Follow-up on Severability, and the Primary Care Workforce

Note to readers: Many thanks to everyone who attended the session, and special thanks to my colleagues who asked me to probe a little deeper on issues related to severability, primary care, electronic health records, and Medicaid. Below, I revisit the issues of severability with an eye towards December’s oral argument in Florida, and why I continue to emphasize the act’s impact on nurses, rather than physicians, with respect to the workforce shortages, notwithstanding the media hype surrounding general education/training grants for PCPs. In the interests of space, I’ll upload my thoughts on Medicaid and Electronic Health Records in a future post, and welcome any additional issues you would like me to raise or explore as we figure out what healthcare reform is all about.

Severability’s Catch-22

This may be more complicated than I assumed, so I will ask the natural follow-up to the easy question. Is there an explicit severability provision in the act? No. But does it matter? That’s where it gets very tricky. Let’s assume the mandate is declared unconstitutional and the issue appears before the Supreme Court, along with a severability issue that threatens the validity of the entire act. A few years ago, in the Supreme Court case of U.S. v. Booker, Justice Thomas noted that the Court had a “longstanding presumption of the severability of unconstitutional applications of statutory provisions.” But “normally,” he stated that a court would first declare a provision (e.g., individual mandate) as unconstitutional, and then determine whether the remainder of the act could be left standing. So here, presuming the individual mandate is declared unconstitutional, proponents will have to argue that the otherwise regulated tax-payer (who escaped the individual mandate) be regulated to ensure that the provisions that are constitutional remain effective. That’s the argument proponents will have to make to ensure the act isn’t invalidated owing to the absence of a severability clause. Opponents, ironically, will have to claim that the individual mandate isn’t necessary to ensure implementation of those other provisions—but wouldn’t that defeat the severability argument to begin with? It seems like a catch-22, and I don’t envy the Court’s position in sorting this out. The easy approach would be to have an about face on the notion of presumptive severability at the outset; but this may be more influenced by political forces than legal doctrine.

Primary Care – on physician shortages, and paradigm shifts

I shrugged the supposed fix on the primary care physician shortage, and emphasized elements that focused on nursing, so let me put this in perspective. The physician incentives are anything but coherent, and any optimism may be offset by the mix of “fixes” and dis-incentives that currently plague the system. Let’s start off with the personnel problem, which we can agree is somewhere (on the low end) between 35,000-50,000 PCPs over the next 10-15 years. The act posits two solutions: a Medicare reimbursement hike of 10% for PCPs, and the education and training grants for future physicians, nurses, physician assistants, etc. On salaries: even assuming that medical students choose a specialty based on salaries, 110% of current earnings (~$190,000 average) are not going to be a driving factor compared to specialty salaries at 150-200+% of those earnings, especially given the exorbitant student debt (~$157,000 average) upon graduation. A related issue is Medicare reimbursement, since the SGR has become a perpetual gadfly on the wall. The act didn’t do anything to fix this. When the June 1, 2010 deadline was looming this past summer, Congress continued its long-standing tradition of punting the Medicare cuts, fearing the mad dash of physicians opting out of treating patients (Dec 1, 2010 is the next go around). The method for keeping spending in line with the growth of the GDP hasn’t been pretty. (Notably, the payments are not based on actual costs of practice.) The CBO further estimated the cuts to cost around $276 billion over the next decade. An AMA survey this past summer also cited around 68% of physicians indicating that they would (be forced to) limit the number of beneficiaries they care for. Against this backdrop, I don’t think that an additional 500 PCPs with 10% Medicare reimbursement pay is going to significantly alter student choice of specialties, offset attendant practice costs, or tempter the increased demand that will accompany (near) universal coverage, and particularly the growing population of Medicare and Medicaid patients. So does the act do something to fix the PCP shortage? I think the contribution is too small to be taken seriously, at best. My two cents: lessen the bureaucratic red tape, and restore more control to the physicians instead of arbitrarily manipulating reimbursement rates and setting elusive staffing goals.

So why emphasize the support for nursing? Consider the context. The act will provide support for 600 primary care nurse practitioners and midwives, and 900 advanced practice nurses, who will operate nurse manage health clinics (NMHC). Notably, it also provides demonstration grants for NMHCs so NPs can serve as primary care providers in FQHCs and NMHCs, and work under a model of primary care consistent with the IOM’s principles and the needs of vulnerable populations. Additionally, certified nurse midwives will now be reimbursed for 100% for services (i.e. on par with physicians performance), in contrast to the prior rate set at 65%. The 10% incentive mentioned above also applies to the NPs, and like their physician counterparts, will also enjoy the number of training and education related support. So based on these developments, I think it’s fair to say that we’re seeing a significant shift in how primary care is being delivered, and nurses are going to be a playing a central role in that.


-Dru