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ARC: WHAT BENEFITS MANAGERS NEED TO KNOW ABOUT HEALTH CARE REFORM

Health reform hangs in balance

Employers face choices if high court rejects all or part of 2010 law

Photo by BLOOMBERG Supporters and opponents of the 2010 health care reform law gathered outside the Supreme Court Building last week as the justices heard arguments about the legality of certain aspects of the law.

WASHINGTON—After months of anticipation, thousands of pages of briefs and more than six hours of oral arguments last week on the health care reform law, the U.S. Supreme Court cast more doubt on the fate of the individual mandate at the heart of the landmark reform law.

Observers are less certain, however, about whether the nation's highest court also will decide that the rest of the law is so inextricably tied to the mandate—which requires U.S. residents to either buy health insurance or pay a penalty—that it, too, must go.

While the justices were expected to cast an initial vote on the case Friday, the nation must wait as long as late June for the court to issue its decision.

Observers expect the ultimate decision to be close, with conservative Justices Samuel Alito Jr., Antonin Scalia and Clarence Thomas lining up against the Patient Protection and Affordable Care Act, and liberal Justices Stephen G. Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all voting to uphold it. They say conservative Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy are likely to be the “swing votes” that determine the law's fate.

If the court finds that the individual mandate is unconstitutional and renders the entire law invalid, it would require lawmakers to start from scratch, a difficult endeavor in today's polarized political climate in Congress, health care industry experts say.

Employers also would face some tough decisions, the biggest being whether to roll back benefit plan design changes already implemented to comply with the law (see Employers face decisions if court overturns entire law).

Alternatively, if the court invalidates only the individual mandate and leaves the rest of the law intact, it could further drive up the cost of health insurance in the individual and group markets if insurers remain subject to community rating and guaranteed issue mandates without also enlarging the pool to include healthier individuals, industry experts warn (see Individual mandate rejection seen as worst legal outcome).

“I think that court watchers looking at this for some time have thought the vote would be very, very close,” said Ed Fensholt, senior vp and director of compliance services for Lockton Benefit Group in Kansas City, Mo. “You've got three or four pretty conservative, four pretty liberal (justices); and then you've got Justice Kennedy, who's a middle-of-the road guy.”

“What really shocked me was the tenor of the questions” during oral arguments on the severability and Medicaid expansion issues, he said. “I always thought the vote on the mandate would be close, but I really didn't think there was a chance the court would throw the entire law out. From the arguments (last Wednesday), it seemed like the five conservative justices thought as a bloc that the entire law has to go.”

Jay Kirschbaum, St. Louis-based vp and practice leader for Willis Human Capital Practice, said he had been “pessimistic” that the Supreme Court might decide that the individual mandate was unconstitutional.

“But after listening to the oral arguments, I'm more optimistic,” he said.

“The entire law is in play,” said Royal Oakes, a partner with insurance law firm Barger & Wolen L.L.P. in Los Angeles.

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“The questions from the justices suggest they're likely to dump the individual mandate; but beyond that, the crystal ball gets murky. Justice Scalia would probably toss the whole thing, but the chief might try to cobble together a consensus to reject only those components that seem to make no sense without the individual mandate. If that happens, the employer mandate might be left standing,” Mr. Oakes said.

However, the individual mandate and the employer mandate are directly related pieces, contained in a section in PPACA titled “shared responsibility,” said Paul Dennett, senior vp-health care reform with the Washington-based American Benefits Council, which filed a brief in the case asserting that if the individual mandate is ruled unconstitutional, the employer mandate should be as well.

“The employer penalty is an assessment on employees who obtain coverage in the individual market through exchanges. In the absence of an individual mandate and the insurance reforms that support it, some of those employees won't qualify for coverage, but the employer would still be subject to a penalty,” Mr. Dennett said.

“I don't think anyone felt that when the suit was filed that it was a constitutional law exercise and, instead, considered it to be a more political move,” said Andy Anderson, a partner with Morgan Lewis & Bockius L.L.P. in Chicago. But after hearing the oral arguments, he said the possibility of the entire health care reform law being struck down “is far more probable than anyone anticipated.”

“The government didn't make its case as strongly as it might and the plaintiffs did pretty well,” said Paul Keckley, executive director of the Deloitte Center for Health Solutions in Washington. “I'm not ready to conclude that they are going to throw the whole thing under the bus,” he said. However, “I could see them throw the mandate out and keep the law and throw it back to Congress.”

Chief Justice “Roberts does not want the court to be politicized, and he doesn't want the court to legislate. I still have a sense that Kennedy is going to support the law, but I wouldn't be surprised if he doesn't vote with Roberts,” Mr. Keckley said.

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