The most immediate impact of a ruling striking down the 2010 health care law could be confusion and depressed sign-ups in the law’s insurance marketplaces on the final day of open enrollment.
The law remains in place for now — but some consumers may not understand that.
If the federal judge’s ruling Friday night is affirmed, it could cause upheaval in the U.S. health care system. Its immediate effects are minimal, though, as the ruling is expected to be stayed as the case winds through the courts and did not come in the form of an injunction.
However, it could cause concern and misunderstanding among people who obtain coverage through the individual market, as well as the wide range of other people affected by the law. Those include Medicaid and Medicare enrollees, people with pre-existing conditions or parents of adult children younger than 26 who remain on family coverage because of the law.
Tim Jost, a professor emeritus at Washington and Lee Law School and an expert on the health law, said Saturday that the next procedural steps are unclear. A group of Democratic attorneys general that are defending the law will likely soon file an appeal, but because the judge filed a declaratory judgment, rather than an injunction, all parties involved may need to take more time to figure out the next steps.
“The main effect right now is just a tremendous amount of confusion,” Jost said. “I think we could possibly lose thousands or tens of thousands of people who need to sign up today.”
People who do not sign up on Saturday will miss a chance to get health care coverage through the marketplaces in 2019 unless they have a special event like a divorce, a move or they live in a state with an extended deadline.
The confusion may take a while to clear up. Jost said the legal process could stretch over several months. The conservative U.S. Court of Appeals for the Fifth Circuit will likely take up the case, although Jost said he is skeptical the Supreme Court would.
Centers for Medicare and Medicaid Services Administrator Seema Verma on Saturday morning reiterated a statement from White House Press Secretary Sarah Sanders, saying the law remains in place, but that the ruling “vindicates President Trump’s position that Obamacare is unconstitutional.”
Parsing the Ruling
The decision Friday by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas accepted the argument by Texas and a group of conservative attorneys general that the law was unconstitutional. The Trump administration had declined to defend parts of the law that guarantee people with pre-existing conditions can get health insurance and at no higher cost, prompting California and its own coalition of states to defend the law. California Attorney General Xavier Becerra said he will appeal the ruling.
It could take time for the case to reach the appellate level, warned University of Michigan law professor Nicholas Bagley, who follows the case. Since O’Connor entered a declaratory statement, that may mean the case may remain before him for some time because of additional procedural steps, Bagley tweeted on Saturday.
“The judge may hold onto the case and ask the parties to brief the remaining counts — including briefing the scope of any injunctive relief. If so, he could still issue a nationwide injunction, or an injunction limited to just the red states,” Bagley said.
Spencer Perlman, a managing partner and director of health care research at the investment firm Veda Partners, said in a note to clients on Friday night that the company expects the ruling to be overturned, though he cautioned that if the case reaches the Supreme Court, justices could knock down parts of the law.
“Indeed, if these consumer protections targeted by the Administration are set aside, the decision would completely rewire the health insurance markets,” Perlman wrote. “Health insurers would need to reconfigure their business practices.”
If the case reaches the Supreme Court and justices strike down parts of the law, it would have implications for the entire health care industry.
“There is a chance that the Court could side with the Administration and strike down certain elements of the ACA along with the mandate, though this seems unlikely to us,” he wrote. “The Chief Justice seems intent on preventing the Court from doing Republican lawmakers’ dirty work.”
The Blue Cross Blue Shield Association said it was disappointed by the ruling and urged people to continue to sign up for 2019 coverage.
“Blue Cross and Blue Shield members can be assured that their health coverage and the financial assistance they may receive to help them afford it remains in place despite this ruling, and patients will continue to receive the care they need,” the group said Saturday.
The ruling set off a renewed round of calls from Republicans for a new health care law. President Donald Trump took to Twitter to urge Senate Majority Leader Mitch McConnell of Kentucky and Nancy Pelosi of California, who is poised to be House speaker next year, to work together to enact legislation.
Ways and Means Chairman Kevin Brady said in a statement early Saturday said that if the decision is upheld, a new law should include some of the Democratic law’s most popular provisions.
“Should the courts ultimately uphold this decision both parties should start over, working together to make health care truly affordable, making sure patients can see local doctors and be treated at local hospitals, and ensuring that patient protections like pre-existing conditions, no lifetime limits, and allowing children to stay on their parents plans until age 26 are preserved,” the Texas Republican said.
Energy and Commerce Chairman Greg Walden, R-Ore., called the moment “a rare opportunity for truly bipartisan health care reform that protects those with pre-existing conditions, increases transparency and choice, and lowers costs.”
Senate Republicans, however, have been quiet so far about their own plans to respond to the ruling. Sen. Lamar Alexander, R-Tenn., who chairs the Health, Education, Labor and Pensions Committee, has been vocal about moving beyond the debate on the law toward the broader issue of health care costs.
House Democrats vowed to take immediate action next year, which is expected to include becoming party to the lawsuit. Rep. Richard E. Neal, D-Mass., the presumptive incoming Ways and Means chairman, said earlier this week that his committee staff is working with their Energy and Commerce counterparts to craft a pre-existing conditions bill, which is his top priority next year.
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