Northeast Mississippi Daily Journal (Tupelo) January 2, 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."
(c)2020 the Northeast Mississippi Daily
Journal (Tupelo, Miss.)
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the Northeast Mississippi Daily Journal (Tupelo, Miss.) at www.djournal.com
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