Overturning the Affordable Care Act: What could it mean for doctors and their patients?

On November 10, the Supreme Court heard arguments in a case challenging the constitutionality of the Affordable Care Act. It was the third time the Court has heard challenges to the law since Congress passed it in 2010. During the ensuing years, the ACA has brought significant changes to American health care, from making insurance affordable to more people to encouraging experiments with new reimbursement models.

The law has also become steadily more popular, with a recent poll showing that 62% of Americans now support it. So what would it mean to primary care physicians to have the law overturned, especially now that we're in the middle of a pandemic? To gain some insight into that question, Medical Economics spoke with Dr. Jacqueline Fincher, a longtime internist with the Center for primary care in Thomson, Georgia, and since May of this year, president of the American College of Physicians. The interview has been edited for length and clarity.

Medical Economics: What are some of the ways the Affordable Care Act has changed primary care medicine? What has been its impact on practices such as yours and on your patients?

Jacqueline Fincher, MD: One of the most important things was the pent up demand. Now that people actually had insurance, and we had many who didn't, especially in our rural area of, Georgia, one of the big things was the availability of preventive services that they did not have access to before.

So then there were essential benefits packages in all the new insurance products that availed patients of all the preventive services for no additional cost. And that was key. So they could get their annual physical, they could get their mammogram or their bone density scan or colonoscopy at no additional cost, if it was a preventive service. So that was huge.

Now when patients come in, and they are due for their annual physical and they need those preventive things done, my nurses, by protocol already know, they need to go ahead and offer that vaccine to that patient, be it a flu or a pneumonia vaccine, they need to go ahead and schedule the mammogram or the bone density. Or they need to say, you haven't had your colonoscopy, have you thought about when you want to do that, and can we go ahead and schedule you? So it's changed the workflow of our office.

Some of the difficult things that have occurred with the essential benefits packages, is the insurance plans have taken on much more scrutiny of everything in terms of really demanding prior authorizations of any diagnostic tests that are not preventive or they have narrow networks where the patient maybe can't go to the same place they've always had their mammogram or their colonoscopy.

That has also required an increase in the number of administrative staff that we have to have to handle all the prior authorizations that we have to get for prescriptions or procedures that can't be done without meeting very strict criteria. So that's created a tremendous increase in the administrative burden, especially on primary care physicians, because we're taking care of the whole patient, not just parts of them. It is a huge range of services, you know, from getting a CT of the head to seeing a podiatrist for their feet and everything in between.

And this has been very difficult and absolutely increasing the burnout of physicians and their clinical teams. Because we are being asked to do more and more with no significant increase in salary.

ME: In your practice, has it made a difference in the overall health of your patients? Are your patients healthier now, would you say than they were 10 years ago?

JF: I think if it weren't for the continuing significant increase in obesity and diabetes, they would be Those continue to be a huge problem for our whole country, but especially here in the rural south. But I do think that patients now have an expectation of, well, I get my annual physical and I get my health maintenance lab work and my preventive services like mammograms and colonoscopies for no additional charge.

And when we find things, we are finding them earlier, where there are much easier, less expensive interventions than when people couldn't afford to come to the doctor or couldn't afford to have the procedure, they would wait until they ended up in the emergency room with advanced disease. A huge, wonderful thing about the ACA is we are catching things so much earlier, where they're much more treatable, and don't require this kind of heroic lifesaving, do everything in the most expensive way that we have done in the past. So I do think that has been helpful.

I think a bigger issue is on commercial plans that are the cheapest, you kind of get what you pay for. They have these very high deductibles. And so when you have a $5,000 to $10,000 deductible, if you're basically healthy, and all you need is your annual physical and your annual lab work or any other covered preventive service, you’re good. You come out smelling like a rose.

But if you have chronic medical problems, dealing with conditions like hypertension and heart disease and diabetes and obesity, then you need to be seen on a more regular basis, with lab work that is no longer considered preventive. And with potentially diagnostic tests, like something as simple as an EKG or a chest X ray, well, if you have a five to $10,000 deductible, all of that's coming straight out of your pocket. And because they are underinsured for the kind of routine maintenance things they come to primary care for, it makes it very difficult to get them to come in and do what they need to do to take care of those chronic problems.

So I think there are some pluses and minuses here. And I would say we all knew that the ACA was not the perfect law. But it got us a major leap forward. And it is the position of the American College of Physicians that we need to build on that and improve the areas that have made it difficult for many patients and many physicians.

ME: Let me ask you to look forward a little. If the court overturns the law, do you think there are elements of it that will stay in place or will we just revert back to where we were in 2009?

JF: I think the reality is understanding what the decision is before the court. In the big court case [National Federation of Independent Businesses vs. Sebelius, 2012] the Court said the mandate for everyone to have insurance was really a tax and therefore was constitutional. Since Congress in 2017 made that tax penalty zero, then the decision going forward is, is it a mandate? And if so, is it unconstitutional? Or do you say, well, that part is unconstitutional, but the other parts are severable, or separate from that one issue?

In many ways, the court probably wants to make this as narrow as possible. That's typically how they have ruled on things like this, and certainly with a more conservative court. It would be extremely unusual for them to say that not only was the mandate unconstitutional, but also not severable from the rest of the law, and therefore the whole ACA is out. I just don't think that's going to happen because it would create just so much chaos and uncertainty for us, the people. And so I can't imagine them doing that. But that is the worst case scenario.

ME: That's a good segue to my next question, which is whether you have discussed these possibilities with your colleagues, either in your own practice or at the ACP, and are you preparing for different eventualities, different outcomes?

JF: So I will say that in our practice, we haven't discussed it at all. We've been a little busy, you know, with the pandemic, we have been focused on are we going to be able to stay in practice and pay our staff? That's what honestly, that's what we've been focused on.

I will tell you from the ACP, obviously, a lot of some of the same in terms of being focused on the pandemic, and advocating and creating the policies and the recommendations on not only being able to deal with the pandemic, but keeping practices going and giving advice and helping our patients.

Back in January 2020, we came out with a better vision for U.S. healthcare. We were hoping it would be a big splash in the media if we could design a US healthcare system that covered everybody, where everyone had access to the care that they need, at a price they and our country could afford, what would that look like? And how would you change payment and delivery form to be able to create that?

We laid that out in a series of four papers published in the Annals of Internal Medicine. We weren't thinking about the ACA being repealed so much as taking some of the good things that it had, but building way better, and expanding on all those options. And we laid that out in great detail.

So I always encourage people to go back and look at that, because it builds on the good things of the ACA, but changes a lot of the payment delivery reform, so that we continue to have primary care physicians. That continues to be a huge source of concern for the college, and for other primary care organizations. These are huge issues, because we still have not really put the investment in this country in primary care. If we did, we would have lower costs, we would have better care, people would have access to a primary care physician to prevent all those things or discover them early. And having that access to really high value care would make all the difference.

ME: Does the possibility of the law being overturned ever come up with your patients?

JF: I will say two things to that. I think people who have pre-existing conditions or have significant chronic ongoing conditions that have private insurance, they are the ones that are that are worried and express concern, because they are concerned if the ACA goes away, that they will no longer be able to get or afford insurance coverage. And remember, beforehand, a lot of these people that did have pre-existing conditions could not get insurance coverage at any cost. And so I think they are more acutely aware and more concerned about that.

Having said that, I think that, particularly people who have employer-sponsored health care, the big concern they have this year is, are they going to have a job? We’ve had, what, 10 to 20 million people this year that have lost their jobs? And many of those have lost their insurance, or any other option that was affordable, because with employer-sponsored health care, of course, you are looking at a whole core cohort of people and risk.

But when you're looking on the exchanges for yourself, and what's affordable, it's a whole lot less. And so those two groups are probably more tuned in to those things than anybody else. Because most people honestly don't understand all this. Hell, most physicians don't understand all this. I got a bill for my mother last week, and I'm going, “This makes no sense. If I can't figure this out, how is anybody else supposed to?”

ME: Not to mention the impact it might have on our ability to bring COVID-19 under control if suddenly millions of people found themselves without health insurance.

JF: Absolutely. And now realize we have, what is it, over 230,000 people who have been diagnosed with COVID? They now have a pre-existing condition, because we're already starting to see what looks like maybe long-term effects from COVID. Some of these people who've been really ill, and they've become disabled, because of COVID. They are really worried about this.

So again, overturning the ACA in the middle of a pandemic, is very frightening to a lot of people. And I think people that know, personally and in their sphere of care community, somebody that has gotten COVID, and especially that's gotten very sick, or has died, that it makes them feel a lot more vulnerable. It's no longer this thing out there that doesn't affect me. It becomes, “Oh my gosh, if they can get it, I can get it. I need to be worried about this.”

And so I think it has put before the American people some really difficult choices. I remember when the ACA was being discussed, you heard things like, “I don't want the government involved in my health care, I don't want the government involved in my Medicare!” I heard that from some of my patients. And I was just like, no, you don't get it, that is government health care.

Many of our patients are also veterans and have been through the Veterans Administration health care, and some of them have certainly had better experiences than others. But in general, they feel like they've gotten affordable care, particularly those with health issues related to combat

And so I think that when you've been in either the Medicare system or the VA system, many people are very satisfied so they don't feel this concern over the government getting involved.

ME: If a doctor wants to, to see provisions of the Affordable Care Act remain in place, even if the law is overturned, what courses of action are open to them?

JF: Well, I'll tell you, Jeff, I built my whole professional career on advocacy for my patients. So I think it’s incredibly important for physicians to be able to do that through whatever means works best for them. Advocating at the state level, so incredibly important. And having, if nothing else, some kind of contact with your local state legislators, either by email or by phone, not just when they're in session, but when they're not in session, when they actually have time to listen to you. That's critical on things like the state health exchanges, on things like the physician workforce in your state, on things like expansion of Medicaid in your state. These are all huge issues at the state level.

What always seems to kind of make that connection with any legislator, is that personal story, because it humanizes the problem. If you just go with a bunch of statistics, it doesn't resonate with those people as human beings. And that's the level you're trying to connect with them on. I am concerned about other human beings in our district. And here's what's going on in our district, with patients that I am seeing, and these are my concerns, and these would be the options for them if you did this, or voted a particular way.

So I think that we have a very powerful voice. Physicians are still a trusted source of information and caring about our patients. You know, even state legislators and Congressmen have their own physicians. I hope their physicians use those opportunities not to interfere in their care, but to help them better understand the issues, from the physician perspective, and from the patient perspective.