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Affordable Care Act (Mostly) Upheld

Jesse C. Vivian, RPh, JD
Professor, Department of Pharmacy Practice
College of Pharmacy and Health Sciences
Wayne State University
Detroit, Michigan



8/21/2012

US Pharm
. 2012;37(8):73-74.

On June 28, 2012, the Supreme Court of the United States (SCOTUS) upheld by a narrow 5-4 decision most provisions of the Patient Protection and Affordable Care Act (ACA).1,2 This landmark decision is likely to have the same historic impact on American jurisprudence as did the New Deal, the Civil Rights Act, and Medicare and Medicaid legislation. The ACA, sometimes informally called “Obamacare” or even “ObamaRomneyCare,” contains a number of diverse mandates that extensively overhaul health care rights and responsibilities that will affect nearly every American citizen. The irony is that while President Barack Obama pushed Congress hard in 2010 to pass the ACA, the law was based on similar legislation in Massachusetts advocated by then-Governor Mitt Romney, who now, as a presidential candidate, seriously critiques it.3

Majority Decision

One of the most controversial parts of the law requires every American to obtain health insurance or pay a penalty for not doing so, known as the individual mandate.4 Arguments for and against this provision inspired heated battles over states’ rights versus federalism and the extent to which Congress can go in regulating individual freedoms. In the end, the SCOTUS majority ruled that the mandatory health care coverage part of the Act is within the congressional power to levy taxes. Within hours of announcing the decision, political pundits and constitutional observers expressed amazement at the idea that the ACA is a tax law and not part of the commerce clause of the U.S. Constitution that divvies up state and federal powers to regulate various legal policies.

As far as the practice of pharmacy goes, the projections that 32 million more Americans will have mandatory access to some degree of health care by 2014, including prescription drug coverage, could have a far greater impact than modifications to Medicare Part D laws that required outpatient prescription drug benefits.5 Speaking of Medicare Part D, the infamous “doughnut hole” for prescription drug benefits will eventually be eliminated under the ACA. Demands for pharmacist services under the ACA are likely to have a huge impact on workforce needs that will stretch far into the future. This, of course, assumes that the parts of the ACA upheld in this decision are not repealed by some future congressional activities. One way or another, politics are most certainly going to play a major role in any proposed modifications to these laws. Like it or not, until then the vast majority of the ACA is the law of the land.

Nonetheless, according to Rebecca P. Snead, executive vice president and CEO, National Alliance of State Pharmacy Associations, states will need to make “tough decisions due to existing financial constraints.” By way of warning pharmacists to stay alert about the impact of these laws, she opined, “I believe it will be critical that state pharmacy associations receive the pharmacy profession’s support in working with state agencies to ensure access to pharmacist-provided patient care services.”6 Another pharmacist-attorney who has followed the ACA developments and debates, Laura Carpenter, observed that the ACA is “a great opportunity for pharmacists to further demonstrate their value as key members of the health care team. Pharmacists must be informed and understand the complexities of the law as they impact the practice of pharmacy.”7

There was one part of the ACA with potential impact on pharmacy that was found unconstitutional. This was the provision that would have imposed severe penalties on states that failed to make Medicaid benefits equal to the Medicare remunerations under the ACA. Currently, Medicaid reimbursement is paid to providers and beneficiaries by each state out of state-generated funds. The federal government subsidizes Medicaid by paying a portion (approximately 50% in most cases) of the state expenditures. Had this provision survived, noncompliant states could have lost federal funding paid to each state for a portion of its Medicaid costs. The impact of this part of the decision could have varied greatly between states. Those with very low Medicaid expenditures would have seen little change. In states with high Medicaid enrollments, the penalties could have been devastating. Given that this provision has been removed from the ACA by the SCOTUS decision, it probably will have little impact on pharmacy services.

Dissent

Of the nine Supreme Court justices, four would have struck down all or at least most of the very important parts of the ACA. Had they prevailed, serious, perhaps irreversible, consequences could have thrown the health care system into chaos, as many parts of the ACA have already gone into effect. The federal agency responsible for implementing most of the ACA, the Centers for Medicare and Medicaid Services (CMS), has already promulgated rules that have had dramatic effects on providers and beneficiaries.8 Undoing what has previously been done on such a large scale throughout the entire country would have resulted in great confusion. None of these potential disasters were considered by the dissenters.

Trying to make the multifaceted ACA seem nothing more than a question of legislative powers, the dissenting opinion starts:

“Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the [ACA] go beyond those powers. We conclude that they do.”9

Continuing in the vein of simplifying the compound issues, the minority opinion goes on to state:

“The case is easy and straight-forward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.”10

Whatever one’s political leanings, it is apparent that the five justices in the majority have substantial philosophical differences with the four dissenters as to the powers of Congress and the constitutionality of those powers.

Pharmacy Opportunities

Now that the ACA is the law of the land, pharmacists will have to put more effort into obtaining funds to implement many of the provisions of the Act that affect the practice of pharmacy. A quick review of the more important parts of the legislation should provide a good starting place. The May 2010 edition of this column highlights many of the health care reform measures embodied within the ACA.11 The multitude of opportunities available to the pharmacy profession and individual pharmacists were discussed in detail in the June 2010 edition of this column.12 Areas providing pharmacy opportunities include:

  • Medication therapy management (MTM)
  • Integrated-care models for patient-centered medical homes
  • Home-based primary care teams
  • A new definition for average manufacturer price (AMP)
  • Workforce monitoring and development
  • Methods for reducing fraud and waste in the Medicare Part D program
  • Durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) provided under Medicare Part B.

As important as the constitutionality of the ACA is, as determined by SCOTUS, the imperatives on pharmacy are now more critical than ever. Remember, there will be other constituents, including nurses, physician assistants, physical therapists, and other health care providers, who will compete for ACA funding. Let us all work together to make sure that pharmacy professionals lead the nation in bringing health care benefits to all Americans.

REFERENCES

1. National Federation Of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. Slip Op No. 11-393, 567 US ___ (2012). www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf. Accessed July 16, 2012.
2. HR 3590 (2010).
3. Lindorff D. Nobody wins: high court backs “Obama/RomneyCare,” leaves public on life-support. This Can’t Be Happening. June 28, 2012. http://thiscantbehappening.net/node/1217. Accessed July 16, 2012.
4. 26 USC ยง5000A.
5. Medicare Prescription Drug Coverage (Part D). Medicare.gov. www.medicare.gov/navigation/medicare-basics/medicare-benefits/part-d.aspx?AspxAutoDetectCookieSupport=1#CoverageGap. Accessed July 16, 2012.
6. Supreme Court upholds Affordable Care Act. Newsroom. American Pharmacists Association. June 28, 2012. www.pharmacist.com/AM/Template.cfm?Section=Pharmacy_News&template=/CM/HTMLDisplay.cfm&ContentID=28717. Accessed July 16, 2012.
7. See Note 6, supra.
8. Matter G. Thoughts on the SCOTUS ACA ruling. The Grey Matter. July 4, 2012. http://theangryliberal.blogspot.com/2012/07/before-it-became-too-late-to-do-so-i.html. Accessed July 18, 2012.
9. See Note 1, supra.
10. See Note 1, supra.
11. Vivian JC. Health care reform legislation: part I. US Pharm. 2010;35(5):51-53. www.uspharmacist.com/content/c/20824/890. Accessed July 18, 2012.
12. Vivian JC. Health care reform legislation: part II—opportunities. US Pharm. 2010;35(6):58-60. www.uspharmacist.com/content/d/pharmacy_law/c/21149/. Accessed July 18, 2012.

To comment on this article, contact rdavidson@uspharmacist.com.

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