ACA and the Supreme Court
Many people have asked my opinion of the Supreme Court decision concerning the constitutionality of the Affordable Care Act. While I am flattered to be asked, I am also a little confused as my knowledge and experience is in health and not in constitutional law. So rather than even try to comment on that decision, I will share some of my thoughts on the ACA now that it is clearly the law of the land.
The ACA is a complex, multifaceted piece of legislation that is over 2,000 pages long. That fact has been well discussed. Another aspect of that complexity is that a law is only a starting point. It is the start of a process that results in the Executive branch of government writing the procedures, requirements and other details of how that law will actually be carried out. It is said that for every page of legislation that is written, about 100 pages of policies and requirements need to be written in order for the law to be carried out. Thus, we now have hard working, and well-meaning Federal employees developing these details which could easily total 200,000 pages even as the debate goes on. Until they are written and then followed, we will not truly understand the full impact of all the different pieces of the law as passed. That, in general, does worry me.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) was passed as a way to better ensure that people’s privacy was protected while in the health care system. For many, it has been translated into forms that people sign without understanding what they are signing and has led to less communication with family members even though communication is critical when you or a loved one is ill. The intent of the law was, and remains, wonderful. The way it is carried out by health care professionals and facilities and by the government agencies that must police it, protects the health industry and make the bureaucrats jobs easier, but does not necessarily help the patient’s privacy. I do not blame the health professionals or the federal employees. They are following the logical steps to implement and enforce a law. The law just places health professionals and facilities in a very difficult place in which they must prove that they are doing what is required and places federal employees in an equally difficult position of having to prove to Congress that they are effectively making sure that the law is in place and working. Thus the goals become the process rather than the problem of privacy that the law was designed to address.
That is the lens I have on when I read and review the ACA. There are wonderful aspects to this law, many of them involved in insurance reform. As someone who has been in the health insurance industry in one form or another for many years, I am thrilled to see the end of pre-existing condition limitations. I am also thrilled by the end of lifetime maximums for large, catastrophic situations. I am more bothered by some of the parts of the legislation that potentially interfere between a doctor and a patient. In medicine, standards are critical and accountability of health professionals is also critical however the individual variability in patient care is so great, that accountability cannot and should not get in the way of the relationship that must form between a doctor, a patient, and often a family. The Independent Payment Advisory Board is a 15 member board of experts who will decide on Medicare spending without oversight, including without Congressional oversight. This worries me. While I believe it would be well meaning and would focus on the population’s needs, it would not see the individuals behind the population statistics. Experts are never experts in the care of individuals that they do not know and do not see. They base their pronouncements on studies, statistics, and academic debates. If you or a family member is sick, you want your care to be informed by experts but carried out by a caring professional who knows you and your desires and needs. In many ways, when we pass laws that attempt to define very specifically how individuals should be medically treated, we enter into a dangerous place as the actual practice of medicine, and the care of those in need, is rarely specific and is filled with judgment calls that are different from person to person.
I have spent a good part of my career trying to reconcile the shades of gray that are medicine to the black and white of laws and finances. After doing this for more than twenty years, I have finally come to the conclusion that they can never be completely reconciled and instead must live together in a shaky balance. Laws and finances are needed but there must always be room for deviation when an individual need does not fit the law or the circumstance. This does not mean breaking a law but it does mean understanding when a law may not apply. The ACA contains detailed provisions that can potentially be harmful to an individual’s care when it attempts to create false clarity in health decision making. More often, the decisions are based on different balancing of the risk and benefits (and yes – costs) and are influenced by family, culture, religion, and other individual factors that no board can ever take into account.
Another aspect of a law that is this big and this expansive is the unintended consequences. I do worry that as the Advisory Board cuts Medicare spending, that fees for physicians will go down dramatically. We already have a situation in which doctors are spending far too little time with patients to give the type of quality of care that is often needed. When unit fees for medical services go down, physicians react in the very human way of increasing their volume of services. This is not a defense of doctors receiving large sums of money nor is it an indictment of physician greed. It is an acknowledgment that doctors are also people who have their own needs and desires. They are usually caring smart people and we have to be careful not to put impediments in their path. As incomes for physicians go down, and the satisfaction with the career goes down due to less time spent with each patient, the quality of people choosing medicine as a career may also go down. This is but one example of a potential unintended consequence. In a recent Health Affairs article, authors from the University of Pennsylvania discussed three other examples from the ACA of parts of the law that may not turn out as desired. I discussed that in a piece I posted just before the Supreme Court decision.
So we have taken a complex system and possibly made it more complex with ACA while also improving some aspects of the health insurance industry. The fact that we will be covering more people is a strong plus. The challenge is that we need caring, independent professionals who are not focused on the population but on each of us as individuals to diagnose and treat our ailments and care for us.. I fear that the law as written may be a step backward in that very personal aspect of care.