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The SCOTUS-ACA Decision – One Year Later

Posted by John McDonough  June 28, 2013 03:48 PM

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One year ago today, we were not talking about same sex marriage or voting rights. The topic du jour was the U.S. Supreme Court's (SCOTUS) dramatic and surprising ruling on the constitutionality of the Affordable Care Act/Obamacare.

Were it not for a late change of mind/heart by Chief Justice John Roberts, the entire law would have been overturned. Instead of throwing out the ACA or the individual mandate, the only significant change was the "Roberts' Rule" that made the ACA's mandatory Medicaid expansion an option for states.

When the ACA's history is written, June 28 2012 will be recognized as one of a handful of the most fateful days in the history of this most-important round of U.S. health reform. It's up there with:

12/24/2009: the day the U.S. Senate approved its version of health reform

1/19/2010: the day Scott Brown won the Massachusetts U.S. Senate seat, denying Senate Democrats their crucial 60-seat majority

3/23/2010: the day President Obama signed the Patient Protection & Affordable Care Act into law

11/6/2012: the day President Obama was re-elected, removing the last potential fatal threat to full implementation of the ACA

How different U.S. health policy would be today had Chief Justice Roberts not abandoned his four conservative colleagues. And what a compelling and surprising 12 months it has been since the SCOTUS decision was handed down. Let's recall ten major ACA-related trends, events, and developments of the past year (links from the always excellent Wonkblog at the Washington Post):

1. President Obama defeats Mitt Romney to win re-election and thwart any chance for Congress to repeal the ACA prior to 1/1/2014 implementation. Had Romney defeated Obama, chances are he would have carried Republican control of the U.S. Senate with him. Republican control of the White House, Senate and House would have resulted in wholesale repeal of most major ACA provisions -- by now -- using budget reconciliation rules so Senate action would not have been subject to a filibuster or 60-vote requirement. Could've, would've happened, no ifs, ands, or buts.

2. The decline in U.S. health spending's rate of growth is real and it's more than a product of the economic downturn. We have not seen such a drop in the rate of health cost growth since -- President Bill Clinton's tenure in the mid-1990s. Funny how, since the Reagan Administration, the trend has been that health spending spikes while Republicans control the White House (Reagan, Bush I, Bush II) and plummets when Democrats are in control (Clinton, and now Obama). It is now well understood that while some of the current decrease is recession related, much is not. Private health insurance, employer coverage, Medicare, Medicaid -- the whole deck. It may not last, it probably won't, though in the meantime, it has a hugely positive impact on the federal deficit, and it takes the air out of claims that the only way to control U.S. health spending is to cut eligibility and benefits.

3. The decision by states whether to expand Medicaid becomes the new ACA flashpoint, and creates the first split among Republicans over Obamacare. I hate the Roberts Rule (RR) that made Medicaid a state option -- this is health care rationing and Americans will die because of it. Still, absent the RR, every Republican governor would now be decrying the Medicaid mandate as Obama-tyranny; instead, Republican governors such as Rick Scott (FL), Rick Snyder (MI), John Kasich (OH), Chris Christie (NJ), and -- god love her -- Jan Brewer (AZ), are championing one of the two key access expansions in Obamacare. As much as I hate the RR, I love this.

4. Title VIII of the ACA, CLASS, gets repealed by Congress. CLASS stands for "community living assistance services and supports" and it was a deeply-felt, personal priority of my late boss, Senator Edward Kennedy: a new, national, voluntary disability plan. It had flaws, fixable flaws, flaws that opponents wanted to exploit rather than fix, never offering any alternative other than full repeal. Their persistence paid off, and complete repeal was included the 1/1/13 budget deal approved by Congress and the President. The real losers are temporarily or permanently disabled Americans, and the winners -- Republicans and some conservative Democrats -- got away with offering nothing to replace it.

5. 27 states will not create their own Health Insurance Exchanges/Marketplaces, and opt to have a federally-facilitated exchange. In the legislative process leading to the ACA's passage, progressive Democrats wanted a single, federal exchange, bypassing states. Conservative Senate Democrats such as Ben Nelson (NB) demanded, as a condition for their votes, that states be given the right of first refusal. Ironically, conservative states are the ones now refusing to create their own exchanges, defaulting to U.S. Health and Human Services to do the job. Here's the good part -- the blue states setting up their own exchanges are mostly doing a fine job; and as for consumers in those red states refusing to set up exchanges, they will be far better served by the federal exchange than the insurer-dominated abominations that would have been set up in the recalcitrant states.

6. Man Bites Dog: health insurance companies send hundreds of millions in rebate checks to consumers when insurers spend too much of premium dollars on non-medical expenses. It's in Title I of the ACA, and it's called the "medical loss ratio." The MLR section requires that all health insurers must spend at least 80-85 cents of each premium dollar on pure medical costs -- not profits, executive salaries, marketing or the rest -- or rebate the excess non-medical costs back to consumers. It started last year, and continues this year.  It's about more than just rebates -- insurers have been cutting back on their premiums to avoid the need to send rebate checks to their policyholders.  Kaiser Family Foundation estimates about $3.3 billion in lower premium costs because of the MLR in 2011 and 2012.

7. For the 37th time, Republicans will not work to fix or address the ACA. Some differ over what counts, but in June, House Republicans voted again to repeal the ACA, #37 by some counts. Like any major complex federal (or state) law, the ACA was imperfect, and needs continuous improvement to fix errors, problems, interpretation challenges, and emerging needs. The continuous focus on total repeal, which has no chance of happening, prevents Democrats and Republicans in Congress from focusing on addressing the parts of the law in need of correction, clarification, or improvement.

8. Public opinion on the ACA is a muddled mess. According to an April Kaiser Family Foundation survey, 42% of Americans believe the ACA has already been either repealed by Congress or overturned by the Supreme Court. Many Americans believe the ACA contains provisions, such as "death panels," which are not in the law; and many do not believe the ACA contains provisions, such as banning pre-existing condition requirements, which are in the law. How does this staggering level of confusion impact the mediocre favorability of the law? Moreover, the "unfavorable" category almost always lumps together opponents who want the law repealed with a sizable number of those who oppose the law because they feel it is not strong enough and who want Medicare for all.

9. The Rate Non-Shock. ACA opponents have been warning all year that health insurance premiums will explode for younger and healthier consumers and that the accompanying backlash will be a disaster for the law. Ignored in their analyses, and exposed by numerous analysts and commentators is that the lion's share of these younger and healthier consumers will be eligible for ACA premium and cost sharing subsidies which will substantially lower their costs with far better benefits. And the single adult with an income over 400% of the poverty line (about $45,000) will have many choices in the Exchange/Marketplace to buy policies with  different levels of coverage and affordability. Also ignored is the ability of states such as California to use the leverage of the Exchange/Marketplace to drive premiums lower than they would otherwise be.

10. California and other states show that Obamacare can work. Govs. Rick Perry (R-TX), Bobby Jindal (R-LA) and others can't wait for the ACA to be a mess in their states so they can point a finger and say, "See, I told you the law wouldn't work and would be a mess." But as other states such as California, Oregon, Washington, Minnesota, New York, Maryland, Connecticut, and others have a positive and well-run implementation, the question for Perry, Jindal et al will soon be: "Is it that the ACA can't work or that you won't?" Obama-spite will come back to bite!

Happy ACA-SCOTUS anniversary, my friends!

This blog is not written or edited by or the Boston Globe.
The author is solely responsible for the content.

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About the author

John E. McDonough is a professor of practice at the Harvard School of Public Health. He is the author of the book “Inside National Health Reform”, published in 2011 by More »


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