Handicapping the ACA’s Fate

As the nation anticipates the Supreme Court decision on the future of the Patient Protection and Affordable Care Act (ACA),  pointed questioning by justices has supporters and opponents facing the possibility that the law could be declared unconstitutional.  That would eliminate — along with the contentious mandate that people purchase health insurance — popular provisions such as letting young adults stay on their parents’ plans until age 26, making prescription drugs more affordable for seniors, and requiring insurers to cover those with pre-existing medical conditions.

Even if the court keeps most of the law intact and strikes down the individual mandate, many healthcare advocates, insurers, and legislators believe that these consumer protections will be meaningless.  “There are a series of provisions of the law which have already been enacted which have proven to be fairly popular,’’ said Andrew Dreyfus, president and CEO of Blue Cross Blue Shield of Massachusetts.  “The question nationally is will there be bipartisan consensus to maintain those provisions even if the Supreme Court overturns some aspects of the law or the whole law?’’

Congress has been disinclined to talk about contingency plans, or the possibility of compromise.  There is agreement  that nothing will be done before November’s presidential election.  “Repeal and replace is a good slogan, but what kind of replacement are we talking about?’’ asked Gail Wilensky, a healthcare economist who administered Medicare and Medicaid under George H.W. Bush.  “Is it a replacement that will substantially extend coverage for people who have been uninsured?  At the moment it’s a little hard to see that happening.’’

“It’s a standard rule of politics that people value losses more than hypothetical gains,’’ said John McDonough, director of Harvard University’s Center for Public Health Leadership and who helped the Senate write the ACA.  “If the court were to strike down significant parts of the law that are already in place, there could quite possibly be a potent public reaction against what is being taken away from people.’’

In an interview with Kaiser Health News, Jon Kingsdale, Executive Director of the Commonwealth Health Insurance Connector Authority, who is working to implement the ACA said “We’re working with about a dozen states, and they fall, I’d say, into three camps: One, working very, very hard with a real strong vision of what they want to set up, to implement by October 1, 2013 – which is less than 18 months away.  Others that are planning – they’re preparing.  They’re waiting to see, in fact, if it’s implemented after the Supreme Court decision, which is expected to be announced in June – and/or the election in November.  And then there are states, frankly, we are not working with that are pretty much waiting to see this go away.”

Kingsdale believes that the entire law will not be thrown out by the Supreme Court.  “I think their striking down the entire law is much less probable than striking down the mandate,” he said.  “I’ve begun to talk to people in insurance companies and states and vendor organizations about what happens if the entire law is struck down, and I am struck by the lack of anticipation of what that would mean.  People are aware that there are huge problems. There are many things that have been implemented already, in terms of insurance coverage and Medicare payment policies and accountable care organizations, the authorization of which would be undercut.”

David Axelrod, chief campaign strategist to President Barack Obama, is denying reports that the White House may revisit healthcare in his second term.  “Our hope and our expectation is that the Supreme Court will affirm the healthcare law,” Axelrod said.  “Now is not the time to speculate on that.  We believe that the law is constitutional.  The Affordable Care Act is also really important to the health and well-being of the American people,” Axelrod said. “It is already helping people all over this country, and has improved the position of people relative to their insurance companies, and the kind of policies they are getting and the return they are getting for the premiums they are paying.”

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