Nursing Center - Journal Article

No one can escape commentary, analysis, or a pundit's view of America's health care system because the subject is covered in nearly every media, Internet, or print outlet available. In March 2010, President Obama signed into law the Patient Protection and Affordable Care Act (ACA, or, colloquially known as, "Obamacare"). It has been challenged and appealed in federal courts, and as you read this Commentary, our US Supreme Court will have already heard more than 5 hours of oral arguments in 3 cases-Floridav Dept of HHS, Dept of HHS v Florida, and National Federation of Independent Businesses v Dept of HHS1-examining issues described later. These matters may be the most closely watched in the Court's history. A decision is expected no later than the close of the Court's current term later this summer.

The underpinning for ACA's enactment is to provide an overhaul of the nation's ability to provide care and treatment for its citizens-by improving access to the nation's health insurance and health care delivery markets and by reducing health care costs and uncompensated care. Without our health, we have nothing-we cannot contribute to our families, our community, our employers, and ourselves, and, yes, even to the economy. Some would also say, as have I, that health care is a right for all; however, I am not the first to express this. Its roots can be traced back to President Roosevelt in 1943 when he crafted his proposed "Second Bill of Rights." As detailed in their article, "The Right to Health Care in the United States of America-What Does It Mean?" authors Carmalt and Zaidi 2 wrote that President Roosevelt declared freedom from want, including the right to adequate medical care and the opportunity to achieve and enjoy good health, to be 1 of 4 essential liberties. This sounds strikingly similar to what could well be included within the Declaration of Independence's pronouncement of life, liberty, and the pursuit of happiness. These authors also wrote, "The right to health was subsequently enshrined in the Universal Declaration of Human Rights-a 1948 United Nations document drafted with American input."2(pii) While in 2008 on the campaign trail in Nashville, Tennessee, debating Senator McCain, Obama reminded us, as well, that health care was a right and not a privilege or responsibility.3

Despite these views, there are many Americans who want to see the ACA tossed out, asserting that the government should limit its role and responsibilities in telling us what we need to do to ensure our health. If we care about quality, is this wise?

The cases argued before the Supreme Court last month focus on whether or not Congress has the authority to mandate that we all buy health care insurance, even if we chose not to do so, as part of its powers to regulate interstate commerce. Opponents of this approach, now called the individual mandate, say the federal government cannot force us to buy a commercial product when we do not wish to do so. They ask, metaphorically, what comes next? Shall we be compelled to purchase broccoli for its nutrition, or sun tan lotion to prevent skin cancer? But those on the opposing side assert that we all need health care at one time or another during our lifetime even if we do not buy health insurance. But, as the DC Federal appeals court wrote last November in upholding the ACA, "The right to be free from federal regulation is not absolute and yields to the imperative that Congress be free to forge national solutions to national problems."4 If one chooses not to buy insurance but requires medical care nonetheless, that care must be provided. Under the federal Emergency Treatment and Active Labor Act (EMTALA), hospital emergency departments cannot turn away a patient requiring care until that person is stabilized. Who pays for such care-you, me, and everyone else? Of course. Those wishing to see the ACA upheld also point to a New Deal-era case (Wickard v Filburn) involving a farmer who merely wanted to grow additional wheat for personal consumption and for his livestock on acreage that exceeded his allotted amount. The Supreme Court allowed Congress to intervene by imposing a wheat quota designed for the purpose of inducing farmers to purchase wheat on the open market. Or, what about the case of Gonzales v Raich (in which Justices Scalia and Kennedy concurred), in which the Supreme Court allowed Congress to regulate cannabis in a state (California) where it is legal for medicinal purposes, even though a patient requiring medicinal marijuana only wanted it for personal consumption?5 On balance, then, ACA's individual mandate should be within Congress' constitutional powers to regulate what affects interstate commerce.

Another issue argued was whether or not the rest of the ACA can withstand legal scrutiny even if the individual mandate is found unconstitutional. This is the legal principle of "severability." It has become important since the mandate is the funding mechanism for the ACA and all the benefits it provides never covered before by insurers, that is, coverage for preexisting conditions and allowing offspring to remain on their parents' policies to age 26. Opponents hold that if the individual mandate is struck down, the entire act fails since the ACA and its mandate are integrally linked; therefore, they argue, if one provision falls, the entire act should be swept out of existence.

The third issue was whether what the ACA imposes on a citizen who chooses not to purchase health insurance is a tax or a penalty. Many years ago, Congress passed a law (the Anti-Injunction Act) that precludes anyone's challenging a tax law before the time arrives when it would take effect. Since the ACA does not take effect until 2014 and the tax (if the penalty is a tax) would not be due until tax time the following year, the challenges to the ACA now are premature. The health care law is sufficiently important to the country that I doubt that the judges will require waiting until 2015 before challenging the ACA with numerous lawsuits.

The last issue pertained to the federal government's imposition within the ACA of conditions upon the states for Medicaid programs, covering individuals with income levels up to 133% of the federal poverty level. Without compliance, the federal government would withhold federal funds for these programs. According to one legal brief filed in the cases, in recent years, most states have received at least $1 billion in federal Medicaid funding that covers at least half of each state's Medicaid costs. With ACA coverage now extended to millions more of Medicaid-eligible persons who had previously opted out of participating, the costs for these programs will escalate. Already cash-strapped states will be responsible for 5% of these additional costs by 2017 and 10% by 2020.

With ACA's purpose of providing more access and less cost in obtaining health care, what does that have to do with quality? To answer this, it is first useful to remind readers of 2 studies that came out last year: one is the Commonwealth Fund's October 2011 National Scorecard on U.S. Health System Performance6 and the other is the 34-nation Organization for Economic Cooperation (OECD) Health Data 2011.7 While both are illuminating, they cast a shadow on US health care. As noted by health care and former insurance executive, Wendell Potter, in his Huffington Post column of November 28, 2011, that Americans spend 2.5 times more on health care per person than the OECD nation average ($7960 vs $3233 in Norway, the second highest). Our hospital, medical goods, pharmaceutical, and administrative costs are much higher than those in any of the OECD countries. We rank 29th in the number of hospital beds per person and 29th in the average length of stay in a hospital. The United States also has high rates for avoidable hospital admissions for folks with asthma, lung disease, diabetes, hypertension, and other common diseases. We rank 26th in the number of physicians per 1000 citizens, especially when it comes to primary care doctors. We are 28th in life expectancy.8 In tandem with these findings are the Commonwealth Fund's data. Its Overview section reports that while substantial improvement was noted on quality-of-care indicators that have been the focus of public reporting and collaborative initiatives, our health care system ranked just 64 of 100 on 42 performance indicators of health care quality, access, efficiency, and equity.8 "Overall, the United States failed to improve relative to these benchmarks, which in many cases rose. Costs were up sharply, access to care deteriorated, health system efficiency remained low, disparities persisted, and health outcomes failed to keep pace with benchmarks".9 The ACA targets many of the gaps identified by the scorecard.

The words in this last sentence answer the question posed by the title of this piece since the cipher for quality health care is its access and affordability. Without the ACA and what it will commence doing in 2014, what would we then have left-a status quo that places American health in a deeper abyss than it already is? Hopefully we do not. Do we wish to see it falter, or be adjudged by the Supreme Court to fall outside constitutional parameters, or do we wish to see millions more Americans have the means to obtain health? Surely, the latter is preferable-if for no other reasons than 1 realizing that without improved access to our health care system and every American's ability to better afford it than now, we not only hinder everyone's ability to be a productive member of society and place a governor on the country's economy but certainly also fall even further behind in indicators for health on a global basis.2 Recall how Medicare was received when it first became law back in 1965. In the end, maybe all of us should come to realize that health care is indeed a right to which all of us should have affordable access.

Editor's Note: The writer is a member of the Editorial Board of Quality Management in Health Care. The views expressed are his own. Mr Zaremski was involved in advising members of Congress and their staffs as the health care law was being developed and drafted.

REFERENCES

1. National Federation of Independent Business v. Dept. of Health & Human Services, 11-313, 11th Circuit, 3/28/12, Term 07 2011; Florida v. Dept. of Health & Human Services, 11-400, 393, 565, 11th Circuit Acourt of Appeals; HHS v. Florida, 11-598, 11th Circuit Court of Appeals, 3/27/12. [Context Link]

2. Carmalt J, Zaidi S. The Right to Health Care in the United States of America-What Does It Mean?. Brooklyn, NY: Center for Economic and Social Rights; 2004. [Context Link]

3. Linkins J. Evaluating health care reform with Obama's own words. Huffington Post. , 2009. [Context Link]

4. Seven-Sky v Holder, 661 F3rd (2011). [Context Link]

5. Gonzales v Raich, 545 US1 (2005). [Context Link]

6. The Commonwealth Fund. National Scorecard on U.S. Health System Performance. New York, NY: The Commonwealth Fund; 2011. [Context Link]

7. Organization for Economic Cooperation. Health Data. Paris, France: Organization for Economic Cooperation; 2011. [Context Link]

8. Potter W. Does the U.S. Have the World's Best Health Care System? Yes, If You're Talking About the Third World. Huffington Post. , 2011. [Context Link]

9. McCarthy D, How SKH, Fryer A-K, et al. Why not the vest results [abstract]. In: National Scorecard on U.S. Health System Performance. New York, NY: The Commonwealth Fund; 2011. [Context Link]

REFERENCES

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