The Supreme Court’s Non-Ruling
I think we all agree that there is nothing more interesting than a 200+ page ruling from the second highest court in the land. (The first highest court is a basketball court on the fifth floor of the Supreme Court, three floors above the courtrooms.) The real question to us a nurses and providers of care paid for by Medicare is what, if anything does the ruling mean to us.
Maybe nothing. We still get up in the morning, take care of patients or assist those who do, bill for care and maybe even get paid. The rules affecting us written in the ACA for the most part have already been enacted. The lovely face to face encounter we all embraced with open arms when it was announced is probably the greatest contribution affecting home health and hospice directly.
For those of you who do not share my passion for the Supreme Court, here’s the cliff notes version. The Affordable Care Act was introduced under Congress’s authority to govern ‘commerce’. Commerce involves the sale or exchange of goods for money or other goods. When I buy a car, the dealer has to abide something called a ‘lemon’ law which is a ridiculous use of a word that describes a fruit, a color and a can make you salivate just by reading it twice. (See?) When I buy a house, the seller must disclose certain facts to me regardless of how unpleasant they are such as history of flooding or termites.
What Congress cannot do is force me to engage in commerce. In other words congress can dictate certain terms of my transactions involving cars or houses but they cannot force me to buy a car or a house.
Make no mistake. The nine justices on the Supreme Court are exceptionally bright individuals. They do not make laws or enforce them. Their ONLY job is to determine if rulings by lower courts fall within the guidelines of the US Constitution. You remember that little document with all the signatures that talks about life and liberty and such? Good, because a lot of our lawmakers seem to think it’s obsolete.
The justices said that if Congress is going to make people spend money or give it to the government, it doesn’t matter what it is called, it serves as a tax. So the ‘penalty’ imposed by the ACA for not purchasing insurance is actually a tax. A rose by any other name…. I wonder if there would have been more public outcry against the ACA if the American public knew it was a tax?
Are you still with me? Stay awake or I will get out the squirt gun with ice cold water and wake you up. A recap:
- The Affordable Care Act proposes to make people buy insurance or pay a penalty.
- Congress thought they could do this under their powers to govern ‘commerce’.
- The Supreme Court disagreed and said it was really a tax.
Why does this matter? Here’s what you have all been waiting for, folks…..
You cannot repeal a tax until it is implemented. There is no prepealing of taxes.
So, we end up with the biggest punt in the history of United States Justice. The Supreme Court of the United States did not rule on the constitutionality of the Affordable Care Act. They ruled that they couldn’t rule because the penalties (aka taxes) had not been implemented yet and until they are, there is no repeal.
So, in the next several months, as the two parties are headed towards the 2012 election, nothing is really settled at all. That means that anyone who has any interest in proving the value of the ACA must show the American people how much money they are saving the United States citizens and take their attention away from that little three letter word every voter hates: tax.
There is only one way that I know to do that in such a short time frame. It involves automatic weapons shooting ADRs at you so fast, you don’t have time to come up for air. All those ZPIC results will likely come back this summer with near 100 percent denial rates extrapolated into millions and millions of dollars. Arrests will be frequent and very well publicized. And the beauty of it all is that no appeals or overturned decisions will be forthcoming until after the election.
Or, I could be wrong. It happens. Normally, I do not relish being wrong but this is one occasion when I will very satisfied with misjudging the intentions of the feds. If I am not wrong, the standard is no longer excellence in clinical documentation. You must be perfect.
Good luck with that.