Is the ACA treating America without informed consent?

In the practice of medicine, informed consent is essential. Before treating a patient, the provider must make sure the patient understands what is going to be done and consents to the treatment. Failure to obtain informed consent is a basis for a claim of negligence as medical malpractice. Lying to a patient or intentionally misleading a patient is gross negligence in many jurisdictions and might be the basis for criminal charges.

The case can be made that the ACA was passed without the informed consent of voters because their legislators were misled. While some naïve supporters in the Congress and Senate freely admitted they had never even read the act or the regulations before voting for it, in fact there is evidence to suggest that they were systematically and intentionally misled. Such conduct could constitute gross negligence.

See also: The political-medical complex

Back to court

In its initial decision, the Supreme Court, through Justice Roberts, found that the ACA was constitutional as a tax. Justice Roberts went to considerable lengths to state that the Court was not ruling on the wisdom of the legislation.

This spring the Court will revisit the legislation in its consideration of King v. Burwell, to analyze its structure and decide whether the language should be interpreted literally. At issue is the possible denial of a tax credit - “premium assistance credit amount” - to anyone enrolled in an exchange set up by the federal government, because that’s not an “exchange established by the State.”

The challengers argue that the language was intentional to motivate the states to enact their own exchanges. Professor Jonathan Gruber, an MIT economist hired by the Administration and paid $400,000 to help draft the ACA, made a comment supporting that interpretation, but later tried to walk it back. Unfortunately for the Administration, at least four videos have recorded Gruber as stating that the draft of the legislation was aimed at misleading the voters. The attempt was made to obscure the fact that the mandate was a tax.

Chief Justice Roberts and the majority on the Court were not deceived. The Court said it was a tax.

Issues and appearances

The Administration may have a struggle on its hands. In the first case, the Supreme Court was obligated to find that the law was constitutional, if possible, and did so by finding that it was a tax. In King v. Burwell, the Administration is asking the Court to fix it.

Normally, the Court will look at legislative history to determine the intent of a law or to clarify ambiguities in drafting. The ACA has little or no real legislative history, and the language is clear.

Congressional actions are normally granted the presumption of regularity. The very troubled history of this legislation does not appear to support such a presumption. Professor Gruber’s public statements that the legislation was designed to mislead if not defraud voters might be construed as an admission against interest.

Fraudulent inducement in civil matters can require rescission of a contract. Obtaining money under false pretenses could be construed as a felony. Unfortunately, the actions of these drafters at the very least raise the appearance of impropriety.

While the Court has already stated that it will not decide on the wisdom of the legislation, it will not want to participate in perpetuating a fraud. Indeed, the mere appearance of impropriety cannot be countenanced.

Not the signature

It appears to many observers that from the beginning the Administration was willing to sacrifice the presumption of regularity and avoid transparency to get this legislation passed.

Using fraudulent inducements to put the IRS in charge of a sixth of our economy and our medical records may not represent the signature legislation that this Administration wants as its legacy.

Many have questioned the demographics, therapeutics, and economics of the ACA. Exempting the ruling elites and unionized bureaucrats from this onerous legislation is beyond unacceptable and demonstrates how little faith they have in the ACA or their ability to administer the act.

Unique among providers

Pharmacists have always been viewed as an accessible and reliable source of accurate healthcare information. Unique among healthcare providers, they routinely explain therapeutic interactions and the real cost of care, and present the bill, less any insurance payment, directly to the patient.

Some observers foresee the imminent demise of most or all of the ACA. This will create significant problems for millions of patients. The patient/taxpayer needs healthcare and deserves honest and accurate information. This is a role that pharmacists, as part of the primary care team, have always provided.

See also: The pharmacist's role in a changing healthcare landscape

During this transition, the need for this information will be more critical than ever before. Pharmacists need to be well informed and willing to provide accurate information to their patients. Let us hope that the government follows suit.

Robert L. Mabeeis a pharmacist and attorney practicing in Sioux Falls, S.D. He also holds an MBA. Contact him at rlmabee@mabeelaw.com.