How the Supreme Court Could Rule on the Affordable Care Act

On Nov. 10, the U.S. Supreme Court will hear arguments on whether the Affordable Care Act (ACA) is constitutional, in whole or in part. The court is expected to rule on the matter before its term ends in June 2021.

Only those justices sitting on the court when the case is heard will vote, and it is not yet known if a new Supreme Court justice will be confirmed when the case is argued. A vacancy on the nine-justice court was created by the death of Justice Ruth Bader Ginsburg on Sept. 18.

In the meantime, "the health care law remains fully in effect during the litigation, including all employer coverage obligations and reporting requirements," said Chatrane Birbal, vice president of public policy at the Society for Human Resource Management.

Complex Case History

The Supreme Court's options for deciding this case are shaped by the complicated history of litigation over the ACA.

The origins of the case go back to 2012, when the court upheld the constitutionality of the ACA's penalty on individuals who lack health coverage—the so-called individual coverage mandate—as a justifiable exercise of Congress' power to tax.

In December 2017, however, President Donald Trump signed into law a tax bill that eliminated the ACA's penalty on individuals who lack health coverage. Afterward, several Republican state attorneys general, led by the state of Texas, filed a lawsuit arguing that the health care statute itself, or at least the parts of the act closely linked to the individual mandate, were no longer valid. Democratic states and the House of Representatives, led by Democrats, stepped in to defend the statute.

In December 2018, a Texas district court struck down the ACA but stayed its ruling pending appeal, concluding that the individual mandate is so connected to the law that Congress would not have passed the ACA without it.

On appeal, in Texas v. United Statesa split panel of the 5th U.S. Circuit Court of Appeals deemed that the individual mandate was unconstitutional, but the panel instructed the district court to rehear the matter and "to employ a finer-toothed comb on remand and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the mandate."

However, on March 2, 2019, before the district court could carry out the appellate court's directive, the Supreme Court announced it would hear the case in its term beginning in the fall of 2020, blocking the lower courts from taking further action.

5th Circuit Ruling Was Narrowly Focused

When the 5th Circuit instructed the district court to rehear the matter and to focus on those ACA provisions that Congress intended to be "inseverable from the individual mandate," this suggested, legal analysts said, that the appellate court was unlikely to overturn the ACA in full.

"Only the individual mandate was declared unconstitutional, and the portion of the lower court's decision invalidating the rest of the Affordable Care Act [was] vacated," according to an analysis of the appellate ruling by Segal, an HR consultancy. As a result, "plan sponsors know that the entire Affordable Care Act will not be overturned."

Had the case proceeded at the appellate level, the 5th Circuit might have struck down those parts of the law directly related to the individual mandate. The appellate decision noted, for instance, that community rating, which prevents insurers from varying premiums within a geographic area based on age, gender, health status or other factors, might be among the provisions determined to be "inseverable" from the individual mandate, because the increase in revenue to insurers from the mandate was meant to offset the decrease from these restrictions.

The ACA's guaranteed-issue provisions, which ban insurers from rejecting coverage based on a person's pre-existing conditions, might also be inseverable, the appellate decision noted.

Supreme Court's Options

The Supreme Court has the following options when it decides the caseThe Washington Post and other sources have reported:

  • To dismiss the case on technical grounds, leaving the statute in place. The court could decide, for instance, that Texas and the individual plaintiffs lacked standing to bring the lawsuit.
  • To affirmatively uphold the ACA.
  • To uphold the statute while finding the individual mandate to be void without its penalty, essentially maintaining the status quo.
  • To uphold the statute but void both the individual mandate and other provisions closely linked to the mandate.
  • To strike down the law in full, although that option has been viewed as unlikely by legal analysts. Should it happen, however, the effect of the ruling would likely be delayed, giving Congress the opportunity to correct the statute's constitutional defects or to pass a replacement health care law.

According to an analysis by the nonprofit Kaiser Family Foundation, "If the Supreme Court adopts the position that the federal government took during the trial court proceedings and invalidates the individual mandate as well as the protections for people with pre-existing conditions, then federal funding for premium subsidies and the Medicaid expansion would stand, and it would be up to states whether to reinstate the insurance protections."

If that were to happen, Congress also could reinstate protections for people with pre-existing conditions.

Joe Biden, the Democratic presidential nominee, has voiced his support for the ACA, sometimes referred to as Obamacare, pointing out how it safeguards people who might not otherwise qualify for coverage. His campaign website says, "Because of Obamacare, over 100 million people no longer have to worry that an insurance company will deny coverage or charge higher premiums just because they have a pre-existing condition—whether cancer or diabetes or heart disease or a mental health challenge."

President Trump has also pledged to maintain these protections even as his administration supports the lawsuit that seeks to overturn the act. During his acceptance speech for the Republican presidential nomination, Trump said, "We will always, and very strongly, protect patients with pre-existing conditions, and that is a pledge from the entire Republican Party."

In Case of a Tie Vote

"If the case is heard by the current eight justices and results in a 4-4 vote, the justices could reschedule oral argument or delay consideration until [Texas vs. United States] can be reheard by a full Court," wrote Katie Keith, a former research professor at Georgetown University's Center on Health Insurance Reforms and a contributor to the Health Affairs blog. "This might mean Texas would be reheard later in the spring depending on the timing of confirmation."

Alternatively, "the Court could issue a 4-4 ruling, which would maintain the status quo and leaves the appellate decision intact. In this instance, the 5th Circuit's ruling would stand and the case would be remanded back to the district court," she noted.

If that is the outcome, "the ACA would remain in effect while the district court undertook a provision-by-provision severability analysis," Keith noted. "The litigation would continue for years as we await a new district court decision, another appeal to the 5th Circuit, and most likely a return to the Supreme Court."


Thinking Ahead

"Employers will be wise to give some thought to how they might react to different outcomes, Mercer, an HR consultancy, advised. "For example, if some common provisions eliminated by the ACA like annual/lifetime dollar limits on essential health benefits, ending dependent coverage at age 19/23, or the previously mentioned pre-existing condition exclusions were permitted again, would an employer reshape their plan design to curb costs? If the employer 'play-or-pay' mandate (the 30-hour rule) were struck down, would an employer move full-time eligibility back to 40 hours?"

Concluded Mercer's consultants, "There is much to consider with these possible ACA changes," should they come to pass.

SOURCE: Miller, S. (23 September 2020) "How the Supreme Court Could Rule on the Affordable Care Act" (Web Blog Post). Retrieved from

How US health care reform will affect employee benefits

Shubham Singhal, Jeris Stueland, and Drew Ungerman
Source: Healthcare Systems and Services Practice

US health care reform sets in motion the largest change in employer-provided health benefits in the post–World War II era. While the pace and timing are difficult to predict, McKinsey research points to a radical restructuring of employer-sponsored health benefits following the 2010 passage of the Affordable Care Act.

Many of the law’s relevant provisions take effect in 2014. Our research suggests that when employers become more aware of the new economic and social incentives embedded in the law and of the option to restructure benefits beyond dropping or keeping them, many will make dramatic changes. The Congressional Budget Office has estimated that only about 7 percent of employees currently covered by employer-sponsored insurance (ESI) will have to switch to subsidized-exchange policies in 2014. However, our early-2011 survey of more than 1,300 employers across industries, geographies, and employer sizes, as well as other proprietary research, found that reform will provoke a much greater response. See more information about the survey methodology.

  • Overall, 30 percent of employers will definitely or probably stop offering ESI in the years after 2014.
  • Among employers with a high awareness of reform, this proportion increases to more than 50 percent, and upward of 60 percent will pursue some alternative to traditional ESI.
  • At least 30 percent of employers would gain economically from dropping coverage even if they completely compensated employees for the change through other benefit offerings or higher salaries.
  • Contrary to what many employers assume, more than 85 percent of employees would remain at their jobs even if their employer stopped offering ESI, although about 60 percent would expect increased compensation.

In this new world, employers must quickly examine the implications of health care reform on their benefit and workforce strategies, as well as the opportunities and risks that reform generates. Of course, the type and extent of the changes employers make will vary by industry, collective-bargaining agreements, and other constraints. Most employers, however, will find value-creating options between the extremes of completely dropping employee health coverage and making no changes to the current offering. Even employers that intend to provide benefits similar to those they currently offer can take no-regrets moves, like tailoring plans to maximize what their employees will value most about ESI after 2014. Employers pursuing more radical changes will have to rethink benefit packages for higher-income employees.

And all employers must continue to keep in mind their employees’ health and wellness needs, even as insurance coverage levels evolve. To serve employers, insurers must retool their business models to provide more consultative support during the transition and develop innovative approaches to support employers’ new benefit strategies (see sidebar “Implications for health insurers”). For employers and insurers, success after 2014 will require a better understanding of employee and employer segments, and the development of the right capabilities and partnerships to manage the transition.

A transformed employer market

Health care reform fundamentally alters the social contract inherent in employer-sponsored medical benefits and how employees value health insurance as a form of compensation. The new law guarantees the right to health insurance regardless of an individual’s medical status. In doing so, it minimizes the moral obligation employers may feel to cover the sickest employees, who would otherwise be denied coverage in today’s individual health insurance market. Reform preserves the corporate tax advantages associated with offering health benefits—except for high-premium “Cadillac” insurance plans.

Starting in 2014, people who are not offered affordable health insurance coverage by their employers will receive income-indexed premium and out-of-pocket cost-sharing subsidies. The highest subsidies will be offered to the lowest-income workers. That reduces the social-equity advantage of employer-sponsored insurance, by enabling these workers to obtain coverage they could not afford on today’s individual market. It also significantly increases the availability of substitutes for employer coverage. As a result, whether to offer ESI after 2014 becomes mostly a business decision. Employers will have to balance the need to remain attractive to talented workers with the net economics of providing benefits—taking into consideration all the penalties and tax advantages of offering or not offering any given level of coverage.

What the law says

Health care reform imposes several new requirements on employer health benefits. Some changes will be incremental; for example, annual and lifetime limits on care must be eliminated, and coverage must be offered to dependents through age 26. Plans with premiums above certain levels will be subject to a so-called Cadillac tax.1

Other requirements are game changing and could prompt employers to completely reconsider what benefits they offer to employees. Reform requires all employers with more than 50 employees to offer health benefits to every full-timer or to pay a penalty of $2,000 per worker (less the first 30). The benefits must provide a reasonable level of health coverage, and (except for grandfathered plans) employers will no longer be able to offer better benefits to their highly compensated executives than to their hourly employees. These requirements will increase medical costs for many companies. It’s important to note that the penalty for not offering coverage is set significantly below these costs.

Reform also offers options for workers to obtain affordable insurance outside the workplace. Individuals who are unemployed or whose employers do not offer affordable health coverage, and whose household incomes are less than 400 percent of the federal poverty level,2 are eligible for subsidies toward policies they will be able to purchase on newly created state insurance exchanges. These will offer individual and family policies of set benefit levels (bronze, silver, gold, and platinum) from a variety of payers.

The subsidies will cap the amount lower- and middle-income individuals and families will have to spend on health coverage, to 9.5 percent of household income for those at 400 percent of the federal poverty level and less for those at lower income levels. The subsidies will keep the cost of insurance coverage from the exchanges below what many employees now pay toward employer-sponsored coverage, especially for those whose earnings are less than 200 percent of the federal poverty level.

A bigger effect than expected

As we have seen, a Congressional Budget Office report estimated that only 9 million to 10 million people, or about 7 percent of employees, currently covered by ESI would have to switch to subsidized exchange policies in 2014. Most surveys of employers likewise show relatively low interest in shifting employees from traditional ESI.

Our survey found, however, that 45 to 50 percent of employers say they will definitely or probably pursue alternatives to ESI in the years after 2014. Those alternatives include dropping coverage, offering it through a defined-contribution model, or in effect offering it only to certain employees. More than 30 percent of employers overall, and 28 percent of large ones, say they will definitely or probably drop coverage after 2014.

Our survey shows significantly more interest in alternatives to ESI than other sources do, for several reasons. Interest in these alternatives rises with increasing awareness of reform, and our survey educated respondents about its implications for their companies and employees before they were asked about post-2014 strategies. The propensity of employers to make big changes to ESI increases with awareness largely because shifting away will be economically rational not only for many of them but also for their lower-income employees, given the law’s incentives.

We also asked respondents questions about their philosophy and decision-making process for benefits: the current rationale for providing them, which employee group is considered most when decisions are made about them, their importance in the respondent’s industry, and geography. These questions prompted the respondents to consider all the factors that will influence their post-2014 decisions. Finally, we tested options beyond dropping coverage outright. These alternatives will probably be the most effective ones for delivering a reasonable return on a company’s investment in benefit programs after 2014. We would therefore expect to see a level of interest higher than that generated by surveys asking only about plans to keep or drop ESI.

Estimating the employer impact

As employers consider their post-2014 options, they should take a dynamic view by considering how competitors for talent—other employers—and their own employees will react. Many employers will be shifting from ESI; it is unlikely that only one company in an industry or geography will move away from it.

ESI might also be less valuable than most employers assume. Among employers not likely to drop ESI, three of the top five reasons given (and two of the top three) were concerns about talent attraction, employee satisfaction, and productivity. Among employees, however, McKinsey consumer research found that more than 85 percent—and almost 90 percent of higher-income ones—say they would remain with an employer that dropped ESI. Overall, employees value cash compensation several times more than health coverage. Further, many younger employees also value career-development opportunities and work–life balance more than health benefits.

Making employees whole

To make up for lost medical insurance, most employers that drop ESI will increase employee compensation in other ways, such as salary and other benefits like vacation time, retirement, or health-management programs. Employees think this will happen: 60 percent say they would expect employers to increase compensation if health benefits were dropped, our consumer research shows. Employers will do so to remain competitive for talent. In addition, ensuring some level of employee health, through higher investment in wellness programs or another mechanism, helps to maintain the productivity of workers.

Our research found that even with conservatively low assumptions about eligibility for employee subsidies, at least 30 percent of employers would benefit economically by dropping health coverage even if they make employees 100 percent whole. Employers could do so by paying sufficient additional compensation to help employees purchase coverage with no other out-of-pocket expense (less subsidies for employees with household incomes below 400 percent of the federal poverty level), the additional individual income and payroll taxes levied on the increased compensation, and the $2,000 government penalty.

But we believe that employers will not have to provide 100 percent of the value of the lost insurance. If so, even more employers will benefit economically. In the course of our research, we interviewed executives at Liazon, a defined-contribution-benefit company. They have found that when employees are shifted from coverage selected by their employer to a defined-contribution plan (under which the employer provides a fixed dollar amount and the employee can choose how to allocate it among a variety of benefit options), about 70 percent of employees choose a less expensive health plan.

Higher-income employees, who won’t receive subsidies and would have to pay the entire cost of individual coverage out of pocket, will have a greater need to be made whole. These higher-income employees, however, are also more likely to be satisfied with partial compensation or with tax-advantaged forms of compensation, such as retirement benefits.

The need to make employees whole will decrease over time. Subsidies will be awarded to keep premiums below a fixed percentage of an individual’s household income. As long as income continues to rise at a rate lower than that of medical inflation, even employees who initially have to pay more out of pocket toward an exchange policy than they would toward ESI will have less of a difference to make up each year, and the employer will have to provide less to make employees whole.3

This development should not suggest, however, that employers considering the elimination of ESI are focused exclusively on the bottom line, at the expense of their employees. In fact, because of the subsidies, many low-income employees will be able to obtain better health coverage, for less out of pocket, on an exchange than from their employer.

In fact, employers indicating that they will definitely or probably drop (or otherwise shift from) ESI post-2014 are more likely to consider the impact on low-income workers (as opposed to other groups of employees) when making benefit decisions and two to three times more likely to view benefits as important to attracting talent in their industry and geography. These employers are considering shifting from ESI not because they don’t care about their employees but because they recognize that, after 2014, ESI may not be the most efficient way to provide health coverage (see sidebar “The range of coverage options for employers”).

Getting ready for the new world

To prepare for 2014, employers should explore the economics of benefits after reform, maximize the return on investment (ROI) of benefit packages, design them for higher-income employees, and satisfy the health and wellness needs of the whole workforce.

Explore the economics of postreform benefits

Employers must understand, at the microsegment level, the eligibility of employees for subsidies under different scenarios—for example, when the employer provides no coverage at all, coverage defined as “unaffordable” (at a premium above 9.5 percent of the household income) for some employees, or coverage above the Cadillac-plan threshold. Companies must determine the cost of making employees whole, using market research tools to find out how much they value ESI, cash compensation for it, and a variety of other benefits. The importance for workers of a given benefit may not correlate directly with its tax-adjusted cost to the employer.

Maximize the ROI of the benefit package

The discussion to date has largely focused on dropping versus keeping coverage, but for most employers the most value-creating options lie in between. Employers should evaluate the economic impact not only of expanding ESI to every employee (compared with dropping it completely) but also of shifting toward part-time labor, allowing lower-wage employees to qualify for exchange subsidies through setting premiums above 9.5 percent of their household income, or adopting defined-contribution models. These intermediate options will probably be the most effective way to secure a reasonable ROI for benefits after 2014, because they enable employers to provide the best possible result for each segment of employees—ESI for higher-income ones not eligible for subsidies, as well as affordable coverage from a subsidized exchange for lower-income workers.

Even employers that continue to offer ESI—and many will, especially in heavily unionized industries where flexibility may be limited—could make no-regrets moves to maximize the ROI of benefits after 2014. Market research tools could be used to determine the preferences of employees, so that the benefit plan emphasizes what they value most while minimizing other features. Other strategies would involve designing plans and enrollment features to reduce costs, pricing plans to promote responsible use, and ensuring that wellness spending produces a positive return. Retiree medical benefits could be shifted from traditional ESI toward Medicare (the federal government’s health care program for those 65 and older) and Medicare Advantage (the private-sector version of the government plan).

Design benefit packages for higher-income employees

Because lower-income employees will be eligible for exchange subsidies if their employers don’t offer them affordable health coverage, we expect that ESI will shift toward higher-income employees. This group will have more demanding expectations for service levels and convenience, as well as different attitudes toward benefits covered.

Employers should tailor their ESI offering to include navigation tools that make it easier to identify and get appointments with high-quality health care providers and fast access to well-informed people for assistance with billing or coverage issues. These services could be provided through partnerships with enterprises that specialize in explaining medical bills and pricing. Higher-income employees may also value preferred-access or other enhanced-care physician services more than a traditional Cadillac ESI plan. These alternative benefits may be more cost effective for employers once the Cadillac tax comes into effect, in 2018.

Satisfy employee health and wellness needs

Even for an employer that drops ESI for all or some employees, maintaining their health, productivity, and satisfaction will continue to be important. Employers could not only expand or refine wellness programs to focus on elements that have a substantive, positive, and documentable impact on employee health and satisfaction but also provide the right incentives to encourage participation. In addition, employers could establish clinics at work sites, or partnerships with local providers or pharmacies so that employees can easily and affordably receive preventative care, such as flu shots or annual physicals. Another way to keep employees satisfied and avoid disrupting their lives would be to partner with a broker or another enterprise that helps them understand their benefit options and enroll for coverage on insurance exchanges.

Employers should recognize that as the ESI market changes after 2014, the system will react dynamically. If many companies drop health insurance coverage, the government could increase the employer penalty or raise taxes. Employers will need to be aware of actions by participants at any point along the health care value chain and prepare to adapt quickly.

Whether your company is poised to shift from employer-sponsored insurance or will continue to offer the same benefit package it does now, health care reform will change the economics of your workforce and benefits, as well as how your employees value coverage. Understanding these changes at a granular level will enable your company to gain or defend a competitive advantage in the increasingly dynamic market for talent.

Both sides poised for healthcare ruling

By Sam Baker

Lawmakers and interest groups don’t know how the Supreme Court will rule on President Obama’s healthcare law, but they’re ready to respond as soon as the decision is released.

The court is expected to issue its decision shortly after 10 a.m. Thursday. Once the ruling is announced, the courthouse steps and the Capitol, just across the street, will become circuses of spin.

House Republicans will likely hold multiple press conferences throughout the day. The party leadership will likely want to address the ruling, especially if the court strikes down all or part of the law.

The GOP’s Doctors’ Caucus is also planning a news conference Thursday afternoon. And Rep. Michele Bachmann (R-Minn.) reportedly reserved space outside the Capitol to hold her own event.

President Obama is scheduled to be in meetings at the White House all day Thursday. A White House spokesman would not say whether he will have any public comments in the wake of the court’s ruling on his signature domestic achievement.

A spokeswoman for Mitt Romney’s presidential campaign did not respond to a question about Romney’s schedule Thursday.

The healthcare case has greater short-term political implications than any case since Bush v. Gore, which decided the 2000 presidential election.

A victory at the Supreme Court would be an enormous boon to either side, yet pundits and strategists from both parties have also suggested that the losing side might gain a political upper hand by using the decision to rally its base.

Speaker John Boehner (R-Ohio), however, warned his caucus last week not to “spike the football” if the court strikes down the healthcare law. Excessive celebration could detract from the party’s focus on the economy, he said.

Rep. Tom Price (R-Ga.), a physician, said focusing on healthcare as an issue doesn’t have to cross the line into cheering the demise of the Affordable Care Act (ACA).

“The reason this isn’t a cause for celebration is that the status quo is unacceptable,” Price told The Hill in an interview.

Even if the court upholds the ACA, Republican leaders plan to press ahead with another vote to repeal the law.

Sen. John Thune (R-S.D.) said at a press conference Tuesday that if the court leaves any of the law standing, Republicans will try to repeal it and replace it with “step-by-step reforms” of their own.

A Senate Republican leadership aide would not provide specifics about the party’s plans following Thursday’s decision or say whether Minority Leader Mitch McConnell (R-Ky.) has delivered the same message as Boehner about “spiking the football.”

Democrats, meanwhile, aren’t especially thrilled that the decision will come just before the weeklong July 4 recess — meaning healthcare will dominate the headlines following Thursday’s ruling and will then be back in the news once Congress returns and House Republicans move on to their repeal vote.

“If we were here, then we could then move rapidly to get something on the agenda, something in the hopper, to respond to this in a way that the American people would understand that we’re going to move ahead on this,” said Sen. Tom Harkin (D-Iowa), the chairman of the Health, Education, Labor and Pensions Committee.

Harkin and his staff have been working on contingency plans in case the court strikes all or part of the law, but they will have to hold on to those options until after the July 4 holiday.

“As it is, we have these 10 days off,” he said. “I’m just wondering if the politically motivated Supreme Court didn’t plan it that way.”

Democrats will still get in on the initial reaction, however.

Reps. Raúl Grijalva (D-Ariz.) and Keith Ellison (D-Minn.), the leaders of the House Progressive Caucus, are planning a rally just outside the Supreme Court immediately following the decision.

The plaza outside the court has been slowly filling with protesters and interested onlookers as the healthcare ruling draws nearer. Although protests Thursday aren’t expected to rival the sea of activism that surrounded the court during oral arguments, protesters had amassed a respectable presence Monday amid the crush of TV crews camped out in front of the court.


Supreme Court to deliver healthcare ruling on Thursday

By Elise Viebeck - 06/25/12

The final countdown has begun for the landmark decision on President Obama’s healthcare law.

The justices will render judgment on the controversial law on Thursday, ending months of speculation about a ruling that could have far-reaching implications for the 2012 election and beyond.

The ruling will come shortly after 10 a.m. Thursday, at the end of an action-packed week for lawmakers on Capitol Hill.

Anticipation grew over the weekend that the Supreme Court would issue the healthcare decision on Monday morning. Instead, the court ruled in the high-profile Arizona immigration case, while announcing that the remaining decisions for the term — including the health case, Florida v. Department of Health and Human Services  — would not be issued until Thursday.

The three-day deferral left Washington in a state of nervous anticipation for the ruling, which will have election-year ramifications for Democrats and Republicans alike. Congressional offices have been preparing their responses for months, though no one outside the court knows what fate awaits Obama’s signature law.

“We’re keeping a close eye on it. Absolutely. We’re having a war room every day — every Monday and Thursday,” Rep. Diana DeGette (D-Colo.) recently told The Hill.

The wealth of possible outcomes means that outside groups have also taken pains to prepare.

The pro-reform group Families USA, for example, already has eight statements pre-written about the decision. The advocacy group is hoping that one will match the final conclusion and enable the group to respond immediately.

By some estimates, between 50 and 100 people at or associated with the court already know the outcome in the healthcare case.

The court's customary practice is to meet in a private conference following oral arguments, discuss the case in order of seniority, then take an initial vote on how to rule — meaning the nine justices and their clerks have probably known the decision since the oral arguments in March.

But the court is a master of keeping decisions under lock and key, and hasn’t suffered a leak for ahead of a scheduled announcement for decades.

On Monday, the court did rule on one major case — striking down three out of four provisions of Arizona's controversial immigration law.

According to SCOTUSblog, journalists in the court chambers Monday knew no healthcare decision was imminent after a comment from Chief Justice John Roberts.

"Justice [Anthony] Kennedy has our second and final decision of the day, inArizona v. United States," Roberts reportedly said.

At that point, nearly 90,000 people were watching SCOTUSblog, a specialized site that has become the go-to resource for court-watchers in Washington.

Since Kennedy authored the majority opinion in the Arizona case, Roberts will “almost certainly” be the author of the majority opinion on healthcare reform, according to SCOTUSblog.

Health Care Reform: Four Companies That Are Leading Change

By Kathy Gersch

This week, Kathy Gersch, my Kotter International colleague, highlights four companies in the health care sector that are not waiting for a Supreme Court decision to transform their businesses.

The Supreme Court is set to rule on key provisions of the Affordable Care Act before the end of this month. With so much uncertainty around the future of the U.S. health care system, many companies have long been frozen, taking a “wait-and-see” approach to change, choosing to sit tight until the future becomes clearer.

But in a rapidly changing world, sitting tight can spell disaster.

“A leader of a large health care organization’s challenge is to play offense, not defense,” John Kotter wrote on this blog last summer. “If I were running a hospital… I would be focused on how do we make some significant change to take advantage of the opportunities that are going to be inevitable with this swirling, difficult, changing environment in health care.”

John is exactly right. And in the last few weeks alone, a number of hospitals and other health care providers have heeded his call and are taking drastic action.

The New York Times recently profiled one hospital in Brooklyn, New York — Maimonides Medical Center — whose leaders echoed John’s sentiments: “Win, lose or draw in court, administrators said, the policies driving the federal health care law are already embedded in big cuts and new payment formulas that hospitals ignore at their peril. And even if the law is repealed after the next election, the economic pressure to care differently for more people at lower cost is irreversible.”

With “value-based purchasing” programs mandated by the Affordable Care Act, where hospitals will be judged based on both cost and quality of care, Maimonides is taking major steps to boost patient satisfaction. As the Times reported, Maimonides “asked labor-management teams in every unit to invent their own improvement projects. In one initiative, nurses are making hourly rounds to offer patients extra help.” The hospital also provides valet parking and free Wi-Fi — certainly not business as usual.

Elsewhere in New York City, two of the largest hospital systems — NYU Langone Medical Center and Continuum Health Partners — are joining forces to boost their bargaining power with insurance providers and to cut costs, partly as a result of efficiency mandates outlined in the health care reform bill. Again, this is an example of medical organizations taking matters into their own hands and transforming the dynamics of the health care system, rather than allowing change to simply happen to them.

Insurance companies are also changing. As Aetna CEO Mark Bertolini explained to the Wall Street Journal last week, “If the Affordable Care Act were to go away tomorrow, we still would be better off as an organization, because who can argue with getting a lower health care delivery cost, more streamlined administrative structure, making yourself simpler and less complex to do business with? If that all happened and then health care reform went away, we would be better off and so would our customers.”

The leaders of UnitedHealthcare seem to agree. They made news recently when they pledged to keep popular coverage provisions mandated by the Affordable Care Act in place, regardless of the Supreme Court’s decision. The company said it would continue offering policyholders no-copayment preventative services and third-party appeals for cases where treatments are denied. They also vowed, among other things, not to cancel policies retroactively, except when fraud had taken place. These are marked shifts in the way insurance companies typically operate.

In each of these examples, leaders are refusing to let complacency set in. They are not resting on their laurels, being myopic or tricking themselves into thinking that the old way of doing things will suffice in the future. The world is changing quickly, and those who fail to change with it are sure to be left behind. The winners will be in front of the transformation instead of behind the curve trying to catch up when things become “clear”. One thing is certain – change in healthcare will continue, and it’s accelerating. There is no point of perfect clarity.

5 things health reform supporters don’t want you to know

By Joanna Antongiovanni

As the Supreme Court of the United States will likely rule on health reform soon, conversations about the bill’s constitutionality are once again resurfacing. Aside from this debate, there are several flaws within the bill that contribute to its inability to best protect consumers from increasing rates and provide them with affordable coverage. Below are five things that supporters of health reform don’t want you to know.

A lack of focus

The bill is more focused on insurance costs and does not adequately address the main reason health care costs go up: the actual cost of care. This is a big problem because it overlooks what could really make a difference and solve some of the health care issues in our country. The Kaiser Family Foundation report predicts that the health care rebates employers can expect to receive is minimal, an average of $127 compared to premiums of $5,400 a year for an individual and $15,100 for a family. If these predictions are close to the actual rebates, it proves the bill’s insurance reforms and current medical loss ratios do not address the true cause of increasing premiums in our country.

One size doesn’t fit all

As health reform stands now, it fails to address the unique needs of each state. One of the mostly unpublicized outcomes of the medical loss ratio (MLR) requirements has been that carriers have opted to exit specific unprofitable markets or exit health group products altogether to concentrate on lines of business not affected by health reform.

In some states this has created an unfair advantage for the one or two carriers that remain.

Other plans have eliminated specific products such as “child only policies” citing the inability to cover the cost of the additional mandates placed on these policies at an affordable cost. In addition, doctors and hospitals in wealthy areas are more likely to pass along those costs to consumers in those areas, increasing health insurance costs in those regions.

What was originally intended to increase coverage to the uninsured and lower health insurance costs has in fact done the opposite. In addition, many states that are struggling to balance their budgets following the burden of Medicaid expansion are seeing red and increasing deficits. These states are looking for alternative ways to save money and state-funded programs like education are at risk for budget cuts.

The current exchanges don’t fit

One major oversight of the bill is that there is no exchange that exists today that would satisfy health reform’s exchange requirements. An exchange is a government manufactured insurance marketplace for individuals not covered for health insurance by their employers to shop for health insurance at competitive rates. None of the current exchanges that exist for health care work under the new bill, the health reform exchange is two parts Massachusetts exchange, one part Utah exchange and one part “other”.

It’s debatable if either the Massachusetts or Utah exchanges accomplishes what they are set out to do, that is, to provide a market for people to purchase affordable insurance.

The creation of the exchange itself did not make health insurance affordable as it never addressed the cost of care. This is an obvious problem as individuals that are not covered by their employer need to have an affordable alternative for health care. Instead of looking to examples of what would work, the exchange dreamed up by health reform is a conglomeration of different ideas hastily combined.

Pennies on the dollar

Did you know that health insurance companies only make 3 cents to 6 cents on the dollar for health insurance premiums?

Health reform’s misplaced blame on insurance companies will only result in more difficulty for employers and individuals to get the specific insurance policies that they need. If the insurance companies continue to be attacked, they will lose more money and have fewer agents who will be able to help consumers find a policy that meets both their financial and health needs. Again, the cost of care resurfaces as the larger influencer on health insurance premiums.

All bark and no bite

There is only one thing worse than a mandate…a mandate without teeth. The bill mandates individuals to purchase health insurance but the consequences for not purchasing insurance is so weak it begs the question about how serious lawmakers were about actually making people purchase insurance. As the law is written now, it will accelerate the destruction of the insurance industry as people, after they have done the math, will opt to pay the penalty rather than pay for coverage.

Only time will tell the Supreme Court’s final decision regarding health reform. Regardless, so long as the legislation fails to address the above issues, the bill will be ineffective in solving the health care conundrum in our country.


Tensions rise as justices kick healthcare ruling to next week

By Sam Baker and Elise Viebeck


The Supreme Court did not rule on President Obama's healthcare law Thursday, raising tensions before a decision next week.

The ruling was possible Thursday but not expected. The court traditionally holds its biggest decisions until the last day of the term, and the healthcare case is among the most highly anticipated decisions in decades, overshadowing the current term.

The next possible day for a decision is Monday, but justices will add more days to the schedule later next week.Television camera crews set up outside the court Thursday just in case a decision on the healthcare law was released. There is also great interest in an expected court decision on Arizona's controversial immigration law. Tha Arizona decision also was not released Thursday.

Interest in the court's docket was also reflected at the Scotusblog, which said it had 22,000 visitors on Thursday morning.

The court's public information office implemented new protocols starting Thursday in order to accomodate the vast interest surrounding the healthcare decision.

The Obama administration took the opportunity to praise one provision of the health law just an hour before 10 a.m., when the ruling might have been issued.

Health and Human Services Secretary Kathleen Sebelius said that Americans will receive $1.1 billion in rebates from insurers this summer as a result of the law's medical loss ratio (MLR). This will average about $151 per insured family, the agency estimated.

The MLR that insurers spend roughly 80 percent of all premiums on healthcare rather than marketing, executive bonuses or other administrative costs.

The Obama administration continues to talk up provisions of the law as they are implemented. Polls show that, as a whole, the Affordable Care Act remains unpopular with the public.

Legal insiders believe the justices will strike down all or part of the healthcare law, according to a survey released Wednesday.

Obama administration touts health law an hour before possible ruling

By Elise Viebeck
Source: The Hill

Federal health officials touted a popular provision of the healthcare law — which would result in $1.1 billion in insurance rebates to consumers — just an hour before the Supreme Court could issue its ruling.

A ruling could happen Thursday at 10 a.m. After that, the next possible decision date is Monday, June 25.

The Obama administration continues to talk up provisions of the law as they are implemented. As a whole, the Affordable Care Act remains unpopular with the public.

Health and Human Services (HHS) Secretary Kathleen Sebelius said Thursday morning that 12.8 million Americans will receive $1.1 billion in rebates from insurers this summer as a result of the law. This will average about $151 per insured family, the agency estimated.

The rebates will stem from the law's medical loss ratio, which mandates that insurers spend roughly 80 percent of all premiums on healthcare rather than marketing, executive bonuses or other administrative costs.

"The 80/20 rule helps ensure consumers get fair value for their health care dollar," Sebelius said in a statement.

Materials from HHS said that consumers will likely see a rebate check in the mail, a lump sum reimbursement to the account they use to pay premiums or a reduction in their future payments. Insurers must issue checks by Aug. 1, unless the law is struck down in the next two weeks.

Poll: Healthcare reform must stay on Washington's agenda

Americans strongly support further efforts to reform the healthcare system if the Affordable Care Act is declared unconstitutional, a new poll finds.

The overwhelming desire for a new reform effort — supported by more than 75 percent of the public — was comprised of backers and opponents alike of the law known as "ObamaCare," according to The Associated Press-GfK poll.

Neither party is expected to launch a comprehensive reform effort if the court strikes down the law in the next two weeks. Republicans in the House have said they will immediately repeal whatever portions of the law are left standing and approach other reform attempts step by step.

The White House, meanwhile, is expected to continue implementing any parts of the law that remain.

The poll found that even among Tea Party supporters — the most vocal objectors to the original healthcare law — nearly 60 percent said they want Washington to continue some kind of healthcare reform effort. This represented the lowest level of support found by the poll, according to the AP.

Overall, 47 percent opposed the law, including only 21 percent of independents, and just over a majority said the 2012 presidential contest will have a big effect on the healthcare system.

The poll was conducted June 14-18 and had a margin of error of 4 points.

Preparing for the SCOTUS ruling

By Brian M. Kalish
June 18, 2012

Industry groups are being proactive in preparing their membership for the Supreme Court’s ruling on health care reform — which is expected at any time — as they know no matter the ruling, the business has changed forever.

At the National Association of Health Underwriters they have readied their membership by covering the topic across numerous mediums, including weekly e-newsletters, town halls and web seminars, says Jessica Waltman, NAHU’s SVP of government affairs.

After the decision comes out, NAHU members will want to know what will happen, Waltman says, adding she believes the ruling may come out during the organization’s annual convention, which begins June 24 in Las Vegas, so they are making plans to have plenty of time to discuss it.

“We need to inform our membership, so we have a variety of information tools that we are preparing that cover the eventualities as far as we can see them,” she says. “We believe no matter the ruling; [our] members will start receiving calls from their clients. … Our goal is to have tools at the ready so they can best assist their clients.”

The Council of Insurance Agents & Brokers is taking a similar approach, and has already had discussions with its membership about the potential impact of the ruling, says Scott Sinder, partner, Steptoe & Johnson LLP, and The Council’s general counsel.

The Council and its attorneys at Steptoe & Johnson LLP “have folks anxiously awaiting and ready to read the opinions,” and the organization intends to send notice to its members within hours of the ruling that reports on “the big picture,” which will be followed up with more in depth analysis within 24-28 hours.

A series of web seminars, including an initial one for its membership and a second one for members to share with their clients, will follow.

One broker, who says he started his business expecting health care reform, says he’s enjoyed watching the buildup to the ruling. “In the last three to four months it’s been interesting to see brokers still holding onto that hope that we’re going to go back five or six years and broker commissions will go back up and we’re not going to have government involvement in health care. But I don’t see that scenario occurring,” says Reid Rasmussen, owner of Benefit Brainstorm, Inc, adding he believes 30% of brokers will leave the business in the next two years.

“That will open opportunity up to the insurance professionals that are still left figure out how to better serve their clients,” he says. “Smart agents are expanding their horizons and serving their client better than ever before. … It’s not going to make a difference in the end what the Supreme Court rules.”

Even so, Waltman says, NAHU cannot wait for the ruling to come out, as presently “it’s very difficult to plan anything and it affects a lot of our dealings [and] feelings. … It affects everything we are doing.”

“Just having the closure will be very helpful,” she adds. “I think we are looking for that and then we can plan accordingly. No matter what the Court does … there needs to be changes to market reform in the coming year.”