Uncertainty the only sure thing

Earlier this year, Enloe Medical Center CEO Mike Wiltermood described national health-care-reform legislation thus: “It all comes together in this difficult-to-understand series of events. I think it’s going to play out for years, with constant attempts to tweak the system. All we can do is wait and see how the pendulum swings.”

Enloe’s chief financial officer, Myron Machula, summarized it as “pretty much a moving target.” John Dahlmeier, a Butte County insurance broker, put it this way: “Roll the dice and see what the courts come out with.”

In other words, when it comes to the Patient Protection and Affordable Care Act (PPACA), the only certainty is uncertainty.

Turns out their predictions were correct. Monday through Wednesday (March 26-28), the U.S. Supreme Court will hear arguments in support of and opposition to the PPACA, and the subsequent ruling will determine the direction reform can go.

At issue is a component of the PPACA known as the “individual mandate"—a requirement that Americans carry health insurance. Opponents have argued that the government cannot require citizens to buy a commercial product or service. The Supreme Court will have the final word.

However, there’s more to the case than a single PPACA component. The Supreme Court will consider other aspects as well.

First, the PPACA expands the Medicaid system. Medicaid is not strictly a federal program—it involves administration and funding at the state level, which leads some to ask: Did Congress overstep its bounds?

Second, the Supreme Court will consider severability—whether all parts of the PPACA are linked, or whether it can be taken apart. If the court decides against the individual mandate, or against the Medicaid expansion, is the entire law then null and void?

Finally, court justices will determine whether they even could rule against the PPACA before it’s been fully implemented. That’s because of a law known as the Anti-Injunction Act, which not only limits the authority of federal courts over state-court rulings but also prevents individuals from suing over a tax before the tax is collected. Does the Anti-Injunction Act apply here?

The legal issues are complex and significant. The case is expected to draw masses of demonstrators to the Supreme Court steps, and it may affect the November election as well as the place in history of President Obama and Chief Justice John Roberts. Politico.com calls it “the most high-profile Supreme Court case since Bush v. Gore,” and The New York Times says this “signature case … will shape, if not define, the chief justice’s legacy.”

The PPACA is so comprehensive that its mandates roll out incrementally over five years, from 2010 through 2015. Two changes most conspicuous to patients include electronic medical records—doctors and hospitals using computer systems instead of old-fashioned paper charts—and rebate checks from insurance companies under the “medical-loss ratio” component of the PPACA that limits the amount insurers can allocate to administrative expenses.

The PPACA also calls for:

• nonprofit insurance exchanges along with, and as an alternative to, for-profit insurance companies;

• expansion of Medicaid to include 15 million uninsured Americans;

• expansion of the Indian Health Care Act for Native Americans;

• tax credits for small businesses, as well as lower- and middle-class Americans, to help offset the cost of insurance coverage;

• tax increases for individuals earning more than $250,000 a year;

• greater emphasis on preventive care, including Community Health Centers.

The White House is confident the law will stand. Kathleen Sebelius, the U.S. Secretary of Health and Human Services, recently wrote an opinion piece for Politico stating that “Congress carefully weighed its authority in writing the law,” and a majority of lower-court judges reviewing the law have said it is constitutional.

Senate Minority Leader Mitch McConnell disagrees. He believes the individual mandate won’t stand, and in a piece he co-wrote for Politico, he says: “Because the central part of the health-care law is unconstitutional, we believe that the court should strike it down.”

Fifty-three percent of Americans, according to a recent Kaiser Family Foundation poll, expect the Supreme Court to find that the individual mandate is unconstitutional (see http://tinyurl.com/indimandate).

If the law stands, Republican presidential candidates have vowed to strike it down upon reaching the White House.

If the law falls, other Congressional proposals may resurface, such as the “auto-enrollment initiative” that Rep. Paul Ryan introduced in 2009. (Under auto-enrollment, uninsured Americans would subscribe to private insurance plans sold through state exchanges, though with opportunities to “opt out.")

Meanwhile, health-care leaders in California pledge to continue their efforts at broader reform regardless of what happens at the federal level.

“We believe we need to drive health-care reform whether it’s legislated or not,” Michael Taylor, senior vice president for Dignity Health’s Greater Sacramento-San Joaquin area, said at a recent forum in Sacramento. “Health-care costs are out of control and we need to bend the curve.”

The Butte County Health Care Coalition is among the groups advocating a statewide “single payer” system, which would incorporate all Californians in one nonprofit insurance plan. (Check online: http://buttesinglepayer.org for details.)

The Supreme Court hearing on the PPACA represents a major crossroads for health-care reform. By no means, however, is it the end of the road. Uncertainty remains certain for the foreseeable future.