Could there be collateral damage if the Supreme Court rules to overturn the Patient Protection and Affordable Care Act (ACA)? Some healthcare experts are warning of potential collateral damage if the Supreme Court strikes down the entire ACA: potential chaos for Medicare. “The Affordable Care Act has become part and parcel of the Medicare system, encouraging providers to deliver better, more integrated, better coordinated care, at lower cost,” said Judy Feder, a public policy professor at Georgetown University and former Clinton administration health official. “To all of a sudden eliminate that would be highly disruptive.”
Sara Rosenbaum, a professor of health law and policy at George Washington University, is more blunt: “We could find ourselves at kind of a grand stopping point for the entire healthcare system.” It’s not only Democrats warning of potential problems. Gail Wilensky, who ran Medicare and Medicaid during President George H.W. Bush’s administration, doesn’t think it’s likely that the court will strike down the entire health law. But if it does, she warns, “it seems like it takes everything with it, including those aspects that are only very peripherally related to the expansion of coverage.”
One reason that so many experts are concerned is that the ACA altered the payment rates for nearly every type of healthcare professional who treats Medicare patients. Every time Medicare sets a payment rate, it must cite a legal authority. Since 2010, according to Rosenbaum, that legal authority has been the ACA. If the law is ruled unconstitutional, she said, every one of those changes “doesn’t exist anymore because the law doesn’t exist.” The result? “You have agencies sitting on two years of policies that are up in smoke,” she said. “Hospitals might not get paid. Nursing homes might not get paid. Doctors might not get paid. Changes in coverage that have begun to take effect for the elderly, closing the donut hole might not happen. We don’t know.”
Writing for the Huffington Post, Ethan Rome, Executive Director, Health Care for America Now, says that “The Supreme Court will uphold the ACA not only because it’s constitutional, but because to do otherwise would impose a massive judicial intervention in one of the economy’s most complex sectors and derail a train with millions of individuals and businesses on board. If the conservative justices disregard decades of legal precedents and strike all or part of Obamacare, they would not merely be tearing down the most sweeping piece of social legislation since Medicare and Medicaid, they would be taking away substantial consumer protections and benefits from millions of America’s seniors, families and small businesses. The court would have to take responsibility for dismantling the law piece by piece, a task as difficult as it is unconscionable. The law is two years old. Implementation is moving forward, and hundreds of complicated provisions are in effect, helping millions of Americans. States, businesses, doctors, hospitals and insurance companies have undertaken major, costly changes in anticipation of the improved insurance marketplace developing right now. The fact is that serious wreckage would result from a bad decision. Attempting to unscramble this omelet would be a national nightmare.”
Politico’s J. Lester Feder offers this perspective. “If America is hoping a Supreme Court ruling will end the legal uncertainty hanging over the healthcare system once and for all, there’s a chance it could be sorely disappointed. Most legal experts are hoping the Supreme Court will give a clear thumbs up or down to the healthcare law. But they’re worried about the possibility that, if the court strikes down just part of the health law, it could outsource the job of figuring out precisely which provisions of the gargantuan law stay or go. That could mean at least another year of legal proceedings before the country — and the states that have to build the health exchanges — really know the rules its health system will operate under. And that doesn’t even include the wild card of the election. The parties challenging the law attempted to head off this scenario by specifically asking the court to consider whether the individual mandate could be severed from the rest of the law. But if the Supreme Court decided it lacked the capacity — or the desire — to settle questions of how dependent the various parts of the law are on the individual mandate, it could remand the case to the lower courts to work through the details, legal experts say. Another outside possibility is that the Supreme Court could appoint a ‘special master’ to sift through it under the high court’s supervision, though special masters usually oversee complex settlements or disputes among states, not dismantling politically charged legislation.”
If the unthinkable happens and the Supreme Court does strike down President Barack Obama’s signature piece of legislation, employers and insurance companies — not the government — will be the primary drivers of change over the next decade. They’ll borrow some ideas from Obamacare, and push harder to slash costs. Business can’t and won’t take care of America’s 50 million uninsured. Workers will pay more of their own medical costs as job coverage changes to plans with higher deductibles. Another part of the equation will be tax-free accounts for routine medical expenses, to which employers can contribute. Employees and their families will be steered to hospitals and doctors that can prove to insurers and employers that they deliver quality care. These networks of medical providers would earn part of their fees for keeping patients healthy, similar to the accountable care organizations in the ACA.