If you are a regular reader, you know that I have been following the Affordable Care Act for the last several years. My goal has always been to try to help music therapists and other related professionals figure out what the law actually might mean for access to music therapy and whether or not it will help or hurt our profession on the whole.
This is obviously a huge task! And not without peril! Over the last few years I have found that many people are reluctant to engage in the conversation simply because there are so many strong opinions on both sides of the issue. I have tried to to be very even-handed in my treatment of the topics discussed here on Music Makes Sense, and generally have kept things focused on the impacts the law may have for music therapy. I believe I have been pretty successful so far and I appreciate the dialogues that have been opened up about the topic within my professional field.
So let me break down the latest ruling for you:
Many people have been waiting on the Supreme Court decision King vs. Burwell that was handed down this morning. This case basically asked the question, "Do words matter?"
... and the justices have answered the question, "No!" The Affordable Care Act specifically stated that federal subsidies for low income participants to help them pay for premiums purchased through the Health Care Exchanges could only be provided through exchanges "established by the States." This was intentionally written into the original law as a way to encourage individual states to set up their own marketplace exchanges. As it turned out, 27 states decided not to develop their own exchanges. The federal government decided to step in and created Healthcare.gov for participants in those states to use. In King vs. Burwell, states sued the federal government because the law did not say that people in these states should be able to receive subsidies.
Now, whether you oppose or support the law, you can see the conundrum here. If the Court ruled that the law meant what it said (and what Congress had intended), there would be a lot of people who have been receiving subsidies for almost two years, who would lose their subsidies and be unable to pay for their premiums. These same people would then suffer a tax penalty for not having insurance. What a mess!
(...I could digress here and point out that perhaps it is a good idea to write laws clearly, in a bi-partisan manner, and allow public review before voting on it...but, we'll leave that for a different blogger!)
But alas, we have been "saved" by SCOTUS! The 6-3 ruling today explained that although the law was badly written, it was meant to help people. Therefore, the court ruled that it will be okay for subsidies to extend to people signed up under the federal exchanges. Basically, six unelected and unaccountable (except maybe to history) individuals have written a new law that applies to every citizen.
Justice Antonin Scolia wrote for the dissent. He has now brought the term "SCOTUScare" into the mainstream and his written dissent is much more eloquent than mine describing the new predicament:
Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent.
But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent.
So where does that leave us, and how does this impact music therapy?
I think the best way to approach this is to ask a series of questions:
1. Individually - Each citizen is a taxpayer. You have to decide that you are okay with your earnings being taxed and then used for local, state and national health care purposes. I think this establishes a responsibility to be well informed, which is one purpose of my blog.
How do you feel about your money being given to someone else to pay for their health insurance?
Are you okay with paying more for a pacemaker or other device so that more people can receive Medicaid coverage in your state and other states?
How do you like the service, coverage and rates you pay for your own insurance?
2. Nationally - As a collection of citizens we have the ability to elect people and try to have them reflect our wishes for society and our country.
How do you feel about the amount of influence we have over Supreme Court Justices?
What are your thoughts about un-elected people changing laws written by people you may have voted for?
Does any legislated law, even if it is consistent with the Constitution, have the ability to be changed by the other branches of government, i.e., the President or the Supreme Court? If so, what value does a law have?
3. American Music Therapy Association - The music therapy association is not a large organization when compared to other allied health professions. We don't really employ lobbyists for example, and our numbers are small and dispersed across the nation. I think this is part of the reason music therapy is not specifically mentioned in the Affordable Care Act despite the growing body of research regarding the cost-effectiveness of music therapy. However, I think we have had some success, as evidenced by the implementation of state licensure in some places. I have also discussed in other blog posts some of the potential positive effects on music therapy provided through implantation of the ACA.
If the AMTA currently has minimal impact on legislation that may have great impact on our profession, what might be our professional influence on 9 justices for other rulings on this law or future laws regarding health care?
Perhaps we can get 5 justices to say that music therapy should be provided as a free, reimbursable expense in all health care plans?
What do we have to lose!?...