, Dr. Berry made the incredulous leap that such an observation is supportive of the nefarious motivation behind the ACA’s Independent Payment Advisory Board (IPAB) and the completely fabricated notion that the IPAB will be in charge of rationing care.

From Dr. Berry’s article:
Studies of this nature will likely be used to support the “necessity” of the ObamaCare Independent Payment Advisory Board (IPAB), the group of unelected officials who will be responsible for handing down the “rules” to physicians about who gets the knee surgery and who does not. The IPAB will, indeed, be in charge of “rationing” knee replacement surgery and other treatments and procedures, as well.

Apparently Dr. Berry has not read the Affordable Care Act.  I did.  The IPAB was created by the ACA under Sections 3403 and 10320 and is to be comprised of 15 full-time members.  Of the 15, the President is required to solicit suggestions from Congress on 12.  All members have to be confirmed by the Senate and may not hold any other employment.  Each member will serve a term of six years, and only a minority of the 15 may be health care providers.

Beginning in 2015, if the projected rate of increase in Medicare spending (as determined by the Chief Actuary of the Centers for Medicare and Medicaid Services) is above specific targets, then at the beginning of the year the IPAB will make binding recommendations to Congress on how to reduce spending.  If Congress does not agree with those recommendations, it must pass alternative cuts – of the same size – by August of that year.  A supermajority of the Senate (at least two-thirds of those present) can also amend the IPAB recommendations.  If Congress does nothing (its stasis), then the Secretary of Health and Human Services will implement the IPAB’s recommended cuts.

The ACA statutorily prohibits rationing.  Here is directly from ACA, Sec. 3403:
The [IPAB proposal] shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums . . .increase Medicare beneficiary cost sharing . . . or otherwise restrict benefits or modify eligibility criteria.

Now, in the interest of fairness and equal coverage, there have been some good arguments advanced (not by Dr. Berry) that the IPAB’s functioning could lead to indirect rationing by restricting the amount of funding available to Medicare providers – and thus, access to the services and care they provide.  But in lieu of the dramatic increase in demand for those services due to demographics, is it really the IPAB that should be of primary concern?

The real story here is another example where medical technology has created demand for a procedure that wasn’t imaginable when Medicare was started back in 1965.  It’s a wonderfully successful procedure that has made a dramatic difference in the lives of many.  But it’s not free to provide.  And as we continue to run headlong toward the fiscal cliff, it is becoming increasingly obvious that we are not a nation of unlimited resources.  The IPAB was created out of an earnest attempt to recognize that reality and remove the responsibility of addressing it from elected officials.

When there is significantly greater demand than the supply can meet, there will be rationing – the only issue to debate is who does the rationing, and how.  But recognizing that someday not everyone may be able to have on-demand knee replacement surgery fully covered by Medicare is a far cry from all of the misguided rhetoric surrounding the IPAB and its fallacious association with death panels. 

The ACA’s creation of the IPAB does not mandate rationing.  It mandates that we recognize in order to control the growth in Medicare expenditures we will be forced to address certain economic realities.  I believe that was the point Dr. Cram was making, which Dr. Berry took out of context to create a story that then got bastardized into another Internet myth.  Unfortunately,  those myths really scare good people that are trying to understand what is ahead of them – and how to be the best advocates for their own healthcare.  That a physician would play a role in undermining that effort just to score some points on a news site with a particular political bent I find very sad. 

But what do you think?


The Realities of Defunding

obamacarefingerbitingLG-300x158Last week the once relevant political operative of right wing influences, Karl Rove, wrote an editorial in the Wall Street Journal, Republicans Do Have Ideas for Health Care. In case you were concerned that defunding the Affordable Care Act would leave the country’s healthcare system in chaos and peril you can now rest easy – the Party of No has a plan. Except they don’t if you go by Mr. Rove’s article.

Before I continue I should note that high hopes of defunding the ACA may reflect a personal perception of authentic patriotism but for most those hopes belie an understanding of our healthcare delivery system, the Affordable Care Act – and most pragmatically, political realities. At the request of Tom Coburn (R-OK), the Congressional Research Service recently published Potential Effects of a Government Shutdown on Implementation of the Patient Protection and Affordable Care Act.

As discussed in that memorandum, defunding of the ACA via government shutdown would not have the intended consequence of stopping much of its implementation while risking the consternation of various constituencies that the Republican party has yet to alienate. Of course, that won’t stop Senators Cruz (R-TX), Lee (R-UT) and Rubio (R-FL) from making political hay out of an issue that strikes a harmonious chord with their conservative bases, and why should it. Those who look for sincerity in the motivations of either (any) political party fail to accept the realities of campaigning and democratic elections in the 21st century.

I should also note that Mr. Rove is on record of disagreeing with these senators. He believes defunding the Affordable Care Act through a government shutdown would give the President, "a gigantic stick with which to beat [Republicans]." I tend to agree and would hope the Republican party could spend more time on developing new ideas that reflect the realities of our current delivery system instead of just being against the ideas of others (and sometimes their own).

In his editorial, Mr. Rove points out several Republican policy initiatives that taken one by one have some merit – both within the context of ACA implementation and under the unlikely hypothetical assumption of its outright repeal. But it is beyond a stretch to suggest that even taken together those several examples he cites constitute a legitimate alternative to the comprehensive approach of the ACA. And therein lies the challenge that many (most?) political wonks, talking heads and sound bite artisans face when discussing healthcare policy. Our healthcare delivery system is complicated and complex beyond reason, and certainly way beyond necessity. But you have to play the game on the field you’re given not on a chalkboard.

Several of the policy initiatives Mr. Rove cites deal with health insurance: portability of policies, employer risk pooling and selling premiums across state lines. I think these are plausible modifications and/or addendums to the ACA approach that are worth circumstantial testing.  But part of the recognized challenge up front is that these approaches are dependent upon employer-based insurance, which most policy experts agree was never a good idea to begin with. And they leave out a wide swath of the population that doesn’t receive employer-based health insurance. If we didn’t think there was merit in providing healthcare benefits to those unable to afford such coverage, then these would be top of mind ideas.

Another initiative cited, medical liability (or tort) reform is a bit like the weather: everyone complains about it but nobody really ever does anything to change it. Perhaps that’s because of the preponderance of Congress who are also lawyers. But there is another line of thought that believes increasing quality and safety might also be a pragmatic approach to lowering malpractice liability. What would we rather have: the forbearance of frivolous suits that also risk restricting justice to individuals – or the reduction in the basis upon which such suits are brought. In reality, we probably need both.

Of the several reform initiatives Mr. Rove shared transparency has to be the weakest example of meaningful policy. Pulling the cover off of the Invisible Man won’t change your view of him. And mandating that meaningless provider charge rates (prices) be published won’t enable better decision making by consumers (patients). I addressed this back in February in a post I entitled, Pick a Price.

Moving on, allowing Medicaid patients to apply their governmental benefits toward private insurance sounds reasonable enough. Unfortunately, it would be bad policy. Although there are already a number of states seeking to leverage private insurance capitation models as a hybrid compromise to Medicaid expansion within the context of the ACA, those models still maintain control over risk pooling so as to address adverse selection.  While allowing funds to be indiscriminately repurposed may sound like an idea promising to partner individual choice with market efficiencies, as Naomi Freundlich addressed in her Healthcare Blog post, the reality of implementing such an idea is another matter entirely.

Finally, Mr. Rove writes that, “the president and his liberal posse have a fundamental, philosophical objection to conservative ideas on health care. They oppose reforms that put the patient in charge rather than government, that rely on competition rather than regulation, and that strengthen market forces rather than weaken them.”

Disingenuous assertions like this do little to advance meaningful healthcare policy discussion. This is no different than liberal talking heads claiming that conservatives seek to advance healthcare policies that benefit (or are structurally biased toward) the wealthy at the expense of the poor. More generally, asserting that the ACA’s hidden agenda is to abscond personal liberty in favor of governmental control misses the point of the real debate entirely. Both the theoretical and practical debate is not over whether the government knows better than the individual what is best for the individual. The debate is in how public policy can best balance the protection of personal liberties while morally advocating for the rights of those individuals with far less ability to secure affordable, quality healthcare. Some feel healthcare is a basic right secured by the Constitution. Others do not. What do you believe?


Time to Move Forward

Last night’s reelection victory by President Obama should finally put to rest the long and bitterly partisan rhetoric surrounding the Affordable Care Act (known more popularly and embraced even by the President during the campaign as Obamacare).

It should – but I doubt it will.  While Repeal and Replace was a catchy enough campaign slogan, the “replace” part never really seemed to be manifested in a way that offered any meaningful alternative that could be widely embraced by a majority of the body politic, even in the face of a staggeringly lethargic economy.

I think it is critically important to remember why that is: because the underlying challenges of healthcare delivery in the United States cannot – and will not – be addressed solely through public policy.  I have maintained since 2009 that the Affordable Care Act can provide a workable framework for achieving cost savings by leveraging market-based incentives while improving access and quality through public-private collaboration and care coordination.  But the future success of Healthcare Reform implementation is now squarely in the hands of healthcare providers and the non-clinical supporting cast that must step up and justify its share of the Big Tuna.

Whether before yesterday you were like the ostrich with its head in the sand or the deer frozen in oncoming headlights, today is the day you no longer can justifiably afford to stay in that position without accepting the responsibility and consequences of  your inaction.  I have written and spoken extensively over the past two years about what healthcare providers must do to be strategically positioned for success under the Affordable Care Act.  I won’t take your time again here to beat that dead horse.

With the final significant challenge to ACA repeal behind us, however, I would like to offer some observations of what I think post-acute/long-term care providers should expect over the next two-plus years leading us into the 2014 bi-election.

Latent Political Opposition
As I write above, while the election should end the political opposition to the ACA, it most certainly will not.  What the President certainly did not win last night was a clear mandate of his political agenda, of which quite obviously Healthcare Reform has been the centerpiece.  The country remains deeply divided on issues that are very difficult to reconcile.  Couple this reality with the looming fiscal cliff facing the US and much of Europe, and there is more than enough political fodder available that opposition constituencies can lean on to push back against implementation.

This will be most acutely felt as we move forward with Medicaid expansion and the health insurance exchanges.  States that have been on the fence – whether perceptually or in reality – will now have to come out from under the election’s shadow and determine – very quickly – whether they will participate in the Medicaid expansion and/or develop their own health insurance exchanges (or allow the Federal government to develop them on their behalves).

Medicaid Expansion
The reality is that most states will find it too politically tempting not to take advantage of federal funding in support of Medicaid expansion.  And so, savvy post-acute/long-term care
organizations will do well to focus a lot more attention – if they have not been already – on what is happening in individual state houses in 2013 and 2014.  Of particular importance and significance, it is going to require a monumental effort to coordinate service and care delivery to the dual-eligible populations.  States will be looking to both insurers and providers to help develop the systemic infrastructure to support Medicaid expansion.  Organizations that participate in, and contribute toward, those development efforts will be much better positioned to financially benefit from expansion implementation.

Discretionary Funding
Another major political obstacle facing ACA implementation will be discretionary funding.  While major portions of the Act – including the core elements of access and coverage infrastructure – were appropriated within the legislation, there are still significant sections where funding was authorized but still requires congressional appropriation (as in appropriated by the House of Representative: still quite firmly in Republican control).

Given the budgetary realities facing the Administration and Congress – and what will likely continue to be the Republicans’ intransigence on income taxes –  it seems logical to expect discretionary funding will be severely threatened.  This will have the greatest impact on workforce educational programs and community-based health and wellness initiatives, but several demonstration/pilot projects, as well as monitoring and technology assistance initiatives could also be negatively affected.

What has become the dirtiest word in Washington over the past decade is going to rear its ugly head again – and probably as soon as during this lame duck session of Congress.  The same fiscal concerns that will impact discretionary spending I expect will also be manifested in delays and compromises impacting implementation of both the insurance exchanges and Medicaid expansion – and perhaps even the Individual Mandate.

There will be efforts to tighten up essential health benefits (EHB).  Exchange policy pricing and subsidy values will be challenged.  Medicaid eligibility criteria will be scrutinized.  All this in the name of seeking to limit the Federal government’s actuarial financing risk (and resultant budget impact).  And though it may appear to be counterintuitive in the face of last night’s election, my bet is that Republican resolve to demand spending cuts will be stronger in the next Congress than it has been in the current.  If the Administration wants to raise tax revenues, it will have no choice but to compromise, and not facing the prospect of reelection in four years will be in a better position to do so.

And yet we still come back to the singular policy issue that exists beyond the Affordable Care Act: how to control Medicare spending without impacting access in the face of an approaching tsunami increase in demand for care by Medicare recipients.  There is the physician Sustainable Growth Rate (SGR) formula that hangs like a black cloud, imposing a constant threat to any and all implementation efforts.

There is the $716B in Medicare savings upon which the overall economic success of the ACA largely depends.  There are programmatic payment initiatives driving providers toward payment bundling and capitation.  Medicare Reform is a story that has yet to be written, and the ending is no brighter today than it was yesterday – nor would it have been had Mitt Romney and Paul Ryan have won.  The need to produce more, better and faster with less, fewer and cheaper is the stark reality that cannot be taken away by any political party.  Stay tuned for a very rough ride . . .

Final Thought
As I have written before, although the ACA provides a comprehensive framework, much of Healthcare Reform’s ultimate policy development and implementation is still to be created through future legislation and during the regulatory process.  Or another way to look at it is, today is only the end to the beginning of Healthcare Reform.  So let’s get to work!



Implications of SCOTUS Decision on Medicaid Funding of PA/LTC

Before I get to the heart of this post (the Medicaid story), please allow me to share some additional thoughts up front.

Dewey Wins Moment
First, as was announced this morning, the Supreme Court has found the Affordable Care Act is constitutional in its entirety (noted exception regarding Medicaid expansion).  I was following the announcement on the
SCOTUS blog this morning (where it was shared that the Individual Mandate was upheld), and so I had a very hearty laugh listening to John King of CNN go on for nearly five minutes about the implications of the Individual Mandate being struck down.  Apparently, a reporter in the Court read the opinion passage that, “the individual mandate thus cannot be sustained under Congress’s power to ‘regulate Commerce’ ” and failed to keep reading.  Ah, the risks of wanting to be first.

Maintaining Political Perspective
Second, a modest word of caution.  As I have written here and shared with industry peers and constituencies in various other formats, this is another step along the path of Healthcare Reform.  The next challenge the Affordable Care Act faces is the fall elections.  And I would not be the least bit surprised – or really, at all disappointed – to know that Republican strategists are in a back door way pleased with this decision because they can
now use it to energize their voting base.  It will be a rallying cry to get the vote (and donations) out.  Democrats will have to redouble their efforts (if not their campaign fund raising) if they want the ACA to survive in tact beyond the 113th Congress.

But, it will be very difficult now to rescind the entire Act regardless of what Messrs. Romney, Boehner, McConnell, et al would like us to believe.  First, there is the political reality of having to not only win the Presidency but to maintain a majority in the House and take back control of the Senate.  I think retaking the Senate will actually be a longer shot than Romney defeating Obama.  Second, by the time any new legislation could be drafted, vetted and passed, the ACA will be well into implementation.  Trying to go backwards at that point would have devastating social and economic consequences that elected officials of any stripe are unlikely to want to be associated with.

There very well could – and I would expect, regardless of election outcomes, will – be some modest tinkering in the future.  We still have the economic realities of a very fragile world economy that keeps us teetering on the brink of another deep recession.  So I think it is likely the essential benefits definitions and actuarial soundness of insurance plans under standardization of coverage will be tightened up in ways that improve budget projections. 

Medicaid Expansion
To some, like me, this part of the decision was more of a surprise than the IM being found as constitutional – and there could, potentially, be rather significant implications for post-acute/long-term care providers.  I am not by a long stretch a legal scholar, but I will try to give you my best understanding.

Title II, Section 2001 of the Act – Medicaid Coverage for the Lowest Income Populations – expands coverage for individuals with incomes at or below 133 percent of the federal poverty level ($14,856 in 2012).  As a practical matter, this means expanding coverage for adults without children or disabilities.  According to a May 2010 Kaiser Family Foundation Report, it is estimated that an additional 15 million individuals will receive beneficial healthcare coverage under this provision by 2019 at an estimated cost of $465 billion.

According to 42 USC § 1396c – Operation of State plans, the Secretary of HHS has the ability to withhold federal funding of a state’s Medicaid program for failure to comply with federal requirements (this was existing code not altered by the ACA).  Thus, states not complying with provisions of Section 2001 of the ACA would be at risk of having all federal Medicaid funding cut off – not just funding of the Medicaid expansion.  In lieu of the ACA’s Medicaid expansion, the Court found that application of 1396c in such instance would be unconstitutional because states could not have anticipated such an onerous exercise of coercion when electing to participate in the original Medicaid program.

The remedy of this finding is that the Act must be amended such that 1396c would not apply to a state’s decision whether or not to participate in the Medicaid expansion under Section 2001.  So, in theory, states now have the option of whether they want to participate in the Medicaid expansion or not.

Now, given that the program’s design will initially provide 100% federal funding for newly eligible enrollees under the expansion program – declining to 93% by 2019 – I cannot imagine how any state would choose not to participate.  It would seem to be political suicide for an elected official to forgo federal funding to expand healthcare coverage to the poor when the relative impact on that state’s budget is, by comparison to federal spending, rather small.  And by not participating, that state would essentially be choosing to lose a portion of the taxes paid by its citizens that will benefit the poor in other states.

On the other hand, as we witnessed when several Republican governors chose not to accept economic stimulus funding, there is a very real possibility that some states may choose to opt out of the Medicaid expansion as objection or disagreement with the expansion (or the Affordable Care Act in general).  Add to that concern over the potential Medicaid Crowding Out effect, and you can see where some states may choose to opt out of Medicaid expansion.

In as much as many post-acute and long-term care providers are very dependent upon state Medicaid funding, the ripple effect of how this plays out in the months ahead will be something such organizations will want to watch closely.  And, of course, we will be actively monitoring such developments here in the Pub.  There could be significant state policy ramifications impacting the budgeting of Medicaid funding for post-acute and long-term care.

That’s what I think, anyway.  I would be very interested to know what you think.

  ~ Sparky

SCOTUS Decision Day Approaches

Okay, it’s prediction time.  We are about to head into the back half of June next week, and that means we have a two week period now during which the Supreme Court will hand down its decision in what is one of the most notorious cases that institution has ever deliberated.  No, it doesn’t rank up there with Marbury v. Madison, the Dred Scott Decision, Plessy v. Ferguson or Brown v. Board of Education – but it is likely to be remembered as the most impactful decision on future public policy since Roe v. Wade in 1973 for our generation.

So here is my prediction.  SCOTUS upholds the Affordable Care Act in its entirety.  Now, I have read more than I wanted to of the assessments, opinions, analysis – and the all-to-irritating opinions cloaked in very weak and self-serving analysis.   I have browsed through the transcripts of oral arguments presented before the Court.  I watched and listened to legal scholars, former judges and elected officials from every level of government.  And the one key takeaway I have from assimilating those hours of my life wasted is this: nobody at this point in history has any more inkling of how SCOTUS is going to decide than you or I. 

The legal arguments, particularly those that are based upon Constitutional Law and History, I found fascinating.  I wish I could believe that those arguments – on all sides of the issues before the Court – would carry the greatest weight to effecting a decision.  But Supreme Court Justices are human, after all, and subject to social influences – to what degree is the subject of some very interesting (if not quite useless) analysis.

And the Supreme Court’s standing in public opinion has taken a real beating. A recent opinion poll shows an approval rating of only 41%.  This has to carry some influence – regardless of the external rhetoric.    But while the logical consequence would be to assume such disfavor would weigh on the side of deciding against the ACA, I think the opposite will happen.  I think, in particular, Justices Roberts and Kennedy will not want to appear unduly influenced by public opinion and out of step with their historical vantage on previous decisions.  I also think they quite rightly understand that their decision – in either direction – will ultimately serve as the catalyst to energize the political party disappointed in that decision.  And so regardless of what they decide, the Affordable Care Act will de facto be sent back to Congress in one manner or another.

But please remember the SCOTUS decision is really a side show at this point to Healthcare Reform – particularly as reform will impact care provider organizations.  This holds true for the fall elections, as well, which will be the next round of political exchange impacting the reform effort however the Court decides.  At issue is when and how reform will be implemented – not the impact it will have on healthcare providers.

The underlying trends and drivers that brought us to this place in history will not abate because of a court decision or election.  The population will continue to age; people will continue to live longer and be sicker longer; the available caregiving labor force will continue to face challenges keeping up with demand; State budgets will continue to be under tremendous pressure; and the world economy will continue to influence the US economy in ways that are still very unpredictable.

But it’s fun to make predictions in any event, especially since this one has had such drama leading up to it.  So I’ve given you mine.  What’s yours?

  ~ Sparky