This article The Upside to Broken first appeared in California Healthcare News on January 9, 2018.
“The world breaks everyone, and afterward, some are strong at the broken places.” — Ernest Hemingway
When in Colorado
Just outside Aspen, Colorado, an elevated system dependent upon variations in tension on a rope that bends and flexes over sheaves and around bullwheels transports trusting passengers 1,500 feet up the side of a mountain. Each of these sky travelers has a front-row seat to the possible danger and calamity that can at any time strike immediately below, but only an observant few notice Aspen Valley Hospital during their journey upward. Fewer still realize this health care facility is an outpatient department of neighboring Aspen Valley Hospital. Located in rural Snowmass Village, Colorado, this tiny adjunct treats most injuries and illnesses that manifest on the mountain, leaving everything else typically handled by an acute care hospital to the main facility eight miles away in Aspen proper. Heedless of weather conditions and current events, Aspen Valley Hospital soldiers on in its commitment to honor the Hippocratic Oath.
Death by Taxes
As it does so, the American health care system finds itself on the defense against yet another partisan attack, this time in the form a massive tax code overhaul. In the process of implementing record-breaking tax cuts throughout the national economy, the Tax Cuts and Jobs Act effectively eliminates the Individual Mandate provisioned under the Affordable Care Act (the “ACA”). Five years ago, in the seminal decision National Federation of Independent Businesses v. Sebelius, Chief Justice John Roberts and the United States Supreme Court upheld the constitutionality of the ACA’s Individual Mandate. This was not accomplished through the Commerce or Necessary and Proper Clauses of the U.S. Constitution, but rather through Congress’s authority to lay and collect taxes (U.S. CONST., art I, § 8, cl. 1). While not quite the same beast as the repeatedly failed “repeal and replace” challenges the nation’s health care system withstood earlier in 2017, this most recent foray is at least legally proper. The question that still remains, however, is exactly how will health care in the United States change in 2018, when fiscal repercussions end against those Americans who fail to maintain minimum essential health insurance coverage?
In a universe where the actuarial resides, eliminating the Individual Mandate is a death sentence that will ultimately collapse the ACA’s fiscal sustainability. In other, more practical realms, a health care system within which younger, healthier patients have no motivation to obtain insurance totally undercuts the already diminishing number of payers to wreak havoc in the form of health insurance premium hikes, necessary or not. The nation’s already depleted health care arsenal against such a response from payers is practically useless, as it is left with only unthinkable options such as the return of preexisting conditions and elimination of premium parity restrictions, the justification for which is either “some lose” or “everyone loses.” This is hardly an enviable position from which to defend itself. … Read more →