One week after the upcoming Presidential election, the Supreme Court will rule on Texas vs. Azar, a case that could determine whether or not the Affordable Care Act is unconstitutional.
In general, experts say this particular case against the ACA isn’t as substantive as previous efforts. Dean Rosen, partner at Mehlman Castagnetti Rosen & Thomas, says he doesn’t think the suit is that strong in terms of whether it will strike down the whole law.
“The lower court ruling was very broad. If you talk to most lawyers, they were very surprised the court ruled the way it did,” he says. But he also acknowledges that it’s come this far for a reason. “The reason it has legs is because the legal challenge is based on the steps [Supreme Court Chief Justice] John Roberts outlined in his prior ruling on the law. To make it simple, the crux of the Supreme Court’s decision a couple of years ago was the law is constitutional because of the mandate. If the mandate is gone, the law is unconstitutional. That’s the viewpoint of the people challenging the law.”
Ezekiel Emanuel, MD, Vice Provost for Global Initiatives, Co-Director, Healthcare Transformation Institute, University of Pennsylvania, and an architect of the law, says that every expert he has talked to doesn’t think highly of this case. “You can’t find a respectable conservative legal scholar who actually thinks this case has merit. This includes many legal scholars who were pro other cases against the ACA,” he says.
However, just because it might not be the strongest argument doesn’t mean it won’t win. “While I do think the arguments are weak, it doesn’t really matter what I think,” says Christen Linke Young, a fellow with the USC-Brookings Schaeffer Initiative for Health Policy. “You have much of the conservative legal movement that embraces this argument. So that does pose a potential threat that will be decided at the court later this year.”
Former Senator Tom Daschle, Founder & CEO of The Daschle Group suggested the Supreme Court, led by Roberts’ proclivity to remain non-partisan, might come up with a solution that doesn’t strike down the entire law and/or remand it back to a lower court. Rosen says there are four potential rulings—two would essentially uphold the status quo, one might strike down just the insurance reforms and a fourth that would strike down the entire law.
The reality is no one, not even the most plugged in legal or policy expert, knows what will happen to the ACA. While the election will give some answers on the future of potential health legislation in a few short weeks, the Supreme Court decision won’t be known until mid-2021.
As Ron Williams, former CEO of Aetna Chairman & CEO, RW2 Enterprises, puts it: “To know what will actually happen? We’re going to have to wait.”
If the law is struck down in its entirety…
Striking down the law, or even the insurance reforms, would cause complete chaos, says Young, who recently wrote an article about this subject. She says the biggest issues for provider CEOs will be figuring out what happens to Medicare payment rates and what they can do in the moment about an invalid Medicare fee schedule. “The big question will effect all the money moving through the health system,” she says. “Also, they will have to know what happens to ACOs and other projects that the innovation center is funding.”
Furthermore, Young says there would be questions on the timeline of tax credits, the authority of state regulators’ contracts, how contracts will have to be rewritten, the unwinding of the Medicaid expansion efforts in 39 states, the fate of Medicaid managed care contracts, and much more. In other words, it would be complete chaos.
Ron Williams, Former CEO of Aetna, CEO of RW2 Enterprises
Williams said he would be surprised to see a ruling that causes everyone to be immediately uninsured. If it does happen, he could see states and self-insured employers embracing certain provisions of the law. Some, he says, have already been adopted by states and insurers. “Many elements of the ACA reflected some of the most consumer friendly policies that states had already put together,” Williams says.
While people may have not loved every aspect of the ACA, health care stakeholders value stability above all. On this note, it’s not surprising that health industry advocacy groups flooded in numerous amicus briefs in support of the ACA during May.
However, if the law is struck down in its entirety, experts agree there may not be much that can be done beyond adopting smaller provisions of the law, as Williams noted. Rosen adds that without the financial funding of the federal government from the ACA, any actions from states will be limited. “States aren’t going to be able to replace it on their own. It’s going to take an act of Congress,” he says.
For many CEOs, there is no choice other than to forge ahead with the ACA. This is the case for Covered California executive director Peter Lee. As of June 2020, 1.53 million people were actively enrolled in Covered California, the health insurance marketplace for the Golden State. This is the most they’ve had enrolled since they opened their doors in 2014.
“With this recession, more people are losing jobs and employer-based insurance coverage and fewer are finding jobs. The role of marketplaces like Covered California and the role of Medicaid, expanded in most states, is more important than ever,” says Lee. “We’re all for enrollment activities, building on an individual market in California that continues to be robust.”
In fact, Covered California continues to adjust enrollment periods in response to COVID-19 and the recession. Going forward, Lee has yet to find someone who think the entirety of the law will be upended overnight and says it would a be “tragedy” if that happened. In the interim, he says the marketplace will continue to focus on doing its job and enrolling people who need insurance.
For health insurance leaders, such as Andrea Walsh, CEO of Minnesota-based HealthPartners, uncertainty around this law is nothing new. She says the ACA has been under legislative and legal attacks since it was enacted and the organization’s plans for the law haven’t changed. “Our strategies assume continuation of an uncertain public policy environment into the foreseeable future. It has been true for the past decade and I expect it for the next decade as well,” says Walsh.
In fact, uncertainty in health care is a given, says Williams. He advises CEOs to plan ahead and look for options when it comes to the ACA’s future.
“Have plan A, plan B and plan C and contemplate the implications of each. You should acquaint the policymakers with the implications of their decision on patients. Then you have to let it unfold and play out. What you don’t want to do is become paralyzed and not take decisive action in regard to serving your patients,” Williams says. “Others will see it as a good opportunity.”
Williams notes that when the ACA was passed 10 years ago, there was a lot of angst about how the system would respond. “Ten years later it’s done well in terms of increasing access for many people. We still have an access problem for millions of people, but it’s a lot smaller than what it was,” he says.