Health Care Complexity, Politicians, and Judges

There is so much wrong with the Affordable Care Act it is difficult to know where to start. According to a recent article in JAMA, I learned that Accountable Care Organizations (ACOs) are charged with improving the quality of care for Medicare patients at less cost. Any psychiatrist in the country who has witnessed the decimation of mental health care justified by that same rhetoric should be skeptical. 

So far the government has been again engaged in a highly coordinated effort to get the ACO initiative up and running. On October 20, 2011 the final rules for ACOs were released and on that same day the Federal Trade Commission and Department of Justice provided guidelines to address the antitrust issues of ACOs.  The JAMA article discusses five major issues related to the creation of ACO's many of which are unrealistic. As an example the antitrust guidelines suggest that ACOs that have a less than 30% market share are "highly unlikely to raise antitrust concerns".  In that landscape, the government expects that ACO's will develop and use quality measures, avoid exclusive relationships with hospitals and specialists, avoid cost shifting via the leverage of large physician groups to private payers, and be monitored to avoid gaming the risk-adjustment scheme. All of these dimensions are highly problematic.

The most problematic aspect of the Affordable Care Act is the same problem that every major piece of legislation in the United States has and that is that nobody reads it. I have seen quotes on how large the actual bill is ranging from 1000 pages to 2700 pages.  I first became aware of the fact that hardly anyone in Congress reads large bills in 2003. At that time I was following the progress of HR 1 (The Medicare Prescription Drug Bill).  I was watching C-SPAN and Sen. Harkin commented that the 1000 page bill was delivered to members of Congress on Thursday morning so that they could debate it on the weekend and vote on Monday morning. He was the first of many senators to acknowledge the fact that nobody would ever read the bill.

At the time I thought that disclosure was astounding. Here we have members of Congress whose full-time job is to design legislation and they are not actually reading and debating a bill that regulates a huge part of the economy and most people's healthcare. I won't even go into the fact that the pharmaceutical lobby was so satisfied with the final result that most of them left town on Friday.

The Affordable Care Act provides us with a new insight into how our government operates. In this case the constitutionality of the bill is also being debated and that was presented to the Supreme Court about two weeks ago. In the Wall Street Journal article it is official that Supreme Court justices are no more likely to read the bill than members of Congress. Justice Scalia is quoted: "You really want us to go through these 2,700 pages? And do you really expect the court to do that? Or do you expect us to give this function to our law clerks?"  We have a check and balance system set up where the check and balance is as defective as the original process.

The overall process here illustrates why it was doomed from the start. The Affordable Care Act is a highly experimental piece of legislation at best. In order for it to function as advertised many unlikely events will need to occur. That would seem obvious to any intelligent person reading the bill but as we have determined there are no members of Congress and no justices in the Supreme Court that will actually do that.

George Dawson, MD, DFAPA

Wall Street Journal. "Complexity is Bad for Your Health" April 8, 2012.

Dawson G.  Medicare Drug Bill #1,  #2,  #3  Three real time posts on my observations on the Medicare Prescription Drug Bill in 2003.

Schleffer RM, Shortell SM, Wilensky GR.  Accountable Care Organizations and Antitrust: Restructuring the Health Care Market.  JAMA. 2012;307(14):1493-1494.