By Tom Mallon
Nearly two years after its passage, the Patient Protection and Affordable Care Act (PPACA) has failed to live up to its promises and its very future remains in flux.
Healthcare Reform – and its many ramifications – has been the main discussion in our industry and in D.C. for the past two years. Naturally, everyone has grown tired of the “he said, she said" escapades that go on in the political world. However, it still remains one of the most important discussions of our generation and will continue to be that way, through the Supreme Court decision and for many years afterwards.
So Where Are We Now?
Shortly after President Obama’s election in 2008, D.C. came together to discuss healthcare reform, beginning with hearings by the Senate Finance Committee. This committee released an initial proposal document entitled, “Call to Action: Health Reform 2009." PPACA was passed in March of 2010; however, many aspects of this legislation have been hotly contested since the very day it was signed into law. In early 2011, newly elected Republican representatives in the House voted to abolish the PPACA less than a year after it was enacted. Individual state courts have additionally tested aspects of the bill for constitutionally, and some (district courts in Virginia, Florida) have found that the clause mandating all individuals to carry insurance is indeed unconstitutional. Upon hearing these resolutions, U.S. District Judge Roger Vinson ruled that a severance of the individual mandate would too greatly impact the overall essence of PPACA and the entire law must thus be declared void. Due to this, 25 states have since joined lawsuits that have been brought to state courts challenging the constitutionality, which will ultimately have to be decided on a federal level.
Though these lawsuits have not yet reached the Supreme Court, individual U.S. Courts of Appeals have voted on the issue, with the most recent and perhaps most significant ruling coming from the D.C District Court of Appeals, widely regarded in Washington as one of the most influential appeals courts in the U.S. This appellate court, comprised of three judges, voted on Nov. 8, 2011, to uphold the healthcare law based on merit – and confirmed constitutionality in a 2-1 decision. What is important and demonstrative to note is the reasoning of dissenter Judge Brett Kavanaugh. He explained that although he did not vote to uphold the healthcare law in its current iteration, he would not have voted against plaintiffs seeking to overturn the mandate entirely. The reason for his dissention was his belief that individual healthcare mandates should be a state decision, operating to similar current state laws.
As debates continue in Washington (with PPACA still on the table to take full effect in 2014, though some provisions have already been enacted), the Supreme Court will weigh in by the summer of 2012 in the midst of the 2012 presidential election. However, issues of disagreement have grown far beyond the individual mandate to which the 25 state attorney generals have objected.
CMS vs. Physicians
What are the largest and most enraging missing pieces for a large number of opponents of the bill? For starters, the lack of physician freedom of action in making daily decisions for their patients, primarily in highly specialized fields. As the economic crisis in America continues to grow more acute and medical costs continue to rise, provisions have been written into PPACA to restrain medical costs through greater governmental control of specialist physicians such as anesthesiology, neurosurgery, orthopedics and thoracic/ cardiac surgery. Based off a skewed government assumption that specialty and subspecialty physicians are responsible for the most wasteful spending during care, Congress penned tight regulations designed to greatly constrain the use of the most costly clinical procedures.
If compliance is not found, financial penalties await the ‘sinning’ physician. Surgeons of all subspecialties are the most incensed about these provisions, as their care generally requires the use of the most expensive medical equipment, including imaging and lab equipment that has revolutionized treatments of injuries and diseases.
