Life After Obamacare

Kevin R. Loughlin, MD, MBA

If one had to choose a single word to describe the future of Obamacare, it would probably be “uncertain.” The delays in its implementation, the problems with its website, and the departure of US Secretary of Health and Human Services Kathleen Sibelius all contributed to an inauspicious beginning.

The question that now faces the country is what health care will be like as the Affordable Care Act moves forward. Let’s review some of the issues.

Legal Issues

The Supreme Court ruled, in National Federation of Independent Business v HHS, that Obamacare was legal, but was a tax. As such, the Medicaid expansion portion of the law could not be imposed on the states. At present, 27 states, including the District of Columbia, have implemented expansion, 3 are engaged in open debate, and 21 are not moving forward with expansion.¹

This non-uniform implementation of the law poses several legal conundrums. Rivkin and Casey have opined in the Wall Street Journal² that, if the Medicaid expansion provision is an indirect tax, then the “Uniformity Clause” (Article 1, Section 8, Clause 1) of the Constitution requires that the tax “be uniform throughout the United States.” These legal authors raise the issue that the uneven implementation of the Medicaid expansion of the ACA could be legally interpreted as unequal taxation and, as such, form the basis of future legal challenges to Obamacare. The more recent Hobby Lobby (Burwell v Hobby Lobby) decision by the Court allowed that closely held, for-profit corporations are exempt from the ACA if their owners religiously object to portions of it, and if there are less restrictive means of furthering the law’s interest.³ This ruling opens the way for subsequent challenges to the ACA based on religious beliefs.

Another pending legal issue related to Obamacare is the Halbig case, which challenges the massive tax credits provided to people with financial need who enroll in the program. Again, this challenge relates to the uneven enrollment by the states. These tax credits are only available to citizens in states that have set up the health insurance exchanges under the ACA. The outcome of this challenge remains uncertain.

Enrollee Payment Issues

There have been ongoing reports that not all individuals who enrolled in ACA have paid their premiums. Robert Pear reported that, as of May, about 80% of enrollees had paid their premiums.⁴ The ultimate size of this shortfall is hard to predict, but the potential impact to insurance companies and physicians is significant.

ACA and Unemployment

The unemployment crisis in the United States is a complicated issue. A Wall Street Journal article, “The Full-Time Scandal of Part-Time America,” by Mortimer Zuckerman,⁵ presents a cogent case that the ACA mandate that employers provide health insurance to anyone working more than 30 hours per week has fueled at least part of the unemployment crisis by incentivizing employers to lay off full-time employees in favor of part-time workers. The statistics he presents are daunting. In June, full-time jobs decreased by 523,000, while part-time jobs increased by about 800,000. Simultaneously, the number of involuntary part-timers soared to 7.5 million compared with 4.4 million in 2007. Zuckerman cites the Bureau of Labor Statistics as stating that nearly 91 million Americans over the age of 16 years are not working, an all-time high and almost 10 million more than in 2009. The long-range impact of ACA on full-time employment remains a major concern.

Workforce Implications

With the goal of universal health coverage implicit in the ACA mandates, there will be increasing workforce pressures to provide clinical services. Urologists, whose practices include many elderly patients, are likely to be among those who will most acutely feel the pressure of responding to patient access issues. It is very likely that healthcare extenders such as physician assistants and nurse practitioners will be widely integrated into urological practices. This reality is one of the motivations for the American Urological Association’s initiative to help train more allied professionals, as well as for the organization’s annual census, which will help ascertain the regional concentrations and subspecialty distributions of urologists.

ICD-10 and IPAB

Major provisions of the ACA are still evolving. The implementation of ICD-10 coding has been delayed a year. Its eventual implementation promises to impose an additional burden on urologists in regard to the complexity of day-to-day practice.

It has been estimated that there are 5 times as many codes in ICD-10 than in ICD-9, which translates into training costs for urology office staff and decreased office efficiency.⁶

IPAB, the Independent Payment Advisory Board, which is a component of Obamacare, has not yet been implemented. IPAB would be composed of 15 members appointed by the president and continued by the Senate. These would be full-time positions, so no practicing physicians would be members.

IPAB is charged with cutting Medicare expenditures, but since its members are appointees, rather than elected officials, they would not be answerable to the electorate. It is unknown how such an independent board would handle the sustainable growth rate or the “Doc Fix” that Congress has used several times to temporarily stabilize physician reimbursement under Medicare.

The 2014 Elections

The outcome of the Congressional elections this fall remains uncertain. Many pundits speculate that the Republicans will maintain control of the House and regain control of the Senate. Whatever the outcome, it is extremely unlikely that the ACA will be repealed. However, if the Republicans control both chambers, it is likely they will enact budgetary constraints that will significantly alter Obamacare’s implementation. Whatever the midterm election results are, it seems likely that the disharmony among our elected officials within the Beltway will continue.

What Should Urologists Do?

The only thing certain about the future of Obamacare is its uncertainty. Although it is unlikely that the ACA will be repealed, the specific provisions of Obamacare are not immutable.

Urologists must stay engaged in the political process; it is the surest way to preserve the best of urologic practice. The proper response for a practicing urologist is to stay informed and to stay involved. The AUA, UROPAC, the American Association of Clinical Urologists and its State Society Network all offer tangible resources to help the clinician stay abreast of, and prepared for, the future. The urologist should not forget that the physician is still trusted by the patient more than any elected official, administrator, or newscaster. The urologist should utilize this unique position to educate his/her patients about the issues involved in healthcare delivery. No one else is better qualified to do it.

References

1. Henry J. Kaiser Family Foundation. Status of state action on the Medicaid expansion decision, 2014. Kaiser Foundation website. http://tinyurl.com/mupys5r. Published June 10, 2014. Accessed July 20, 2014.
2. Rivkin DB Jr and Casey LA. The opening for a fresh ObamaCare challenge. WSJ website. http://tinyurl.com/pba6sxq. Published December 5, 2012. Accessed July 25, 2014.
3. Wikipedia. Burwell v Hobby Lobby. Wikipedia website. http://en.wikipedia.org/wiki/ Burwell_v._Hobby_Lobby. Accessed July 20, 2014.
4. Pear R. Insurers say most who signed up under health law have paid up. NYT website. http://tinyurl.com/n8uazzv . Published May 6, 2014. Accessed July 25, 2014.
5. Zuckerman M. The full-time scandal of part-time America. WSJ website. http:// tinyurl.com/lrf4qcy. Published July 14, 2014. Accessed July 25, 2014.
6. Hilton L. The switch to ICD-10: are you ready? Urology Times website. http://tinyurl. com/opyny7p. Published August 20, 2013. Accessed July 25, 2014.