ACA’s Legal Outlook Uncertain In 2020

By the end of 2020, the landscape for the Affordable Care Act could look very different.

Insurance policies purchased through healthcare.gov went into affect Jan. 1 as expected. Health insurance regulations remain the same.

However, a mid-December ruling from the Fifth Circuit Court of Appeals leaves a lot of questions to be answered. In a 2-1 decision, the appeals court panel agreed with a lower court ruling that the individual mandate is not constitutional without a financial penalty. However, the appeals court panel found that the lower court had not done enough to analyze if other parts of the law could remain without the individual mandate.

Preliminary numbers indicate that more Mississippians sought insurance through the federal exchange for 2020 than 2019, said Mississippi Insurance Commissioner Mike Chaney. Molina had its first year offering plans in 19 counties including five in Northeast Mississippi. Ambetter has reported its numbers went up by about 10,000.

As long as enrollees pay their premiums, that coverage should be uninterrupted through 2020. What will come for 2021 remains to be seen.

"Right now, we see no change at all," Chaney said. "We've got fairly smooth sailing from now until October."

Supreme Court watchers think October would be the earliest the highest court would be likely to rule, but it's not clear when or if it would hear the case, said Dinetia Newman, a Tupelo-based health care attorney.

"It's a very complex decision," Newman said. "There's a lot of uncertainty."

Timeline

In 2010, the ACA passed with an individual mandate to buy health insurance or face a penalty unless the taxpayer qualified for an exemption. The mandate was a mechanism to keep people from waiting until they were sick to buy insurance, since under the law, insurers couldn't refuse them.

In 2012, the U.S. Supreme Court ruled that because the individual mandate could be considered a tax, it was within Congress' powers to enact the law. It did find that parts of the law could be severed, ruling that the federal government couldn't require states to expand Medicaid coverage.

In 2017, Congress voted to drop the penalty for not purchasing insurance.

The current case challenging the ACA's constitutionality was originally filed in U.S. District Court in North Texas in 2018. The plaintiffs currently include two individuals who bought unsubsidized plans through the federal exchange, Mississippi and 17 other states. The Department of Justice has joined the plaintiffs in opposing the law. Currently attorneys general from 20 states and the District of Columbia and the U.S. House of Representatives have defended the law.

In December 2018, U.S. District Judge Reed O'Connor ruled that without the penalty the law was unconstitutional. O'Connor also ruled other facets of the law could not be severed from the individual mandate.

The December 2019 appeals didn't involve the entire appeals court, Newman said. It was heard by three judges and decided by a 2-1 vote. The dissenting judge challenged the standing of the plaintiffs because they did not face a financial penalty if they elected not to buy health insurance.

Many feel the timing of the ruling has political implications. Arriving in December and remanding the case to the lower court, it makes it unlikely the Supreme Court will take up the case during its current term and issue a ruling in June in the heat of the election season, Newman said. The next term of court typically releases opinions in October.

"They kicked the can down the road," Newman said.

What's next

There are two paths the case can take from here. The appeals court asked the district judge to consider each provision of the ACA to see if it could be severed from the individual mandate, Newman said. Legal experts expect that would kick off another round of litigation and a return to the appeals court.

The coalition of attorneys general defending the law led California Attorney General Zavier Becerra have indicated they plan to appeal directly to the Supreme Court.

It's not clear at this point if the Supreme Court will agree to hear the case or wait for the case to work its way back up the legal ladder, Newman said. Four justices must agree to hear the case.

How the case will be received at the Supreme Court is uncertain, especially since the court has changed since the 2012 ruling. Historically, the highest court has weighed precedents heavily.

"I don't know how the Supreme Court will feel about its precedent being challenged," Newman said.

Consequences

If the ACA is struck down in its entirety, it's not just people who access insurance through the federal exchange or Medicaid expansion that will be affected.

"If the ruling comes down, if it can't be severed (from individual mandate), then every plan in the country would be affected," Chaney said.

The law sets out coverage requirements for both employer based insurance and individually purchased policies. The guaranteed issue and community ratings mean that people can't be denied coverage or charged more than others because of pre-existing health conditions. Under the law, insurers have to cover care for pre-existing conditions. They cannot set lifetime limits on benefits or use recission, where coverage is denied after the fact.

"Coverage for pre-existing conditions and children 18 to 26 are provisions people universally like and want to keep," Newman said.

Beyond health insurance regulation, there are fraud and abuse rules, disproportionate share allocations to hospitals serving the uninsured, calorie counts on restaurant menus.

"We've had this (law) for almost 10 years," Newman said. "It would be a huge change in the landscape ... it impacts everyone."

Chaney anticipates either through judicial or legislative action, many provisions of the ACA will continue.

"It's too entrenched," Chaney said. "I don't see it going away."

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