The 2016 Election and Healthcare: Don’t Forget the Supremes

By James Burns, VP, Corazon, Inc.

The current election process for the next President of the United States (POTUS) has definitely been extraordinary in terms of media coverage and controversy.  And, while many healthcare executives and physicians alike are looking at the election in terms of the next President’s influence on our healthcare system, there are some longer-term impacts that could be felt for many generations to come:  the selection of one or more Supreme Court Justices. 

To understand this situation’s impact on the healthcare industry a little better, looking at the modern history of the POTUS and the Supreme Court of the United States (and their individual powers) is necessary.  While many know that Franklin Roosevelt set what became the foundation of our current Medicare/Medicaid program as part of his “New Deal” initiatives, the Social Security Act of 1935, some are surprised to learn that each subsequent POTUS has introduced or refined some element or component of our healthcare system.  Some of these changes have been much more disruptive than others…

While Lyndon Johnson’s Medicare program and Barrack Obama’s Affordable Healthcare Act are some higher-profile examples of Presidential influence on these nationwide systems of care, each administration has had some lasting imprint on the way our healthcare delivery and payment system (at least from a governmental perspective) works today.

 

TABLE 1: POTUS and their IMPACT UPON HEALTHCARE

What is not as prevalent in the election rhetoric around healthcare is a key sector of our government that will be dramatically impacted by this year’s election: the Supreme Court of the United States (SCOTUS).  Beginning with a ruling in response to the aforementioned programs introduced by President Roosevelt in 1936, the SCOTUS has weighed in on no less than 30 cases with direct implications on our healthcare system, and even more when considering count rulings that would only have a residual impact on the delivery healthcare in the U.S. 

What makes the SCOTUS even more relevant is the fact that any ruling for any case brought before the justices of the court is final, hence the name Supreme, a synonym for highest, utmost, and untouchable.   This is not to say that any component of a law cannot be disputed, even with a court ruling, especially if a new or unique challenge is brought forth on a conflicting component of the law.

Again, the consummate power exhibited here is that the Supreme Court decides what cases can be brought before it and which will be remanded to lower courts in the federal system.   No congressional majority or state ruling can override their decision.  This has been a key issue in the regional lawsuits brought forth against the Affordable Healthcare Act; states are not sovereign governments, so therefore, the federal court system, up to and including SCOTUS, are the final and nonpareil interpreters of the law.  Meanwhile, in comparison, any Executive Order or Veto issued by the POTUS can be overturned or reversed by a 2/3 majority of each House of Congress.   This only further highlights the ultimate power of SCOTUS rulings and potential challenges to Presidential decisions.

Most people who have read a newspaper or watched a TV news program in the past nine months knows that there is coveted spot open on the court with the death of Justice Scalia late in 2015.  Currently, the court is evenly divided in conservative and liberal camps (three / three) with Justices Breyer (D) and Kennedy (R) considered moderate, and sometimes swing, decision-makers.  What most people don’t realize is Justice Scalia’s spot is just the beginning of a number of vacancies coming in the near future. 

The average age of the entire Supreme Court is currently a venerable 69.4 years.  Even more relevant is the fact that within eight years and one week of the next President’s inauguration, seven of eight justices will be over the age of 70, with three over the age of 85.  This means that the next POTUS could, theoretically, be replacing four Justices, which would significantly impact the court for generations to come.

TABLE 2: SCOTUS AGES and PARTY AFFILIATION

So what does this mean for our healthcare system?   Despite the fact that for the first time in at least a generation, healthcare, or more specifically, healthcare reform, is not front-and-center in election rhetoric.  Certainly, the election of a liberal or moderate Democrat to the presidency would most likely mean that the Affordable Care Act would remain as-is with the potential for expansion.   On the other hand, with a Republican president, The Affordable Care Act, although subject to change in some way, would remain in effect too.  One area of critical concern relying on the election’s outcome is how the remaining components of the Act will be implemented over the next eight years of the incoming administration.

Most people, even the staunchest supporters of the ACA, admit to a mixed bag of both pros and cons.  For most hospitals, it’s been business as usual because many of the elements of the Act are either continuations or expansions of programs already in place, such as the CQI initiative promoting quality assurance.  From a financial standpoint, dollars have shifted, causing both employers and patients to pay more out-of-pocket in order to assure that the vast majority of our country’s citizens have some type of healthcare insurance.  And, while hospitals, theoretically, are treating a higher percentage of patients with some type of insurance, the decrease in uncompensated care has yet to eclipse the impact of reduced or capitated reimbursements.

Additionally, a full six years after its adoption, there have been many starts and stops of programs stemmed from the ACA due to planning issues or underestimated impact of certain changes.  This is not completely unexpected as historically, CMS has experienced a number of challenges in implementing complex programs.  One clear example:  the first ICD-10 codes were mandated in by the government in 1999, but it was 2016 when they were fully implemented across all CMS entities.

There is one certainty in our future…regardless of who wins the next election, the costs of healthcare will continue to rise at a disproportionate rate of the entire gross domestic product of the country.

One of the most critical decisions that will, most likely, be impacted by the next POTOS and SCOTUS is the inevitable changes to our country’s core entitlement programs.  The most recent estimates show the Medicare program will be completely depleted of funds by the year 2028 – a mere 12 years from now.  Our next contingent of leaders will have to make some hard decisions and deep cuts to salvage the program, and if history teaches us anything, any cut, no matter how necessary, will be met with staunch resistance and criticism. 

So, even though all eyes will be on the candidates in the months leading up to Election Day on Tuesday, November 8, we know that the real scrutiny will only come AFTER, when the President-elect will take office and be faced with filling a Supreme Court vacancy and the continuing challenges to the Affordable Care Act.

Corazon offers consulting, recruitment, interim management, and information technology services to hospitals and practices in the heart, vascular, neuro, and orthopedics specialties.  Find Corazon on facebook at www.facebook.com/corazoninc or on LinkedIn at www.linkedin.com/company/corazon-inc.  To learn more, call 412-364-8200 or visit www.corazoninc.com. To reach the author, email [email protected].