I do want, at some point, to get into what the world will look like after the Supreme Court ruling on health care, and the implications for where progressives go – and where the political class will be willing to be taken – in the aftermath. But I do want to highlight just what a mess this could turn out to be if the Court tries for the maximal decision, and invalidates the entire Affordable Care Act because of the constitutionality of the individual mandate. Because of the lack of a standard severability clause in the law, and the desire on the part of at least some of the conservative faction to bury the law entirely, including good elements like the Medicaid expansion and funding for community health centers, this is entirely possible. And it would provoke utter chaos.
The thing is, some standard health-related policies were reauthorized or changed inside the Affordable Care Act. So if it all goes down, Congress would have to scramble quickly, Here’s just what it means for Medicare:
First up: Medicare. The Affordable Care Act changed the formulas that Medicare uses to pay providers from top to bottom. It shifted growth rates, boosted some providers’ pay, and baked in financial incentives for doctors and hospitals that achieve quality benchmarks. It also codified many of the Medicare payment adjustments that it passes every year. (After all, when you have one big health bill moving, why not throw in everything?) Since 2010, regulators have acted on those changes, and the Centers for Medicare and Medicaid Services pays out 100 million medical bills each month according to the new pay scale.
If the law is overturned, no one is sure what figures the system would use. Should CMS continue to pay providers at the rates set by the law? Or should it go back to 2009 levels? Both Donald Berwick, who ran CMS under President Obama before he joined the Center for American Progress last year, and Gail Wilensky, who held a similar post during the presidency of George H.W. Bush and is now at Project HOPE, said they don’t know the answer. The House Ways and Means and Senate Finance committees would need to move fast to establish a clear legal authority for CMS to pay providers.
Adding to this is the fact that CMS has an IT system that would be best described as a slight step above an abacus, and massive, sudden changes to the pay rates are probably beyond its ability to handle. And it’s not just Medicare. The Indian Health Service was reauthorized through the law, which provides care for almost 2 million Native Americans and Aleutians. The community health centers were funded through the ACA, as were grants to the health care workforce. CDC is apparently chipping off some of the ACA-appropriated funds for public health and prevention for its services. All of these programs would go away, and leave a confused landscape in its wake. What’s more, billions of dollars on these aforementioned and other ACA-authorized programs have already been spent, and you can expect lawsuits over that spending if the law gets struck down.
While it is clear that funding would end eventually if the law is thrown out, there is no precedent for exactly how the money would be unwound since no law of this size has been invalidated in recent history. Legal experts predict companies may file lawsuits to recoup any money they spent tied to requirements under the law.
Many employers and health-care companies have received money under the law so far. The federal government has paid out $5 billion to companies to help cover health-insurance costs for early retirees.
The government and the pharmaceutical industry also have spent $3.7 billion between them to help pay for 5.25 million prescriptions filled by seniors, as required by the law, according to new figures released Monday.
In addition, the federal government is paying 10% bonuses to most primary-care physicians who treat Medicare beneficiaries and has awarded billions of dollars more in grants, contracts and loans to health providers to change the way they deliver health care.
This is really uncharted territory. Most experts are just looking past it, not expecting it to happen. But remember, at one point most experts thought there was no possibility of a serious challenge to the law.
On the other end of the spectrum, you have the possibility of the Court invalidating the mandate but keeping the penalty as a tax. For example, four Justices could vote to uphold the mandate and the tax for noncompliance, and one or two concur on the tax. Then you would have no individual mandate but all the mechanisms to carry out what amounts to a mandate, with the penalty intact. And nobody really knows what that world would look like either.





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Sometimes chaos means that people wake up and say “the status quo isn’t going to work for me right here right now.” This is the thesis of Rebecca Solnit’s A Paradise Built In Hell.
http://www.dailykos.com/story/2012/06/20/1098931/-A-look-back-at-Solnit-s-Paradise-Built-In-Hell
We can only hope.
The mandate is awful and should be struck down. I’m concerned about the people who have benefited from the ACA and could quickly be dumped off. They must be in a panic.
talked to one of my best friend’s last night and discovered her job is funded through ACA. her whole office is just sitting there, waiting, for whether they’ll be able to continue breast cancer screenings for low income women.
I don’t think the SC has a clue or a care about the real world. They sit around and have an endless intellectual and ideological circle-jerk over the law and what the hallowed Founders supposedly intended.
My, what a fine idea it was to let PHARMA, the AMA, etc. write the bill. And, then stretch it’s implementation over 5 years. What could go wrong? Actually, I agree with the, “let it fall apart” theory. Now, maybe, finally, John Q. Public sits up and takes notice that not only is his health care all fucked up but the whole corporate politics thing is killing him, too. I’m not going to hold my breath, mind you…
“I’m not going to hold my breath, mind you…” That’s two of us. Obama let himself be played by the so called Health lobby. He’s knows damn well that they win either way and he couldn’t care less what happens to the rest of us.
I found two tea leaves to interpret in the Court’s opinions issued yesterday on the Arizona anti-immigrant statute. Kennedy in the majority opinion cited and relied upon a precedent from 1915 to rule that the Court would not go out of its way to address constitutional issues that it did not need to address to resolve a case. Scalia, in his bombastic, hair-on-fire dissent, showed he is deeply angry and resentful that Chief Justice Roberts joined the majority to strike down big chunks of a fascist law.
There was no reason for Kennedy to cite the 1915 precedent, except to signal to legal observers that a slim majority on the Court still believes in the Court’s duty to honor precedent and to confine itself to issues necessary to resolve actual concrete cases presented to it, and that the restrictive view of the Court’s role pre-dates the controversial New Deal battle that the Court eventually lost in the 1930s. There was no reason for Scalia to vent his spleen so dramatically if the Chief Justice was going to join him in two days to gut Obamacare.
At least I hope that’s what those two tea leaves mean.
I don’t think anyone as intelligent as Obama is reputed to be allows himself to be “played”. I think the only people that got “played’ were those who believed his rhetoric. All of his friends and advisors are members of the 1% and he is in it for his and their benefit.
One more brain-dead move by the Democrats. The issue isn’t “Obamacare.” It’s affordable healthcare for all. If the Supreme Court overturns all or part of the Affordable healthcare Act, Democrats and independents need to fight back — and fight back hard. Single-payer should be back on the table, since Republican political cynicism and opportunism and a partisan Supreme Court seem to have made any other kind of reform impossible. Calls to support Obama and his “Obamacare” won’t do it. You don’t fight a determined political opposition by accepting their framing of the issues. You create your own.
If SCOTUS kills any part of the ACA, the Obama Haters will be dancing in the streets in victory…I don’t know if I can take it. The right celebrating crawling backward as human beings…jeesh! We should give up zippers and go back to buttons so it will take more work for me to pull my dingus out and piss on a conservative.
I so totally agree with you! In fact, you said very well what I was thinking!
Yes, Fractal, I had a similar impression. scalia’s partisan hackery was totally out of the perview of SCOTUS and was nothing but an innane republican talkingpoint/rant.
Roberts is writing the decision for ACA, and the little nugget that Judge Ginsberg let out last week, about the ‘disagreements’ on the court reinforces your proposition.
The Arizona decision revealed the wingnuttery of alito who was as pathetically lame as thomas though not as rabid as scalia.
I think some of the ACA will be struck but it won’t go down in flames, and as Howard Dean has always said, would survive without the mandate.
The Plan B would be for the President to campaign on the need for a Democrat house to repair the bill.
This is a dilemma of the President’s concoction. It always was the potential undoing to collude with the corporate insurance/pharma/hospitals rather than sell this popularly to the people.
Dean and Robert Reich have been consistently on the side of right and truth in their analysis and observations about this issue for the last several years. Their ostracism and reduction to pariah status is one of many reasons there is tepid support or empathy for the president from what should be his base, and a dearth of effective surrogates to counter the rapacious drumbeat of opposition that is promulgated in the corporate, republican owned MSM.
Your right MadisonGuy. But once again we will not solve this problem unless we put the blame where it should go and that is the people in this country. The politicians play to the majority and you can better believe that if the voters insisted that we have single payer or demanded some other kind of low cost health care that insures us all, the Republicans would be crawling on their bellies to provide us with a plan. The Conservatives are challenging us to put single payer on the ballot because they are sure it is going to fail because they understand how stupid the public is. I am a member of FDL and read the healthcare comments daily from members and no one wants to put the blame where it really belongs. We have to somehow get to the substandard intellect of the American People and educate them. Make them understand that no one is going to force them to die, or offer them third world country health care. If the SC scraps this plan and I am sure they will, who is going to start this thing up again? How long ago was it that Clinton failed before it resurfaced again ? I really thought we would get single payer with the election of Obama but now I believe that would have failed also.
You do realize that Obama’s “signature healthcare legislation” was crafted by the Heritage Foundation, was largely written by a former Health Insurance Industry executive, and is a gift to the Health Insurance Industry, don’t you? Lose the partisanship and realize that the real fight is between the “haves” and the “have-nots”, and no one in office works for you, but represents their paymasters, the corporations.
Reading the tea leaves from Arizona, Justice Ginsberg (and maybe Sotomayor albeit who self-recused) may have done some horse-trading to join Kennedy and Roberts in voting unanimous on the one “show your papers” part whilst nixing the more egregious elements. Same may be true with ACA. First thought was the scotus would chuck the whole thing (as the 3 crazies will vote to do). Now, not so sure. If willing to give “show your papers” a chance to work, same may be true with ACA — see how it works first.
As it is, the Arizona “show your papers” law is truly bizarro. Does anyone traveling to Arizona have to carry their passport and birth certificate (long form, of course) before entering the state? Or if go out for a hike or jog or to work in the fields where get all sweaty, one is supposed to carry your most important paper documents on your person?
Of course, if you don’t look Hispanic, then supposedly you’re safe, since the cops will only ask for papers if you look Hispanic. Crazy.
“… Obama’s “signature healthcare legislation” was crafted by the Heritage Foundation, was largely written by a former Health Insurance Industry executive, and is a gift to the Health Insurance Industry,..”
FDL’ers have been calling ACA a corporate welfare bill since the beginning.
The fact that it helps a few people along the way does not change the fact that it is bad law and if upheld, terrible precedent.
We cannot fix what is wrong with our healthcare system by rewarding and enriching those that caused the problem in the first place.
Very well put.
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I am 100% sure the USSC will rule in favor of the mandate, and against the medicaid expansion, in order to maximize industry profit.
I understand what you are saying and look does Obama deserve reelection. NO.
However that bill insured my 25 year old and would insure preexisting conditions……..it was something. When it takes a dive we get nothing but increased insurance rates and reduced services. Do any of us here like the bankers? But we still use them. Who here is putting money under their mattress? Yes the Dems and Repubs suck and I plan on voting out some incumbents in my district but what Republican gave us unemployment compensation, ADA benefits, SS and Medicare, Food Support, FMLA, etc. I get a bone thrown to me now and then from my Dem reps. What choice do I have???
I moved all my accounts out of Wells Fargo and B of A into community banks. Not perfect but a big improvement.
My daughter has had a pre-existing condition since birth: cerebral palsy. She went on Medicaid at 18. It is nearly impossible to find a primary care physician that will accept Medicaid now. Adding 15 to 20 million to Medicaid is the surest way to doom the program. There is no provision to provide doctors to see the additional enrollees. All that will be left is hospital emergency rooms.
There is now a private for profit “emergency clinic” on every street corner in my neighborhood. I do not believe they are under the same mandate as hospital emergency rooms to provide emergency care to those who cannot pay. I fully expect to see the local hospitals close their existing ER’s in short order leaving the uninsured, indigent and Medicaid enrollees no place to go for care.
Ok Coach so what would you recommend that would serve us all adequately.
what would be the perfect solution to coverage for all of us. I am witnessing my elderly neighbors losing their houses to health care and I am scared to death.