Travis Heider, BridgeTower Media Newswires
Hospitals and health systems enter the fourth quarter of this indescribable year poised and ready to care for coronavirus and all other patients. They will serve their communities no matter what COVID-19 has in store for us over the next three months and into the future.
Will there be a surge as more children physically return to school, business and recreation restrictions are lifted, people let their guard down and forget how dangerous the virus is? What will result from the confluence of flu and COVID? When will an effective vaccine be available?
Uncertainty for our health system was heightened with the passing of the honorable Supreme Court Justice Ruth Bader Ginsburg just weeks before the fate of the Affordable Care Act (ACA) will be argued before the Supreme Court on November 10. Should the Senate confirm President Trump’s nominee, Amy Coney Barrett, a more conservative court may tip the scale toward the demise of the ACA … during an international pandemic.
Already an estimated 12 million workers may have lost health care coverage along with their jobs as a result of COVID, according to a study by the Economic Policy Institute, which means more will need coverage through ACA channels — marketplaces or Medicaid. But expanded health care coverage for millions is not the only thing at risk should the ACA fall.
The ACA also ends lifetime caps on insurance coverage, allows kids to stay on their parents’ insurance through age 26, makes vaccines free to patients, guarantees preventive care with no out-of-pocket payment and, perhaps the most valued provision, protects Americans with pre-existing conditions.
Coronavirus is positioned to be the king of pre-existing conditions. COVID patients have experienced heart, lung and kidney damage, blood clots and strokes, gastrointestinal issues, muscle and joint pain, neurological problems, even “COVID toes.” The virus is too new for science to determine whether these conditions might be permanent.
Young, healthy people who had COVID may find themselves uninsurable. Fear of being excluded would have a chilling effect on people’s willingness to be tested and disclose the illness to protect others.
President Trump signed an executive order (EO) on September 24 clarifying that it is the policy of the United States to protect people from insurance discrimination based on pre-existing conditions. However, legislation would be required to enact this order if the ACA is discarded. President Trump included the EO as part of his vision for health reform, the America First Healthcare Plan, which is more of a recap of his Administration’s efforts already underway than a comprehensive health care plan. Wouldn’t it be easier to leave current protections in place?
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Will the ACA fall at such a critical time?
President Trump has joined 20 states, led by Texas, challenging the constitutionality of the law and seeking to get rid of it. The case against the ACA and the lower court rulings that sent it to the Supreme Court are widely viewed by legal scholars as “remarkably weak,” according to Katie Keith who wrote in Health Affairs that “The Court’s decision in [California v.] Texas, regardless of whether its justices are liberal or conservative, should be easy.”
However, Keith observes, “the uncertainty wrought by an open seat at the Supreme Court at the height of an election year opens the door for an unexpected result” in the case.
Two issues are in play — standing and severability. The lower court found that plaintiffs have standing. In other words, they have been harmed by the law. In 2017, Congress passed legislation zeroing out financial penalties for people who do not get health insurance, as is required by the ACA’s individual mandate that everyone must have insurance.
Even though the two individuals challenging the law pay zero penalty for lacking insurance, the argument is that they feel compelled by Congress to purchase insurance, and that kind of congressional coercion is unconstitutional. Suing states claim standing because of the administrative burden and costs they incur in implementing the amended law.
Regarding severability, when the ACA was first challenged in 2012, the Supreme Court ruled that the law was constitutional because the individual mandate penalty was a tax and Congress is allowed, under the constitution, to impose taxes. Plaintiffs claim that when Congress eliminated the monetary penalty, it rendered the individual mandate unconstitutional and, since that provision is unconstitutional, the entire law must be scrapped.
That decision on severability is where legal scholars scoff, citing several Supreme Court precedents. Nevertheless, the case has made its way back to the Supreme Court.
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Momentous November
We head to November with much uncertainty — outcome of the election, make-up of the Supreme Court, fate of the ACA and the future for the health care system.
Regarding the latter, as is typically the case, hospitals and health systems and our health care heroes have risen to the historic COVID challenges and made tremendous progress caring for patients and protecting their communities.
Physicians and hospitals are better prepared to treat COVID cases now after gaining a better understanding of how to triage patients, what drugs help, when to put patients on ventilators, managing supplies that are needed and so forth.
Since care was resumed after the COVID pause, hospitals and health systems have welcomed patients back for safe elective procedures and urged them to catch up on routine care that was deferred. Hospitals have also adopted alternative care models, such as telehealth, to facilitate access. They have reengineered everything — facility layouts, protective equipment, screenings and processes — to ensure social distancing and precautions to protect both patients and staff as well as ensure readiness for a surge.
These actions have come at significant added expense and restrict the return to full pre-COVID productivity as hospitals simultaneously struggle to dig out from financial losses incurred during COVID’s early days when services were shuttered. For hospitals in the Greater Rochester region that always operate on razor-thin margins, financial status is desperately fragile.
Unfortunately, Congress failed to pass additional emergency funding for hospitals and providers, states, businesses and the American public. Many are hurting. But support for hospitals and our health care heroes is critical as they are on the front lines, protecting and defending all from COVID’s peril. Now is the worst time to contemplate repeal of the ACA.
Hopefully, the Supreme Court, regardless of the philosophical leanings of the justices, will eschew the spurious arguments of the challengers and affirm that the ACA is valid, constitutional and lawful once and for all. Health care access and protections ensured by the law have never been more essential.
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Travis Heider is president and CEO of Pandion Healthcare: Education and Advocacy, a not-for-profit 501(c)3 association.
