(L-R) Cowart, Denniston, Heldman, Troy, Hullender. Photo credit: (c) 2012, Harry Butler, Nashville.
Nearly 300 members of the Nashville Health Care Council
and Leadership Health Care
heard from a diverse panel of legal and policy experts about the potential implications of the U.S. Supreme Court’s pending decision on the constitutionality of the Patient Protection and Affordable Care Act (ACA). The Court was scheduled to hear arguments March 26-28 … just days after the law’s second anniversary.
"The highly anticipated Supreme Court decision on health reform is much more than a legal opinion, it’s a defining event in the healthcare marketplace," said panel moderator Dick Cowart, chairman, Health Law & Public Policy Department, Baker, Donelson, Bearman, Caldwell & Berkowitz.
ACA made sweeping changes to the healthcare delivery system, including individual and employer insurance provisions, payer requirements around preexisting conditions, age thresholds, preventative care, and Medicaid expansion. Panelists — Lyle Denniston, journalist and dean emeritus of the U.S. Supreme Court Press Corps; Paul Heldman, senior health policy analyst, Potomac Research Group; Tony Hullender, senior vice president and general counsel, BlueCross BlueShield of Tennessee; and Tevi Troy, senior fellow, Hudson Institute, and former Deputy Secretary, U.S. Department of Health and Human Services — discussed how the upcoming decision could impact providers, payers and consumers.
During an unprecedented six hours of oral arguments, the Court will evaluate four key issues relating to the law: 1) the individual mandate requiring citizens purchase health insurance; 2) ‘severability,’ whether the overall healthcare law can stand even if the individual mandate doesn’t; 3) new Medicaid requirements for states; and 4) the Anti-Injunction Act, whether it’s appropriate for courts to hear legal challenges now given the mandates don’t take effect until 2014.
“The Court is taking this matter very seriously, as it should, given the scope of the law and the kinds of changes it represents, not only to the healthcare system but also to matters as grand as the separation of powers and the very structure of our constitutional republic,” said Troy.
Denniston noted, “The healthcare industry has an enormous amount invested in this new statute because the law itself totally revolutionizes the way the health insurance market works.” He added that in order to afford the expanded coverage without raising premiums, insurers need the individual mandate to provide a sufficient number of customers. “So the industry really has a lot riding on the outcome of this.”
Hullender said many in the insurance industry, his company included, believe it is “counterproductive to try to predict what the Supreme Court is going to do.” Therefore, he said, companies are focusing on implementing the law of the land as it stands today. Hullender added the individual mandate is integral to controlling cost. "It’s our thinking that the Supreme Court will leave much of the health reform law standing, even if it finds unconstitutional the requirement that individuals buy coverage. But, in my opinion, removing the individual mandate could destabilize the insurance market and negatively impact providers who might be exposed to increased bad debt.”
Heldman said he thinks the Court is most likely to uphold the law but agreed the closest call is whether or not the individual mandate will stand. “Assuming that it does, I think that’s to the benefit of most healthcare providers including hospitals and product manufacturers, especially drug makers.”
Ultimately, though, Troy said no one could really know what the Supreme Court will do … and, he added, whatever the outcome, political ramifications will continue to play out in the November elections. “I suggest that businesses prepare for uncertainty,” he concluded.