Next week, the Supreme Court begins three days of hearings on the Affordable Care Act. The justices will have to rule on the constitutionality of the individual mandate and the Medicaid expansion, unless they rule that the plaintiffs lack standing to sue because the penalties under the law have not come into existence yet.
Jeffrey Toobin has a nice piece about the relevant issues, as seen through conservative appeals court judge Brett Kavanaugh, who warned his colleagues to be careful what they wished for, that if they struck down a mandate based on using private companies to deliver benefits, the only recourse for the government would be to retreat to public options where the constitutionality is more well-grounded (of course, an adverse ruling on the Medicaid expansion would upend this case). Kavanaugh also has some crazy ideas about how future Presidents could simply “deem” the law unconstitutional and refuse to implement it.
But I’m more interested in what happens in the event of one “worst-case scenario.” If the mandate is upheld along with the Medicaid expansion, or even if the court rules a lack of standing, business as usual continues and the implementation goes forward to 2014, when the exchanges begin. But if the mandate is severed from the bill, then things get interesting. Louise Radnofsky writes about that scenario today:
The insurance industry and advocates of the health-care overhaul are sketching out contingency plans in case the Supreme Court strikes down a central part of the law in the coming months.
Their worst-case scenario: The court knocks out the law’s mandate that most Americans carry insurance or pay a fee but leaves in place requirements that insurers sell policies to all applicants. The result, they say, would be spiraling insurance premiums, because sick people would buy insurance and nothing would stop healthy people from waiting to buy it until they needed it.
“The insurance reforms would have to change if the mandate were struck,” said Justine Handelman, vice president of legislative and regulatory policy for the Blue Cross and Blue Shield Association trade group.
But how would they change? Republicans and Democrats would obviously have different views on that. And it would be difficult to reach consensus and navigate the interlocking committees with jurisdiction, as we saw throughout 2009 and 2010.
The insurance industry would maneuver to throw out the pre-existing condition exclusion, fearing the outcome if anyone can buy insurance without restrictions but isn’t compelled to by law (the idea being that people will join up for insurance the moment they get sick). Insurers also want to ditch the modified community rating aspect, which forces them to charge the same amount for their product with few exceptions. Then, the industry would want to come up with some mechanism to reward those who voluntarily purchase insurance and punish those who don’t.
This could manifest itself in a variety of ways. There could be a narrow enrollment period annually where people could enroll without a penalty, with significant penalties outside the windows. Insurers could deny certain treatments at the outset of a policy, to limit “free-rider” aspects. There could be rewards in the form of lower premiums for healthy people or younger people. They could incent employers to sign up more people for health insurance, expanding the risk pool. Or they could get credit reporting firms to include health insurance in one’s personal credit rating, which would impact the ability to purchase a mortgage or an auto loan. Additionally, you could see a national tax for uncompensated care, to deal with the cost of the uninsured in a non-mandate universe.
These are some of the ideas being discussed. It’s true that not every insurance system in the world is backed by an individual mandate, and some of them work well. There are elements of the ideas put forward by insurers, like the discounts for healthy or young customers, that insurers could implement today without Congressional action. Others would require Congress to untangle their law. And since the baseline theory in the Republican Party is that the entire law must be scrapped, I don’t see any reason they would be agreeable to such changes.
Considering that the penalty for not getting insurance is so weak – $95 or 1% of income, whatever is greater – and considering that the CBO still expects 27 million uninsured even with a “mandate” universe, it’s not clear to me what we’re fighting. If insurance companies feel like they would capture as many profits without the mandate, I don’t know why I’m compelled to care, unless they start breaking the law to rip off consumers as a result. Anyway, the political world will surely buzz about it all anyway.




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It probably wouldn’t be hard to figure out what the insurers will do if one spent some time speculating about it.
The general principle is to make the most amount of profit while doing the least amount of work.
As a first guess, I’d say go bust bc then they need to do no work and the taxpayer will bail them out. CEOs severance packages will be $32 million, which sure beats ‘working’ to eke out their paltry livings.
What eCahn said…
I’d add: Single-payer, or, at the least, a strong public option…
But given this president and the fact that he checked into the GOP’s political spay-and-neuter clinic well before the mid-terms, I guess either of those is a fantasy.
Such is the predicament of approaching universal coverage while enshrining profiting on human misery. The answer, single-payer, is staring at everyone, but they’re all diverting their gaze.
Profiting from human misery is a good thing. /s
So now it all becomes clear. Obama’s secret plan to bring socialized medicine to the United States by getting the Supreme Court effectively to bankrupt the private insurers. Twenty-dimensional chess! Of course, there was always a simpler way. I like simple solutions. Probably why I am not presidential timber.
If twenty-seven million Americans will remain uninsured, how is ACA, in good conscience, even considered an “universal” health care plan?
Personally, I pray every day that Republicans will either succeed in repealing the ACA, or that the Supreme Court neuters this piece of legislative crap. Then, maybe, Democrats will step up to the plate and expand Medicaid (to cover the 27 million who would remain uninsured), or better yet, ram through “Medicare for All.”
This is a form of pricing for preexisting conditions. Older voters will not like that.
Actually, this is already written into the ACA. Older voters going through the exchange will be “rated” by age. Therefore, the pre-existing exclusion doesn’t benefit middle-aged and older folks a whole lot. Another reason we need Medicare for All.
These complications are pointless and unnecessary. Within the context of a badly designed system, I can understand the theoretical point of mandates. But in reality I know it will mean that my uninsured child will be forced to throw away money on an insurance policy that offers inadequate coverage.
This reminds me of net neutrality. What should have been an easy solution – the FCC could have reclassified the internet as a communications rather than an information service – has turned into a protracted and money-wasting battle in which the Administration is perceived to be fighting against recalcitrant Republicans.
“…unless they start breaking the law to rip off consumers as a result.”
That is a when question, not an if question.
All they need to do is hire a few bankers. They’ll get the hang of it soon enough.
That’s because our government doesn’t consider those people actually people. According to the Republicans they are parasites. Only the people at the top matter(Hint,hint: They run the insurance companies.)
SCOTUS will overturn the “mandate”. I think tht is certain. Besides that. Peyton Manning is going to the Broncos from the Colts. Wow, that’s very equine of him.
Q: When?
A: Very soon
Ditto!
That IS interesting.
Corporation ARE people. But people needing government assistance are PARASITES.
Very much, “I got mine, you go get yours you lazy good-for-nothing bums.”
It’s OK – his explanation on how healthcare is “unique” really just shows how it isn’t unique.
Actually that’s not crazy at all – many people at FDL and elsewhere are for example upset with Obama for enforcing federal marijuana laws. Presidents in any number of ways do this from signing statements to non-enforcement.
But Candidate Obama said that mandates weren’t the answer – afterall, you can’t just mandate away homelessness. The answer is affordable, high quality insurance, which President did everything possible to not make that happen even though as Candidate he knew that was the answer.
That sounds pretty scary
Naked corporate welfare, which I guess it would be good seeing this pushed to show how much Democrats and Republicans are in the pockets of corporations. There’s a huge issue with DC only regulating with the permission of those being regulating, which this would be a stark example. Corporations shouldn’t be receiving offsets for regulations as that just makes it a Profit Protection Racket at our expense.
1% is a huge drag on the economy to pay for this Profit Protection Racket. Just look at how much was made over the economic impacts of the [temporary] payroll tax decrease. We shouldn’t have to be tithing insurance companies to protect their profits.
Start??? Who says they ever stopped?
We are all just a bunch of wallets to Congress and their corporate overlords and once those wallets are empty then you just don’t matter.
Every once in a while I wish that the Christian Taliban is correct and that there IS a Hell just so I can imagine the whole lot of apathetic lawmakers and avaricious (otherwise termed as “savvy) business people there. They truly disgust me.
God forbid we create a system that works for the bottom 80% and provides health coverage for the cogs of the workforce, not if it might benefit the bottom line of Wellpoint or Blue Cross.
What we need and what we are going to get are two very different things. Last I checked, the Republicans were planning on eliminating most of what medicare does and raising the age limit so high that many won’t actually be able to use it. The House is not going to go along with anything that will actually cover people that are now uninsured, either. The Republican mantra is, “You are on your own”, and “If you cannot afford, or cannot get coverage, you’ve done something wrong in your life and deserve your situation”.
Profiting off illness and profiting off women, too. What a deal!
Women charged $1 billion more than men for health care: report
“The National Women’s Law Center released a report Monday morning that found health insurance companies have charged women $1 billion more than men for the same premium coverage, leading to the organization launching a campaign for women to fight against discriminatory practices.”
LINK.
So how much economic value did America blow out the car’s and truck’s tailpipes just today?
How much $$$ in a year? How much $$$ in Five Years?
Trillions of dollars! America has a substance abuse problem?
“…bottom line of Wellpoint or Blue Cross.”
BTW, is not BC a tax exempt not for profit Public Charity????
Its about protecting business models (profit) and fucking people!
The Blues may have started as not-for-profits but many are like our state’s which is a subsidiary of Health Care Service Corporation, a Mutual Legal Reserve Company, an Independent Licensee of the Blue Cross and Blue Shield Association. They make profit, but don’t have stockholders. Their CEO makes millions/year.
They went out of the non profit business. It was far too lucrative screwing over people to pass up.
Blue Cross was one of the biggest offenders out in California and one of the reasons the pre existing clause was put in health care. They got caught throwing people off the rolls after they got sick for bogus reasons like failing to disclose teenage acne and then used their “too big to sue” size to intimidate the state regulatory agency.
“Profiting from human misery is a good thing.”
Thassit…sickness and ageing: Growth industries!
Especially if you get one president after another who wants to protect that industry and their obscene profits.
And while we’re on the subject, I think I’ll just get out the old thread-hijacking machine while Phoenix and Margaret aren’t looking, and remind everyone that when a group of good democrats wanted to bring a bill to the House floor that would have stripped the robber-barons like Humana, BC-BS, United Healthcare, etc. , of their little exemption from our anti-trust laws, Pelosi stuffed it.
I trust that the dear souls who are loyally “staying on topic” are smart enough to figure out that she didn’t do that on her own hook. Potus-the-centrist had a little something to do with it. :o)
Personally, I’m willing to see the whole thing shitcanned. It’s so lousy, and so protective of the ultra-lucrative status quo for all of the healthcare leeches, that whatever good things there are in it are outweighed by the fact that
it still leaves the corporations making astronomical sums from illness and aging. Wrong.
The now-disgraced John Edwards, when he was still in the running, had the political courage to say:
“Hillary wants to keep the health-insurance companies in the equation. I want them completely out of it.”
Which is what needs to happen as we move to a government run system. Canada’s, for example, isn’t perfect but it’s so much better than what we have, that when I ask Canadians which one they’d rather be under, they practically hoot in derision.
Jim Joyce: “America has a substance abuse problem.”
Yessir, BIG drug problem…as in:
We’re getting drug into the poor house by corporate healthcare.
“. . .“deem” the law unconstitutional and refuse to implement it. . .”
—————-
That could consist of nothing more complicated than the Pres ordering HHS to issue blanket waivers, no? Problem there would be shelf life just until the next administration.
O will be better off if SCOTUS overturns the mandate or upends ACA entirely — either way.
Imagine the Dems win the trifecta in Nov. Then the Feds could farm out the mandate for the states to set up on their own, without which a state could be cut off from a lot of Fed funding. The mandate at the state level would be constitutional even if it turns out not to be so at the Fed level.
David, only the first year mandate penalty is $95 or 1% of income. By 2016 it rises to the greater of $695 per year up to a maximum of three times that amount ($2,085) per family or 2.5% of household income. Furthermore the penalty rises with inflation.