HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Wednesday, May 9, 2012

Guest Blogger Nicole Huberfeld: PPACA’s Hidden Coherence

Nicole-Huberfeld-FULLMany thanks to Katharine and the other editors for allowing me to crash their party this month.  One of the major arguments against severability in the Patient Protection and Affordable Care Act (PPACA) litigation is that the law addresses many problems in many different ways, thus the minimum coverage provision should be severed if the Court decides (against precedent) that Congress has exceeded its commerce power.  The legislation is extensive and does address diverse healthcare concerns, but it seems unfortunate that the United States had to take the position that its law does not hang together as a whole.  What government would choose to explain such significant legislation in this way?  Just two of today’s many health-related news items, which themselves appear disconnected, indicate how it is not such a stretch for PPACA to be described as addressing longstanding, related problems in American medicine.

First, Governor John Hickenlooper signed Colorado Senate Bill 134 today, a law that directs Colorado hospitals to take a number of steps toward financial transparency, fairness, and bill planning before they can resort to collection agencies.  The Denver Post reports that the “prime impacts” of the law will be:

  • Hospitals cannot charge the uninsured covered by the bill more than the lowest negotiated price offered to insurance companies or other third parties.
  • All hospitals must make financial-assistance information obvious to consumers online, posted in the hospital and printed on bills.
  • The hospitals must try to help low-income patients set up an extended payment plan before they are referred to collection agents.

Colorado’s new law echoes PPACA Section 9007, entitled “Additional Requirements for Charitable Hospitals.”  After many years of attempting to require more concrete provision of and evidence of charity care from tax-exempt hospitals, Congress has instituted requirements that 501(c)(3) hospitals refrain from aggressive collection practices unless they introduce “financial assistance polic[ies]” and determine whether the nonpaying patients are eligible for such assistance.  In addition to strengthening the rules for obtaining the subsidy that is charitable status, this new policy could facilitate earlier, more treatable, and less costly care, as patients will not fear the bankruptcy that could result from receiving treatment.       

Second, the Institute of Medicine has just issued a report providing a multifarious approach to obesity prevention and reversal, which the IOM summarizes as follows:

Left unchecked, obesity’s effects on health, health care costs, and our productivity as a nation could become catastrophic.  The staggering human toll of obesity-related chronic disease and disability, and an annual cost of $190.2 billion for treating obesity-related illness, underscore the urgent need to strengthen prevention efforts in the United States. … The IOM evaluated prior obesity prevention strategies and identified recommendations to meet the following goals and accelerate progress:

Integrate physical activity every day in every way

Market what matters for a healthy life

Make healthy foods and beverages available everywhere

Activate employers and health care professionals

Strengthen schools as the heart of health

On their own, accomplishing any one of these might help speed up progress in preventing obesity, but together, their effects will be reinforced, amplified, and maximized.

The IOM’s report will aid those who seek the funding for obesity prevention that PPACA has made available through the Prevention and Public Health Fund and other mechanisms. 

Neither the IOM report nor the new restrictions on tax-exempt hospitals is directly related to the “individual mandate,” but these stories are still connected.  American health can be advanced by improving aspects of the system that have been disparate since the early 1900s: public health, hospital organization and behavior, and payment mechanisms.  If obesity trends downward, then Americans will be healthier for not suffering the collateral diseases the IOM highlights (hypertension, diabetes, heart disease, etc.).  And, when medical need arises, a patient is more likely to seek care, rather than waiting until a disease is more advanced and thus more expensive, if hospitals are fair in charging and collecting practices.  Insurers will have more healthy bodies in the risk pool, which should help to keep premiums down.  The various moving parts ease each others’ function. 

This is not to say that the law is so cohesive that the individual mandate should not be severed; it would be bizarre to strike down such an extensive law over one element of its scheme.  But, the Obama Administration seems to be missing the chance to tell a more coherent tale of its signature legislation.

- Nicole Huberfeld

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I'm looking forward that this laws will be implemented effectively. I hope public hospitals will improve their services.

Posted by: Phil | May 10, 2012 1:43:02 AM

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