Health Care Reform Where Will We Be at the End of 2012? Penn-Ohio Regional Health Care Alliance

Transcription

1 Health Care Reform Where Will We Be at the End of 2012? Penn-Ohio Regional Health Care Alliance Crystal Kuntz, Senior Director Government Policy Coventry Health Care February 23, 2012

2 Overview of Presentation Affordable Care Act and the Supreme Court Impact of the Elections on the Affordable Care Act 2

3 3 Affordable Care Act (ACA) and the Supreme Court

4 4

5 What Are the Issues? The Supreme Court will consider the constitutionality of two major provisions of the ACA: Individual Mandate Medicaid expansion 5

6 Individual Mandate What is the individual mandate? The minimum essential coverage provision of the ACA, commonly referred to as the individual mandate, requires most individuals to maintain a minimum level of health insurance coverage beginning in 2014 If a person doesn t satisfy this requirement, a financial penalty applies Percent of household income, with a floor and a cap Employers with 50+ employees must offer minimum essential coverage or pay a penalty 6

7 Medicaid Expansion How was Medicaid expanded in the ACA? Today, Medicaid largely covers low-income women and children as well as those eligible for Supplemental Security Income (low income and disabled) ACA expanded Medicaid s mandatory coverage group to include nearly all people under age 65 with household income at or below 133% of the federal poverty level, effective beginning in 2014 Federal government to cover 100% of costs in 2014, declining to 90% in 2020 The Congressional Budget Office estimates this expansion will cover approximately 16 million individuals 7

8 Cases Before the Supreme Court Who: The National Federation of Independent Business (NFIB) and two individual plaintiffs who do not have health insurance Argument: The individual mandate is not a valid exercise of Congress powers, including powers to regulate commerce and levy taxes Who: State of Florida, joined by 25 other states Argument: The Medicaid expansion is an unconstitutional exercise of Congress Spending Clause power; also challenging individual mandate Source: Kaiser Family Foundation 8

9 What Did the Federal Appellate Courts Say? Plaintiffs Standing 3 rd Circuit No standing Anti- Injunction Act 4 th Circuit ACA cases barred Individual Mandate 6 th Circuit Upheld 8 th Circuit No standing 9 th Circuit No standing Medicaid Expansion 11 th Circuit Struck down Upheld DC Circuit Upheld Source: Kaiser Family Foundation 9

10 Issues Before the Court Constitutionality of Individual Mandate and Medicaid Expansion Congressional power Commerce Clause Two issues related to the individual mandate Whether the individual mandate is severable from the rest of the ACA Whether the Anti-Injunction Act prevents courts from deciding lawsuits until the mandate s financial penalty is in effect 10

11 What is the Timeline? Nov 14, 2011 Supreme Court Grants Certiorari March Oral Arguments January Mid March Briefs Filed Late June 2012 Supreme Court Decision 11

12 Three Days of Oral Arguments - Unprecedented March 26 Tax Anti-Injunction Act One hour of arguments on whether challenges to the individual insurance mandate are prohibited until 2015 by the federal Anti Injunction Act March 27 Individual Mandate Two hours of arguments on the central issue in the case, the constitutionality of the minimum coverage provision March 28 Severability, Medicaid 90 minutes of arguments on whether the minimum coverage provision may be severed from the ACA; one hour on whether Congress was entitled to expand the scope of Medicaid. 12

13 13 What is the Likely Outcome?

14 Possible Scenarios Source: Kaiser Family Foundation 14

15 Impact of Severability If individual mandate found unconstitutional: Plaintiffs argue entire ACA should be struck down as law will not function as intended by Congress Federal government argues that only the guaranteed issue and community rating provisions should be invalidated along with the mandate Wouldn t work without mandate Other provisions unrelated to the mandate Under this scenario, all other market reforms would remain in place (e.g., coverage for young adults, free preventive care, lifetime and annual limits, etc.) 15

16 16 Where Will the Court Land?

17 17 Public s Views Largely Track Their Views of ACA in General

18 Justice to Watch Appointed by President Reagan in 1988 Swing vote Hard to predict 18

19 Summary Hard to predict outcome; no consensus in where Court will land Mandate is the issue to watch More surgical view of the ACA (i.e., mandate unconstitutional but severable along with guaranteed issue and community rating provisions) could be a landing point for the Court 19

20 20 Now to Make Matters Even More Complex (and Unclear) The 2012 Elections

21 Election Season after the Court Ruling How will the Supreme Court ruling affect the electorate? ACA upheld or overturned in its entirety would likely have a strong effect in mobilizing the bases of both parties at the height of the campaign season Republican opposition to the ACA tends to be stronger than Democrats support of it If mandate unconstitutional but severable, complicates the advocacy on both sides However, Obama would be able to focus on the pieces of the law that had less opposition (e.g., insurance reforms) 21

22 22 Presidential Election Polls Show Obama Advantage but It s Early

23 23 Obama s Job Approval Rating Starting to Creep Up, Congress Rating Abysmal

24 Senate Likely to Turn Red in 2013 Source: Realclearpolitics.com Even with a majority, in Senate key number is 60 seats to overcome a filibuster. Highly unlikely either side will reach that number. 24

25 Battle for the Senate by State Source: Realclearpolitics.com 25

26 A Republican Senate and House is Increasingly Likely Senate House In either scenario Presidential Election scenario, a Republican Senate, in addition to House, is likely outcome.? 26

27 Post-Election Impact on ACA: Obama White House Republican Congress Mandate Constitutional or Severable: Senate House House passes repeal Senate repeal unlikely without 60 votes; could pass efforts to defund (budget matters ~ 50 votes) Efforts to defund vetoed by President; need 2/3 to override Result: Status quo re: ACA itself(except for provisions related to mandate in severability option). Expect high levels of scrutiny from Congress, many oversight hearings Will Obama administration continue on current path re: implementation (e.g., state flexibility)? Will most states implement their own exchanges, including those that opposed reforms? 27

28 Post-Election Impact on ACA: Republican White House & Congress Mandate Constitutional or Severable:? Potential Actions Presidential Executive Order limited power; cannot eliminate a law Could influence ACA implementation through regulations, including delaying regulations, granting waivers or through other avenues (could result in legal challenges) Senate House Potential Actions: House passes repeal Senate repeal unlikely without 60 votes; could pass efforts to defund (budget matters ~ 50 votes) or repeal portions of law while keeping provisions already in effect or replace with alternate plan Result: President likely to sign changes that are passed unless they don t go far enough Conclusion: Path not necessarily clear even with Republican control of both the White House and Congress 28

29 29 What Does the Public Want?

30 30 When Public Opinion isn t Always Consistent?

31 Summary Many moving parts and potential scenarios One potential path: Mandate unconstitutional but severable Obama White House/Republican Congress Lots of activity, but little changes with law itself Will there be a federal exchange operating in states that opposed ACA? Republican White House/Republican Congress Even if both branches in Republican control, no guarantee they will work together, especially considering Senate s close R/D makeup and range of opinions on the right 31