The Affordable Care Act: opportunities and threats
Provisions of the PPACA that benefit chiropractic are under attack — as you would expect — from the usual sources.
By Daniel Sosnoski
Few pieces of legislation in our lifetime have been as contentious as the Patient Protection and Affordable Care Act (PPACA), enacted by Congress and signed into law March 23, 2010.
Whether you support or oppose this sweeping overhaul of the nation’s healthcare regulatory and insurance landscape, you cannot deny that it is of tremendous historical impact. And, being comprehensive in scope, it has provisions that apply to chiropractic.
Before examining how the PPACA can and will affect your practice, it’s worth a brief look at what the law does and how it is intended to operate.
There has been considerable confusion and misinformation about the act disseminated in the media and by political organizations, and many of its key provisions will be enacted over the coming years. It will remain difficult to assess the full impact of the PPACA until it is completely implemented.
Getting into the Act
The Act has two primary objectives: First, it attempts to re-regulate insurance companies and expand Medicaid eligibility rules so that the approximately 17 percent1 of Americans who do not have health insurance can obtain it. Second, it seeks to lower healthcare costs by increasing competition and the number of insured, while also reforming the structure of Medicare and Medicaid.2
Essential components of PPACA and key associated dates of implementation include the following:
Effective June 21, 2010
Effective Sept. 23, 2010
Effective Aug. 1, 2012
Effective Jan. 1, 2014
Effective by 2018
As the public and members of the healthcare community become more familiar with the scope and effect of the Act, they increasingly tend to favor it. Particularly when queried on the PPACA’s individual provisions, Americans across the political spectrum favor many elements of the Act.3
A work in progress
One reason the public is still largely confused about the Act is because it has only partially been enacted and its major benefits have yet to be experienced. Some of the provisions became effective immediately upon the signing of the law, some provisions 90 days after enactment, others six months after enactment, and the remaining elements will be phased in between now and 2020, with the bulk taking effect in 2014.
On the positive side, the government, the Centers for Medicare and Medicaid Services (CMS), the healthcare industry, and the insurance companies have time to deal with the various mechanisms of the Act and adjust accordingly. On the downside, public and political pressure will remain choppy and unimplemented provisions of the Act may be eliminated or substantially altered before their benefit can be realized.
A place for chiropractic
The American Chiropractic Association (ACA) and the Chiropractic Summit were instrumental in seeing that chiropractic had a place at the table during the creation of the Act. Thanks to their efforts, and those from other providers of complementary and alternative healthcare modalities, the PPACA does not discriminate against chiropractors.
The PPACA contains 10 sections, called “titles,” and in Title IV, “Prevention of Chronic Disease and Improving Public Health,” Section 4002 establishes a “Prevention and Public Health Fund.” This funding is allocated by the U.S. Department of Health and Human Services (HHS) and targets “prevention, wellness, and public health activities.” PPACA also amended the Public Health Service Act by adding Statutory Section 2706:
PHSA 2706: Non-Discrimination in Health Care. Plans may not discriminate against any provider operating within their scope of practice. Does not require that a plan contract with any willing provider or prevent tiered networks. Plans may not discriminate against individuals or employers based upon:
Applicability: All plans
Plan years beginning: January 1, 2014
Although this provision does not require a health insurer to contract with every available healthcare provider, it does prevent insurers from excluding an entire type of provider from their network.
John Falardeau, the ACA’s senior vice president of government relations, and Tom Daly, the ACA’s legal counsel, were closely involved in drafting the language of Section 2706.
“At the time,” Falardeau recalls, “we were only aware of the exchange model being proposed, and we wanted something to protect our patients and providers against discrimination in plans that would be available in the exchanges. We were laying the ground- work, planting seeds, because who knew what would ultimately come out of the committee?”
In 2009, Falardeau and Daly worked with Senator Tom Harkin (D-Iowa), the chairman of the Senate Committee on Health, Education, Labor, and Pensions who, with Senator Chuck Grassley (R- Iowa), was overseeing the Senate version of PPACA. “There was give-and-take, back-and-forth, but we were all on the same page,” Falardeau says. “They were supportive and wanted to do something. It helped that this was also a budget-neutral provision.”
Ordinarily, the House and Senate would draft separate bills, then combine them in
conference. But the Senate’s bill was the version passed by the House in 2010. “The House had to pass the Senate bill because it would never have gotten out of conference,” Falardeau says. “So Section 2706 passed and stands as-is. Nobody saw this scenario taking place. We were delighted by it.”
It is noteworthy that Section 2706 embraces other professional non-MD healthcare providers. Falardeau says the ACA wasn’t looking for an exclusive carve-out for chiropractic: “It wouldn’t have flown. We couldn’t have gotten the support of other groups here in Washington D.C. if we hadn’t been inclusive.” And early on the ACA received strong support from leaders in the American Optometric Association and the American Association of Nurse Anesthetists, giving the coalition a multidisciplinary appeal to Harkin’s committee.
A not-unexpected challenge
Almost as soon as the Act was drafted in its current form, members of the allopathic medical community turned their sights on Section 2706. In early 2010, a coalition of anesthesiologists and ophthalmologists urged the American Medical Association (AMA) to lobby for the repeal of the non-discrimination language.
This would affect not only chiropractors but also NDs, LAcs, LMTs, and others who clearly have a role to play in bringing healthcare to the currently uninsured 50 million Americans who need it. Integrative practitioners have a key role to play in the broad, across-the-board efforts needed to lower the cost of care (which most agree is unsustainable at current levels, let alone at future projected rates).
For its part, the ACA’s House of Delegates, at their September 2011 meeting, passed a resolution in support of Section 2706, and noted four examples of practices that discriminate against chiropractors;4 namely, these are the policies of third-party payers toward DCs and their patients when it comes to full reimbursement for services, their policies that work to restrict access to DCs, disparities in reimbursement compared to other healthcare professionals, and the arbitrary actions they take to limit payment to DCs.
In contrast, the AMA’s 2010 Resolution ASA 15, as drafted by their Scope of Practice Partnership (SOPP) committee, eyes stripping out Section 2706 from the PPACA:
Resolved: That our American Medical Association immediately condemn and work to repeal new Public Health Service Act Section 2706, so-called provider “Non- Discrimination in Health Care,” as enacted in PPACA, through active direct and grassroots lobbying of and formal AMA written communications and/or comment letters to the Secretary of Health and Human Services and Congressional leaders and the chairs and ranking members of the House Ways and Means and Energy and Commerce and Senate Finance Committees; and be it further resolved that our AMA place repeal of new Public Health Services Act Section 2706 as an active agenda discussion and strategy item of each meeting or telephone conference of the Scope of Practice Partnership...
A similar resolution has passed each subsequent AMA House of Delegates meeting, the latest being the June 2012
Resolution 241 (A-12) forwarded by the AMA’s Arizona Delegation and the American Society of Anesthesiologists. This resolution repeats the language of earlier efforts, and adds that the term “non-discrimination” in Section 2706 “cynically misappropriates the civil rights term ‘discrimination.’”
Falardeau says his office hasn’t seen any indication that the AMA is actively lobbying at any level of government in an organized fashion. The ACA will continue monitoring the issue but, for the time being, Section 2706 stands intact and is currently law. The burden is fully on the side of those who would seek its repeal.
How the Act affects you
Because CMS is its own entity, Section 2706 does not apply to Medicaid or Medicare. But, according to Falardeau, the Senate has confirmed that the non-discrimination provisions do apply to ERISA plans as well as the state exchanges and small-employer plans. This means that the rule “applies to the majority of plans used by the public, which are ERISA regulated,” Falardeau says.
The ACA was also successful in adding language to the section of PPACA that addresses cost-control mechanisms, which include funding and support for the Medical Home Model of care. Here, chiropractors are specifically named as being potential participants.6
The Act also funds the Patient-Centered Outcomes Research Institute (PCORI),7 an institution likely to promote chiropractic in the wellness and cost-effective, conservative-care arenas.
Stormy seas ahead
As evidenced by the July 11, 2012, vote by the U.S. House of Representatives’ to repeal PPACA in its entirety, in addition to previous efforts to repeal some or all of the Act’s provisions, there are significant headwinds to face. As Falardeau puts it, “The first hurdle was getting the Act through Congress, the second hurdle was the Supreme Court ruling, and the third will be the election this November.”
There are various outcomes imaginable, and in some scenarios the Act would be unlikely to survive.
In addition to health uncertainty, many Americans experience financial distress regarding the high cost of our medical system.
About a quarter to 40 percent of all personal bankruptcies are caused by the shock of unmet medical costs, according to a 2005 Harvard University study.8
The PPACA doesn’t address these problems merely by extending insurance to those who formerly couldn’t obtain it. Over time, it will also have to reduce healthcare costs as a percentage of household income and national GDP, while increasing the population of healthy adults who need less care.
For its part, the ACA did not promote nor oppose the Act, but saw it as an opportunity to improve the environment for chiropractic and the lives of patients.
Most members of the healthcare professions seem to be of a similar mind: Let’s make the best of it.
2Elmendorg D. CBO’s Analysis of the Major Health Care Legislation. Congressional Budget Office. March 2011. epub.
3Zengerle P. Most Americans oppose health law but like provisions. Analysis of a Reuters-Ipsos poll. June 24, 2012: www.reuters.com/article/2012/06/25/us-usa-campaign- healthcare- idUSBRE85N01M20120625.
5“AMA Provider Discrimination Resultion.” Texas Journal of Chiropractic, Online Edition. June 15, 2010. journal.chirotexas.org/2010/06/15/ama-provider- discrimination-resolution.
6Sosnoski D. F4CP promotes Medical Home Model. Chiropractic Economics. 2011; 57(13):12.
7The Patient-Centered Outcomes Research Institute (PCORI). www.pcori.org.
8Himmelstein DU, Warren E, Thorne D, Woolhandler S. Illness and injury as contributors to bankruptcy. Health Aff (Millwood). 2005 Jan-Jun; Suppl Web Exclusives:W5-63-W5-73.