April 30, 2015 at 5:00 am ET
As we await the U.S. Supreme Court’s decision in King v. Burwell concerning the constitutionality of subsidies under the federally administered health exchanges, we would do well to review the Court’s health-related decisions thus far in the 2014 term (which runs Oct. 6, 2014 – Oct. 4, 2015). These decisions will have a significant impact on health care policy for years to come. In two instances, the Court issued an opinion and in two others it remanded cases back to appellate courts.
On February 25, the Court decided North Carolina State Board of Dental Examiners v. Federal Trade Commission, a case involving scope of practice. Under North Carolina state law, the Board of Dental Examiners is composed of eight members. Six of the eight members must be licensed and practicing dentists in the state and they are elected by other licensed dentists. One member is a dental hygienist elected by other licensed hygienists and one is a consumer appointed by the governor. Board members serve three-year terms and limited to two consecutive terms. There is no removal process by a public official authorized by the law. This case arose after dentists complained that non-dentists were performing teeth whitening at a lesser fee than dentists. After an investigation, which did not include the hygienist or consumer member, the Board sent cease and desist letters to the non-dentists. The FTC filed an administrative complaint alleging the Board’s action was intended to exclude non-dentists from the market. In a 5-4 decision, the Court sided with the FTC.
The American Association of Nurse Practitioners applauded this decision. The association views the North Carolina Board’s actions, and similar boards in other states, as tending to restrict advanced practice nurses from practicing to the full extent of their education and training. Other non-MD/DDS practitioners have long argued the same. Although the North Carolina Board’s method of appointment and governance is unique, the decision clearly is against physicians and dentists attempting to limit the scope of practice of health care providers with lesser education and training.
Scope of practice issues between physicians and dentists versus non-MDs and non-DDSes have long come down to public policy. Friction between the two groups has generally taken place at the state level, where the non-groups have had an easier time in state legislatures because of their higher numbers and the greater desire to fully participate in the public policy making process. If health care providers with greater education and training want to continue to prevail, they will have to convince state legislators to rewrite state laws in their favor, an effort that won’t go unanswered by the opposition.
Under Medicaid law, states have discretion in administering their Medicaid programs. This includes setting payment rates. Armstrong et al. v. Exceptional Child Center, Inc., et al. was decided on March 31. In this case, Idaho residential habilitation providers sued the state’s Department of Health and Welfare, claiming Medicaid rates were lower than permitted under federal law. They sought to prevent the state from implementing the reduced rates. In a 5-4 decision, the Court ruled that the Constitution’s Supremacy Clause does not provide for a private right of action against state officials when there are allegations of violating federal law. The National Association of Medicaid Directors issued a statement calling the decision “good news for states.”
CMS does not approve state Medicaid reimbursement rates, but it does grant approval of methodology and procedures used to justify state reimbursement decisions. It is probable that in the future, health care providers will be more likely to lobby the Centers for Medicare and Medicaid Services (CMS) when a state submits a Medicaid waiver plan or any proposal to alter its Medicaid plan. Moreover, if unsuccessful, complainants will be more likely to pursue legal action against CMS under the Administrative Procedure Act, given the Court’s decision in Armstrong. At the same time, one can expect greater lobbying activity on this matter before the Congress. States’ rights advocates can be expected to lobby on the other side of this matter.
There have been other “non-decision” cases of note this term. In the first case, Coons v. Lew, on March 30, the Court decided not to take up a case that challenged the Affordable Care Act’s Independent Payment Advisory Board (IPAD). That suggests that if the President ever nominates and the Senate confirms individuals to serve on the Board, this part of the ACA will stand. In another instance on April 27, the Court remanded a case for the second time this year, Michigan Catholic Conference v. Burwell, to the U. S. Court of Appeals for the Sixth Circuit. This involved nonprofit religious organizations’ compliance with contraceptive coverage rules under the ACA.
Earlier this year, the Court took a similar stance, sending a case back to the U.S. Court of Appeals for the Seventh Circuit. That case was filed by the University of Notre Dame. The significance of these examples is that no appellate court has ruled the ACA’s contraception requirement violates an institution’s religious beliefs. More cases are pending in lower courts. Unless one of those pending cases has a particular element considered important for the Court to take up, the door appears to be closing on this portion of disagreement concerning the ACA.
In short, even before the King decision is rendered, the Court has already taken positions on health care policy matters that will have long term impact on the delivery of health care across the nation.
Julius W. Hobson, Jr. is Senior Policy Advisor at Polsinelli P.C. and Adjunct Professor of Political Management, Graduate School of Political Management, George Washington University, where he teaches courses on Lobbying, Electoral and Legislative Processes, and Legislative Writing and Research.