Now that was an enlightening three days, and it sure was refreshing to hear some provocative debate on a critical public policy issue. To be sure, the blogosphere and 24-hour news networks have been full of pundits doing their normal share of feeding irrational hysteria, but if you cut through the clutter you'll find the deliberations before the Supreme Court pretty stimulating (I spent my lunch hour yesterday listening to the oral arguments on severability and was captivated…I'm a geek, I know).
Stimulating? Supreme Court? Did I really just use those words in the same sentence? Well, truth be told, during the nascent days of my journalism career I wanted to be a Supreme Court reporter. I lived in DC for 12 years — much of that time on the Hill, just a few blocks from the court itself. On many mornings, I'd stroll down East Capital Street on my way to a congressional hearing, stop at the court and look longingly at the building, secretly wishing I could be in there hearing the legal scholars discuss the finer points of constitutional law.
Well, as you know, when the hearings ended yesterday the talking heads were out in full force reading the Affordable Care Act its last rites. Harsh questions from the justices, particularly Justice Kennedy, whom many say is the key swing vote, clearly indicate that he's ready to put the final nail in the coffin, the pundits said. But legal scholars I talked to yesterday caution against making such stark predictions.
Joel Michaels, a partner at the law firm McDermott Will & Emery, said that "you can't read too much in to the questions. Lawyers will tell you that they often go into a hearing and get very hard, very tough questions" from the justices. "It doesn't mean that a decision is predetermined… there's a lot of critical thinking that goes into making a final ruling." Timothy Jost, a health law professor at the Washington and Lee University School of Law, pointed out that the oral arguments are just one piece of the puzzle. Justices must also weigh the written briefs, amicus briefs and judicial precedence. (Jost provides an excellent overview of the legal questions at play in this month's issue of H&HN.)
Dominic Perella, an attorney at Hogan Lovells and outside counsel for the American Hospital Association, attended the hearings and in his excellent blog reports says much the same thing: it's too early to predict an outcome.
One outcome we can predict: regardless of what the nine justices rule this summer, it's full steam ahead for health Reform (not the capital 'R'). As Michaels told me, "the cat is out of the bag." His clients are mainly insurers and he says that they are moving forward with payment reforms and other initiatives to fundamentally change the way health care is paid for and delivered. Sure, the court's decision will have an impact on insurers more so than any other segment of the industry, but, Michaels said that won't change the need to transform the delivery system.
Indeed, there are plenty of examples of hospitals partnering with insurers around accountable care. We also know that insurers and hospitals are collaborating on the quality front. And, as the AHA Chair Teri Fontenot recently told us, hospitals can't afford to stop the transformation that's underway.
Finally, as the AHA's Rick Pollack said in a two-part interview, lawmakers are focused on deficit reduction and the budget and those debates will have a huge impact on hospitals. And, as he reminded us, there's a slew of regulatory actions underway.
So, while we eagerly await this summer's blockbuster ruling, we can't lose sight of the ball.
Matthew Weinstock is senior editor of H&HN. You can reach him at firstname.lastname@example.org