Guest Editorial

A Missed Opportunity in Health Care Reform

Why New Jersey physicians have challenged the act

By Steven I. Kern, Esq.

NJ Physicians is a physician advocacy organization formed in 2007 by some of New Jersey's leading doctors to address the failures of organized medicine to successfully address the serious health care crisis in the state of New Jersey. When NJ Physicians was initially formed, its central mission was to advocate for physicians and their patients, and to help assure affordable access to quality medical care within our state.

On the day the new Federal Health Care Reform Act (the "Act") was signed, NJ Physicians filed a federal lawsuit challenging its constitutionality. Our organization decided to invest in this challenge because we believe that physicians and patients need — and deserve — better than Congress has delivered.

The challenge was made after finding that the vast majority of physicians in New Jersey strongly oppose the new Act and fear that it will make it more difficult for them to provide quality health care to their patients. NJ Physicians was the first physician organization in the country to bring legal action to challenge the Act and, as of this writing, only one of two physician organizations that have joined the challenge, although a number of state medical societies, specialty societies and even former presidents of the American Medical Association have voiced strenuous objection to the Act. Indeed, except for the AMA, few physician organizations have endorsed the Act.

A Constitutional Challenge

In bringing this suit, NJ Physicians joins at least 18 state attorneys general who are also challenging the constitutionality of the Act. The constitutional challenge is based, in large part, upon Congress' decision to fine those who fail to purchase health insurance. This is the first time in the history of our country that the federal government has mandated that its citizens purchase anything. Whether the federal government can do so is the question the courts, and most probably the Supreme Court, will have to decide. NJ Physicians, as well as the 18 attorneys general, argue that the Act exceeds the powers of the federal government under the Commerce Clause of the 10th Amendment and, as such, its limited, enumerated constitutional powers.

The decision to bring the lawsuit was made because NJ Physicians wants the courts and the public to know the concerns of physicians, in addition to the concerns of the lawyers and the politicians. By bringing the suit, NJ Physicians hopes to bring its physicians' concerns directly to the attention of the United States Supreme Court. It also hopes that its action will encourage other physician organizations to join in similar suits.

Critical of AMA Endorsement

Of particular concern to NJ Physicians is the extraordinary conflict of interest which many claim led the AMA to endorse the Act. It is reported that the AMA receives 83% of its revenues from its activities relating to the maintenance and publication of CPT codes. Yet nearly every physician we questioned blames the current reimbursement system, based upon the CPT codes, for much of the underlying problems with health care. These codes fail to recognize performance, efficiency or quality. Had the Act replaced the CPT codes with a more intelligent reimbursement model, the AMA would have faced a loss of nearly its entire revenue stream. Given this threat to its very existence, is it difficult to understand why the AMA would endorse a law that the vast majority of the nation's physicians abhor?

Restructure Reimbursement

In contrast to the AMA, NJ Physicians calls for a restructuring of the reimbursement system to recognize quality, efficiency and effectiveness. It cites the Mayo Clinic's recent announcement that it may no longer accept any Medicare patients because it is losing hundreds of millions of dollars by treating them efficiently and effectively.

Of course, ophthalmologists have their own unique problems with the CPT code-based reimbursement system. As Medicare and other thirdparty payers continue to ratchet down reimbursement for surgical procedures, many ophthalmologists report that the cost of performing these procedures, including common cataract surgery, is now greater than the fee they receive. The financial realities associated with this dilemma may force ophthalmologists to delay definitive surgical treatment of underlying conditions and instead offer new eyeglass prescriptions and other palliative care that provide more reasonable reimbursement. Ironically, this will result in even higher costs to the healthcare system.

Leaving physicians with the choice between providing ethical, efficient, effective quality care, and earning a living is not a solution to the problem. Without fixing the reimbursement system and providing meaningful tort reform to eliminate defensive medicine, costs will continue to rise, insurance premiums will continue to rise, and rather than improving access to health care, the Act may well have the opposite effect. Indeed, with passage of the Act, many physicians are already planning early retirement in the face of an already anticipated severe doctor shortage.

We Must Turn to the Courts for a Remedy

NJ Physicians is not opposed to many of the Act's provisions. It applauds those portions of the Act that address portability, pre-existing conditions and greater insurance coverage. These, however, are reforms of the insurance industry — not the health care system. Unfortunately, the Act fails to address the fundamental flaws within our health care system, including the current reimbursement model that punishes quality and efficiency.

Given the current climate, it is highly unlikely that Congress will soon revisit health care reform unless the courts overturn the existing Act. If the courts do overturn the Act, Congress will have another opportunity to pass real reform. We believe that Congress has missed a critical opportunity to truly improve the health care delivery system, and that physicians and patients deserve another opportunity — hopefully with less partisan divide — to assure the continuation and improvement of the finest health care system the world has ever known. OM

Steven I. Kern is a principal in the healthcare law firm of Kern Augustine Conroy & Schoppmann, P.C., with offices in New Jersey, New York, Pennsylvania and affiliates in Florida and Illinois.