If the ACA falls ...

Pols say plans should wait un­til af­ter court’s rul­ing

Modern Healthcare - - COVER STORY - Rich Daly

Aleg­isla­tive fix to the health­care re­form law isn’t likely to hap­pen soon if the U.S. Supreme Court strikes down all or part of it. Health pol­icy lead­ers in Washington cau­tioned against as­sum­ing what tran­spired dur­ing three days of oral ar­gu­ments on the Pa­tient Pro­tec­tion and Af­ford­able Care Act last week to in­di­cate that the law is in jeop­ardy. But many op­po­nents and some sup­port­ers of the law viewed the ag­gres­sive ques­tion­ing of the law by a ma­jor­ity of jus­tices as sug­gest­ing that they will in­val­i­date the in­di­vid­ual in­sur­ance man­date and per­haps more. A decision is ex­pected in June.

Con­gres­sional health­care lead­ers from both par­ties agreed that even ten­ta­tive plans for a leg­isla­tive re­sponse should wait for a final decision, at the ear­li­est.

“Any­body smart ought to be think­ing about what-ifs,” said Sen. John Kerry (DMass.), a se­nior mem­ber of the Fi­nance Com­mit­tee, who at­tended one of the day’s ar­gu­ments. But it’s too soon to think about spe­cific leg­is­la­tion, he told Mod­ern Health­care, “be­cause you don’t know what’s in and what’s out.”

Sim­i­larly, pol­icy ex­perts said the range of pos­si­ble le­gal out­comes is too great to de­velop any spe­cific leg­isla­tive re­sponses be­fore a decision.

“There are so many pos­si­ble leg­isla­tive sce­nar­ios it makes your head hurt,” said Larry Le­vitt, a se­nior vice pres­i­dent and in­sur­ance ex­pert at the Kaiser Fam­ily Foun­da­tion.

But the week’s ag­gres­sive ar­gu­ments against the law also have left open the pos­si­bil­ity—once seen as re­mote—that large por­tions of the law could be re­jected. Specif­i­cally, Jus­tice An­thony Kennedy, who

is widely seen as a crit­i­cal swing vote on the law, said the more cau­tious le­gal ap­proach for the court would in­clude strik­ing down the en­tire law if it finds key por­tions un­con­sti­tu­tional, rather than de­cid­ing which pro­vi­sions should re­main.

Leg­is­la­tors would face the task of iden­ti­fy­ing and pass­ing leg­is­la­tion that aimed to achieve the same goal as re­moved por­tions. In the case of the in­di­vid­ual man­date, pos­si­ble fixes in­clude a law that es­ca­lates in­sur­ance pre­mi­ums as en­roll­ment is de­ferred, an ap­proach used in Medi­care parts B and D. If in­sur­ers are still re­quired to ac­cept all ap­pli­cants and no man­date ex­ists to buy cov­er­age, the in­sur­ance mar­ket could face in­sol­vency with­out new leg­isla­tive ef­forts to in­crease in­sur­ance cov­er­age, Le­vitt said.

But the pos­si­bil­ity of any ma­jor health­care leg­is­la­tion clear­ing Congress dur­ing a bit­terly con­tested pres­i­den­tial elec­tion ap­pears slim, es­pe­cially when health­care pol­icy has be­come so con­tro­ver­sial and Democrats have lost con­trol of the House of Rep­re­sen­ta­tives since the law’s pas­sage in March 2010.

“Whether they de­clare it un­con­sti­tu­tional or not, noth­ing is go­ing to hap­pen on com­pre­hen­sive health­care re­form un­til af­ter the pres­i­den­tial elec­tion,” Sen. Chuck Grass­ley (R-iowa), rank­ing mem­ber of the Se­nate Fi­nance Health Care Sub­com­mit­tee, said in an in­ter­view.

That could mean providers will see lower Medi­care re­im­burse­ment but won’t get the ben­e­fit of the 32 mil­lion newly in­sured pa­tients they ex­pected in re­turn, said Paul Gins­burg, pres­i­dent of the Cen­ter for Study­ing Health Sys­tem Change.

The promised cov­er­age ex­pan­sion led hos­pi­tals, nurs­ing homes, other providers and in­sur­ers to agree to at least $220 bil­lion in cuts on the premise that the law would off­set re­duced fund­ing with a greater num­ber of pay­ing pa­tients.

“What’s a real dan­ger for the providers is that the over­all fis­cal sit­u­a­tion is so dire that Congress may be tempted to go through with those provider pay­ment cuts in or­der to re­duce the bud­get deficit, even if there are much smaller ex­pan­sion in cov­er­age or no ex­pan­sions in cov­er­age” al­lowed by the court, Gins­burg said.

Beth Feld­push, vice pres­i­dent for pol­icy and ad­vo­cacy at the Na­tional As­so­ci­a­tion of Public Hos­pi­tals and Health Sys­tems, refers to that sce­nario as “our worst nightmare.”

“There are cer­tain pro­vi­sions on the cuts side of things that re­ally are in­trin­si­cally en­twined with the cov­er­age ex­pan­sion,” Feld­push said.

Providers may have a win­dow for avert­ing that and other im­pacts of the court’s decision dur­ing the wan­ing days of the cur­rent Congress im­me­di­ately af­ter the Nov. 6 gen­eral elec­tion. In a lame-duck ses­sion, cam­paign pol­i­tics might sub­side and dif­fi­cult de­ci­sions could be made that the new Congress might avoid.

Provider ad­vo­cates said they plan to push any high pri­or­ity changes re­quired by the court’s ac­tion dur­ing the lame-duck ses­sion. They al­ready plan to use the post-elec­tion ses­sion to ad­dress the loom­ing Medi­care physi­cian pay­ment cut and other pri­or­ity leg­is­la­tion.

How­ever, any fixes to sus­tain the health­care over­haul likely would run into op­po­si­tion from many Repub­li­cans, who con­trol half of Congress and said the en­tire law needs to be re­placed.

“Re­gard­less of what the Supreme Court de­cides, we re­main com­mit­ted to the full repeal of Oba­macare,” Rep. Re­nee Elmers (R-N.C.), told re­porters as the court was wrap­ping up its ar­gu­ments.

Kerry, far right, shown speak­ing at a news con­fer­ence March 28, says with­out know­ing what’s in or out of the law, it’s im­pos­si­ble to come up with an al­ter­na­tive.

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