Jeffrey Lobosky, MD, an Associate Clinical Professor in the Department of Neurological Surgery at the University of California San Francisco and author of the upcoming book "It's Enough to Make You Sick: The Failure of American Health Care and a Prescription for the Cure", discusses healthcare reform, the Supreme Court's hearing and where he sees healthcare delivery in the future.
Question: Will the healthcare reform legislation hold up in the Supreme Court?
Dr. Jeff Lobosky: Obviously, no one can predict with certainty how the court will rule. They will be looking at four basic issues. First is whether the penalty imposed for non compliance with the individual mandate is a tax. If it is, then the court will have to refuse to hear the case until 2015 when the penalties kick in since the Anti Injunction Act prevents filing a suit against a tax until it is levied. My suspicion is they will look at it as a fine and not a tax and allow the hearing to move forward. Secondly they will address whether the individual mandate, where the government requires every American to carry health insurance, is constitutional. This will be the key decision and I think most likely the least predictable. The third issue will be whether the federal government can require states to expand Medicaid to help cover the uninsured. I tend to think the feds are on solid ground since they have agreed to cover 100 percent of the costs in the first two years and 90 percent thereafter. Lastly, the justices will have to decide if they find one or both of these provisions unconstitutional does that strike down the entire law or can they "sever" the offending provisions for the bill and allow it to move forward.
Q: What is likely to happen if the court decides the individual mandate is unconstitutional?
Dr. Lobosky: Theoretically, they can strike down the entire law or allow the rest of the ACA to move forward without the mandate. However, from a practical point of view, if the court rules the mandate unconstitutional I suspect it will result in the unraveling of the entire healthcare reform effort. I say this because the only reason that the organized medicine, hospitals and the insurance industry signed on to support the legislation was because of the promise of an individual mandate. Insurance companies saw mandating health insurance expanding their client pool. Physicians and hospitals who struggle with the burden of uncompensated care welcomed the mandate as assuring that the services they provided would be reimbursed. If that part of the bill is struck down those three "special interests" would no doubt withdraw their support and work hard to repeal the law.
Q: Why did the individual mandate turn into such a contentious issue?
Dr. Lobosky: In general it comes down to an argument about personal freedom. Does the government have a right to tell citizens they must purchase a commercial product (health insurance) if they don't want to? You know, when the law was being drafted there was a poll that showed that 80 percent of Americans agreed with an individual mandate. Paradoxically, in that same poll, more than 70 percent of respondents were opposed to a fine for non compliance. What the pollsters should have asked was what we should then do with someone who refuses to buy insurance but then presents to the emergency room after a major auto accident or with hemoptysis and lung cancer. Should we refuse treatment and let them live with the consequences of their choice? There are those who would favor that approach and although logical, I personally think America is better than that. After all, every other industrialized nation provides universal health care...why can't we? It may be impinging upon a citizen's freedom to force them to buy health coverage but is it not impinging upon me as a physician or my hospital to force us, through EMTALA laws, to provide uncompensated care for that citizen?
Q: Beyond the investment of the special interests in the individual mandate, why has it become the cornerstone of this legislation?
Dr. Lobosky: In order for universal coverage to work, everyone must participate. There are no free lunches. The concept of "insurance" is based upon pooled risk. Traditionally, insurance companies have tried to maximize their profit by adjusting the risk pool to exclude those with pre existing conditions. For insurance pools to remain solvent we need a mixture of those who will be relatively high utilizers of resources and those who are healthy and relatively low utilizers but still pay premiums into the pool. Without the mandate, those young, healthy individuals will put off buying insurance thinking either they are invincible or that they somehow will be able to buy insurance when they get injured or seriously ill. The system can't survive that way of thinking.
Q: Based on your experience, do you feel expanding the Medicaid program would be helpful?
Dr. Lobosky: Actually, no. This is my biggest criticism of the ACA. By 2018 we will shift almost 35 million of the almost 50 million uninsured into the rolls of the "insured." But the majority of those will receive insurance by lowering eligibility for the federal Medicaid program. In most states, Medicaid reimbursement to providers is so meager that many physicians won't see Medicaid patients so although we give these patients an insurance card their access to the wonders of American medicine will still be severely limited. It is essential that we provide not only universal coverage but equally important is universal access if healthcare reform is to truly succeed. The states are balking at this expansion primarily because they look at it as an infringement on states' rights and are afraid that although the feds have offered to cover 100 percent of the costs for years one and two and 90 percent thereafter, the states see this as being the potential for another unfunded mandate. So we both oppose this provision albeit for different reasons.
Q: Where do you realistically see our healthcare delivery system headed in the future?
Dr. Lobosky: That depends very much on how the Supreme Court rules. If they find the ACA in its entirety or the individual mandate alone to be unconstitutional I am worried it will sound the death knell for healthcare reform in the foreseeable future. After the partisan rhetoric of this debate, America will have little enthusiasm for revisiting this issue for some time. If, on the other hand, they uphold the law then I can see it evolving over time as we see what works and what doesn't. There is no doubt that the days of the small, unaffiliated, community hospital and the individual practitioner are numbered. We will see the emergence of Accountable Care Organizations which may hopefully consolidate that care into a more efficient and cost effective system. Whether one supports the ACA or not, we must at least give President Obama credit for trying to come to grips with this public disgrace we call American healthcare. Repeal it if you want; but only if you have a better idea. Let's first have a reasoned debate, devoid of the extreme rhetoric characteristic of the fringes on the far right as well as the far left. We need to move the discussion back to the middle...where it belongs.
More Articles on Healthcare Reform:
Healthcare Reform's Day in Court: 7 Experts Weigh-In
Feds, 26 States Duke it Out Over Individual Mandate at Supreme Court
4 Strategies for Reimbursement Changes
Question: Will the healthcare reform legislation hold up in the Supreme Court?
Dr. Jeff Lobosky: Obviously, no one can predict with certainty how the court will rule. They will be looking at four basic issues. First is whether the penalty imposed for non compliance with the individual mandate is a tax. If it is, then the court will have to refuse to hear the case until 2015 when the penalties kick in since the Anti Injunction Act prevents filing a suit against a tax until it is levied. My suspicion is they will look at it as a fine and not a tax and allow the hearing to move forward. Secondly they will address whether the individual mandate, where the government requires every American to carry health insurance, is constitutional. This will be the key decision and I think most likely the least predictable. The third issue will be whether the federal government can require states to expand Medicaid to help cover the uninsured. I tend to think the feds are on solid ground since they have agreed to cover 100 percent of the costs in the first two years and 90 percent thereafter. Lastly, the justices will have to decide if they find one or both of these provisions unconstitutional does that strike down the entire law or can they "sever" the offending provisions for the bill and allow it to move forward.
Q: What is likely to happen if the court decides the individual mandate is unconstitutional?
Dr. Lobosky: Theoretically, they can strike down the entire law or allow the rest of the ACA to move forward without the mandate. However, from a practical point of view, if the court rules the mandate unconstitutional I suspect it will result in the unraveling of the entire healthcare reform effort. I say this because the only reason that the organized medicine, hospitals and the insurance industry signed on to support the legislation was because of the promise of an individual mandate. Insurance companies saw mandating health insurance expanding their client pool. Physicians and hospitals who struggle with the burden of uncompensated care welcomed the mandate as assuring that the services they provided would be reimbursed. If that part of the bill is struck down those three "special interests" would no doubt withdraw their support and work hard to repeal the law.
Q: Why did the individual mandate turn into such a contentious issue?
Dr. Lobosky: In general it comes down to an argument about personal freedom. Does the government have a right to tell citizens they must purchase a commercial product (health insurance) if they don't want to? You know, when the law was being drafted there was a poll that showed that 80 percent of Americans agreed with an individual mandate. Paradoxically, in that same poll, more than 70 percent of respondents were opposed to a fine for non compliance. What the pollsters should have asked was what we should then do with someone who refuses to buy insurance but then presents to the emergency room after a major auto accident or with hemoptysis and lung cancer. Should we refuse treatment and let them live with the consequences of their choice? There are those who would favor that approach and although logical, I personally think America is better than that. After all, every other industrialized nation provides universal health care...why can't we? It may be impinging upon a citizen's freedom to force them to buy health coverage but is it not impinging upon me as a physician or my hospital to force us, through EMTALA laws, to provide uncompensated care for that citizen?
Q: Beyond the investment of the special interests in the individual mandate, why has it become the cornerstone of this legislation?
Dr. Lobosky: In order for universal coverage to work, everyone must participate. There are no free lunches. The concept of "insurance" is based upon pooled risk. Traditionally, insurance companies have tried to maximize their profit by adjusting the risk pool to exclude those with pre existing conditions. For insurance pools to remain solvent we need a mixture of those who will be relatively high utilizers of resources and those who are healthy and relatively low utilizers but still pay premiums into the pool. Without the mandate, those young, healthy individuals will put off buying insurance thinking either they are invincible or that they somehow will be able to buy insurance when they get injured or seriously ill. The system can't survive that way of thinking.
Q: Based on your experience, do you feel expanding the Medicaid program would be helpful?
Dr. Lobosky: Actually, no. This is my biggest criticism of the ACA. By 2018 we will shift almost 35 million of the almost 50 million uninsured into the rolls of the "insured." But the majority of those will receive insurance by lowering eligibility for the federal Medicaid program. In most states, Medicaid reimbursement to providers is so meager that many physicians won't see Medicaid patients so although we give these patients an insurance card their access to the wonders of American medicine will still be severely limited. It is essential that we provide not only universal coverage but equally important is universal access if healthcare reform is to truly succeed. The states are balking at this expansion primarily because they look at it as an infringement on states' rights and are afraid that although the feds have offered to cover 100 percent of the costs for years one and two and 90 percent thereafter, the states see this as being the potential for another unfunded mandate. So we both oppose this provision albeit for different reasons.
Q: Where do you realistically see our healthcare delivery system headed in the future?
Dr. Lobosky: That depends very much on how the Supreme Court rules. If they find the ACA in its entirety or the individual mandate alone to be unconstitutional I am worried it will sound the death knell for healthcare reform in the foreseeable future. After the partisan rhetoric of this debate, America will have little enthusiasm for revisiting this issue for some time. If, on the other hand, they uphold the law then I can see it evolving over time as we see what works and what doesn't. There is no doubt that the days of the small, unaffiliated, community hospital and the individual practitioner are numbered. We will see the emergence of Accountable Care Organizations which may hopefully consolidate that care into a more efficient and cost effective system. Whether one supports the ACA or not, we must at least give President Obama credit for trying to come to grips with this public disgrace we call American healthcare. Repeal it if you want; but only if you have a better idea. Let's first have a reasoned debate, devoid of the extreme rhetoric characteristic of the fringes on the far right as well as the far left. We need to move the discussion back to the middle...where it belongs.
More Articles on Healthcare Reform:
Healthcare Reform's Day in Court: 7 Experts Weigh-In
Feds, 26 States Duke it Out Over Individual Mandate at Supreme Court
4 Strategies for Reimbursement Changes