Wednesday, June 27, 2012

The Supreme Court: Will they or won't they?

We're just about 24 hours away from knowing the fate of the Affordable Care Act and the predictions are in full swing. Will they or won't they? Will they strike the whole thing down or just parts? Will the individual mandate pass muster? What does it all mean for the enormous amount of work that's already been done to implement the law and create the state-based health insurance exchanges? Will the Prevention and Public Health Fund still be around by the end of the week? Will the Medicaid expansion stand? (Does anyone else feel like a 10-year-old in the back seat of your parent's car on a summer road trip — Are we there yet? Are we there yet?)

During yesterday evening's special session on the insanely anticipated Supreme Court decision, panelists took us through the possible decisions and consequences. The running theme on what exactly it all means for the future of our broken health care system? It's too soon to tell. But let's do a quick run-down anyway.

Sarah Somers, managing attorney at the National Health Law Program, said the case before the Supreme Court is actually three separate cases wrapped into one. The four issues before the court are: is the individual insurance mandate constitutional, is the Medicaid expansion constitutional, can the individual mandate be severed from the rest of the law, and can this case even be heard right now. (That last issue is related to a federal statute that says a tax can't be challenged until it has first been assessed.)

When it comes to the mandate, the question is what authority does Congress have to regulate interstate commerce? And while there's no question that health care is interstate commerce, Somers said here's the twist: Congress regulates activity, so is deciding to not buy health insurance an activity or an inactivity? We'll find out tomorrow in what Somers said could be a "dramatic statement about what Congress has the power to do."

On the heels of the mandate is severability. The plaintiffs say that none of the law is severable — if one provision goes, they all go. The feds say different. They say the mandate is severable from everything except some of the law's insurance-related provisions, among them the ban on discriminating against people with pre-existing conditions. (What a misfortunate step backward that would be.)

Next up the law's Medicaid expansion, which would require states to cover people with yearly incomes up to 138 percent of the federal poverty level. According to the Congressional Budget Office, the feds would cover 93 percent of the Medicaid expansion over its first nine years. Still, the plaintiffs claim the expansion is unduly coercive — in other words, the deal is so sweet that the states can't turn it down. Somers said this particular ruling could be huge, as it has big implications for whether the federal government can attach requirements to federal funds.

Lastly, the court could kick the decision down the road until 2014, but observers say it's not likely.

APHA Executive Director Georges Benjamin, who was a panelist during last night's session, noted that the fate of the state-based health insurances exchanges is one of the wild cards. He said he believes the exchanges, which are meant to be competitive marketplaces where residents can buy affordable insurance, can indeed work without the individual mandate. He also commented on how pleased he would be if the landmark Prevention and Public Health Fund is found constitutional. Still, he said that those who think we'll just be going back to the status quo if the law is struck down are wrong. It won't be the status quo, he said, it'll be worse, as implementation of the health reform law is a significant economic driver and job creator.

During the session's Q&A period, a number of attendees called for better messaging around the law, noting how little people actually know about the facts. In response, Somers said to check out the Network for Public Health Law, which has a wealth of information available to all. Also, visit APHA's Supreme Court Case page for even more info.

What are your hopes for tomorrow? Let us know in the comments section below!

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