Monday, November 21, 2011

The Supreme Court and the Future of Health Care

The Supreme Court holds health care's future in its hands.


November 21, 2011 - The best source of information on the future of health care and of physicians is the Physicians Foundation ( This nonprofit organization was founded in 2003 to settle a lawsuit brought by 19 state medical societies against major health plans.

The non-partisan non-profit Foundation seeks to improve the practice of medicine by its practitioners and their patients. It does part of its work by awarding grants to physician groups and other organizations, such as Health Leads.

Health Leads allows physicians to “prescribe “ social services. College volunteers, most destined for a future in health care as physicians and other health care professionals, then help poor families gain access to food stamps, housing, jobs, social services, and medical transportation.

The Foundation also conducts national surveys of thousands, even hundreds of thousands of practicing doctors. These physicians are the backbone of health care's delivery system. Through its surveys, the Foundation determines physician morale, economic status, plans for the future, wants, needs, expectations, and frustrations.

The Foundation publishes results of its surveys to guide physicians, and it publishes the Washington Report. Lee Stillwell, a veteran inside-the- Beltway consultant and journalist closely allied to the medical profession, writes the report.

Here are excerpts of his November 21 Washington Report.

Finally, after 20 months of arguments between the Obama Administration and Congress about the viability of the massive health care law, the U.S. Supreme Court dramatically has moved to determine the fate of the legislation that impacts every American’s medical treatment.

The Court last Monday (November 14)surprised the political community, which has been involved in never-ending bickering about Obamacare, with an announcement it would decide the legal fate of four issues which are at the heart of the law.

The case likely will be heard in March 2012, and a decision announced later in the summer at the height of the Presidential and Congressional campaigns!

The high court set the oral argument at five and one-half hours, longest time in more than 45 years. The court also picked two outside veteran attorneys—H. Bartow Farr 111 and Robert A. Long-- to argue certain components of the law that would not be covered by the other lawyers in the case. Many believe the decision will be the most crucial ruling made by the justices since the Bush vs. Gore decision almost 11 years ago, sealing George W. Bush’s election win.

The importance of a case that will decide the future of health care for all Americans led to an unusual request to televise the oral argument—the first time ever in the history of the court. The plea to permit TV coverage was made by Brian P. Lamb, chief executive officer (CEO) of C-SPAN.

“We believe the public interest is best served by live television coverage of this particular oral argument,” Lamb said in the letter. “It is a case which will affect every American’s life, our economy, and will certainly be an issue in the upcoming presidential campaign."

From my viewpoint, Lamb, who has support for the idea from members of Congress, makes a valid argument. There is no doubt that this issue will determine the future of medical treatment for all Americans.

The Court certified four questions for review in the Patient Protection and Affordable Care Act (PPACA), signed into law by President Obama on March 23, 2010:

--Is it Constitutional for the federal government, who wants to increase coverage to 50 million uninsured Americans, to mandate that everyone is required to have health care coverage by 2014?

--If an individual mandate is unconstitutional, does the entire statute fall or stand?

--Is it unconstitutional for the federal government to require the states to pay extra funds for expanding Medicaid to a bigger pool by 2017?

--Should a legal decision be put off until 2015 when the first taxpayers would be forced to pay a penalty for not having health insurance?

Cases accepted by the court are National Federation of Independent Business v. Sebelius, No. 11-393; Florida, et al., v. Department of Health & Human Services, No 11-400; and Department of Health & Human Services v. Florida, et al, No. 11-398.

The legal battle finally reaches the Supreme Court after four very different rulings at the Circuit Court level. The 11th Circuit Court of Appeals, Atlanta, ruled the mandate unconditional; the Sixth Circuit, Cincinnati, and the District of Columbia Circuit, upheld the mandate; and the Fourth Circuit, Richmond, dismissed the suit as premature, stating the challengers had to wait until the mandate takes effect in 2014.

All nine justices –John Roberts, Antonin Scalia, Anthony Kennedy, Clare Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan—appear ready to participate in the ruling.

The stakes are high and the health care community waits with great anticipation. A ruling against the individual mandate would cripple the intent of the law. Without it, many would avoid the insurance until they get sick, dramatically driving up insurance premiums.

If the court throws out the entire law, many already implemented provisions that benefit millions could be jettisoned, including young people staying on their parents’ health plan until 26 years of age and the effort to close the doughnut hole for seniors-the gap in prescription drug coverage.

However, the biggest surprise was the court agreeing to look at the law’s Medicaid expansion. Supporters of PPACA fear an adverse ruling will kill the effort to expand Medicaid. States in their suit said the expansion amounts to an unconstitutional coercion. Under the law, cash-strapped states would be required to cover all residents with incomes up to 133 percent of the poverty level, adding an estimated 17 million participants.

Obviously, any legislative effort to repeal the law now will take a back seat until the Supreme Court makes a decision. However, the twists and turns of the market place guarantee that the health care community, which cannot afford to wait for a decision, will continue to transform itself the best way it can to survive in this uncertainty.

Tweet:The Supreme Court holds health care’s and physicians’ future in its hands. It hears ACA’s case in March and announces results in June.

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