The ACP Advocate Blog

by Bob Doherty

Thursday, June 25, 2015

Supreme Court: “Congress passed the ACA to improve health insurance markets, not to destroy them."

This was the key finding  made by the Supreme Court, in its landmark decision this morning upholding  that the ACA requires that premium subsidies apply in all 50 states.  The 6-3 decision, written by Chief Justice Roberts, ensures that the Affordable Care Act is here to stay for the duration of President Obama’s term in office.  Even more importantly, it ties the hands of any future administration from re-interpreting the statute to deny the subsidies in states that have let the federal government run their exchanges.

The Supreme Court could have ruled more narrowly, upholding the subsidies as a reasonable exercise of the IRS’s administrative authority to implement a statute when the wording it unclear.  Had it gone that way, a new President and his or her administration could have reinterpreted the statute so that the subsidies would no longer apply in states with federally-facilitated marketplaces.  Instead, it issued a definite ruling that the law requires that the premium subsidies apply everywhere.

 “This is not a case for the IRS,” wrote Justice Roberts on behalf of the court. “It is instead our task to determine the correct reading of [the statute].”  And the statute, the justices found, “compels the Court to reject petitioners’ interpretation because it would destabilize the individual insurance and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

The court’s concern about the impact on patients, if it had overturned the subsidies, is evident from this paragraph in the ruling:

“So without the tax credits, the coverage requirement would apply to fewer individuals. And it would be a lot fewer. In 2014, approximately 87 percent of people who bought insurance on a Federal Exchange did so with tax credits, and virtually all of those people would become exempt . . .  If petitioners are right, therefore, only one of the Act’s three major reforms would apply in States with a Federal Exchange.  The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. One study predicts that premiums would increase by 47 percent and enroll­ment would decrease by 70 percent. E. Saltzman & C. Eibner, The Effect of Eliminating the Affordable CareAct’s Tax Credits in Federally Facilitated Marketplaces (2015). Another study predicts that premiums would increase by 35 percent and enrollment would decrease by 69 percent. L. Blumberg, M. Buettgens, & J. Holahan,The Implications of a Supreme Court Finding for thePlaintiff in King vs. Burwell: 8.2 Million More Uninsured and 35% Higher Premiums (2015). And those effects would not be limited to individuals who purchase insur­ance on the Exchanges. Because the Act requires insurers to treat the entire individual market as a single risk pool . . .premiums outside the Exchange would rise along with those inside the Exchange.  It is implausible that Congress meant the Act to operate in this manner.”

Touche!  This is precisely what ACP argued, in an amicus brief we submitted to the court along with 17 other health advocacy organizations.  Our brief noted that tax credits (premium subsidies) established in the ACA as well as the insurance market reforms have enabled millions of Americans to purchase health insurance. If the Court decides in favor of the plaintiffs, millions will lose their health insurance subsidies. This will likely lead many to drop coverage or elect to go uninsured, driving up health insurance premiums for those that remain covered. If health insurance subsidies for federally-facilitated marketplace (FFM) plans were eliminated, enrollment in ACA-compliant individual market plans would drop by 9.6 million, according to the RAND Corporation. The Urban Institute/Robert Wood Johnson Foundation estimates the number of uninsured would increase by 8.3 million.”

So the Supreme Court ruling is a big win for patients and their physicians, and for ACP advocacy on their behalf.  ACP President Dr. Wayne Riley, in a statement issued this morning, said that “we are thrilled and gratified by the Court’s ruling, which affirms that the citizens of all 50 states will have the opportunity to access either a state or federal exchange to obtain subsidies to purchase health insurance policies which benefits themselves, their families and loved ones.”

The Supreme Court decision doesn’t mean the end of the Obamacare wars, of course.  Congressional Republicans will still try to get changes, although the court’s decision takes away their leverage to try to force President Obama to agree to repeal of major provisions of the law in order to keep the subsidies going.  I now predict that there will be no major legislative changes in the ACA until President Obama leaves office.

The voters could elect a president in 2016 that is committed to changing or repealing Obamacare, but because the Supreme Court took away the next President’s option to reinterpret the statute to discontinue the subsidies, they would need Congress to amend or repeal the law, no easy task.  And by then, millions more Americans will have coverage from the ACA.

“The Patient Protection & Affordable Care Act of 2010 is now more than ever, the law of the land and we urge the Congress to work with this and future administrations to improve it in the years ahead” said Dr. Riley in his statement on the court’s ruling.

Let’s hope that there comes a time when this reality sets in, and the debate shifts to improving the law, not destroying it.

Today’s question: what do you think of the Supreme Court ruling?

Thursday, June 18, 2015

What do doctors really think of Obamacare? (It’s not what critics have told you).

Anti-Obamacare critics often claim that “every” physician they know hates Obamacare. For instance, Pediatric neurosurgeon and GOP Presidential candidate Dr. Ben Carson told Fox News that “he's spoken to hundreds of doctors throughout the country about the Affordable Care Act, and not one of them ‘liked’ President Barack Obama's signature healthcare law.”
   
Doctors hate Obamacare, it’s alleged, because it authorizes government to “control” the practice of medicine and impose “rationing” of care, thereby harming patients.  The conservative Examiner website quotes a New Jersey family physician, Dr. John Tedeschi as saying, “Just as a guitar string has to be tuned, so does a person’s health to get the right tone. The government has taken away, or refocused the intelligence part of the tuning, and has just about destroyed the creative, or compassion component. Now, with Obamacare, we are left with an incompetent mechanism that does not have the best interest of the patient in mind.”  An ER physician quoted in the articles said that the “storm of patients [created by Obamacare] means when they can't get in to see a primary care physician, even more people will end up with me in the emergency room."

There is no question that some doctors (mainly conservatives) hate Obamacare, and if they were the only ones you talked to (like the ones who apparently talked to Dr. Carson), you might think that all doctors feel the same way. But the reality is that—surprise, surprise!—primary care physicians’ views are just like the rest of us, split by their partisan leanings.
 
A new survey by the respected Kaiser Family Foundation found that 87% of Democratic-leaning physicians view Obamacare favorably, while the exact same percentage of GOP-leaning physicians view it unfavorably. Independent doctors split 58% unfavorable to 42% favorable.  Because there were more GOP and independent physicians among the survey respondents, the overall breakdown of primary care physicians’ views on the ACA is  52% unfavorable to 48% favorable.  Yet only 26% of all primary care physicians viewed the law “very unfavorably. “  So it might be said that just one out of four primary care physicians “hate” Obamacare.

And a deeper dive into the survey results directly refutes the contention of anti-Obamacare doctors that the law is leading to poorer quality, physicians turning away patients, or longer waits for appointments:  

- Most primary care physicians say that quality has stayed the same: 59% said that their ability to provide high quality care to their patients has stayed about the same, while 20% said it has improved and 20% said it has gotten worse.
- More primary care physicians report that Medicaid expansion has had a more positive impact on quality than a negative one. “When asked more specifically about the expansion of Medicaid under the ACA, nearly four of 10 providers (36% of physicians and 39% of nurse practitioners and physician assistants) said the expansion has had a positive impact on providers’ ability to provide quality care to their patients (Table 7). About two of 10 said it has had a negative impact and the remainder said it has not made a difference or they are not sure.”
- Ease of getting same-day appointments is about the same as before the ACA. “Overall, about four of 10 primary care providers said almost all their patients who request a same- or next-day appointment can get one; another quarter said most of their patients can get such appointments” which is largely unchanged from 2009 and 2012.
- Most continue to accept new patients. “A large majority of primary care providers (83% of physicians, 93% of midlevel clinicians) said they are currently accepting new patients . . . A survey conducted in late 2011 through early 2012 found that 89 percent of primary care physicians were accepting new patients and 52 percent were accepting new Medicaid patients.  This indicates that while physicians’ rates of accepting new patients overall may have declined slightly since the ACA coverage expansions went into effect, acceptance rates for Medicaid have remained about the same.”

When asked specifically about their views on the impact of the Affordable Care Act on five dimensions, the ACA fared well, with one exception (costs to patients).

- Access to health care and insurance in the country overall: 48% positive, 12% no impact,  24% negative, and 14% not sure.
- Overall impact on practice: 31% reported no impact, 23% a positive  impact, 36% negative  and 9% not sure.
- Quality of care their patients receive: 50% reported no impact, 18% positive, 25% negative, and 6% not sure.
- Ability of the practice to meet patient demand: 44% no impact, 18% positive, 25% negative, and 10% not sure.
- Cost of health care for their patients: 17% no impact, 21% positive, 44% negative, and 16% not sure.

However, “physicians’ responses to questions that mention the ACA by name are deeply divided along party lines. For example, by a three-to-one margin, physicians who identify as Democrats are more likely to say the ACA has had a positive (44%) rather than a negative (15%) impact on their medical practice overall (Table 8). Republican physicians break in the opposite direction by about seven-to-one (57% negative, 8% positive).”

The survey also does not support the contention that the ACA is contributing to primary care physician dissatisfaction with practice and burn-out:

“Even though providers with different political affiliations do not share views about the Affordable Care Act, a large majority of primary care providers (83% of physicians and 93% of nurse practitioners and physician assistants)—both Republicans and Democrats—reported they are very or somewhat satisfied with their medical practice overall. The changing environment does not appear to be affecting overall provider satisfaction even among providers who see a larger share of Medicaid patients or work in Medicaid expansion states. Indeed, current satisfaction levels are slightly higher than what was reported by primary care physicians before the ACA. In 2012, 68 percent of primary care physicians reported they were very satisfied or satisfied with practicing medicine.”

Interestingly, Democratic physicians (56%) are more likely to recommend a career in primary care than Republicans (39%)  or Independents (40%).

I know that many conservative primary care doctors have a strong and principled objection to Obamacare, believing  passionately that it gives the government too much power and the physicians and their patients will be hurt as a result.  I (and ACP) may not agree with them, but I respect their views, and their right to make their case to their colleagues and to the public.

But the Kaiser Family Foundation survey shows us that the anti-Obamacare doctors do not represent the views and experience of most primary care doctors on the front lines, never mind “all” of them.  Doctors (at least those in primary care, who knows about surgeons?) clearly don’t “hate” Obamacare.  Rather, more of them see Obamacare as doing some good things, like improving access; and doing not as well on other things, like lowering costs to patients.  Much of what they do and see in their practices remains unchanged by it, for good or bad.

 And that strikes me about right, Obamacare is making many things better, but there is a lot more that needs to be done to improve quality and access, lower costs to patients, and sustain and support primary care.  Of course, such nuances do not make for as good a headline or political talking point as “Doctors Hate Obamacare.”

Today’s question: What is your reaction to the survey results on primary care physicians views on Obamacare?

Tuesday, June 16, 2015

How the Supreme Court is Reshaping American Health Care

As long-time readers of this blog know, I have worked in Washington DC as an advocate for internal medicine for more than 36 years now (yes, since Jimmy Carter was President!), first for the American Society of Internal Medicine from 1979 to 1998 and since the merger of ACP and ASIM in 1998, for ACP.  For 33 of those years, the third branch of government, the Supreme Court, rarely engaged in the major debates over healthcare policy, leaving  those decisions to Congress and the Executive Branch.

No more.  Under Chief Justice Roberts, this Supreme Court has already done more to drive healthcare policy than any other, at least in my memory.  First, it ruled in 2012 that the Affordable Care Act’s individual insurance mandate was constitutional; the same ruling found that the federal government couldn’t require states to expand Medicaid.  Last year, it ruled that some for-profit corporations could opt-out of the ACA’s contraceptive mandate because their owners’ religious objections.

It is now poised, as early as next week, to issue two momentous opinions that could affect healthcare for generations.   It will decide whether the ACA’s premium subsidies are legal in the 34 states that have opted to let the federal government run their exchanges.  And it will decide whether same sex couples have a constitutional right to civil marriage, and, with it, the same rights to access healthcare as other married couples.

First, let’s recap what the Roberts court has already done.  When the Supreme Court decided in 2012 to uphold the ACA’s individual insurance requirement, the decision was widely regarded as settling the argument over whether the law’s constitutionality, which it did, but only to a point.  The same 5-4 opinion found that it was unconstitutionally coercive for the federal government to punish that states that refused to expand the Medicaid program.  By making it voluntary, the court opened the door for states to walk away from expanding Medicaid, even though almost all of the cost is paid for by the federal government.  So, as of March 2015, there are 22 states that have chosen not to expand Medicaid, with the result that “nearly four million poor uninsured adults fall into the ‘coverage gap’ that results from state decisions not to expand Medicaid, meaning their income is above current Medicaid eligibility but below the lower limit for Marketplace premium tax credits” reports the Kaiser Family Foundation.  In other words, in these 22 states, the very poor (those at or below the federal poverty level) are simply out of luck when it comes to getting help from their states in getting covered, while people who make more than the poverty level can get generous ACA subsidies to afford coverage.

Then, last year, the Supreme Court ruled in the Hobby Lobby case that the ACA’s mandate that health plans cover contraception imposed an unacceptably high burden on the religious beliefs of the company’s owners, for the first time establishing that the religious beliefs of some types of for-profit companies were protected by the Religious Freedom and Restoration Act.  The immediate impact of this ruling so far appears to be fairly limited, mainly to Hobby Lobby and its employees and to other “closely held” companies that also have religious objections to the contraception mandate.  But the concern all along of critics of the Hobby Lobby decision is that it could open the door to other companies seeking relief from other mandates that conflict with their owners’ religious beliefs.  “Once the contraceptive mandate issues have been resolved by courts, the next wave of disputes is likely to involve employers who object on religious grounds to paying benefits to the same-sex spouses of employees. Unlike with the contraceptive mandate, however, these businesses may have a tougher time prevailing . . .” observes Robert Tuttle, a Professor of Law and Religion at The George Washington University.  Apparently emboldened by Hobby Lobby, laws have been introduced this year alone in 16 states exempting some businesses from having to provide services to gay couples.

Within days, and no later than June 30, the Supreme Court will rule on same-sex marriage and on the challenge to the ACA’s insurance subsidies.  A ruling establishing that same sex partners have a constitutional right to marry would help improve their health and break down barriers to them getting appropriate medical care.  As ACP wrote in its recent position paper supporting same-sex civil marriage, “The health and financial benefits of marriage for different-sex couples are widely reported, and contemporary research supports similar benefits in same-sex marriage. On the other hand, denial of marriage rights for LGBT persons may lead to mental and physical health problems. Health benefits associated with same-sex marriage result from improved psychological health and a reinforced social environment with community support.”  A Supreme Court decision ensuring a constitutional right to marriage for same sex couples would also presumably give them the same legal protections as other married persons when it relates to hospital visitation rights and decision making.  “If LGBT spouses or partners are not legally considered a family member, they are at risk for reduced access to health care and restrictions on caregiving and decision making; further, they are at increased risk for health disparities, and their children may not be eligible for health coverage,” ACP noted in its paper.  On the other hand,  a Supreme Court ruling that same sex couples do not have a constitutional right to marriage would be a devastating setback in ensuring that same sex couples have equal access to healthcare, and to other legal protections, as other married couples.

Finally, the Supreme Court will rule in the King versus Burwell case, which challenges the legality of the ACA’s premium support subsidies in the 34 states operated by the federal exchanges.  If the court rules that the subsidies are illegal, consumer premium contributions will increase by an average of $3300 in those states, according to a new study by the Alvalere consulting firm.  Enrollment in ACA-compliant individual market plans would drop by 9.6 million, according to the RAND Corporation and the Urban Institute/Robert Wood Johnson Foundation estimates the number of uninsured would increase by 8.2 million.  According to a Commonwealth Fund report, physicians, hospitals, and other providers may lose more than $9 billion in revenue a year and potential closures or reduced services for rural hospitals, community health centers, and non-profit hospitals that serve a disproportionate number of low-income individuals.  “If the challengers win, it would throw the health-care law into chaos” writes Vox’s Sarah Kliff.  “But if the White House prevails, something equally momentous will have occurred: President Obama's signature legislative accomplishment will actually, really, definitely be here to stay.”

How you feel about the recent Supreme Court rulings on upholding the ACA’s individual mandate,  making Medicaid voluntary, and allowing for-profit companies to opt-out of benefit requirements that are contrary to their owner’s religious beliefs, or how you will feel about  its upcoming decisions on same sex marriage and the ACA’s premium subsidies,  probably depends on your own underlying political leanings.  We all pick and choose, applauding court decisions we like while objecting to those we don’t.

Yet what is clear to me is that the Roberts court will have done more to shape the future of American healthcare than any other in decades, and the consequences  of its decisions will be debated for generations.  If that doesn’t define an activist court, than I don’t know what does.

Today’s questions: What do you think about the Roberts Court’s activism on healthcare?  How will future historians judge it?

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About the Author

Bob Doherty is Senior Vice President, American College of Physicians Government Affairs and Public Policy; Author of the ACP Advocate Blog

Email Bob Doherty: TheACPAdvocateblog@acponline.org.

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