How We Really Hope the Supreme Court Will Rule on the Affordable Care Act

The Affordable Care Act has finally had its days in court this week.

And commentators who were certain on Monday that the Supreme Court would uphold the individual mandate were just as certain on Tuesday that it would not.  Perhaps they have some special insight into the thinking of the Justices. I don’t.  I’ll just wait for the decision. 

In the meantime, I’m wondering not how each of us thinks the Court will rule, but how we hope it will rule.

The answer isn’t so simple, because we divide into – and often move among – three competing minority camps about health reform in general:

• The Affordable Care Act represents the best compromise for insuring more people while preserving most of our current public/private payer system.
• Expanding reform to a single payer system like those favored by other developed nations would be better. 
• Replacing ACA with a private market-based system is at least worth a try.

If we’re as uncertain as polls cited by the Kaiser Family Foundation suggest, I suppose we all could just close our eyes, vote for Mitt Romney, and assume from his record and rhetoric that we’ll get all three.

But the Court will decide first, so let’s consider the rooting interests of several interested and sometimes overlapping groups.    

If you favor a single payer, “Medicare-for-all” program:

You want the Court to find the individual mandate unconstitutional, but severable from the rest of the bill. 

Why?  The individual mandate was originally the alternative to “single payer,” so you would like to get the individual mandate out of the way.  Then single payer becomes an option again, but only if the rest of the law, including the Medicaid expansion and the consumer protections, remain in effect.  This is because our private insurance market will become too expensive if people use those consumer protections to wait to buy insurance until they are sick.

If you want to reduce the size and scope of the state Medicaid programs:

You want the Court to rule the Medicaid expansion unconstitutional, but the individual mandate constitutional. 

Why?  This combination will most constrain Medicaid growth because lower income people will have to purchase health insurance in the private market.  They’ll qualify for a subsidy, but not for Medicaid.

If you want more universal coverage, but don’t care whether it’s private or public:

You want the Court to uphold the entire law.

Why?  Although philosophically impure, the combination of Medicaid expansions, Medicare cost containment strategies, Medicare tax increases for the wealthy, and subsidized private insurance for the middle class will lead to more coverage, and fewer uninsured.

If you or a child of yours has a chronic condition, such as diabetes, mental illness, or cancer:

You may not care whether the individual mandate is constitutional or not, but if it isn’t, you want it to be severable from the pre-existing condition coverage and community rating portions of the law.

Why?  If the PCIP experience is any indication, you may not want to be forced to buy insurance.  But when you do try to buy it, you don’t want to be denied affordable coverage because of your pre-existing condition.

If you are an early retiree on your former employer’s health insurance:

You want any provisions found to be (1) unconstitutional and (2) not severable from the pre-existing condition and community rating portions of the law to be severable from the rest of the law.

Why?  This could gut much of the law, but not the provisions that subsidize your coverage.  You won’t have to worry that you could either lose your health insurance or be forced to pay a lot more for it.

If you are a Medicare recipient:

You want any provisions found to be unconstitutional to be severable from Medicare expansions.

Why? If they aren’t, you’ll need an immediate bipartisan agreement in Congress to keep your donut hole prescription drug coverage and your free annual check-up in place.

If you want insurance that will cover long term care needs:

You’re already out of luck. 

Why? That provision was axed from the law before it was ever implemented – and you don’t hear anyone talking about restoring it.

And, if you’re okay with denying or capping coverage for pre-existing conditions, allowing insurers to make as much profit on insurance as they can, having gaps in prescription drug coverage for elders, and paying for the sick and uninsured through increased premiums on people who have insurance:

You want the Court to find the whole law unconstitutional.

Why?  That’s where we were when all this began.

Note: Click here for simple explanations about some of the Supreme Court issues that are discussed in this week's column.

If you have questions about this column or wish to receive an email notifying you when new Our Health Policy Matters columns are published, please email gionfriddopaul@gmail.com.

The Disintegration of Health and Mental Health Care

How will the Supreme Court respond to an argument next week that might lead to the disintegration of health care in America?

In recent years, we have been making slow policy progress in better coordinating and integrating primary and specialty care, and health and mental health care.  Two milestones were the passage of the federal Mental Health Parity Act in 2008 and the Affordable Care Act provisions in 2010 that prohibit insurance discrimination against people with pre-existing conditions, both in coverage and in cost.

These are opening more primary care doors to people with mental illnesses. 

80% of all mental health problems are first seen in a primary care office.  And it now pays for a primary care clinician to screen for mental health problems.  According to one recent projection completed by the Mental Health Association of Palm Beach County (available on request from that organization), a primary care practitioner can generate in excess of $100,000 in insurance payments for every 2,500 behavioral health screenings he or she completes.

Integration also appears to pay off for patients in earlier and more effective care.  Between 2006 and 2009, the number of primary diagnoses of mental illness in general hospitals dropped from 2.4 million to 1.6 million, as more clinicians recognized the need to treat health and mental health symptoms – which are often indistinguishable – together.

Now the Supreme Court is being asked to weigh in on the question of integration.

Next Wednesday, on its third day of oral arguments about ACA, the Court will hear arguments about whether the individual mandate is “severable” from the rest of the Act.  How it responds may well determine whether the recent progress we’ve made to integrate care will stall.

Here’s why. 

The Obama Administration is arguing that the individual mandate is intertwined with two other provisions – the mandate to provide coverage without regard to pre-existing conditions and the mandate to provide coverage at no additional cost to those with chronic conditions.

These are important consumer protections, but the Administration’s view is that without the individual 

mandate healthy people will choose not to purchase insurance that covers expensive chronic conditions.  Instead, they will just wait until they get sick and then buy the coverage that will still be guaranteed to them if the other mandates remain.  This will in turn force up the price of insurance for everyone. 

The Administration supports ACA, but most ACA opponents also agree with the Administration on this point, as have some judges who have already ruled on the law.

If the Supreme Court finds the individual mandate unconstitutional, and then also agrees that it is not severable from the other provisions, it would overturn these two additional mandates.  This would result in a worst-case scenario for people with mental illnesses – a return to the private insurance market we’re just now leaving behind, where premiums are too high for them to afford, and coverage is too low for them to obtain effective treatment.

It won’t help people with other chronic conditions, either, as they head back out of primary care settings and into hospitals for treatment.  We’ll all lose out, because properly diagnosing and treating chronic conditions early means less cost down the road, more effective care, and better patient outcomes.

The historical pressure against integration in the health care delivery system isn’t philosophical or constitutional, but is often the product of increasing specialization among health care providers.  In 1960, there were approximately 7.5 primary care physicians and 7.5 specialty care physicians in the United States for every 10,000 citizens.  Fifty years later, in 2010, there were just under 7 primary care physicians per 10,000 citizens, but over 13 specialists. 

Specialists by training know a narrow area of medicine well.  As a result, we have grown to think about chronic diseases one at a time, and we often treat them this way, too. 

But this isn’t very efficient or effective, because patients usually bring more than one problem at a time to their primary care clinicians.  And by the time they are in care, almost two-thirds of patients with at least one chronic condition have at least one more.

That’s why we need integrated health and mental health services, and fair coverage for chronic diseases.  And that’s also why – if policymakers aren’t ready with an alternative – the disintegration of health and mental health care could result from the Supreme Court’s decision about severability.

If you have questions about this column, or wish to receive an email notifying you when new Our Health Policy Matters columns are published, please email gionfriddopaul@gmail.com.

The Biggest Environmental Disaster of the Decade

Here is a cautionary tale about the risk of downplaying the importance of environmental health.

A year ago, Fukushima City was a bustling city with a population of 290,000.  Its people were going about their business the day the earthquake and tsunami hit northern Japan, triggering the biggest environmental disaster most will ever experience.

At first, the trains stopped running because of damage to the railways, and most of the city’s water stopped running because of ruptures in water mains.

Over the next several days, a silent toxin began to spread along with word of the natural disaster.  The Fukushima nuclear power plants, 39 miles southeast of the city, began melting down, releasing radioactive particles into the air and water. 

Although Fukushima remained outside the quarantined evacuation zone stretching twelve miles out from the nuclear facility, waves of radioactive cesium dust escaped the zone, flying on the winds toward the city.  As it rained and snowed, the cesium dust fell to the ground, infiltrating homes and businesses, hospitals and markets, roadways and parks. 

A year later, the Fukushima government is still trying to save people’s homes by cleaning up a deadly environmental mess.

If you have ever experienced a home construction or renovation project, you have an idea of what environmental health officials are facing.  When you tear down a wall, sheetrock dust collects everywhere and sticks to everything – furniture and floors, wall hangings, clothes, and even inside cupboards and cabinets.  To clean it, you have to wipe down everything individually.  And what you don’t catch goes back into the air, eventually needing to be cleaned up again.

Now imagine that this dust were completely invisible and radioactive, and both indoors and outdoors.  That’s what the people of Fukushima have to clean.  Building by building and property by property, they go about their task.  They can’t just wash the cesium down the drain.  They have to dig out the top two inches of their landscapes, and cart away the vegetation and dirt as radioactive waste, or create mini nuclear waste dumps by burying everything contaminated in deep holes in their own backyards.    

If just one property owner refuses, then as it rains again, the entire neighborhood can be re-contaminated.

We should all know by now that Fukushima’s story today could be Hartford’s, Miami’s, or West Palm Beach’s tomorrow.  Hartford is just 40 miles from the Millstone nuclear plants, Miami is 25 miles from the Turkey Point nuclear plants, and West Palm Beach is 40 miles from the Jensen Beach nuclear plants.

If a Fukushima-level event hit near me or my family, I’d want a strong Health Department with a clear environmental health mandate ready to respond. 

But that’s not what people in Florida are getting.

Last week, Florida’s State Legislature passed a law eliminating the Division of Environmental Health from the State Health Department.  It also eliminated the Community Environmental Health and Healthy Communities, Healthy People programs.  The Florida Public Health Association and others fought valiantly against these changes.

Not only did the legislature eliminate the Division of Environmental Health, it removed from the Health Department’s duties in section 381.0011 of the Florida statutes the power to quarantine “premises as the circumstances indicate for… providing protection from unsafe conditions that pose a threat to public health.”

Faced with a Fukushima-level event, radioactive or otherwise, the Florida Health Department will no longer have the independent power to create an evacuation zone to protect the public health.

The legislature did give some quarantine responsibility back to the Department as an amendment to section 381.00315 of the Florida Statutes.  But in that section, the Department’s authority is severely restricted.  It must consult with any agency that might be affected, its quarantine order is limited to sixty days, and violations of the order are punishable by as little as a $500 fine.

In other words, if the Fukushima meltdown had happened in South Florida, any general quarantine orders related to Miami would have expired ten months ago, and the only penalty for repeated re-contamination of a neighbor’s property might be a $500 fine.

Political leaders often embrace nuclear energy and many other industrial contaminants, in spite of the risks and costs.  These risks may not bother them, but at the very least they could give the rest of us a modicum of protection.

Otherwise, the biggest environment disaster of the decade may not be the one we witnessed in Japan.  It could be the one that just played out in the Florida legislature.

If you have questions about this column or wish to receive an email notifying you when new Our Health Policy Matters columns are published, please email gionfriddopaul@gmail.com.

To Improve Health, Spend More on Social Services

Does a stronger safety net mean a healthier community?  Apparently so, according to recent research.

It’s a well-known fact that the United States spends 16% of its GDP on health, far more than any other country in the developed world.

It’s also a well-known fact that all of our health spending doesn’t give us an edge in life expectancy or a number of other indicators of the overall health of the population.  One of the reasons for this is that we spend so little on public health, compared to health care.

But there may be another reason, too. 

We spend too little on welfare and social services. 

To put this into context, it is important to remember – with a nod to the late George Carlin – that “welfare” wasn’t always one of the “seven dirty words” no politician could utter in public.  (The others today are “liberal,” “tax” and “increase” used in the same sentence, and “bigger,” “government,” and “spending,” also used in the same sentence.)

When I was a member of the Connecticut Legislature in the 1980s, the most common argument about welfare was whether we should increase welfare benefits by the same percentage as the increase in the cost of living (liberals held to this position), or whether we should cap them at something akin to the percentage increase in the overall state budget (conservatives held to this one).

President Clinton and Speaker Gingrich changed all that in the 1990s when they struck a bipartisan agreement never to promote welfare again unless it was coupled with the word “reform.”

However, if we care about health, it may be time to think about reforming welfare reform.

In an article entitled Health and Social Services Expenditures: Associations with Health Outcomes (the abstract is available using the link; the full article is available for purchase), Dr. Elizabeth Bradley of the Yale School of Public Health and three colleagues showed that more spending on social services may lead to even greater improvements in life expectancy, infant mortality, and potential years of life lost than more spending on health services.

They did this by comparing overall health and social services spending for thirty countries, including the United States, and linking this to five indicators of health.

Most of the other countries in the analysis spent about twice as much on social services, as a percentage of GDP, than they did on health.  The United States spent a little less (13%) on social services than we did on health (16%). 

Our combined 29% may seem high, but it is pretty close to the average for developed countries.  This is because we spend less on social services as a percentage of GDP than do others. 

But it looks like spending just a few percentage points more on social welfare could lead to lower death rates from infancy on.

These are the types of social services spending that are associated with longer, healthier lives:

• Public and private spending on old-age pensions
• Spending on support services for older adults
• Survivors’ benefits
• Disability benefits
• Family support
• Employment training and programs
• Unemployment benefits
• Housing support

This list of life-promoting programs reads like a “what’s what” on the state and Congressional chopping blocks these days.

What this excellent article suggests is that we’re not thinking through the relationship of welfare to health.   When we started cutting our social services programs many years ago, we didn’t realize that we were going to be paying the price in higher health care costs and lower life expectancy.

The authors drew the following measured conclusion:

“Although most health-reform efforts to improve health status focus on health expenditures, it may be that additional attention on social services is also needed. This approach is consistent with public-health frameworks, which have frequently highlighted the social over the biological and medical determinants of health.”

After reading the article, I’d say it’s hard to argue with that conclusion.

And I would like to suggest a second one.  In our Declaration of Independence, our nation’s founders asserted that we have an unalienable right to life.  When we knowingly make policy decisions that abridge this right, it is the essence of anti-Americanism.

So, channeling George Carlin once again, maybe it’s time to take a more liberal view of welfare, by supporting whatever taxincrease is needed to support the government spending required for it to play a bigger part in protecting the lives of our people.

If you have questions about this column or wish to receive an email notifying you when new Our Health Policy Matters columns are published, please email gionfriddopaul@gmail.com.