I’m tuned in to C-SPAN this week and assorted blogs to follow the Supreme Court arguments on the future of the Affordable Care Act (or Obamacare, depending on what side of the political fence you sit on.) I’m disappointed the Supreme Court is not televising the oral arguments. And as an attorney, I will be listening in particular to what Justices Kennedy, Scalia and Roberts are asking. They’re the potential swing votes that could ultimately decide this case.

I’ve been asked often for my take on repealing the Affordable Care Act. I certainly can’t predict the outcome, but I do know this: The biggest worry for healthcare providers (and their patients) is that the Court will strike down the individual mandate but leave the rest of the law intact – including billions of dollars in funding cuts to healthcare.

Under the ACA, the nation’s hospitals will see $155 billion in cuts over nine years, including $4.5 billion in cuts for New Jersey hospitals. Moving forward, those cuts would be devastating for our industry if they are not balanced by the promise of 3O million newly insured individuals under the ACA. Hospitals conceded these cuts because we thought it was the right thing to do to provide health insurance coverage to more Americans, but we can only withstand the cuts if we are caring for more insured patients. We can't continue to care for the same number of uninsured and absorb the cuts as well. That's why we believe the ACA must be upheld in its totality, and if the Court strikes down the mandate it must also strike down provider reductions.

If those deep healthcare cuts are not offset by more people with health insurance, that’s a worst-case scenario for our healthcare system. And that’s a worry not just for the uninsured, but for everyone who counts on access to quality healthcare in their communities.

When I was a young lawyer, I thought a lot about the U.S. Supreme Court – what it must be like to be on the court, to deliberate, research and argue among some of the finest legal minds in the nation. Time has passed, but I still hold the U.S. Supreme Court with the highest regard and reverence.

But (and I am not sure if they have the power to smite me down for saying this) it is time for our Supreme Court justices to come into the 21st century and allow television to cover at least some of the oral arguments they hear. Many courts allow television coverage and Congress and legislatures do as well. Every governor has a relationship with the press and press availability. Why should the U.S. Supreme Court be exempt?

C-Span, which has a vested interest in this debate, has a really interesting Web site devoted to what the current justices say about TVs in their courtroom. The arguments given against allowing televised proceedings are not that compelling (I say with all due respect to my legal elders). Justice Roberts says it may impact the functioning of the institution. Justice Anthony Kennedy says, “televising our proceedings would change our collegial dynamic.” In other words, the Justices might start asking questions for the cameras to get a sound bite on Fox, MSNBC or CNN.

But how about balancing that fear with transparency? How about that portion of our citizenry that would love to take a peek into how the Supreme Court operates? One modest proposal would be to just try it – starting with the upcoming five-and-a-half hours of oral argument on the constitutionality of the Affordable Care Act. There are many, many people in healthcare that would watch, many lawyers that would watch, and perhaps the estimated 44 million-plus uninsured that have a vested interest in the outcome would want to watch.

We as taxpayers pay for the U.S. Supreme Court. I am not suggesting they televise every proceeding, but there are some matters that are of such import to our citizenry that we deserve a peek. (Bush v. Gore comes to mind when our entire country didn’t know who the next President was due to some hanging chads). I think it could be done in a dignified, informative fashion.

So c’mon, Supremes, let us in. Just try it. Nothing ventured nothing gained, as my Mom used to say.

We learned this week that the U.S. Supreme Court will hear a case challenging the constitutionality of the Affordable Care Act (or Obamacare if you prefer). The Court announced that it will hear an almost unprecedented five-and-half hours of oral argument on the case in March 2012, with a decision likely in late June 2012. Some of the key questions to be decided by the Court include:

• The constitutionality of the individual mandate that American citizens carry health insurance or pay a penalty.
• Whether the rest of the law may move forward if the individual mandate is not upheld.
• Whether Congress can expand Medicaid to cover more people and require states to pay for their portion of Medicaid. (In New Jersey, we have a 50-50 match, so if the feds spend a dollar, the state must match that dollar. Under healthcare reform, the feds pay 100 percent until 2016 and then the state governments would have to pick up its fair share of the cost of the expansion.)
• Whether the case is even ripe for Supreme Court review. Some say that the penalty provision of the law must go into effect first in 2015 before the Court can decide the case. On this last point, the Court did leave itself some wiggle room for a deferral of a decision if it agrees that the penalty provision must go into effect first.

I’m a healthcare professional first and foremost, but I’m also an attorney. And for the healthcare community, the individual mandate is key. If the rest of the law moves forward without the individual mandate, we will be left with many positive aspects of the law, but the largest one – providing care for insured Americans in exchange for $155 billion in cuts to our reimbursement over at 10-year period – will be stripped away. The cuts will stay, but hospitals and other healthcare providers will still be required to care for people who cannot pay.

The arguments in this case will be fascinating (if they sold tickets for this on Stubhub I’d buy one) and the subsequent decision even more so. Hopefully, we will have some clarity in just seven months. In the meantime, N.J. hospitals will continue to do what they’ve always done – provide care to all despite great challenges and uncertainty.

One of the things I enjoy about my job representing hospitals is that I learn something every day because healthcare is full of constant changes and challenges. One of the biggest changes during our lifetimes is the implementation of the Affordable Care Act. And one of the biggest challenges is an onslaught of proposed cuts to healthcare that could have an impact on patients for years to come.

These deep cuts actually begin with the Affordable Care Act, or ACA. The law promises to provide health insurance coverage to 39 million Americans who currently do not have insurance. The nation’s hospitals agreed to absorb a collective $155 billion in payment reductions over 10 years to pay for this program; New Jersey’s share of those cuts was $4.5 billion. It’s a lot of money, but we agreed it was the right thing to do to insure more Americans and bring much-needed reforms to our healthcare system.

But believe it or not, healthcare providers are now faced with three very real sets of additional cuts on top of the $155 billion in cuts under the ACA.

• First, Medicare providers – hospitals, nursing homes and others that take care of our seniors – face an automatic cut of 2 percent in Medicare payments if the deficit reduction “super committee” cannot come up with an agreement to cut the deficit by $1.2 trillion by Nov. 23 and win congressional approval by Dec. 23. That 2 percent cut translates to $1.2 billion for New Jersey providers over the next 9 years.
• Second, President Obama has proposed his own deficit reduction measure that would cut both Medicaid and Medicare to the tune of $320 billion.
• And finally, the President has proposed a third set of healthcare cuts to stop a 29 percent reduction to physicians’ Medicare payments that is slated to take effect in January. We agree wholeheartedly that the physician cut must be averted to ensure Medicare patients have access to the doctors they need. But that action must not come on the backs of hospitals and other healthcare providers that also provide essential Medicare services.

Our hospitals have done a tremendous job in recent years to streamline operations and operate more efficiently, but cuts of this magnitude are not possible without cutting deep into the very heart of patient care services. We have agreed to be partners in transforming our industry and putting “skin in the game.” But with these cuts, we now are getting to the muscle, bone and the marrow. It’s all the more perplexing because healthcare is one of the few sectors in our economy that is growing and adding jobs – and these cuts could halt and even reverse those economic benefits.

Years ago, I worked in New York during an era of large proposed cuts to healthcare. Our mantra during that time was, Some Cuts Never Heal. We’re now in another pivotal period where proposed healthcare cuts could have a devastating impact for years to come – closed hospitals and reduced services, longer waits for patient care and job losses that further destabilize our shaky economic. Our nation – its economy and its citizens – can’t afford these healthcare cuts.

I recently read with great interest and respect a newspaper commentary by Laura Landy, president and CEO of the Fannie E. Rippel Foundation. Landy, whose organization is a Morristown-based foundation committed to healthcare, raised several sobering truths about the need to rethink our healthcare delivery system. I couldn’t agree more.

Our healthcare system is broken. More than 1 million New Jerseyans have no health insurance. Patients, both those with insurance and those without, continue to flood hospital emergency rooms rather than use more appropriate and affordable primary care services. Prices are rising, hospitals are closing. And while New Jersey has had impressive gains in health outcomes and patient safety, there’s still room for improvement.

The overuse of healthcare services in our state is a key contributing factor, and it’s something that we’ve been focused on here at NJHA since the Dartmouth Atlas of Healthcare first published data on this problem in 2006. The greatest expense in healthcare, especially in New Jersey, comes in the last six months of life. We’ve been working closely with the Medical Society of New Jersey to address this issue through education and legislation. The New Jersey Legislature recently passed a bill called POLST that would empower patients to express their end-of-life care choices.

The reality is, more healthcare does not always equal better healthcare. Too often, extensive and invasive medical treatment yields no benefit to the patient at the end of life. We will continue our efforts with physicians, hospital leaders and healthcare consumers to re-enforce the idea that patient preferences, comfort and dignity must always be the driving force in end-of-life care.

NJHA also is taking the lead in new models of reimbursement to help sustain our healthcare system. Our “gainsharing pilot project” has the backing of the federal government to test a new incentive program where doctors and hospitals are encouraged to work together to find ways to improve care while reducing costs. Seems like a simple concept, but our insurance system pays hospitals and physicians in different ways, creating a barrier for the two sides to come together in this common cause. So far, our results have been very promising in reducing healthcare costs while maintaining the quality that patients demand.

New Jersey hospitals also have received national attention, including a recent article by Dr. Atul Gawande in The New Yorker, for their innovative efforts to create community-based “medical homes” for uninsured patients. Successful efforts have risen in Camden and Atlantic City and we’re working to extend that model to other parts of our state.

As the Fannie E. Rippel Foundation rightfully notes, our ultimate goal is better health, better care and lower costs. We’ve signed our name to that pledge through the nationwide Partnership for Patients, and so have many hospitals and healthcare providers across the state. Much work remains, but we’ve made some important steps. Innovative thinking and willing partners do exist in this quest for a better healthcare system.