Season’s greetings and welcome to this year-end edition of our weekly health care reform update. Our Alert is 14 months old, having been launched in October 2010 in the wake of the Affordable Care Act. We hope you have found it informative and look forward to resuming our regular Alerts next week. This week we wanted to take a timeout and look back at where we’ve been; look around at where we are; and take a shot at looking around the corner to see where this is all going.
To say that there has been an astonishing amount of reform activity since March 23, 2010 is to state the obvious. In the Obama administration, in the Congress, in the courts, and in the states, the ACA has been interpreted, implemented, debated, and relitigated, literally litigated all the way to the U.S. Supreme Court and prepared-for and not prepared-for in the industry, and often by the same people. So what is the country going to see in 2012 from this vortex of conflicting energy?
The first and most fundamental Rubicon for the ACA to cross in 2012 is the U.S. Supreme Court. This case is far more problematic than many ACA supporters at first believed it to be. Substantial and consequential questions of Commerce Clause jurisprudence, the federal taxing authority, the 10th amendment, the Anti-injunction Act and more have all been presented in the courts below and have all been resolved in highly intelligent and literate opinions – going every which way. Court watchers are divided in their tea leaf reading; without being partisan or particularly confident, we believe that the Act is likely to survive this challenge, perhaps on procedural grounds only. Then again, it might not. (We said we can’t be confident.)
If it survives intact, then the next river to cross is even wider. (If it doesn’t survive intact then all heck breaks loose, which is above our pay grade to consider today).There’s this election we the people are holding on November 6, 2012. It will be hugely pivotal for manifold reasons, including health care reform. If the president is denied a second term and if the House remains Republican and if the Republicans gain 60 votes in the Senate, then it’s over for ACA. Anything less than that trifecta and the Act remains the law of the land. While you can bet $10,000 that a Romney or Gingrich administration will retard the implementation, we have no doubt that they will honor their oath to obey the Constitution and will follow the mandates of the ACA no matter how unenthusiastically.
On the other hand, an Obama reelection will, whatever the result on the Hill, will mean that the timeline of the Act will be pursued with vigor and intention. This administration believes deeply in this law. The president and his secretary of HHS will redouble their already determined efforts to make health care reform work. Read Title III of the Act. It is titled Reforming the Healthcare Delivery System. That’s what this is about. That’s how we pay for the uninsured and afford a quality system of care for ourselves. This Alert will be buzzing in 2013 if the president and the Act prevail in 2012.
And yet, for all the sound and fury about the ACA, we believe that there’s something happening here apart and distinct from (but driven by) the Act. Pick your cliché: we’ve reached a tipping point, the genie is out of the bottle, we’ve turned a corner. Health care is unaffordable. We must bend that cost curve. Reform is not a policy or choice. It’s an imperative. Whatever the fate of the Patient Protection and Affordable Care Act of 2010, (remember when that was what we called it?) more (not fewer) Americans need to be and will be insured. Fee for service payment is an anachronism. Value based purchasing is the future. Risk and savings sharing with providers is coming. Preexisting conditions and lifetime limits and more are gone no matter the fate of the Act. There is only one certainty in health care reform going forward: there is no certainty. There will be change. We look forward to alerting you weekly to the change that will continue to come.
Happy and healthy holidays to one and all.