BOBBY HARRISON: A presidential proposal isn’t the law

By Bobby Harrison/NEMS Daily Journal

Many people question whether the cuts in the federal payments to hospitals to offset some of the loss for uncompensated care they provide will ever come to fruition.
The cuts are part of the federal Patient Protection and Affordable Care Act that is cursed by many, praised by some and misunderstood by most. As part of the act, what is known as the Medicaid disproportionate share hospital (DSH) payments are supposed to be significantly cut over a period of years. Instead, the Medicaid program would be expanded to cover those earning up to 138 percent of the federal poverty level, or about $15,000 for an individual, or $32,000 for a family of four.
The reasoning is that, if people have health care through Medicaid, hospitals will be providing far less uncompensated care and thus the need for the DSH payments will be reduced.
But in upholding the constitutionality of the law this past summer, the United States Supreme Court said the federal government could not enforce one portion of the act.
The Affordable Care Act included language saying that the federal government could not penalize the current Medicaid programs of the states that did not expand Medicaid.
People who do not believe the DSH cuts will be made cite the fact that in his budget proposal released last week President Barack Obama delays the cuts for one year. They reason that in the end Obama will never pull the trigger on the cuts.
The same people fail to understand that the cut to DSH payments is part of federal law. The president’s budget is simply a proposal.
Plus, Gov. Phil Bryant and others opposed to the expansion of Medicaid say that if the federal government tries to cut the DSH patients they will sue. They cite last summer’s ruling where the Supreme Court said the federal government could not punish the current Medicaid program of the states that do not participate in the expansion.
Who knows what courts will do?
Bryant and many others were confident last summer that the nation’s highest court was going to strike down the Affordable Care Act on constitutional grounds. It did not.
Perhaps this time they are right and the Court would rule that the federal government could not reduce the DSH payments to hospitals. Perhaps they would rule that would be an inappropriate penalty to the states.
But it seems that it would have to be the most activist court imaginable to take that step.
As I understand ninth-grade civics, and I had some very good teachers at West Jones High School, the legislative branch makes the laws, the executive branch enforces the laws and the judicial branch interprets said laws.
That is the basic tenet of our representative democracy.
For the Supreme Court to rule that the DSH payments cannot be cut, it would have to say Congress cannot make changes to the existing Medicaid program.
At the time the Affordable Care Act was passed, a majority of elected representatives and senators came to the conclusion that it was more efficient to expand Medicaid so that people could have access to a primary care physician who might be able to treat existing illnesses before they became chronic and perhaps deadly and definitely more expensive.
Elected representatives decided that was more efficient than paying hospitals to care for people when they got so sick that they showed up in the emergency rooms often with illnesses that had advanced to a level where more expensive treatments were needed.
Perhaps, I am wrong, but I was under the impression that Congress had the authority to make whatever changes it deemed appropriate to Medicaid.
If Congress wanted to change the program so that it no longer provided prescription drug coverage, it had that right.
If Congress wanted to stop paying for nursing home care, it had that right. Heck, if Congress wanted to eliminate the entire Medicaid program, it had that prerogative.
Like I said, maybe I am wrong.
But using the knowledge from ninth grade civics I thought the Supreme Court was saying that the federal government could not punish the states by not allowing them to participate if the existing Medicaid program as enacted by Congress if it did not participate in the expansion.
But, like I said, I am basing this on ninth grade civics. Maybe, that separation of powers thing does not apply anymore.
BOBBY HARRISON is the Daily Journal’s Capitol Bureau chief. Contact him at (601) 353-3119 or email

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