Obamacare: NJ keeping mandate even after appeals court rules against law

Dec. 20--TRENTON -- Consumers who have insurance through the individual marketplace should simply continue business as usual while the law winds its way through the courts once again.

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"The confusion is real," said Carole Johnson, commissioner of the New Jersey Department of Human Services. "It is almost like the intent of what the folks in Washington are trying to do, which is stir confusion and make it more challenging. Which is just not good public policy and not right for New Jerseyans."

The Affordable Care Act was back in the spotlight this week after the U.S. Court of Appeals Fifth Circuit ruled 2-1 that the requirement that everyone must buy health insurance became unconstitutional after Congress voted to take away the penalty.

It returned the case to a lower court to decide whether the rest of the law could survive without the mandate.

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The decision marked the latest step in the landmark law's history. Signed by former President Barack Obama nearly a decade ago, the sweeping legislation in part provides health insurance to individuals who aren't covered by their employer or Medicare.

But it has been the subject of a tug-of-war. Republicans long have tried both to repeal it in Congress and fight it in court. And even some Democrats running for president have said it doesn't go far enough and have proposed a single-payer system. Watch the video at the top of this story to learn more about their "Medicare for All" proposals.

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The original law has popular items. Insurers, for example, can't deny consumers coverage for having pre-existing conditions, and parents can keep their adult children on their policies until they are 26.

But it also charged consumers up to 2.5% of their household income if they didn't get insurance -- a less-popular idea that was designed to ensure healthy people would be forced in the insurance pool and keep rates lower. That charge was ultimately the key to the 2012 Supreme Court decision that ruled the law and the requirement that all Americans get insurance was constitutional, concluding the charge made the requirement part of Congress' power to tax.

The Republican-controlled Congress, as part of the 2017 tax reform bill voted to lower the penalty to $0. In New Jersey, Gov. Phil Murphy, a Democrat, responded by restoring the individual mandate.

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Figures released Friday by the federal government showed 247,543 individuals in New Jersey enrolled this year, down about 4% from last year. Another 500,000 or so New Jerseyans are covered by the Medicaid expansion that was part of the law.

Where it goes from here isn't clear. The lower court could make another decision about the entire law. Or Attorneys General trying to defend the law, including New Jersey's Gurbir Grewal, could ask the Supreme Court to step in and decide quickly.

"We need to put an end to this uncertainty," Johnson said.

Michael L. Diamond is a business reporter who has been writing about the New Jersey health care industry for a decade. He can be reached at 732-643-4038; mdiamond@gannettnj.com; and @mdiamondapp.

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