Assessing the ‘Affordable for Some, Unaffordable for Others’ Care Act

In 2010, Congress enacted the Patient Protection and Affordable Care Act, commonly called the Affordable Care Act, ACA or Obamacare, in order to increase the number of Americans covered by health insurance and decrease the cost of health care.

A key provision in the ACA is the individual mandate, which requires most Americans to maintain "minimum essential" health insurance coverage. For individuals who are not exempt, and who do not receive health insurance through an employer or government program, the means of satisfying the requirement is to purchase insurance from a private company, such as Highmark.

Beginning in 2014, those who do not comply with the mandate must make a "shared responsibility payment" to the federal government. This payment (which may annually amount to thousands of dollars) is referred to as a "penalty" in the ACA. The "penalty" is to be paid to the Internal Revenue Service with an individual's taxes, and "shall be assessed and collected in the same manner" as tax penThe

majority of the U.S. Supreme Court in King v. Burwell, decided June 25,2015, described the ACA as a product of "inartful drafting" by Congress caused by Congress having written "key parts of the Act behind closed doors, rather than through'the traditional legislative process,' having passed much of the Act using a complicated procedure known as 'reconciliation,' with limited opportunities for debate and amendment, and bypassed the Senate's normal 60-vote filibuster requirement."

The Court's majority in Burwell found pertinent to the "inartful drafting" of the ACA a cartoon "in which a senator tells his colleagues, T admit this new bill is too complicated to understand. We'll just have to pass it to find out what it means.'"

The majority of the Burwell Court, in assessing the ACA, concluded that "(a)s a result (of congressional shortcomings in the process of passing the ACA), the Act does not reflect the type of care and deliberation that one might expect of such significant legislation."

A fortiori, in criticizing Congress for enacting the ACA when it "does not reflect the type of care and deliberation that one might expect of such significant legislation," the majority of the U.S. Supreme Court in two cases aptly described themselves in interpreting the Act, namely, their reasoning "does not reflect the type of care and deliberation that one might expect (of the U.S. Supreme Court in interpreting) such significant legislation."

If, as the majority of the Court strongly intimated, the ACA is "too complicated to understand," why, it is fair to ask, did they force an "understanding^' of it by stepping out of their judicial role and into a legislative role in changing the Act's language from "penalty" to "tax" in National Federation of Independent Business v. Sibelius, decided June 28,2012, and from limiting premium assistance to ACA health-insurance plans "enrolled through an Exchange established by the state" as provided in the ACA, to "enrolled in through an Exchange established by the state or the federal government" in Burwell?

In changing the congressional term "penalty" to "tax," the majority of the court in Sibelius saved the ACA from being unconstitutional; in expanding Congress' express limitation of providing subsidies for ACA premiums only to insurance acquired on State Exchanges to also include insurance acquired on federal exchange, the majority of the Court in Burwell saved the ACA from a "death spiral."

Overall, the court's majority decisions and opinions in the Sibelius and Burwell cases weakened the court's legitimacy and fitness to determine what the nation's law means and to declare what it demands when measured against the criteria of legitimacy as set forth in the court's earlier opinion in Planned Parenthood v. Casey

In Burwell, in particular, the court's majority did not meet the criteria of legitimacy when: they failed to provide "legally-principled justification(s)" for their decision; they did not set forth "apposite legal principiéis)" for their claimed "justification(s)" that are "beyond dispute"; and they gave impressions that their decision was the product of "social or political pressures (to avoid a "death spiral" of the ACA)."

The legal analyses engaged in by the majority of the court in both of its cases interpreting the ACA have lessened the respect that the court shouldmaintain as the neutral interpreter of the nation's laws.

That said, the Affordable Care Act has, in reality, become unaffordable for a number of West Virginia residents, as many of them have become painfully aware in recent weeks in notices given to them by Highmark BCBS WV of their 2017 increase in premiums.

Here are some specific examples:

* Husband, wife and two children under the age of 26: 2016 ACA premiums totaling $22,259.64; 2017 ACA premiums totaling $30,884.28; an increase of 39 percent in one year.

* Father and three children under the age of 26:2016 ACA premiums totaling $18,582.84; 2017 ACA premiums totaling $28,752.36; an increase of 55 percent in one year.

* One middle-aged person: 2016 ACA premiums totaling $13,215; 2017 ACA premiums totaling $18,402.22; an increase of 39 percent in one year.

* Husband, wife and two children under the age of 26: 2016 ACA premiums totaling $22,664.40; 2017 ACA premiums totaling $31,768.44; an increase of 40.15 percent in one year.

These ACA premium amounts are preposterous. The term "Affordable for Some/Unaffordable for Others Care Act" has become a more accurate description of the 2010 legislation than its official designation "Patient Protection and Affordable Care Act."

The rising premium costs of ACA insurance coverage have been attributed to under-enrollment, particularly among young and healthy participants, along with doctors and insurance companies dropping out. Whatever the reasons, the increasing costs of ACA premiums for unsubsidized insureds are unsustainable and must be addressed.

It is reported that 37,000 West Virginians have ACA insurance through the state's federal exchange. It has been further represented that 85 percent of West Virginians who purchase insurance through the exchange are eligible for subsidies that average $388 per month to help reduce the cost, and that 55 percent of the total of them will be able to purchase ACA insurance for less than $100 after subsidies are taken into account.

I wonder how many of the ACA insureds who are expected to pay in 2017 unsubsidized premiums as indicated above will say that the ACA is "worth fighting for."

Nevertheless, I agree the ACA cannot simply be repealed. Without an "artfully drafted," carefully deliberated and thoroughly understood alternative for the roughly 20 million now enrolled could result in a political train wreck of greater magnitude than that wreaked by the ACA, even when it was propped up by amendments supplied by the Supreme Court in extrajudicial rulings to avoid its spiral of death.