The Supreme Court does not appear likely to strike down the Affordable Care Act (ACA), but some changes are possible depending on the outcome of the lawsuit that the court is considering, experts said on Thursday.
The case in question is known as California v. Texas (consolidated with another suit over the same issues, now known as Texas v. California). It revolves around whether the rest of the ACA — which includes many provisions unrelated to insurance — can still stand now that Congress has zeroed out the “individual mandate” penalty for people declining to buy health insurance.
Three Possible Scenarios
At a webinar sponsored by the Alliance for Health Policy, Sarah Collins, PhD, vice president for healthcare coverage and access at the Commonwealth Fund, outlined three possible ways the high court could decide the case.
- Scenario 1: The mandate is either ruled constitutional or determined to be unconstitutional but severable from the rest of the law. In that case, “The ACA will continue to function as it does now,” said Collins. She added that when the law was first passed, people assumed that the mandate was necessary to make more people buy insurance, and that if it disappeared, healthy people would leave the ACA marketplaces and insurance premiums would spike, “but the opposite is true” — premiums have actually gone down since the mandate penalty was zeroed out in 2017.
- Scenario 2: The mandate is ruled unconstitutional and inseverable from Title 1 of the ACA — the part that sets up the ACA marketplaces and contains important insurance-related provisions, such as a ban on lifetime coverage limits and a ban on discrimination against patients with pre-existing conditions. If that happens and Title 1 is struck down, “the individual insurance market would look much like it did pre-ACA; people with pre-existing conditions would pay much higher premiums or be denied coverage entirely,” she said. “Few plans would cover maternity care — or only cover it at a very high cost — and insurers could rescind or cancel policies if someone became sick.”
- Scenario 3: The mandate is ruled inseverable from the rest of the ACA, and the entire law is struck down. In addition to the result outlined in Scenario 2, “21.1 million additional people would be uninsured by 2022, and 15 million adults and children with Medicaid and CHIP [the Children’s Health Insurance Program] would lose their coverage,” said Collins. “The implications of overturning the ACA would extend beyond insurance coverage … The ACA has touched every corner of the healthcare industry; it has improved Medicare benefits, reformed payment structures by changing the way Medicare pays providers … and created a catalyst for biosimilars. So the justices are not only considering the fate of the ACA, but really the fate of the entire healthcare system.”
What Would Congress Do?
The court is not expected to decide the case until at least next spring — and probably toward the end of its term, which is in June, several panelists said. In the event that the court strikes down the entire law — widely considered unlikely based on the questions that the justices asked during Tuesday’s oral arguments in the case — what would happen politically?
“If the ACA is struck down, there is no replacement at the ready” in Congress, Rosemarie Day, founder and CEO of Day Health Strategies, a consulting firm in Somerville, Massachusetts, said in a separate webinar on Monday. She noted that the law being struck down means that “we would also see the loss of subsidies for ACA/individual market plans, meaning another 9 million people would potentially lose their coverage. Of those buying through the ACA’s exchanges, 80% to 90% are relying on subsidies to afford that coverage and that would likely go away,” especially since state governments don’t currently have the financial wherewithal to make up the difference, she said.
That being said, “state-run marketplaces could continue to operate in some form, though they would be hampered by the fact that there would be no subsidies available to give out,” Day said. Currently, 14 states and the District of Columbia operate their own ACA marketplaces, with the remaining 30 states using the federally facilitated marketplace; another six states have their own marketplace but it is built on the federal government’s platform.
The rule allowing children to stay on their parents’ health insurance policies until age 26 would also disappear, “although states could potentially salvage that,” at least in part, Day said. (State laws don’t apply to large, self-insured employers.) However, “chances are dim” that would happen in states where legislatures are controlled by Republicans.
Other Alternatives
Members of Congress also could try to prevent the high court from having to decide the case at all; they could simply pass a law reinstating the mandate penalty, which would make the entire lawsuit moot. However, “it’s hard to imagine that [Senate Majority Leader Mitch] McConnell [R-Ky.] would do something like that,” so it would require that Democrats control the Senate, she said.
Thomas Barker, JD, co-chair of the healthcare practice at Foley Hoag, a Washington law firm, said during Thursday’s panel that if Title 1 of the ACA is struck down, “there does seem to be bipartisan support for enacting some kind of pre-existing condition exclusions for the individual market. They could at least do that.”
While the nation is awaiting the court’s decision, there are a few things that a Biden administration could do to shore up the health law, Day said. “The executive orders undermining pieces of the ACA could immediately be reversed, so things like selling short-term, limited-duration insurance” — which the Trump administration is allowing people to purchase for up to 4 years — “could actually go back to being short-term, limited-duration insurance and not something being sold now as an alternative to ACA marketplace plans.” Biden also could potentially restore the cost-sharing reduction payments to insurers, and re-open marketplace open enrollment for longer periods.
The oral arguments “really highlighted how the ACA has evolved over time,” said Collins. “We’re finding out that the individual mandate wasn’t that essential, that the premium subsidies really mattered the most … That strikes me as a lesson for all of Congress, that legislation shouldn’t be viewed as static; it can be improved over time.”
Source: MedicalNewsToday.com
