Wednesday, June 15, 2011

What If Obamacare Were Found Unconstitutional?

Health care is a sensitive issue politically.

And as things would have it, it now is a sensitive issue legally.

So my thoughts now are not meant to be partisan, but rather a "ground-floor" perspective on what would happen if the Patient Protection and Affordable Care Act were found entirely unconsitutional.

What would happen?

Would a bunch of post-college aged kids ages 21-27, promised insurance beginning this year, suddenly no longer be eligible for care? Probably not. Most insurance policy constructs last a year, so changing coverage would take a while. Still, there will remain a need for some type of insurance coverage for this group outside of classic employer-based insurance since jobs are few and far between for this group. Irrespective of whether the PPACA is enacted or not, employer-based insurance is becoming a thing of the past.  (Update 26 Jun 2012: the nice insurance industry has found this provision to be both popular and highlly profitable since young folks rarely get sick, hence they will continue this provision, even if the PPACA is struck down)

Would doctors who sold their practices lock, stock, and barrel to large health care organizations be able to disband from these large health care organization superstructures (and their associated non-compete clauses) to restablish independent practices? No way. For doctors who performed imaging procedures in their offices at a discount to what hospitals charge, CMS claimed "self-referral" incentives for these procedures, and stopped paying for them in the outpatient setting (but interestingly, not for hospitals). Consequently, by banning payments to doctors for these services, independent physician practices no longer were viabile, except those in affluent neighborhoods where concierge medicine could establish a foothold. The employed physician model and more hospital consolidation seems inevitable going forward irrespective of the outcome of legal challenges to the PPACA.

What about people with pre-existing conditions? It would seem that care would be delivered as it is now for this group. Charitable care, ER care, Medicaid programs would likely have to expand putting even more pressure on our state budgets. But then, isn't this why many states are concerned about the PPACA in the years ahead anyway?

Will the electronic medical record and electronic prescribing, the cornerstone of purported cost savings and efficiencies under the PPACA suddenly disapppear? Of course not. The EMR has been wedging its way into medicine since at least 2004 (that's the last year we had paper inpatient charts at our institution). Newly minted doctors today have never manually written inpatient orders, have never had to walk to radiology to "pull the films" to see a chest x-ray, or go to the microbiology lab to review culture results. They are wired. They expect instant test results. They expect to be able to read outpatient notes. They expect to be able to find another responsible doctor in the care history of a patient. In fact, novelty patients now are those who have never had an entry in their electronic medical record: "Gee, no one's seen this guy before!" Bottom line: an unconstitutional PPACA won't derail the electronic medical record.

It has been estimated by the CBO that repealing the PPACA would cost $210 billion dollars if this occurred between 2012 and 2021. What that money would be used for is anyone's guess (legal and political PR fees?). We have to wonder. But common folk like most of us are not privvy to the intricacies of government self-serving budget-making.

So what if the PPACA is found unconstitutional?

It. Won't. Matter.

Irrespective of the outcome of the pending legal battles for or against the PPACA, we continue to have a huge cost of care crisis in America. Our problem (hate to say it) was never a need for "insurance reform." It remains a problem of costs. And the PPACA does little to help us understand where cost savings would be realized. Why is this?

The legislation was authored by powerful interest groups who were "brought to the table" to feast on the last vestiges of fee-for-service health care. To date, they continued to gorge themselves. I'm not seeing a concern about costs. I'm seeing a consolidation of monster health systems accross our land. Much as the insurance industry found profits by eating their own before, so now are hospitals. Bigger, more doctors, more huge facilities gobbling up their competitors until the last Great Health System can claim the "Too-Big-To-Fail" prize. And why not? Our jobs and economy depend on it. We continue to want the best of care without compromise (though there are responsible rumblings out there about end-of-life care.) Bigger systems running more smaller systems. Not only will it be bigger, more efficient, but safer, too! Our wonderful Utopian vision of the future. Costs be damned. We've got to build for the future and the influx of newly-eligible health care customers!

There is no interest in shrinking the middle man.

Instead, our entire system is cloaked in financial secrecy as we continue to build our Health Care Hindenburg under the auspices of the PPACA, or not.



rhythm doc said...

Touché, Dr.Wes. Physicians have become an incidental cag in the healthcare wheel, taking the blunt of beurocratic avalanches, villification by legislators and the press, with 15 minute time slots to discuss sudden death prevention when they present with an ingrown toenail. Only technology can save the system. But that will leave us without personal contact at all. Society sill have to pic its poison.

Tacitus said...

Indeed. The fatal flaw of the Obama Health Care initiative was making full access the goal rather than affordability. Oh, and cutting a back room deal with the very industry robber barons that would make affordability impossible in exchange for their not "going to the mattresses" in opposition.
Fortunately there is an enormous amount of fat in our health care system (and not just in its consumers). Having spent a 12 hr shift in the ER scrutinizing unimpressive bug bites and investigating the declining status of DNR nursing home patients I can assure you we can trim more than a little if we do so with intelligence.


Detritus of Empire

Tim said...

If Obamacare were found unconstitutional, it would at least be a slap in the face to the socialists and those who say, "What we've got isn't working, so let's try something different." Health care will only cost less when less health care in administered. What we don't want is the government making that decision! Physicians using their judgment without duress can trim the fat Tacitus sees. Whether we have anybody left with judgment remains a question.

Anonymous said...

So the only way to fix the Medicare entitlement program is to make it larger with Obamacare!? The entire healthcare in our country will be an entitlement program. This is a disaster waiting to happen. Costs will spiral.

Finally, don't refer to the bill as a hospital bill. It is a doctor bill as in poor people are filling for BK from the avarice of those doctors.

Anonymous said...

@ Tim,

So what have those doctors been waiting for - the fat that is.

Tim said...

"@ Tim,

So what have those doctors been waiting for - the fat that is."

We've been waiting to be unconstrained by "practice parameters," "best practices," and medical malpractice! Best practices, as written by the "experts" don't always turn out to be correct and aren't always applicable at every level of care. If I see a patient with a complaint of headache, I might consider an MRI, but since only a handful of every 100,000 patients with that complaint have a cause that would be diagnosed with an MRI, making it a routine would be wasteful. If I routinely didn't get an MRI on ANY patient with a headache, that handful of patient with pathology would suffer. Obtaining information from the patient, examination, check of vital signs would help me use my judgment and be selective in which patients get the MRI. If you walk in to any ER in the country with the complaint of headache, The MRI will be ordered by the triage nurse before you ever see the doctor– routinely! Why? Because of the fear of lawsuit over the one you might miss! If I treat a patient differently than what the "best practice" is at Harvard Hospital– same result, even though what they recommend might not be practical here. Doctors are constrained by the "experts," the government, and the insurance companies. I draw the line, however at any of those entities that try to make me practice bad medicine. I have told many an insurance company to take a flying leap because what they wanted me to do was not just inconsequential, but detrimental to the patient. But, then again, I can be a son of a *&^%$! I didn't train for 12 years after college to be a technician. I was trained to make decions and take action. Maybe doctors in the future will only have to read a recipe and treat your problem. I hope I'm around to ask, "How's that workin' out for ya!"

Anonymous said...

@ Tim,

Pretty tall order for getting rid of all those constraits that make it difficult to cut the fat. Experts, government, regs, insurance companies, and best practices have been around for...oh, I give up, you tell me how long they've been around. And yes, they are still going to be around if reform stays or is found unconstitutional. So what I'm thinking is that you WON'T be able to cut all the fat. So spare me your talk of all the miracles you will be able to accomplish if we all just get off your back.

Further, sometimes YOU are part of the problem. Do you know that patients sometimes have to fight with med staff to NOT have that test because one done just three months ago? It was an angiogram - test showed all clear - not likely to become occuluded in three months. You know, there are some sane patients out there who are looking for conservative management and they aren't just looking for an opportunity to sue you. Just as I'm sure there are a lot of doctors who want to practice good medicine and hospitals that aren't trying to manage their business like Goldman Sachs. Well, forget the last one. Dr Wes has thrown a little cold water on that one.

Anonymous said...

I, and every other doctor that treats patients with chest pain/CAD, have had patients die of MIs shortly after 'clean' CATHs.


Tim said...

"It was an angiogram - test showed all clear - not likely to become occuluded in three months."
It might shock you to know that a previously non-occlusive placque can rupture and cause an acute occlusion. Maybe some patients don't know everything there is to know about coronary occlusive disease! It was only about 40 years ago that the charge nurse in the ER could tell a patient to go see their doctor in the morning instead of coming to the ER at midnight with a cold he had had for a week!
Patients are able to refuse any type of treatment or test. Nobody's twisting arms. All I can do is give advice. It's up to the patient whether to follow it. This isn't Stalinist Russia, even though it looks more like it every day!
There are all kinds of practitioners out there for you– homeopaths, iridologists, herbalists, naturopaths, acupuncturists. You can have as conservative a treatment plan as you want. I'm glad you have that choice. I just wish I had the choice to do the job I know how to do without know-nothing bureaucrats and doctors who have never seen a patient telling me how I should do it!
Maybe, one of these days, you'll get your wish and there won't be any doctors to bother you. You'll only have you Health Care Technician to tell you all the things for which you aren't eligible under the government medical plan.

Anonymous said...


Ok. So what is the window? You're not happy with the three months. "Shortly" won't always work.

Sounds like this test has definite limitations. You and your patient need to talk it over. Me? I wouldn't re-do @ three months...absolutely not at an even smaller window. And if I'm without insurance, I sure as hell am going to take my chances.

Anonymous said...


Stalinist Russia?

Give me a REAL example. Where are the show trials? Where are the executed millions, the collective farms? Didn't we just have elections? We have a Congress. They are doing a pretty good job of thwarting the "dictator". Is Britain suffering under the same Stalinist government? Cameron might dispute that. Canada, perhaps?

I talk about "conservative management" and you're over to herbalists and homeopaths?

And thank you, I'll take that "government" care. I'm 70, have had valve repair and Afib repair and without "government" care I'd be eating cat food. I've had high blood pressure and COPD for years. No private insurance for me after I retired. And I guess that three month CATH gap worked out pretty well. No by-pass was required. Pure luck, I know. I could go tomorrow. But it wouldn't be because I didn't have the Cath again. And it wouldn't be because of "conservative" management.
That skipped Cath, saved our government about what - $8K? And I plan to try to save a lot more by getting one of those Stalinist death panels.

Anonymous said...

NYT has a report of double chest scans done to patients in a single day. Community hospital in Michigan 2008 record: 89% get double scans. After those "pesky" protocols and practices were revised the 2010 figure was 42.4% and first part of 2011 the figure is 3%.

Tim, you're a scientist. What are your thougts? Me? I'm cheering those committees that revise the protocols and best practices.

Tim said...

" And I guess that three month CATH gap worked out pretty well."
Not knowing your symptoms at the time or by whom you were treated, your decision not to have a cath may have been perfectly appropriate. At any rate, it was your decision, right or wrong. What I said was, "This isn't Stalinist Russia," even with a socialist for a president.
"Community hospital in Michigan 2008 record: 89% get double scans. "
89% of what? 89% of patients who had one scan had 2? That's hard to believe. It's hard to know from a news story what those figures mean. The "improvement" in those percentages were probably due to measures taken at the local level by the hospital and its medical staff, the way it should be. Locally, it would be easy, then, to order 2 scans if there was a justifiable reason. If it were a government mandate, I would have to spend more time getting permission than treating the patient. People tend to forget, there are only 24 hours in a day. I would prefer to spend more of them treating patients than pleading with an insurance company or the government to let me do what I need to for the patient.

Anonymous said...


Sorry. I was sloppy. There's the link. As I read it, 89% of all Medicare patients in this particular Michigan hospital that had chest scans in 2008 had 2 scans done on the same day. And it is a wide-spread problem. I'm just a consumer so I don't know how new protocols are implemented but it seems that it was at the individual hospital level. I guess no government mandate yet, but this report suggests that change is in order right now. Here's some of the fat we were talking about and the radiation isn't too healthy either.

You're right not to trust me re-telling. Please, please read the article.

Tim said...

"As I read it, 89% of all Medicare patients in this particular Michigan hospital that had chest scans in 2008 had 2 scans done on the same day."
Obtaining studies with and without contrast (dye injected that shows up on xray) can sometimes give you more information. I don't cocnsider that double scanning. I don't know of studies comparing the efficacy of a single scan versus scans with and without contrast. Obviously, government numbers derived from bills to Medicare don't realy explain the situation. They do get used to sensationalize headlines since reporters don't have the expertise to undersand. It is not inappropriate to bill for each study done. Of course, the government, the media, and the progressives want to demonize hospitals and doctors and call it "overbilling." We are always trying to streamline patient care as we learn more about the technology we use. That has been the history of Medicine. Patients used to get radiation therapy for facial acne. It would be easy to say today that that was inappropriate, but then it hadn't been shown that radiation therapy could cause the problems we now recognize.
The information in this article can cause the government to react in a knee jerk fashion. Then, when I need to get scans with and without contrast, I'll have to spend half a day on the phone to get three layers of clerks to get authorization. That's hours that some other patients won't get. Remember: There are only 24 hours in a day, as best I can tell.
Also, don't forget that there is a plaintiff's lawyer who'll say, "But, doctor, you could have gotten thaat scan WITH Hcontrast and gotten more information, couldn't you?"