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
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not repealed by some future congressional activities.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.
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
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.
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.
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 §5000A.
5. Medicare Prescription Drug Coverage (Part D).
Accessed July 16, 2012.
6. Supreme Court upholds Affordable Care Act. Newsroom.
American Pharmacists Association. June 28, 2012.
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.
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