After the Ruling

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altLast month’s somewhat surprising Supreme Court ruling to essentially uphold the Affordable Care Act has left us wondering what to expect next. While the emphasis of the ruling rested on whether the ‘individual mandate‘ could be ruled a legal tax – something both sides of Congress disagreed with for different reasons – the overlooked aspect of the ruling is its impact on healthcare for the poor.

Last month’s somewhat surprising Supreme Court ruling to essentially uphold the Affordable Care Act has left us wondering what to expect next. While the emphasis of the ruling rested on whether the ‘individual mandate‘ could be ruled a legal tax – something both sides of Congress disagreed with for different reasons – the overlooked aspect of the ruling is its impact on healthcare for the poor. This is the part of the ruling that will effect emergency medicine the most.


One of the understated pillars of the Act was its expansion of state Medicaid eligibility to cover up to 17 million lower income individuals. Two things were hoped to be accomplished by this expansion that would effect emergency medicine. First, it was expected that expanded insurance coverage through exchanges and expanded Medicaid eligibility would allow patients to go to a primary care physician rather than the ED. Second, those patients who did go to the ED would at least have Medicaid insurance. The Act called for 100% federal support of this expansion for the first two years, and 90% support for two years after that.

Many state governors foresaw a massive expansion of their state entitlement programs looming in the not-too-distant future. Congress knew this and attempted to coerce the states into participation by threatening to withhold other necessary federal funding if they refused. But the Roberts court said this part of the law was over the top. Now, as unpopular as it might be in an election year, as many as half of state governors might refuse to accept this Medicaid expansion for fear of it busting their state budgets in the future.

While this might seem to dash the hopes of universal access to primary care – thus debulking the ED of its non-urgent Medicaid patients – there are some studies that question whether this would have worked to begin with. While it’s true that non-elderly Medicaid patients visit the ED at about twice the rate as their non-elderly insured counterparts, a study by the Center for Studying Health System Change suggests that Medicaid patients don’t use the ED for routine care any more than insured patients. The difference is simply that uninsured patients don’t get routine care from a primary care physician at the same rates as insured patients.
What should we anticipate in those states that choose to expand Medicaid coverage?


A study by MIT and Harvard researchers that looked at 10,000 patients in Oregon who were randomly assigned to Medicaid found that outpatient utilization went up 35%, prescription drugs 15%, hospital admissions 30%. However, insurance didn’t seem to effect the use of the ED.    The bottom line is that Medicaid patients are in the ED because they need to be there. But they may be sicker for not having had routine care.

This failure to obtain routine care may, however, be due to more than just the lack of insurance. First, there is an absolute primary care physician shortage that may impact the ability to absorb new Medicaid patients. Second, as Medicaid reimbursement rates continue to shrink, more than half of the primary care physicians are no longer taking new Medicaid patients into their practices.

What about all those younger patients who are now eligible to stay on their parents’ insurance. Where are they likely to go for care? Since young healthy people don’t tend to visit the doctor much in the first place, it seems unlikely that they will suddenly flood the primary care offices seeking preventative care. No studies have yet been published tracking the ED usage of newly insured twenty-somethings. While this group might come to the ED in greater numbers, at least now they will have mommy and daddy’s insurance card. The MIT/Harvard study noted above did see fewer patients bills sent to collection.

Supporters of the ACA say that it is time to get on with implementing the Act. Even those who don’t support every aspect of the 2300-page bill say that the Act should be amended and not ended. But repealing the Act is the goal of Gov. Mitt Romney and the GOP Doctors Caucus should the Republicans win out in the Fall. “As both a physician and a taxpayer, fully repealing Obamacare remains my top priority,” Rep. Phil Gingrey, MD (R-Ga.), said in a statement. “Healthcare costs in this country are too high, but this 2,000-page, $1 trillion law is not the solution. Patients should have more control of their insurance decisions, and reform should be driven on the state level.”


“It’s clear that we have massive problems with our healthcare system,” said Tim Murphy, Ph.D (R-PA) the Co-Chair of the Doctors Caucus. “We need to focus on delivering real reform so that every American has access to the care they need, from a doctor they choose, at a price they can afford, without a government takeover. I call on my colleagues from both sides of the aisle to work together on fixing, instead of just financing, our broken healthcare system.”

More legal challenges are in the pipeline as well. The suits by Notre Dame University and several regional Catholic archdioceses are likely to be heard this year. They claim that the requirement that all insurers pay for contraception is a violation of religious freedom. These challengers found some support for their position from none other than Justice Ruth Bader Ginsburg. “Other provisions of the Constitution also check congressional overreaching,” Ginsburg wrote. “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion or infringed on a liberty interest protected by the Due Process Clause.”

Other opponents of the law say they will challenge the federal government’s ability to subsidize people in a federal exchange, as opposed to a state exchange. In what appears to be a drafting error, the law does not specifically authorize the federal government to provide these subsidies. Any effort to correct this in the regulatory process will face stiff opposition.

Yet another challenge to the law comes from small business employers who provide insurance for their employees that does not meet the federal minimum standard. These employers will face a fine of up to $3000 per employee, imposed by the IRS, to cover the subsidies provided to their employees. But the law is clear that the fine can only be imposed against employers that receive tax credits or subsidies to purchase insurance through a state run plan. “The IRS doesn’t have a leg to stand on here,” says Jonathan Adler, law professor and director of the Center for Business Law and Regulation at Case Western Reserve University. “It has not cited any express statutory authority for its decision, because there is none. The language limiting tax credits to state-established exchanges is clear and consistent with the rest of the statute. The law’s chief sponsor, Senate Finance Committee chairman Max Baucus (D-Mont.), is on record explaining creation of an exchange is among the conditions states must satisfy before credits become available.” Therefore, if the state fails to implement an exchange (and as many as 30 states have signaled reluctance to do so) the tax is possibly unauthorized by the law. However, this challenge is unlikely to surface before 2014 when the exchanges are set to be implemented.

What doe
s this mean for all of us in the ED? A lot of uncertainty. Rather than end the debate, the Supreme Court decision simply added fuel to the fire. After ruling that the individual mandate was unconstitutional under the Commerce Clause but permissible under the taxing authority of Congress, Justice Roberts explained his ruling as “a general reticence to invalidate the acts of the nation’s elected leaders… It is not our job to protect the people from the consequences of their political choices.”

Will we have more patients in the ED because more are insured? It seems likely, if only because patient volumes are continually trending upward – it seems like we always have more patients, regardless of what happens. Are these patients likely to be less sick because they now have a primary care doctor? It depends. Perhaps yes if you practice in a state that has decided to accept the subsidies from the federal government to expand state Medicaid. Perhaps not if the primary care providers in your area are already saturated with Medicaid patients.

Nothing in life is certain, but in these shifting sands, there’s one thing we can all hang our hats on, and set our watches by: that this debate will continue. As certainly as we can rely on death and taxes, we can rest assured that the healthcare debate will rage on.   

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