This article was first published in the Los Angeles Daily Journal on December 16, 2013.
The countdown to 2014 has begun. In the days to come, millions of Americans will choreograph exactly where to be at midnight on New Year’s Eve, full of resolutions and expectations for the coming year. This January 1 holds a special significance for our country, as the dropping of that massive 11,875-pound ball in New York City’s Times Square represents what many have for four years hoped to be the heralding of an epic transformation in our nation’s health care. Though unable to predict the future as in fairy tales of old, the descent of that Waterford crystal ball marks the coming of age of the Affordable Care Act (ACA), still shrouded in controversy and fighting for a foothold on which to support itself.
The past 1,380 days have not been easy for the ACA, and nor has the ACA been easy on the U.S. Although it has thus far survived challenges from two branches of the federal government, in return health care reform has polarized Congress, called into question the integrity of the U.S. Supreme Court, and forced President Barack Obama to fight to retain his seat as Commander in Chief. Still, the ACA soldiers on, attempting to evolve amid the surrounding chaos and impervious to the ticking off of days on a calendar. After surviving the debt ceiling crisis, sequestration and the fiscal cliff on one front, and an attack on the individual mandate, Medicaid expansion, and a holy war on preventative care for women from another, it would seem that the ACA should be gaining momentum and basking in its triumphs as it goes into 2014. But such is not the case, and rather than enjoying a victory lap in the final days of 2013, health care reform finds itself gasping for air, with millions of would-be participants already knocked out of the race.
In their dissenting opinion, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito were convinced that “Congress never dreamed that any State would refuse to go along with the expansion of Medicaid [and that Congress] well understood that refusal was not a practical option.” National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2665 (2012). Nearly 18 months later, however, the optimistic, visionary twist on the humble insurance program crafted by President Lyndon Johnson in 1965 for qualifying low-income individuals still waits for its moment to shine.
Instead, health care’s dark horse savior has been forced to watch from the sidelines as many states forego not only billions in future Medicaid funds but possibly billions more in Medicare disproportionate share money due to sweeping changes in the 2014 Hospital Inpatient Prospective Payment regulations promulgated by the federal government in August. Though the dissenting justices may have correctly noted that “refusal was not a practical option,” it appears they may have underestimated the mettle of partisan politics when it comes to the ACA. While the amount of money at issue may ultimately rule the day, the collateral damage to the rural hospitals in the affected states that still reject Medicaid expansion may be irreversible.
Value-Based Purchasing and the Readmissions Reduction Program
Well into their second year, the Hospital Value-Based Purchasing (VBP) Program and the Readmissions Reduction Program (RRP) are only one part of the unwelcome future of Medicare reimbursement. With 1.25 percent of Medicare revenue at stake under the VBP Program, hospitals across the nation have expended significant resources to recoup their share of the $1.1 billion set aside for incentives. At the end of the day, half of the hospitals managed to break even, approximately 1,200 hospitals received some incentive bonus under the VBP Program, and another 1,450 hospitals lost revenue. With greater efficiency among hospitals as the ultimate objective, it is still too early to determine just how efficient this epic “break even” program will prove to be.
At the same time, more than 2,000 U.S. hospitals will lose as much as 2 percent of their Medicare reimbursement under the RRP (approximately $227 million in total). Up from a 1 percent reduction limit in fiscal year 2013, the RRP will jump to a possible 3 percent penalty in 2015. Initial results from the federal government indicate that readmissions have dropped by as much as 18 percent overall, but the connection between this decline and the increase in hospital “observation” stays (patients who present at the emergency department, not admitted as inpatients but rather “held” for a day or two, who are thereby not included in the RRP calculations) has not been conclusively established.
The Insurance Exchanges Fall Victim to Technology and HIPAA
While the employer mandate delay failed to raise widespread public criticism, the plight of the health insurance marketplaces (the “exchanges”) has more than made up for this. Mired in technological glitches that have already resulted in implementation delays, the countdown to 2014 will include a watchful eye over the integrity of this new marketplace, where an estimated 30 million Americans are expected to obtain health insurance.
Unfortunately, the transparency with which the exchanges must operate exposes them to public scrutiny and partisan attack, thereby making it all the more difficult to assess any meaningful prognosis. With some state infrastructures run by the federal government and others by the respective states themselves, the success of these exchanges depends in part on their ability to communicate with each state’s Medicaid program while coordinating advance premium tax credits that face yet another category of ACA-related constitutional challenges.
Navigators, the individuals charged with facilitating enrollment in the exchanges, have themselves not escaped the wrath of health care reform’s dissenters. While criticism of the navigator program has ranged from the absence of those background checks that are common and mandated for most vendors participating in any federally funded health program to the more simple critique that many are unacceptably inexperienced (the program and job title are new, after all), navigators nonetheless stand ready as the only trained shepherds for the flock of soon-to-be exchange beneficiaries. Recently attacked due to alleged violations of the Health Insurance Portability an Accountability Act requirements, the federal government’s centerpiece and portal created to ensure that the uninsured can procure insurance now finds itself with a sizable chasm to overcome in its attempt to ensure its success.
Meanwhile, as New Year’s Eve is just around the corner, proponents of the ACA could certainly use one last victory, even if only Pyrrhic. With no end in sight to the partisan rhetoric that follows health care reform like paparazzi, we must consider what the crux of health care reform is all about: Whether in the form of the ACA or some future legislation, the U.S. has a fundamental obligation to provide health care to those who live within its borders. Such a laudable ideal is not only a representation of this country, but it is practical, efficient, and ultimately self-sustaining. While we as a nation must remain mindful that the right to criticize the ACA is as much of an entitlement as access to health care itself, both must be preserved as health care reform enters a new year, and embraces a new stage.