The procedural infrastructure within which the nation’s judicial system operates is as important as the canons of law the Courts espouse. In many ways, the doctrine of justiciability affords the federal courts an opportunity to rule with finality in matters of the U.S. Constitution, while at the same time ensuring that an appropriate distance is maintained between the three branches of federal government. Given the numerous preconditions upon which certiorari is determined, rightful passage through the Supreme Court’s Corinthian columns can seem as improbable as procuring a return ticket across the river Styx.

However, those for whom certiorari is ultimately granted can count on a few basics from the Supreme Court, including a session each first Monday in October, quill pens on counsel tables, and the Court’s own general prohibition from issuing judicial advisory opinions. In commenting upon this most revered prohibition, Chief Justice Earl Warren noted: “When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III.”[1]

Some 175 years before Chief Justice Warren paid homage to this limitation, the nation’s first Chief Justice, John Jay, denied President George Washington the benefit of his sage counsel, respectfully refusing to interpret certain treaties governing the young country’s relations with Britain and France as both nations tried to draw America into the French Revolution. In responding to the President’s solicitation of advice, Chief Justice Jay, along with the other Justices of the Court, explained:

The lines of separation drawn by the Constitution between the three departments of government, there being in certain respects checks on each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to; especially as the power given by the Constitution to the President of calling on the heads of departments for opinions, seems to have been purposely as well as expressly limited to executive departments. [¶] We exceedingly regret every event that may cause embarrassment to your administration; but we derive consolation from the reflection, that your judgment will discern what is right, and that your usual prudence, decision and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.[2]

Nearly 219 years later, the Supreme Court continues to honor the Jay Court and its refusal to issue advisory opinions.  While it has at times allowed itself to circumvent this historical wisdom by offering a dissenting opinion, which provides an opportunity for at least one of the nine Justices to speak his or her mind irrespective of the majority ruling, throughout our nation’s history the Supreme Court has almost always directed and redirected society’s course through its majority opinion.[3] On occasion, however, a Justice may issue a dissenting opinion that resonates long after interest in the majority opinion has waned, and in many cases a dissenting opinion has provided a foreshadowing of things to come.[4]

2012 may prove to be a case in point when the Supreme Court entertains 330 minutes of oral argument on health care reform.[5] While the Court will have the opportunity to opine on the Constitutionality of the Affordable Care Act[6], it seems unlikely that any single decision will put an end to the debate over health care reform.  While speculating about the direction in which the majority will rule, it thus becomes increasingly important to pay particular attention to the dissenting opinion(s), as they may prove in the long run to be akin to a modern-day oracle concerning the future of reform. Indeed, the present Court has already established a similar recent precedent.

Although eclipsed in media coverage by the pending case on health care reform, February found the Supreme Court tackling issues specific to Medicaid[7] in Douglas v. Independent Living Center of Southern California, Inc.[8], focusing in particular as to whether Medicaid providers and beneficiaries can challenge California’s rate reductions on the basis of preemption by federal Medicaid law. The Ninth Circuit issued preliminary injunctions preventing California from making these Medicaid reductions, holding that the providers and beneficiaries had Supremacy Clause claims against the State.

Subsequent to oral argument before the Supreme Court, yet prior to the February 22, 2012, decision in the Douglas case, the Centers for Medicare & Medicaid Services (CMS) approved most of California’s proposed amendments to Medi-Cal, thereby nullifying any viable claim against California under the Supremacy Clause. Under the doctrine of justiciability, these actions by CMS, whether calculated or not, should have put an end to the Douglas case, at least to the extent of the Supreme Court’s involvement.

Such was not to be, however, and the majority remanded the Douglas case back to the Ninth Circuit so the Circuit Court could address, in part, the same Supremacy Clause issues upon which that very Circuit Court had already ruled.[9] The Supreme Court was unmistakably clear that its order was not an opportunity for just “reargument,” but instead a total remand, “thereby permitting the parties to argue the matter before that Circuit in the first instance.”[10] When the parties return to the Ninth Circuit, they will now be armed with unsolicited advice from the Supreme Court. Rather than refraining from a substantive ruling on the grounds of justiciability, the majority opinion in Douglas suggested that providers and beneficiaries might consider review of the decisions by California and CMS under the Administrative Procedure Act (“APA”)[11] rather than the Supremacy Clause claim.[12] As if that were not enough, the majority opinion even offered reasons why an APA claim might supplant an argument based upon the Supremacy Clause.[13]

Four Justices disagreed with the majority in Douglas, including Chief Justice Roberts.  The dissenting opinion contended that the case before the Ninth Circuit referred only to the Supremacy Clause, serving as a limitation on the Supreme authority to strike down California’s modification to its Medicaid program: “The question presented in the certiorari petitions is narrow: ‘Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce [§30(A)] by asserting that the provisions preempt a state law reducing reimbursement rates.”[14] The dissent also argued that not only was there no viable claim under the Supremacy Clause in the first instance, but more importantly, the majority took it upon itself to answer a question that had not been asked, even going so far as to vacate the Ninth Circuit rather than simply remand.  Chief Justice Roberts asked:  “I am not sure what a remand without answering the preliminary question is meant to accomplish. The majority claims that the agency’s recent action ‘may change this [lower courts’] answer’ to the question whether the particular state rates violate §30(A).  Ante, at 6. But that fact-specific question is not the one before us; we chose not to grant certiorari on the question whether California’s rates complied with §30(A), limiting our grant to the cause of action question.”[15]

The Douglas case highlights a critical issue at the center of the modern day health care crisis.  Whether or not the Medicaid program — established as a collaborative federal and state program to afford the poor, elderly and disabled access to medical care – will ultimately survive the effects of the Affordable Care Act is of great concern to the future of modern healthcare. And yet, equally worrisome is the Supreme Court’s insistence on solving a puzzle different from the one presented by the parties.

The national focus on health care reform will not abate when the Supreme Court finally issues its decision in June, nor will it end with the elections in November, even should they force a changing of the guard or a repeal of the Affordable Care Act. In the midst of such chaos, our only certainty rests in the knowledge that a fundamentally divided Court will continue to stand as a bellwether, with the arguments and decisions of all nine Justices pointing the direction for the evolution of our health care system, one single step at a time.

Due to the sensitive nature of the industry it services, the American hospital must rightfully operate under copious federal and state regulations, in addition to volumes of rules and ordinances established by separate, non-governmental entities. Though policing policies such as accreditation, certification and periodic review come from a variety of both public and private sources, the goal is generally consistent: develop uniform standards to ensure that hospitals in the U.S. operate at an acceptable safety level while delivering quality patient care.

The Many Paths to Accreditation

Though its primary function is without question the delivery of accurate and effective medical treatment, health care is also big business.[1] In an attempt to promote constant vigilance among America’s hospitals, any one institution may be subject to accreditation review at any time from private, non-governmental organizations such as the Joint Commission,[2] the Healthcare Facilities Accreditation Program (HFAP),[3] Accreditation Commission for Health Care (ACHC),[4] Community Health Accreditation Program (CHAP),[5] the Compliance Team, Inc.,[6] Healthcare Quality Association on Accreditation (HQAA),[7] or DNV Healthcare, Inc. (DNV),[8] among others.[9]

By and large, each private entity governs through its own set of rules.  For example, the Joint Commission surveys hospitals by following more than 276 standards and reviewing 1,612 elements of performance.  HFAP does largely the same thing pursuant to its 1,100 or more individual standards.  Focusing on home medical equipment as well as durable medical equipment, prosthetics, orthotics and supplies (“DMEPOS”), HQAA has developed a review process consistent with federal standards.[10]

Hospital Accreditation and the Joint Commission

Should a hospital wish to treat Medicare beneficiaries (with the expectation of payment), it must first enter into a provider agreement with Medicare. As a condition precedent to such participation, hospitals must meet certain requirements established by the Social Security Act[11] or imposed by the Secretary of the Department of Health and Human Services (HHS), more commonly referred to as “conditions of participation” (CoPs)[12].  Hospitals can satisfy this statutory requirement by certification through a state agency, or alternatively the provider can seek “accreditation by an approved national accreditation organization that all applicable Medicare conditions are met or exceeded.”[13] The federal government recognizes the Joint Commission – as well as certain other organizations that have been confirmed as capable of providing appropriate oversight – as a national accreditation program for hospitals participating in Medicare or Medicaid.[14]

Formed December 15, 1951, as an independent, non-profit entity, the Joint Commission (known until 2007 as the Joint Commission on Accreditation of Hospitals) began as a collaboration between the American College of Physicians, the American Hospital Association, the American Medical Association, the Canadian Medical Association, and the American College of Surgeons.[15] The Joint Commission started its process of administering hospital accreditations in January 1953, evolving over the years from a one-page set of requirements in 1919 (known as “The Minimum Standard”) to a 152-page manual for standards in 1970 (known as the 1970 Accreditation Manual for Hospitals)[16] to the approximately 500-page manual that exists today.[17]

The Joint Commission provides the following mission statement for the organizations with which it partners:  “To continuously improve health care for the public, in collaboration with other stakeholders, by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value.”[18] As with all acute care hospital accreditation entities,[19] the Joint Commission must confirm that these providers meet specific and extensive criteria set forth by the federal government.[20]

As part of the rigorous set of standards reviewed in any hospital survey, the Joint Commission integrates performance measures in hospital accreditation oversight through its ORYX^® initiative (a term unique to the Joint Commission). First deployed by the Joint Commission in 1997, ORYX core measure data are among the key data elements included in the Joint Commission’s focus on improvement.[21] In its original form, ORYX had no industry standard detailing the type or amount of data hospitals should collect, and in fact more hospitals initially resisted than participated in this approach. Today, however, this institutionalized method for garnering information based on quality measures is a federal requirement, and the Joint Commission now accumulates data from hospitals for approximately 60 different inpatient measures.[22] Moreover, not only does the federal government penalize hospitals for non-compliance, the 2010 Patient Protection and Affordable Care Act (PPACA)[23] may soon emphasize quality and performance as the core foundation of health care’s future reimbursement structure.[24]

In November 2010, the Joint Commission outlined a five-year plan to continue its monitoring of the changing health care climate as the organization addresses areas for improvement:

“• Refinement of the process for electronic receipt of high quality standardized performance measure data that cover all aspects of care delivery within and across the various types of health care organizations (e.g., hospitals, long term care, home care, etc.).  Approaches to refining this process will include exploration of the potential to expand the capability of the electronic health record to capture measured data as a byproduct of the health care delivery process.

• Expansion of the scope of measure sets available for selection by health care organizations.  This includes increasing the complement of measure sets for hospitals to provide a broader menu for measure selection.    .   .   .

• Creation of sophisticated applications of measurement data use for accreditation, accountability and public reporting purposes.

• Coordination of data demands and prioritization of critical measurement areas by the various public and private sector entities to minimize data collection burden and eliminate redundancies for health care organizations, while maximizing the consistency and usefulness of the data.  Coordination activities will focus on the amalgamation of data demands by large national entities including CMS, the QIOs, NQF, AHRQ, IOM and others.

• Continued, proactive support for the leadership role of the National Quality Forum in the identification of national measurement objectives and the establishment of a long-term collaborative relationship.

• Continued proactive support for, and participation in, the work of the Hospital Quality Alliance, the AQA, and their combined efforts to harmonize these activities.”[25]

Contemporary Performance Standards in the Context of Modern Health Care

Today, the Joint Commission requires hospitals to collect and submit certain data that falls under its “core measure sets,” including but not limited to heart attacks and heart failure, pneumonia, and the Joint Commission’s Surgical Care Improvement Project.  Last month, the Joint Commission released its Annual Report on Quality and Safety entitled Improving America’s Hospitals (the “Report”) as a means to showcase the commendable achievements of hospitals identified by the Joint Commission as “Top Performers on Key Quality Measures,” as well as to provide a comprehensive analysis on how those hospitals accredited by the Joint Commission fared for all measures.[26]

Joint Commission accountability measures connect evidence based care with positive patient results.  The Joint Commission contends that implementation is more effective when it relates to certain programs wherein the public or even an outside regulatory agency holds the provider accountable, similar to the proposed federal regulations for value-based purchasing.[27] The Joint Commission has established four criteria in assessing the success of these evidence based examples, including:

“Research: Strong scientific evidence demonstrates that performing the evidence-based care process improves health outcome (either directly or by reducing risk of adverse outcomes).

Proximity: Performing the care process is closely connected to the patient outcome; there are relatively few clinical processes that occur after the one that is measured and before the improved outcome occurs.

Accuracy: The measure accurately assesses whether or not the care process has actually been provided.  That is, the measure should be capable of indicating whether the process has been delivered with sufficient effectiveness to make improved outcomes likely.

No Adverse Effects: Implementing the measure has little or not chance of inducing unintended adverse consequences.”[28]

The tables in Appendix A summarize the Report in three areas:  (1) heart attack care accountability composite[29]; (2) pneumonia care accountability composite[30]; and (3) joint replacement, just one example contained within the surgical care accountability composite.[31] These tables show a steady increase in the care measure results (the “Care Composite”) for each medical condition and surgical procedure.

When taken at face value in relation to the examples set forth in Appendix A, it is difficult to find fault with the Report and the ways in which hospitals have improved the delivery of care in these areas.[32] And yet, while viewing these successes in the context of health care in its totality does not in itself undercut the Report and its significance as a means to gauge the effectiveness of the accreditation process, it does portray somewhat of a different image.

The United States spent an estimated $2.6 trillion on national health in 2010 (17.6 percent of the U.S. GDP).[33] Some estimates expect this figure to be as high as $4.64 trillion by 2020 (nearly 20% of the U.S. GDP).[34] Singling out the nation’s biggest spender, trends in California are of special concern as health care expenses continue to grow steadily along with the state’s population, even though California lost approximately 10% of its hospital beds between 2002 and 2009.[35]

While few dispute the statistical information proving that we as a nation spend more on health care every year, the nexus between health care spending and actual revenue trends calls into question the sustainability of a system that finds itself locked into a self-perpetuating spending binge in its bid for survival.

A Comparison Between the Report and Correlating Medicare DRGs

With respect to tables 1 and 2 in Appendix A (heart attack care measure results), the Joint Commission’s Care Composite was compared with the Medicare diagnostic related groups (DRGs) information in 2006 and 2007 for DRG numbers 127 (heart failure and shock) and 140 (angina pectoris), and in 2008 and 2009 for MS-DRG numbers 291 (heart failure and shock with major complication/comorbidity (MCC), 292 (heart failure and shock with complication/comorbidity (CC), 293 (heart failure and shock without CC or MCC), and 311 (angina pectoris).[36]

The Medicare revenue percentage for each respective DRG description was extracted from the DRG data relating to its annual revenue consistent with national data for such acute care, divided by the number of patient days for the same year. This data was taken from the Medicare Provider Analysis and Review (MEDPAR) files, which contain information pertaining to 100% of Medicare beneficiaries using hospital inpatient services national data for short stay, inpatient DRGs. From these figures, Appendix A, Table 1 compares the Medicare revenue percentage for heart failure and shock with the Report’s Care Composite in the area of heart attack care for years 2006 through and including 2009.[37] Appendix A, Table 2 compares the Medicare revenue percentage for angina pectoris with the Report’s Care Composite in the same area, and for the same time frame (2006 to 2009).

A similar approach was employed to create Appendix A, Table 3, comparing the Joint Commission’s Pneumonia Care Composite with the appropriate DRGs.  For 2006 and 2007, DRG numbers 89 (simple pneumonia and pleurisy (18 years and older in age)) with CC), 90 (simple pneumonia and pleurisy (18 years and older in age)) without CC, and 91 (simple pneumonia and pleurisy (under 18 years in age)) were used for the study, and for 2008 and 2009 MS-DRG numbers 193 (simple pneumonia and pleurisy with MCC), 194 (simple pneumonia and pleurisy with CC), and 195 (simple pneumonia and pleurisy without CC or MCC).  The Medicare revenue percentage for each respective DRG description was extracted from the DRG data relating to its annual revenue consistent with national data for such acute care, divided by the number of patient days for the same year. The source of the data is also the MEDPAR files.[38]

Appendix A, Table 4 (addressing joint replacement, a single example from the Report’s surgical care composite) was created through a compilation of data from within the Report (page 22, Table 6). Using information from three separate line items – (1) Antibiotics within 1 hour of first cut – For hip joint replacement surgery,” (2) “Appropriate Prophylactic Antibiotics – For hip joint replacement surgery,” and (3) “Stopping Antibiotics within 24 hours – For hip joint replacement surgery,” Appendix A, Table 4 represents the average. The Care Composite for joint replacement was then compared with the appropriate MS-DRGs numbers from 2008 and 2009, including 469 (major joint replacement or reattachment of lower extremity with MCC) and 470 (major joint replacement or reattachment of lower extremity without MCC). [39] The Medicare revenue percentage for each respective MS-DRG description was extracted from the MS-DRG data relating to its annual revenue consistent with national data for such acute care, divided by the number of patient days for the same year. The source of the data is also the MEDPAR files.[40]

Conclusion

If our nation’s track record on health care funding since the inception of Medicare is any indication, it should come as no surprise that hospital reimbursements do not share the same trajectory as Joint Commission quality standards. Indeed, factoring into the equation additional variables such as annual inflation and a struggling economy only serves to further distinguish the historical paths of performance and payment.[41] As Medicare prepares for a massive shifting from cost to performance-based reimbursement[42], a move likely followed in quick succession by other payer groups, the contradictory manner in which health care regulations reward annual improvement by reducing reimbursements speaks volumes about a system not just in transition, but in a state of confusion.

To be certain, the evolution of the reimbursement system has been shaped as much by innovation and advancements as it has by politics and a constantly changing definition of public interest. But in this age of technology, it may be prudent to take stock in the collections of data we have amassed as a means to understand and refine the delicate infrastructure of health care in the U.S.  Ultimately, future congressional focus should be directed toward creating a self-sustaining system that improves the delivery of health care throughout the nation and is fair to both the individuals and institutions that participate therein. This hardly seems like an unreasonable place to start.

Appendix A, Table 1

Joint Commission Heart Attack Care Measure Results Compared with Medicare Revenue for Heart Failure and Shock, 2006 to 2009

Appendix A, Table 2

Joint Commission Heart Attack Care Measure Results Compared with Medicare Revenue for Angina Pectoris, 2006-2009

Appendix A, Table 3

Joint Commission Pneumonia Care Measure Results Compared with Medicare Revenue for Pneumonia and Pleurisy, 2006-2009

Appendix A, Table 4

Joint Commission Surgical Care Measure Results (Joint Replacement) Compared with Medicare Revenue for Joint Replacement, 2008-2009

APPENDIX B

Hospitals in California (2002 to 2009)

*Number of community hospitals only, which represent 85% of all hospitals according to American Hospital Association data for each year. Federal hospitals, long-term care hospitals, psychiatric hospitals, and other similar institutions are not included.

**Numbers based on 2010 U.S. Census, 2000 U.S. Census, and estimates based on a comparison data from the years 2001 through 2009.

***U.S. Census Bureau’s annual survey of state and  local government finances.

Today’s hospital has the unenviable task of walking a fine line between caring for its patients and remaining solvent as a business, a laudable goal attainable at least in part by recognizing the inextricable connection between the institution itself and the nurses who form an infantry amongst its ranks. Even as these nurses form an ever-present “front line” on the hospital battlefield, their recent strike in California, threatened and averted strikes in New York, and a judicially-restrained “walk out” in Riverside County, California last month, shine a harsh if necessary light on certain issues plaguing our current health care system as it stands so precariously with one foot on either side of a dangerous fence.

The nature of the nurse’s role begs the question: does participation in a labor union extend to the right to strike?

Recently, this politically charged issue is facing strong rhetoric from both sides of the bargaining table as thousands of nurses throughout the nation have either held to their word and staged a strike in protest of sweeping cuts to health care, or threaten to strike in the near future. Certain vocations pertaining to the safety of the general public such as firefighter, police officer, doctor and nurse find themselves in the odd position of being too valuable to strike.  For better or worse, their role in society precludes defining them as expendable. And yet, such categorization effectively curtails the ability of these professions to leverage firmly established and lawful tactics as they bargain for perceived worth, creating a disparity between their responsibility to society and their personal reimbursement.

While those in health care may disagree about the practical propriety of labor unions in the United States from a business standpoint, there should be no dispute that such organizations are legally recognized as bona fide representatives within the industry. Since the 1940’s, when the American Nurses Association first formally embraced collective bargaining, nurses have enjoyed the ability to organize themselves in such a manner.

Since the passage of the Emergency Medical Treatment and Active Labor Act in 1986, basic emergency medical treatment has risen over the years to a level where many Americans view coverage as an absolute right, and today’s hospitals find themselves the unenviable centerpiece for this theoretical 28^th constitutional amendment. And yet, without the presence of nurses in a hospital environment, such entitlement means little. Just as nurses must recognize the effect such a strike can have on the patients they have promised to protect, Californians must be mindful of the critical contribution hospital nurses make in ensuring that our health care system operates without interruption.

Labor disputes, including strikes, are not a novelty in the health care industry, and much can be gleaned by earlier attempts at negotiating, both at home and abroad.  On April 1, 1964, the parliament of the Kingdom of Belgium announced to the country that physicians had started a “total and unlimited strike” that sent its health care system into a state of shock.  Well-coordinated and widespread, the organizers of the Belgian physician strike had both the foresight and the compassion to maintain a section of physician “guards” whose job it was to remain on active duty at all hospitals in the event of a medical emergency. A few years before and several thousand miles away, doctors in the Canadian province of Saskatchewan went on strike for 23 days, having first given the government plenty of advance warning to bring in doctors from other countries as well as other Canadian provinces.

Though the safety of patients is certainly of utmost importance, the fiscal ramifications of a nursing strike cannot be ignored. In today’s hospitals the ever-present nurse obviates the necessity of a similar showing by physicians.  While national accreditation entities like the Joint Commission require physician visits by the day, California, for example, has established a staffing ratio between nurses and patients to be followed by all hospitals at all times. While some may dispute the levels at which these nurse to patient ratios are set, few will argue against a constant nursing presence of some meaningful measure.

Such demand underscores the critical role played by nurses in matters of life and death.  It also paints an accurate picture of the contradictions at the heart of our nurses’ conundrum, especially on the eve of such a massive strike. Unless the nurses who strike develop an action plan to ensure patient safety if and when they abandon their posts, the question remains whether or not the option of striking should exist for nurses within their arsenal of collective bargaining.  At the same time, if state or federal law should ever prevent nurses from walking off the job as a means to illustrate their worth in an effort to gain economic security and/or influence other employment issues, it is only reasonable to replace such a deprivation with a measure to ensure a level playing field between hospital and nurse.  So long as nursing unions remain legally recognized under the law, there is a dire need to change the rules governing a nurse’s right to strike so that we might avoid any tragic consequences.

In its attempt to modify the basic structure of our nation’s health care system, President Barack Obama’s Affordable Care Act has understandably caused a series of rifts between competing factions within the health care industry.  As the entire nation waits to discover its ultimate fate, the fledgling program continues to promote conflict as it experiences growing pains, exemplified by recent modifications to federal regulations that push the invisible line separating church and state from a health care perspective. With an eye to the future, the Affordable Care Act must move cautiously in its attempt to revamp the foundations of health care, fending not only for its survival in the political arena, but in terms of constitutionality as well.

At its core, the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act (known colloquially as the “Affordable Care Act” or “health care reform”), promotes preventative measures designed in theory to eliminate health issues before they start. With such a sweeping directive, it is certainly understandable that constitutional challenges abound within, yet two of the more recent and most highly publicized concerns stand at opposite ends of the spectrum.

Last week, Health and Human Services Secretary Kathleen Sebelius issued a brief news release detailing a controversial August 2011 interim final rule that was specifically created to require health insurance plans to cover preventative services for women, including contraceptives, without charging a co-pay, co-insurance, or deductible.  Under this interim final rule, however, certain non-profit religious employers retained the option to omit contraceptive services from their employee insurance plan. Announced last week, the final decision now guarantees that women with health insurance as of Aug. 1, will be allowed access to all federally recommended preventative services, including contraception measures approved by the U.S. Food and Drug Administration.

In an effort to assuage dissenters, however, the final ruling offers a loophole of sorts. Under this controversial directive, employers unwilling to provide contraceptive services due to religious beliefs have an additional year, until Aug. 1, 2013, to comply with this final rule.  Subject to certain conditions of verification, this exception is designed to afford these organizations “more time and flexibility to adapt.”  This final rule still raises constitutional concerns among both religious and secular groups, even though the theory separating church and state is never technically mentioned in the venerated document that weighs in at a mere 0.2 percent of the size of modern health care reform legislation.

In response, the U.S. Conference of Catholic Bishops has already announced plans to challenge the law, being morally opposed to the requirement that health insurers grant women access to a range of preventive health services, including birth control and morning after pills.

While the success of this particular federal program remains to be seen, such a loophole makes it quite clear that health care practitioners would do well to brush up on constitutional law, especially since many of the core tenets therein are disposed to a vast array of interpretation from scholars on both sides of the political aisle.

When it comes to matters concerning the Constitution, the U.S. Supreme Court has a knack for making history.  In 1954, Brown v. Board of Education of Topeka, 347 U.S. 483, marked the beginning of the end of four score’s worth of Jim Crow laws, and it paved the way for the 1964 Civil Rights Act and 1965 Voting Rights Act.  In matters related to the separation of church and state, the Supreme Court in Everson v. Board of Education, 330 U.S. 1 (1947), finally established a constitutional floor for the First Amendment:

“[It] means at least this: Neither a state nor the Federal Government can set up a church.  Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another…. No person can be punished for entertaining or professing religious beliefs or disbeliefs…. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion…. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’ ”

To be sure, interpreting Jefferson’s meaning behind this “wall of separation between Church and State” did not end in 1947, and advocates from both sides continue today to weigh in from a religious perspective on the debate over contraceptive care for women.  At present, however, whether the importance of preventative care as it relates to the health of our nation outweighs an institution’s fundamental and religious belief that contraception may incur great wrath from above (Genesis 38:8-10) remains to be seen. As a country, we must only wait.

In the meantime, constitutional scholars have their hands full in interpreting the Constitution’s Commerce Clause, and the effect these 16 words (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”) will have on the future of the Affordable Care Act. In December 2010, District Court Judge Henry E. Hudson made health care history when he ruled that the Act was unconstitutional, arguing that it imposed a penalty, rather than a tax, as a means to enforce the health insurance mandate.  Judge Hudson’s summary of the Commerce Clause was ultimately cut short, however, as was his own analysis as to whether the Act’s ability to separate itself from an ignoble mandate was in violation of constitutional law: “The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote.” Commonwealth of Virginia v. Sebelius, 728 F. Supp. 2d 768, 789 (E.D. Va. 2010), vacated, 656 F.3d 253 (4th Cir. 2011) (vacated on the basis of standing).

The fact that these longstanding constitutional arguments continue to be disputed does not make the practice of health care law easy to interpret in this age of change.  There is a hierarchy within the structure that must be obeyed. As a result, before we as a nation can consider the merits of health care reform, the doctrine of justiciability must first finagle its way over such hurdles as standing, the Commerce Clause, and possibly even the first amendment.

This coming March, when the. Supreme Court listens to five and a half hours of debate, it will take each of these issues into consideration as it rules on whether the current insurance mandate is constitutional, and if not, whether the Affordable Care Act in its entirety must fall along with it. For most in the industry, it is difficult to imagine that the elimination of a single insurance mandate may also condemn health insurance for those up to the age of 26, mark the end of preexisting conditions, and cause an infrastructure of state-run health insurance exchanges to tumble. Neither will most believe that such an adverse ruling would replenish the coffers of health institutions that have spent millions of dollars creating accountable care organizations under the Medicare Shared Savings Program.

Yet when it comes to upholding the basic tenets of our nation’s Constitution, many of us do expect the Supreme Court to honor this most sacred legal doctrine and afford it the respect and attention it rightfully deserves.  Only once the smoke clears at last from the debate over reform may we finally be allotted some time to again discuss a little health care law, without the need to address Jefferson’s beloved line separating religious beliefs from the body politic.

“Everything in moderation, including moderation.” –Oscar Wilde, Irish writer and poet

When it comes to understanding what it means to be a man, little boys typically look toward one specific individual, Dear Old Dad.  What is not so consistent, however, is the manner in which a father chooses to undertake his role. Nowhere else is the drive to impart all that he has learned so strong and the possibility of instilling hard-won wisdom so pronounced as when a father looks at his eager young son. And yet, for this very reason the school of fatherhood boasts a subjective curriculum at best, as the competency of the teacher pales in comparison to the ways in which the student will go on to apply these lifelong lessons, many of which have been handed down through generations, whether knowingly or not.

Several thousand years of fiction tell us all we need to know about how tenuous the influence of a mature man upon his children can be.  From King Laios of Thebes (the biological father of Oedipus) to Wilbur Meecham (the tyrannical father of Ben) to Carlisle Cullen (the eternal father who adopted Edward), the most valuable lessons often emanate from the reactions of the son rather than the actions of the father. In truth, a man’s best intentions may fall upon deaf ears or be misinterpreted by a youth struggling to carve the foundations of his own identity, and sometimes the best we can hope for is that a little luck and our unspoken influence through way of example will provide the necessary navigational instincts for our children as they pass through whatever storms may confront them.

The relationship between father and son is always complicated and in each case unique, with every example of success or failure providing a new interpretation on what it means to be a father. If that was not enough, there is never a guarantee that an idyllic father will raise a comparable son, or that the child of an atrocious man will ultimately follow in his ancestor’s malevolent footsteps. This cumulative nature of fatherhood is in many ways for the best, as nearly every boy at one point or another finds himself determined to be anything but his father. Today, however, as I read that rhyming masterpiece of Dr. Seuss, Hop on Pop, to my 10-month old son on what would be my own father’s 75^th birthday, I realize that not only am I deep into uncharted territory, but there is no way of knowing what aspects of history might repeat themselves. Without any guidance or source of direction, how will I ever know if I am a good father?

In looking for answers, I find it hard to gather much from my siblings on what it means to be a father, as both my brother and sister learned from the same role model I did. While fiction and history provide a number of cautionary tales, they are blueprints at best, to be relied upon loosely.  But even as I try to learn from the experiences of friends whose opinions I respect on this subject, there remains the ever-present fact that every case is different, from the point of view of both father and son.  Though one friend is in my opinion an exemplary role model for his children, I cannot help but wonder how much of his inspiration stems from his contentious relationship with his own father, the secrets of which are lost on me and my very different experiences growing up. An example in stark contrast does little more than cast an even brighter light on the many different facets that can shape the paternal instinct.

But back to me, my son, and my conundrum. Amid the rhymes and colorful pictures of children hopping on their Pop, I find myself wondering which of my own father’s lessons I should replicate, and which I should reject?  Though I know too well that these questions will keep me busy for a lifetime, on this Saturday morning I would like some small assurance that I am proficient in my role, or at least a touch of affirmation that I am not heading in the wrong direction altogether.

And sure, even though the kinship between father and son exists independently, I am always mindful that I have a close ally with whom I can collaborate.  While I am certain on some level that my wife will never understand the relationship I once had with my father, and in many respects has little understanding of the ways in which I want to be a father myself, she is nevertheless the person most suited to measure my success.  Make no mistake, she will voice disapproval when she deems it necessary, but her tacit approach to affirmation resonates much louder.  Whether it is her loving stare in those moments where she recognizes the bond developing between her husband and son, or her decision to participate in a moment previously shared by only two, thereby casting approval and enhancing the relationship between us three, her influence stands as a beacon to me as I make my way blindly through use of simple instinct.

I may never completely understand the reasons behind the way I select certain lessons to be passed down to the next generation, while deciding that others need go no further.  I do realize, however, that while these nuggets of past experience may be important, they serve only as guidelines, to be tailored to both the situation at hand and the personality of this new individual in need of mentoring.  So today, as I toast what would have been my father’s 75^th, my instinct tells me that perhaps a nice walk on the beach with my wife and son is in order, rather than an overabundance of reflection and contemplation.  After all, very few things can be mastered in ten short months, and though I must admit that this new role often brings its share of confusion and fear, I very much enjoy the company it affords.

This article first appeared on the PBS affiliated website This Emotional Life.

It starts with a vacuum.

The sudden, unfamiliar dissonance signals fear in his little mind, which grows quickly, magnified by the sight of an unexpected entanglement between the woman he trusts most and this monstrous machine. As he turns to run (or crawl), I find myself thankful to be just inches away, in perfect position to catch my 10-month old boy as he does his best to flee the frightful scene. His two outstretched arms secure a tight grip around my neck, while a sad face burrows deep into my chest. For one sharp moment I feel like a hero, a wholly necessary, trustworthy entity whose sole purpose is to be relied upon in times of trouble.

Fear is a formidable foe, and the ways in which we as grown ups react to its presence can often be inconsistent. Regardless of its origin, any meaningful cause for alarm typically signifies a commonality of chaos, to be first understood, and then vanquished. Though my son’s safety was obviously never compromised during his run-in with the vacuum cleaner, his reaction illustrates the fact that in the eyes of an infant the world is full of uncertainties. In the mind of a child, laughter and tears coexist every day, yet we seldom stop to consider how these emotions actually resonate. Rather, we tend to focus on the cause, which with luck might lead us to a solution, as a means to restore the calm and save the day. Indeed, some of the most seasoned parents have an entire cache of remedies upon which to rely when a crisis hits, and they wield them like weapons of precision, each one crafted and selected for just the right moment.

But what about the child in the midst of a trauma? Many parents may fantasize about protecting their children from life’s dangers, both real and imaginary, though few go so far as to spend an entire lifetime catching their kids as they are coming through the rye fields of Burns and Salinger. Even so, there is little harm in focusing on both solution and subject concurrently, a better way to stay ahead of disaster. This is similar to the goal of what the practice of medicine should be.

America’s health care system is in jeopardy, and has no all-protective arms in which to jump. What we once knew as health care reform has begun to feel more like civil war, inflicting casualties on both sides. Without casting blame, opining on the political influences at work, or even speculating on the impact of any decision next year by the United States Supreme Court, it has become increasingly clear that the 2010 Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act, has lost its way. Across the nation, while the federal government prepares for an intervention in health care at a level never before seen in this country, the insurance companies rush to reinforce their trenches and bunkers in an effort to withstand the onslaught. This leaves the hospitals and physicians with the unenviable task of calculating their chances of survival with or without the other. When each faction of our health care system is forced to focus on its own survival, who is left to hear the faint ring of a call button – the sound recognized around the world as an indication that a hospital patient is trying to get someone’s attention, even if only for a simple glass of water?

Today’s health care reform has no choice but to focus more on surviving unrealistic cuts to the Medicare and Medicaid programs and outlasting the debt ceiling super committee than reversing epidemics such as diabetes and obesity that collectively threaten the lives of almost one billion people world-wideThe issues have become so muddled of late that the federal government cannot even agree on where to draw the line regulating the consequences of teenage sex, with one federal agency overruling another’s decision to expand access to emergency contraceptives. While the author expresses no opinion as to the propriety of sex between individuals under the age of 17, he is mindful that this recent debate does little to restore calm in the current health care crisis, and serves no purpose in effecting the ultimate survival of our jeopardized system.

If the day should come when no one is available to aid a hospital patient, what then will be the legacy of President Obama’s health care reform? Make no mistake, the system of give and take between a sovereign nation and its states, when combined with the balancing of power between the federal branches of government, defines the federalism for which our country is known. Even so, as a divided Congress surveys the current landscape of health care reform and tries to scale back the national debt, Republican party leaders call for the program’s outright repeal, the Supreme Court contemplates the law’s constitutionality, and President Obama prepares himself for another round with the electoral college, the resulting noise has become somewhat deafening.

Of course the debate must rage on as we as a nation seek the best way to provide care to our sick and injured. These are the natural growing pains in the evolution of a newly born health care system. And yet true as this may be, I don’t want to be the one to explain it to a thirsty and neglected patient, let alone a 10 month old who has narrowly escaped his first attack from the vacuum cleaner.

Estimated at close to 50 million strong, the fate of America’s uninsured has caused quite a stir of late. As the media anxiously reports on the U.S. Supreme Court’s acquiescence to assess the constitutionality of certain tenets at the heart of healthcare reform, the nation sits anxiously on the sidelines, awaiting the outcome. Indeed, a suggested, unprecedented televised hearing on the insurance mandate could potentially attract even more viewers than the record-breaking 111 million football fans who watched the Green Bay Packers beat the Pittsburgh Steelers in Superbowl XLV on Feb. 6, 2011.

The uninsured conundrum

At the core of the debate lies an enormous price tag. The sheer volume in dollars it takes to provide medical treatment to the uninsured is astounding, and its ramifications affect many fundamental aspects of our healthcare structure. In 2008, uncompensated medical care in the United States approached an estimated $57 billion, of which nearly $43 billion was paid by federal, state and local governments from funds earmarked for this very purpose. Although the federal government typically foots close to half of this annual bill, its contribution equals only 2 percent of federal healthcare spending yearly. The great bulk of responsibility for America’s uninsured falls to our nation’s hospitals, who shoulder approximately 60 percent of uncompensated medical care, due largely to a regulatory structure mandating that emergency departments at hospitals participating in Medicare or Medicaid must treat just about anyone who arrives in need of medical care, regardless of citizenship, legal status or ability to pay.

To add to the friction, most Americans have a stronger grasp on the rules of professional cricket than they do the leading constitutional challenge to President Obama’s 2010 Patient Protection and Affordable Care Act.While the general public’s confusion is in many ways understandable when it comes to the current healthcare debacle, with its myriad regulations and precedent setting legal ramifications, perhaps there exists a viable solution that does not rest primarily upon the doctrine of justiciability. The answer may be as simple as the fact that the federal government is attempting to penalize the wrong parties in our current healthcare equation. Instead of forcing the uninsured to obtain coverage, those in power might consider requiring all 5,800 hospitals across the nation to do one simple thing: Provide basic emergency medical care for the nation’s uninsured, free of charge.

Spend money to make money

In fairness to the hospitals, of course, the federal government should also make one small concession. The federal government spends an enormous amount of money each year as it oversees the nation’s healthcare system, a trend that shows no signs of slowing even as America’s financial crisis widens. Since its inception, healthcare reform has added approximately thirty-two provisions and an estimated $350 million in expenses relating to healthcare fraud and abuse. While eliminating such further taxation on the system is a laudable goal in the long run, the question must be asked as to whether this is the best time for our government to be waging such a war with the already fragile healthcare industry.

Currently, the federal government has several tools at its disposal with which it can police healthcare providers. Two particularly powerful entities include the Medicare self-referral prohibitions (more commonly known as the Stark laws) and the federal anti-kickback statutes (not to mention additional state regulations, such as the Physician Ownership and Referral Act in California). These overlapping and sometimes contrary healthcare tenets are all built upon a foundation of finite statutory prohibitions that allow an abundance of exceptions to the general rules. Such exceptions are often referred to as safe harbors, as they define certain areas where the federal government generally will not intervene. Given the enormous net these regulatory provisions provide, inadvertent technical violations are in many instances unceremoniously met with swift and draconian punishment. This is true even if the transgression itself inflicts no particular burden on the system and the violation a bona fide mistake.

In addition to monitoring fraud, our healthcare system keeps a watchful eye on ways to eliminate waste. One recent example involving Medicare Recovery Audit Contractors collected over $1 billion in its first demonstration project, and as a result the Medicaid Integrity Contractors have since extended these efforts to recover and prevent additional inappropriate federal healthcare payments. However, as successful as these programs may have been in recovering money from providers, the Office of the Inspector General has recently criticized CMS for what the OIG considers substandard oversight in relation to these integrity contractors, citing an abundance of inaccurate workload data and an overall lack of uniformity. Absent an appropriate way to monitor those who police the providers, it is difficult to objectively assess the success of RACs and MICs.

Although it seems that public opinion favors strict regulatory oversight when it comes to our nation’s health care system, the fact remains that the technical machinations existing within the regulatory infrastructure may have reached a point where the system is in desperate need of an overhaul that could rival the epic changes brought about by the Affordable Care Act in 2010.

Back to the hospitals and free care

Even as the federal government ramps up its efforts to increase healthcare’s sustainability, or perhaps as a result of these efforts, our nations current healthcare system lacks both balance and focus. While hospital emergency departments continue to be inundated with uninsured patients, those same patients now find themselves wondering if they will soon be required to obtain health insurance, leaving both patient and provider to struggle under the weight of uncertainty. Rather than spend valuable time and energy on creating a perfect storm for our tenuous system, perhaps it is time for a compromise.

Without detracting from the herculean efforts of the OIG and other federal and state officials in their collective attempt to save healthcare, Congress should consider loosening the often-rigid standards that can on occasion form a noose around the necks of participants on both sides of the argument. This would afford healthcare providers an opportunity to conduct operations like a business, but one that maintains at its very core a commitment to never compromise on patient care. Once relieved of such an immense burden, hospitals that elect to operate in this relaxed environment and are identified to the public as such should soon have the resources necessary to provide basic emergency medical care to those who cannot afford insurance, or in the alternative, pay into such a system proportionately. If properly structured, such an agreement would effectively ease the strain on patient, provider, and “police,” while at the same time it may provide for an opportunity to direct the collective energies of all three sectors in building a new system based on unity rather than discord. No matter how the Supreme Court ultimately rules on this high profile issue, until all those involved can agree to work toward a collective solution, the basic principles at the heart of the health care reform may be doomed to undermine one another, and ultimately cause the downfall of reform itself.

I. Before Medicare

Since its inception as a government sanctioned public health insurance program, Medicare has been both a bone of contention between political parties and a beacon from which to gauge the changes in American health care as a whole. Passed as part of the Social Security Amendments of 1965, Medicare had as its focus individuals sixty five years of age and older, with a similar yet state-run program, Medicaid, addressing the medical needs of people with certain disabilities and low income families. Over time, however, Medicare has grown to be the preeminent standard for our nation’s health care in its entirety, with nearly every substantive change to its core foundation signaling a corresponding restructuring of our overall health care system.

The modifications imposed on Medicare, both by market forces and federal legislation, stand as a series of growing pains from which to mark the evolution of the American health care model. By charting these changes through the decades we can better understand the ways in which health care as a whole has morphed from a cost based system to one of performance evaluation. In turn, this may provide us with a glimpse into health care’s future if certain fundamental issues are not addressed in current reform legislation.

The rise of the government’s role in providing health care to its citizens came relatively late in America’s history. For much of its first two centuries the burden of caring for the sick and injured fell to neighbors, friends and relatives, with additional support from individual communities and religious groups. Visits by an actual doctor were generally limited to the home and dictated by local demographics. Almshouses and charity wards provided a certain degree of medical service, as hospitals were few and far between, and often existed solely upon the largess of the surrounding vicinities. Those who had the opportunity to visit a hospital prior to the twentieth century more than likely did so after an accident or as the result of an unfortunate designation of insanity.

Read the complete article here.

As 2011 enters its penultimate month, the fledgling Patient Protection and Affordable Care Act continues to unfold, and at times, unravel. Nearly two years after its passage, federal regulations are still building upon the original 2,700 pages, even as the threat of repeal dangles over the Executive Branch like a Sword of Damocles. With its fate resting in the hands of the U.S. Supreme Court and Electoral College, and speculation as to whether the justices will make a move before the American voters have a chance to weigh in making headlines daily, it appears that many of health care reform’s latest additions may be here to stay.

The New and Improved Accountable Care Organizations

At the forefront of reform stand the new and improved accountable care organizations (ACOs), health care partnerships designed to monitor the quality and efficiency of doctors and hospitals and create new quality standards for compensation. The original version of the ACOs released last April met with significant industry-wide opposition, so much so in fact that three additional federal agencies exerted their authority heavily on the rewrites. First, the Office of the Inspector General clarified the implications of physician self-referral laws and federal anti-kickback statutes, thought by many to be glaring omissions from the original version.  Likewise, the Federal Trade Commission confirmed that entry into ACOs will not require a mandatory antitrust review, while at the same time creating an antitrust “safety zone” for ACOs approved by the Centers for Medicare and Medicaid Services. The Internal Revenue Service provided another critical component by establishing participation guidelines for charitable organizations without compromising any tax-exempt status.

Under the revised regulations, retrospective assignment of patients gave way to a preliminary prospective-assignment method, identifying beneficiaries quarterly with an opportunity for a final reconciliation after each performance year.  The new regulations also cut in half the number of quality measures to which ACOs must adhere (from 65 to 33) while adding some flexibility within each calendar year as to when ACOs must perform. Compliance with electronic health records has also been discarded as a condition of participation, although the digital medical record remains an important quality measure.

The Many Ways To Save

As the nation’s growing financial struggles threaten health care reform’s very survival, it is no wonder the government is trying to tighten its belt in any way it can.In a further effort to combat fraud and waste within the health care system, Medicare beneficiaries have been “deputized” to serve as the eyes and ears of the federal government, who now asks that individuals who become aware of unusual or questionable charges, unresolved complaints, or even the misuse of personal information report such concerns immediately.

On the other end of the health care spectrum, as many as 750,000 physicians in the Medicare program will be requested to revalidate their individual enrollment records during the federal government’s massive anti-fraud effort, authorized as well by health care reform.  And just last month, the federal government eliminated the national, voluntary insurance program for community residence expenses and support (the Community Living Assistance Services and Support program or “CLASS”), a health care program that was designed to give those adults with multiple functional limitations as well as those with cognitive concerns a viable option in planning for long-term care.

The Era of Preventative Care

With a mission to stop health problems before they start, health care reform remains true to its cause as it continues to clarify the many pilot programs and preventative health care services that exist at its core. Last summer, the federal government released regulations requiring all new private health plans to cover several evidence-based preventative services such as mammograms, colonoscopies, blood pressure checks, and childhood immunizations without charging a copayment, deductible or coinsurance.  In 2014, employers may even use up to 30 percent of their employees’ health insurance premiums for outcome-based wellness incentives.

Health care reform’s Patient-Centered Outcomes Research Institute (PCORI) is designed to produce groundbreaking, evidence-based information pertaining to health care that will be easily accessible to both doctors and patients.  PCORI is expected to focus on several areas of interest, including devising ways to deliver health care “without bias” and identifying existing gaps affecting women, low-income populations, minorities, children, and the elderly.  The recently released [“Disparities Action Plan”] provides a comprehensive, community-driven approach to reducing health disparities across the country.

The National Prevention, Health Promotion, and Public Health Council is charged with the task of developing health care prevention strategies for large-scale future use. With this in mind, a report issued by the Prevention and Public Health Fund estimated that a $10 per person investment each year in community-based, preventative health programs could result in an annual savings of more than $15 billion over the next five years. Likewise, the Food and Drug Administration is set to spend $600 million over the next five years as it launches new anti-smoking campaigns in print, on television, and through Facebook, Twitter and YouTube.  Hospitals, too, are set to receive $34 million in federal grants and contracts in the fight against health care-associated infections through the partnership for patients initiative.

As health care reform approaches its second anniversary, it is still too soon to tell if the steam set forth by its forward progress is anything more than smoke and mirrors. While the ultimate fate of this landmark legislation is still unknown, the federal government does not appear to be overly concerned with the controversial insurance mandate or the elections next November. Regardless of its altruistic motives, overcoming the debt ceiling legislation is perhaps health care reform’s only real chance for survival.