Supreme decision: Healthcare reform hangs in the balance

May 25, 2012

As healthcare awaits the much-anticipated Supreme Court decision on the Patient Protection and Affordable Care Act next month, we look at the four most likely outcomes and how they will affect your practice.

The Supreme Court decision will affect access and coverage for patients who don't have health insurance.

Experts advise that physicians take a wait-and-see approach on some matters until the Supreme Court announces its ruling.

You can still purchase technology and participate in efforts to provide team-based care and advanced access scheduling, and you can take part in disease registries now.

The future of the U.S. healthcare delivery system hangs in the balance.

In fact, as healthcare awaits the much-anticipated Supreme Court decision on the constitutionality of the Patient Protection and Affordable Care Act next month, experts say the top four scenarios all will affect you and your fellow primary care physicians (PCPs). The heart of the issue for PCPs is access and coverage for those patients currently uninsured. The possible long-term ramifications of the decision have many doctors sitting on the edge of their seats, says American Academy of Family Physicians (AAFP) President Glen R. Stream, MD, FAAFP, MBI.

[RELATED:Preparing for the future, regardless of healthcare reform]

According to Matthew E. Albers, JD, an attorney in the healthcare group with Vorys, Sater, Seymour, and Pease LLP in Cleveland, Ohio, four possible outcomes from the court exist:

     1. The court could rule that the entire law is acceptable constitutionally.      2. The "mandate" that citizens buy health insurance or pay a fine could be ruled a violation of the Commerce Clause.      3. The entire law could be deemed unconstitutional.      4. The court could say that because the mandate does not take effect until 2014, it is not yet ripe for a challenge.

Here is a look at how each of the first three outcomes could affect you and your colleagues in primary care.

IF THE LAW REMAINS INTACT

The entire law being left intact could be positive news for PCPs, because it promises to increase their role in healthcare, Albers says.

"PCPs will be in a good place, as this and most reform initiatives focus on cost reduction and quality improvement," both of which are achieved through decreased use of high-acuity care and increased use of preventive care, he says.

"PCPs who have a large Medicare caseload may see these patients more often as [these patients] see specialists less," he adds.

Physicians with a lot of Medicare patients might benefit as plans for accountable care organizations (ACOs) move ahead. The Centers for Medicare and Medicaid Services are promoting ACOs as a way to improve the quality of patient care and save costs through coordination among doctors, hospitals, and other healthcare providers to avoid duplicating services and prevent medical errors. Those offering care through an ACO have the opportunity to share in any savings realized if the care they provide is less expensive than predetermined benchmarks for similar care offered in Medicare's fee-for-service program. PCP participation is crucial to the success of these ventures, because they bring the defined populations that the other partners (hospitals, rehabilitation centers, nursing homes, home healthcare agencies, etc.) need.

As the new law moves forward, 20 million to 60 million Americans will be newly insured. Because preventive and primary care are among the first types of care people give up when they lose their health insurance or face a tight budget, many of them will now show up in your office, Albers says.

He stresses that PCPs who do not want to join an ACO don't have to do so. For example, those who do not see many older patients might not be interested. "It would be their choice," he says.

The AAFP's Stream emphasizes that the law being kept intact would not be the end of the road for change.

"The current system is far from perfect, and it needs more refinement, such as meaningful medical liability reform and [sustainable growth rate] adjustments," he says.

He praises the law's role in recognizing that primary care is central to any successful transformation, however.

"It has raised awareness of our importance," Stream says.

Craig M. Wax, DO, a family physician in Mullica Hill, New Jersey, and founder of Independent Physicians for Patient Independence, believes that if the law is upheld, the true flaws of its underlying premise will be fully revealed.

"The government cannot afford it. It does not live by a budget, and it has maxed out its credit cards," he says.

He also says that just because millions more people will have health insurance does not mean they will have access to care, because the reimbursement it will offer will be so low that many physicians will not accept it.

"Insurance does not equal healthcare," he says. "It equals an expensive reimbursement process."

Lee S. Gross, MD, a family medicine practitioner in North Port, Florida, and president of the Florida chapter of Docs4PatientCare, a group that does not support the federal reforms, maintains that problems with access to care are only going to get worse under this scenario.

"In Florida, 1 million people would be added to Medicaid, double what there is now," he says. "But most PCPs in Florida do not accept Medicaid. The system is already buckling under its own weight. Emergency rooms serve as primary care for many of these patients."

Wax's group favors having patients pay their physicians directly, taking third-party payers out of the mix. "We have this notion of insurance and our employer and the government will take care of us. It's a fallacy. You need to take care of yourself."

He also predicts that ACOs will not be the panacea that many people are expecting them to be.

"I think they will collapse on themselves eventually," he says. "They build them for a reason: to make money. The government doesn't want to pay us to prevent illness. It's like a casino."

Steven Shell, DO, a family medicine physician in Port Charlotte, Florida, and vice president of the Florida chapter of Docs4PatientCare, believes that if the reform law stays in place, ACOs will pull all providers under one roof. With this vertical integration, physician compensation will be tied to the quantity of care that is delivered.

"This will be a terrible ethical dilemma and will be very precarious financially," he says. "Being incentivized to withhold care is not why we went into this."

IF THE MANDATE IS RULED UNCONSTITUTIONAL

If just the mandate is thrown out, the rest of the law will become "unwieldy" to administer, Albers predicts. Most uninsured people will stay that way and will continue to receive care through emergency rooms on an uncompensated basis. Cost savings that were anticipated to help fund the rest of the plan's components will vanish.

Because he believes that insurance exchanges and ACOs will form anyway, however, Albers says he thinks PCPs will still be better off than they are now.

The American College of Physicians agrees that this outcome would be undesirable, saying that studies suggest that an individual requirement is needed for such reforms to work.

"Without an individual insurance requirement, some people may wait to obtain insurance until they are sick, aware that insurers will not turn them down or charge them higher premiums (except for family size and tobacco use). This will drive up premiums for everyone else, causing more persons to drop coverage, and potentially, resulting in millions more uninsured persons," the ACP said in a recent statement.

Gross agrees, stating that overturning the mandate would "immediately destabilize the insurance industry. They would have open checkbooks with no source of revenue.

"If they cannot turn anyone away and cannot impose caps on coverage (among other reforms) and do not have a stream of healthy patients paying into the system, they will collapse.

"The government will have to bail them out," he says. "This is the sure road to a government-controlled, single-payer system."

Paul Keckley, executive director of the Deloitte Center for Health Solutions, says that many of the deals that were made to get this bill passed depended on the existence of the mandate. If the mandate is rejected, he expects that many entities such as medical device companies, pharmaceutical companies, insurance companies, and hospitals will appeal the concessions that they made, which he estimates to be worth about $155 billion.

"They will want a redo," he says. "Without the expected revenue coming in to the system, they will need it."

Notably, he says, physicians did not make concessions, and if things start to unravel, he predicts they will not find much sympathy on Capitol Hill.

"It is hard for Congress to feel too sorry for doctors right now, as Joe Six Pack's disposable income is going down," Keckley says.

Primary care is going to find itself "in a holy war to say we are central to a rationally delivered system and we demand a place," especially as compared with specialty care (see "Preparing for the future, regardless of reform," page 25). Keckley says he also thinks that it is likely that in this scenario, Congress may let the matter default to the states, because they are not bound by the Commerce Clause.

"This is a popular concept among a lot of governors, who want to keep the decisions closer to home," he says. "However, you should expect the states to ask the federal government for more money in this scenario."

Wax, however, disagrees that overturning the mandate would be a bad decision, saying it would be a victory for freedom of choice and the free market. It would be good for PCPs, he believes, because it could open the door to applying free market reform to healthcare, such as allowing insurers to compete across state lines.

IF THE ENTIRE LAW IS RULED UNCONSTITUTIONAL

Tossing out the entire bill will put the U.S. healthcare system back to "square one," Albers says. Many people will stay uninsured, and specialty care will continue to be emphasized over primary care. "If this happens, physicians will begin to unwind the preparations they have made," he says, such as considering adding another physician, increasing office space to accommodate more patients, or exploring an ACO.

"Primary care had a huge reason to celebrate the passage of this law and some trepidation about it being overturned is reasonable," Albers says.

Many insurers have started their own projects to recreate the ACO concept, and Albers says it will be interesting to see whether they continue to move forward with these plans if the law is rejected.

The AAFP's Stream says that Congress' response is the wildcard in predicting what will happen if the court strikes down the entire law. Will it reinstate some of the more popular principles, such as allowing adult children to remain on their parents' coverage until age 26? How will the upcoming election affect those decisions?

"It's hard to know what they would do," he says.

Shell agrees that this scenario puts the country back to "square one" but says this can be a positive occurrence if it allows other options to emerge.

Gross says: "It is the only way for us to save the practice of medicine. We would be going backward, but it's backing away from a cliff."

NO DIFFERENCE EITHER WAY?

Although some experts see the upcoming Supreme Court decision as a monumental one, some disagree.

David U. Himmelstein, MD, FACP, an internist who is a professor in the City University of New York School of Public Health at Hunter College, visiting professor of medicine at Harvard Medical School, and a co-founder of Physicians for a National Health Program, does not believe that PCPs will see much difference from the ruling.

"Small practices are heading for trouble either way," he says. "They will likely be gobbled up by ACOs under either circumstance."

Because much of the expanded coverage that comes with the law involves Medicaid, which pays poorly, he says, being covered by the program is not much better than having no insurance.

"Private insurance didn't change much under the Massachusetts reform, and doctors on the ground were only marginally affected," says Dr. Himmelstein, who worked in Cambridge Hospital for more than 30 years.

Because the coverage provided under that plan had a $2,000 deductible, PCPs still had to bill patients for most of their visits, just as they had before.

Physicians for a National Health Program favors much more expansive healthcare reform than this law could ever deliver, Himmelstein says.

"This one didn't do the trick," he says. "Even in the best-case scenario, it still leaves 26 million Americans uninsured."

He sees a single-payer system as the only answer. With only one set of rules, no referrals needed, and no insurance hassles, physicians would be able to focus on caring for their patients, he says.

"We need to expand the primary care workforce under any scenario," Himmelstein adds.

IN THE MEANTIME

So what should you do until the court rules? Wait and see, say the experts.

Albers advises against moving ahead with any serious investments-such as creating an ACO or expanding your practice-that were motivated by the expectation that the law would bring in more patients.

He does not advocate pessimism, however.

"PCPs are advantaged by many components of this law, and whatever the court rules, they will be no worse off than before," he says.

Stream agrees that major immediate investments in becoming a Patient-Centered Medical Home are difficult to justify right now, but he encourages physicians to be prepared to move in that direction in the future.

"Ultimately, the future will focus on advanced, high-performing PCPs, so try to position yourself for that, in spite of lingering questions," he advises his colleagues.

Examples of such action would include acquiring/maximizing use of an electronic health record system, team-based care, advanced access scheduling, and disease registries.

"These will all serve primary care well," Stream says. "All paths forward depend on strong primary care."

Wax advises physicians to consider adopting a direct payment model with fair competition among providers that does not involve the government or third-party insurers, calling it the most cost-effective option and the best way to preserve the doctor-patient relationship.

"The only thing we can count on otherwise is change and further difficulties and problems from outsiders," he says.

Shell agrees, advising PCPs to "extricate themselves" from third-party payers.

"When patients pay directly, it restores the sanctity of that relationship and frees you from administrative rules," he says.

"Why sell your practice and a lifetime of work if everything can change with the stroke of a pen?" Gross says.

Richard Armstrong, MD, a general surgeon in Newberry, Michigan, and the chief operating officer of Doc4PatientCare, suggests physicians join advocacy groups that share their opinions, so they can have more of a voice in the agenda going forward.





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