IV. The Affordable Care Act
The Affordable Care Act passed by Congress in 2010 begins with the premise that the way to provide the best care in the most appropriate setting is to reform the health insurance markets to give the uninsured access to health insurance, thereby granting access to health care to millions of currently uninsured individuals and families. However, it also incorporates private sector contractual incentives not unlike those seen in connection with Medicaid managed care plans to control costs and usage through payment reform and Accountable Care Organizations. The ACA also expands Medicaid significantly for those states willing to accept the expansion. Quite simply, it is the most comprehensive response to the requirements and unfunded mandate of EMTALA to date.
A. The Minimum Coverage Provision
The most controversial reform in the ACA is the individual mandate. The individual mandate requires everyone under sixty-five years of age to obtain basic health insurance coverage either through an expanded Medicaid program, employer-based insurance, or by purchasing health insurance through a state-operated insurance exchange. Those who do not qualify for Medicaid, but are not able to pay the full cost of premiums, will be entitled to receive subsidies distributed as advance tax credits. Those who fail to obtain the required minimum coverage will be assessed a penalty on their tax return.
By imposing the mandate, Congress sought to do two things: 1) to relieve some of the upward pressure on health care prices and make affordable health insurance more widely available by spreading the costs of providing care to the uninsured over a much wider pool of policyholders, making guaranteed issue and community rating possible; and 2) to find a source of funding for the uncompensated care that EMTALA mandated. Thus, Judge Jeffrey Sutton of the United States Court of Appeals for the Sixth Circuit described Congress's choice in Thomas More Law Center v. Obama:
If Congress has the power to regulate the national healthcare market, as all seem to agree, it is difficult to see why it lacks authority to regulate a unique feature of that market by requiring all to pay now in affordable premiums for what virtually none can pay later in the form of, say, $100,000 (or more) of medical bills prompted by a medical emergency. . . . When Congress guarantees a benefit for all (by securing certain types of medical care), it may regulate that benefit (by requiring some to pay for it).
B. Accountable Care Organizations
Section 3022 of the ACA goes beyond simply finding a funding stream for EMTALA; it seeks to transform health care delivery as well. Section 3022 created the Medicare Shared Savings program, which will permit Accountable Care Organizations (ACOs) to contract with Medicare beginning in 2012 to oversee and manage the care of Medicare beneficiaries. The ACOs will link payments to quality improvements that reduce overall costs. ACO demonstrations are also being undertaken in the Medicaid program.
Overall, the purpose of the ACO is to create payment and care systems that incentivize appropriate care, in contrast to current systems, which incentivize increased numbers of procedures. Under this new scheme, a primary care physician might be paid a capitation rate for a patient but receive additional incentive payments if the patient completed an annual physical, controlled his diabetes, or managed his high blood pressure. The doctors would lose the incentive payments if their patients failed to control their blood pressure or ended up in the hospital.
In the case of Medicaid ACOs, the incentives would encourage primary care providers to build relationships with their patients and make sure that they did not seek primary care services in the emergency room. The doctors themselves might see the need to invest in more intensive case management programs to ensure that their patients utilize care appropriately and get appointments when they need them. In turn, the emergency departments could return to focusing on emergency medicine rather than primary care.
C. The Medicaid Expansion
Finally, the ACA includes an expansion of Medicaid designed to fill in the coverage gaps present since Medicaid's enactment. Beginning on January 1, 2014, any United States citizen or legal resident can be eligible for Medicaid if his or her income is less than 133% of the federal poverty level. This expansion was intended to create a new national uniform eligibility standard for Medicaid, simplifying the patchwork of differing state standards that currently exists. Congress chose the 133% income level because, at the time the legislation was drafted, 133% was the highest income eligibility level for an existing Medicaid population (pregnant women and children under the age of six). This expansion, if fully implemented, is estimated to cut state spending on uncompensated care for the uninsured in half, saving in the aggregate from $26 billion to $52 billion, and is further expected to reduce state spending on individuals with mental illness, saving in the aggregate from $11 billion to $22 billion during the time period from 2014 to 2019.
