Signed into law on March 23, 2010, the Patient Protection and Affordable Care Act (PPACA) is a signature piece of legislation for President Obama. Yet a number of the Act’s provisions have proven controversial, including the mandate for most Americans to carry health insurance beginning in 2014.
Since 2006, Eric Novack, MD, has been deeply involved in healthcare reform efforts in Arizona and around the country. His “Health Care Freedom Act” is now part of the state constitutions of Arizona and Oklahoma, and statutory versions are now law in Virginia, Utah, Idaho, Georgia, Louisiana, and Missouri. A total of 43 states have begun discussions on versions of the Health Care Freedom Act, and Dr. Novack expects that several will pass some version of the measure this year (Fig. 1).
In essence, the Health Care Freedom Act attempts to codify two rights: the right to choose to not participate in any healthcare system or plan, and the right to spend one’s own money to obtain legal healthcare services.
A historic first
“I had the idea in late 2006 or early 2007,” recalls Dr. Novack. “It’s predicated on the basic principle that we desperately need healthcare reform. But healthcare decisions ought to be controlled by patients and families, not politicians and their pals.”
A first effort at passage received over 1 million votes in Arizona in 2008, but fell 0.4 percent short of winning.
“For the first time in the nation’s history,” Dr. Novack says, “we had a substantive vote to add protections for healthcare freedom to a constitution. And we received more than a million votes with no corporate or institutional backing. It was a 100 percent grassroots effort in which we were outspent 5 to 1 by health insurance companies and hospitals from around Arizona.”
Although the measure lost, the concept had been proven. Helped by the national debate on health care, the Health Care Freedom Act began to pick up steam and spread across the country.
Federal over state?
Whether such state-level actions will have any effect on the reach of the PPACA has yet to be determined. Under Article VI, Section 2 of the U.S. Constitution, the Constitution and federal laws serve as “the supreme Law of the Land”—effectively trumping even state constitutional authority. Yet Dr. Novack suggests that the resolution may not be so clear cut.
“First of all,” he says, “there is no Supreme Court precedent for overriding completely nondiscriminatory state constitutional protections for individual freedom.
“Second, several recent Supreme Court decisions have supported the rights of states to solve problems within their own borders, even when the solutions did not comply with federal law. For example, the Supreme Court has upheld Oregon’s right-to-die law, despite its running counter to federal statute.”
In addition to promoting state-level protections for healthcare freedom, Dr. Novack believes other issues need to be addressed in any revision or proposed repeal of the PPACA.
“First, we need to equalize the tax treatment accorded to individuals who purchase insurance with that given to businesses. To encourage entrepreneurship, that is critically important,” he says.
“Second, we must adopt a rational safety net system for health care. Arizona, a state with about 6.5 million people, has a $1 billion Medicaid shortfall. To cover that, the state either has to raid money from public safety or education—both of which disproportionately affect the same people Medicaid is supposed to help—or it has to reduce spending by tightening eligibility, reducing services, or cutting reimbursement. The orthopaedic impact is reduced availability of durable medical equipment for adults and hard caps on physical therapy. The result is that some people who need extended rehab won’t get it, meaning they’re less likely to return to productive work and will remain dependent on other government support systems.
“Third, we must address Medicare and Medicaid fraud, 80 percent of which is estimated to be organized crime and identity theft,” he continues. “Rather than focus on finding coding errors from healthcare providers, the government needs to apply fraud detection techniques to identify patterns of fraud before paying out the money.
“Finally, we need to recognize that 15 percent of patients account for 85 percent of all healthcare spending. Until we can reduce utilization—and I don’t have a solution for that—we’ll make very little impact on healthcare costs.”
As healthcare reform takes shape, Dr. Novack stresses the importance of physician involvement in the political process. Organizations such as the American Association of Orthopaedic Surgeons can help, but individual involvement is critical.
“Good ideas can win,” he says. “The best way to protect our rights as physicians is to protect the rights of our patients.”
Peter Pollack is a staff writer for AAOS Now. He can be reached at firstname.lastname@example.org