Looks like a busy time in the courts for PPACA over the coming weeks. On Monday, the US Supreme Court refused Virginia Attorney General Ken Cucinelli’s request to fast track review of the healthcare reform law by bypassing normal appeals processes and proceed to consider the constitutionality of the law. Meanwhile, at least three Circuits are scheduled to hear arguments on the law between now and June 8.
Several courts to date have addressed the constitutionality of the healthcare reform bill signed into law in March 2010, although among those there’s no clear winner yet in the debate over the individual mandate, arguably the centerpiece of the law. And with the Obama administration certain to challenge any future lower court decisions seeking to strike the individual mandate –- or PPACA in its entirety — down, the issue is unlikely to be resolved until the Supreme Court takes it on and rules.
While champions on both sides of the argument debate the individual mandate — regarded by many as the sine qua non of the most sweeping healthcare legislation in decades — in and out of court, wrestling with the fine points of constitutional law, others ponder just what might result were PPACA stripped of its central element. In late February, the Government Accountability Office (GAO) reported on a survey of 41 officials from 21 organizations concerning alternatives that could possibly replace the mandate either alone or in some combination. Nine such options emerged from that survey:
- Modify open enrollment periods and impose late enrollment penalties.
- Expand employers’ roles in autoenrolling and facilitating employees’ health insurance enrollment.
- Conduct a public education and outreach campaign.
- Provide broad access to personalized assistance for health coverage enrollment.
- Impose a tax to pay for uncompensated care.
- Allow greater variation in premium rates based on enrollee age.
- Condition the receipt of certain government services upon proof of health insurance coverage.
- Use health insurance agents and brokers differently.
- Require or encourage credit rating agencies to use health insurance status as a factor in determining credit ratings.
Perhaps not too surprisingly, the list does not even mention the terms “public option” and “single payer,” once popular in some quarters and still favored by many.
Meanwhile, reviews of the options coming out of the GAO survey note strengths and weaknesses of each of the alternatives, and it’s clear that some would garner quite a bit of opposition of their own. Reactions appear to indicate that the list is seen as a “mixed bag,” to say the least. For example, imposing any form of tax to pay for uncompensated care would obviously be a non-starter in many quarters given the current climate regarding taxation generally. And it’s hard to imagine that credit rating “dings” for non-coverage will garner broad public appeal. It’s a good bet that new legislative and constitutional challenges would await many, if not all nine, “alternatives.”
What seems clear at this stage, however, is that while health reform “watchers” debate various aspects of PPACA with frequent passion and even vitriol at times, the “Dueling Circuits” may continue to duel, but the final say on whether PPACA in its present form will continue as the law of the land will, at least for the foreseeable future, be determined by the nation’s highest bench. And even if the individual mandate were declared unconstitutional, acceptable and effective “next steps” may be no easier to implement.
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