Affordable Care Act Repeal Would Have Immediate Consequences

President Obama is "confident" the Supreme Court will rule that his health care law is constitutional, but heated questioning by conservative justices at last week's hearings leaves uncertain the fate of not only the individual mandate but also the entire law.

If the mandate is struck down, insurance premiums might shoot up and millions of Americans would be left uninsured. But for some, the Affordable Care Act without the mandate looks a lot better than no law at all.

"It's a choice between a wrecking operation, which is what you are requesting, or a salvage job," Justice Ruth Bader Ginsburg said last week as the former solicitor general in the George W. Bush administration, Paul Clement, argued that without the mandate, the rest of law could not stand. "And the more conservative approach would be [to] salvage rather than throwing out everything."

Many provisions of the Affordable Care Act took effect when it was signed into law in 2010, and a full repeal would eliminate reforms that are already providing widespread relief to some Americans. Here are some consumer benefits that would disappear if the whole law were to be ruled unconstitutional:

Increased coverage of preventive services

Many health insurance plans are now subject to new rules that require them to cover recommended preventive services without charging a co-payment. As a result, consumers pay nothing for services like routine screenings, vaccines, counseling, flu shots and well-baby and well-child visits from birth to age 21.

Birth control coverage

One aspect of the preventive care coverage -- and among the most discussed provisions of the new health care law -- is the requirement that health insurance plans cover contraceptive services. After a widely publicized effort by religious leaders and Republican lawmakers to repeal this measure, the Obama administration announced a compromise that shifts the cost of contraceptive coverage from employers to insurance companies.

Restrictions on lifetime and annual limits

The Affordable Care Act prohibits insurers from placing lifetime limits on most benefits that consumers receive and sets a minimum for annual dollar limits. By 2014 annual dollar limits are slated to be phased out entirely.

Coverage for children with pre-existing conditions

Under the new law, insurance companies cannot deny coverage or limit benefits to children under age 19 because of a pre-existing condition or disability. Starting in 2014, people of all ages with pre-existing conditions will be protected.

Pre-Existing Condition Insurance Plan

Adults who have been refused insurance coverage because of pre-existing conditions and who have remained uninsured for at least six months are eligible for the Pre-Existing Condition Insurance Plan. The program covers primary and specialty care, prescription drugs and hospital visits without requesting higher premiums for pre-existing conditions.

No health plan barriers for ob-gyn services

Health plans cannot require women to get a referral from a primary care doctor before seeking ob-gyn services.

Access to out-of-network emergency room services

The Affordable Care Act prohibits a health plan from charging higher co-payments for emergency room visits in hospitals outside of the plan's network. Patients are also exempt from needing a plan's approval before seeking out-of-network emergency care.

Right to appeal health insurance plan decisions

Obama's health care law gives consumers the right to appeal decisions made by their health insurance providers. If an insurance company reviews its decision and still denies a consumer insurance coverage for a treatment, consumers have the right to request an external review and have an independent review organization decide whether to overturn the plan's decision. Some states have Consumer Assistance Programs that help people file appeals and request external reviews.

Consumer Assistance Program

The Affordable Care Act improves the services that some states provide to help people with insurance problems. Grants have allowed states to strengthen and grow programs that assist consumers with enrolling in a health insurance plan and with filing complaints and appeals.

More value for the insurance dollar

A provision of the law called the 80/20 rule requires insurance companies to spend at least 80 percent of their premium dollars on medical care. If they don't, they must provide consumers with refunds starting this summer.

No insurance cancellations for honest mistakes

Insurance companies are not allowed to rescind coverage when patients make honest mistakes on their insurance applications. Before the Affordable Care Act, insurance companies could retroactively cancel patients' policies because of unintentional paperwork errors with little medical bearing.

Expanded Medicare coverage

The law gives elderly adults who face the Medicare coverage gap a 50 percent discount on prescription drugs covered by Medicare Part D. Seniors will receive additional prescription drug savings until the coverage gap is closed in 2020.

Indian Health Care Improvement Act reauthorized

The law reinstates the Indian Health Care Improvement Act, which provides resources to curb the health care disparities faced by American Indians. Originally passed in 1976, the act was last reauthorized in 1992 and many of its provisions expired in 2000.

Tanning salon tax

The Affordable Care Act imposes a 10 percent tax on tanning beds, and these proceeds help underwrite other provisions of the law.

Expanded coverage for young adults on their parents’ plans

The law requires insurance plans that offer coverage of dependents to allow children to stay on their parents' plans until age 26. Adult children can be covered on their parents' plans even if they are married, eligible for work or student insurance, living away from home or financially independent.

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Comments

[bywhatright2]

12:09 AM on 06/22/2012

[5]See Mr. Kroger’s states:
“Specifically, every covered individual ―shall for each month beginning after 2013 ensure that the individual . . . is covered under minimum essential coverage for such month,‖ and ―[i]f an applicable individual fails to meet th[is] requirement . . . there is hereby imposed a penalty.‖ See Pub.L. No. 111-148, § 1501(b) (emphasis added). Perhaps that is why the President has previously argued that the mandate is ―absolutely not a tax‖ and that ―[n]obody considers [it] a tax increase. [See, e.g., Obama: Requiring Health Insurance is Not a Tax Increase, CNN, Sept. 29, 2009, available at:http://www.cnn.com/2009/POLITICS/09/20/obama.health.care/index.html.]

[bywhatright2]

12:09 AM on 06/22/2012

Endnotes:

[1] Mr. Carvin correctly notes the following: “Moreover, authorizing this dramatic expansion of Congress‘s power would do far more to ―create a completely centralized government and ―effectually obliterate the distinction between what is national and what is local than would regulation of noneconomic activity. Lopez, 514 U.S.at 557. Virtually every decision not to engage in economic activity, in the aggregate, will have a substantial effect on interstate commerce.”

[2] Mr.Carvin correctly states the following: “Even if the individual mandate could somehow be deemed ―necessary, it certainly is not―proper. As the Supreme Court made clear in Printz v. United States, 521 U.S. 898(1997), Congress may not engage in regulation, no matter how ―necessary, if the regulation is inconsistent with the Tenth Amendment and the basic premises underlying our federal system.”

[3] The 10th Amendment - Powers of the States and People “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

[4] Therefore, the individual mandate requirement does not “regulate the provision of health insurance.”

[bywhatright2]

12:09 AM on 06/22/2012

One other thing: emergency rooms are not used by free riders. While it is true that in America doctors and hospitals are not permitted by law to turn away the uninsured, under the Emergency Medical Treatment and Active Labor Act (EMTALA) hospitals with emergency rooms are merely and only required not to turn away patients suffering from an "emergency medical condition." 42 U.S.C. 1395. Nothing in the law precludes the owners of the emergency rooms from charging or billing users of these services. This is in fact done. Hence these people are not free riders as they are legally liable for the costs of their emergency room care. Also, the individual mandate is not a tax or tax penalty, as the Affordable care Act does not make it a tax.[5]

Finally, the so-called “medical loss ratio” imposed by the Affordable Care Act which mandates the use of 85 cents out of every dollar collected in premiums be devoted exclusively to the provision of health care is unconstitutional. These premiums are the property of the firms that collected them. Obamacare forces potential profits that may violate this requirement be returned to the masses or, if you will, the collective. Health insurance is not a utility. While Congress has the authority to tax income, it does nothave the authority to limit income.

[thewordagain]

04:29 PM on 06/26/2012

I hope you lose your coverage get a tumor then open the letter from the insurance company denying you coverage because of an pre-existing condition.

[bywhatright2]

12:08 AM on 06/22/2012

The health care mandate (i.e., mandate to purchase health insurance) does nothing to regulate the commercial activity of issuing and/or providing health insurance polices. The mandate does not regulate health insurers in the commercial activity of offering or selling insurance contracts, it does not regulate health insurers rates charged under insurance contracts, it does not regulate health insurers advertising heath insurance contracts, it does not regulate the font size in insurance contracts health insurers use when entering the stream of commerce by the sale of health insurance and it does not regulate the conduct of consumers who have entered the stream of commerce by purchasing health insurance.[4]In this regard, Mr. Carvin correctly notes that:
“Under the controlling formulation used by the Supreme Court, the Commerce Clause authorizes the federal government to ― regulate the channels of interstate commerce, as well as to ―regulate and protect the instrumentalities of interstate commerce. United States v. Lopez, 514 U.S.549, 558 (1995). But the individual mandate clearly does not regulate either the ― channels or ―instrumentalities of interstate commerce.”

[bywhatright2]

12:08 AM on 06/22/2012

In this regard, you will note that in the below quote from Jacobson v. Massachusetts the Court squarely relies upon the 10th Amendment [3] in ruling the authority for the Massachusetts statute requiring a small pox vaccination is based on “a power which the State did not surrender when becoming a member of the Union under the Constitution.”
"The authority of the State to enact this statute is to be referred to what is commonly called the police power — a power which the State did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a State to enact quarantine laws and "health laws of every description;" indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other States. According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety." Jacobsonv. Massachusetts, 197 U.S. 1, 25, February 20, 1905.[Emphasis and underscoring supplied]

[bywhatright2]

12:06 AM on 06/22/2012

It makes little sense to cite Jacobson v Massachusetts in support of proposition that liberty is not infringed by the individual mandate. Such an argument omits consideration of a fundamental distinction between the nearly plenary police powers reserved unto the states under the 10th amendment vice the limited enumerated powers of the central government. Perhaps a lesson in Federalism is in order. The power of a state government to administer vaccines does not relate to the power of Congress under the Commerce Clause. It’s not at all analogous; rather it’s a case of comparing apples to oranges. Not to belabor the point, but all one needs to do is read Jacobson v Massachusetts itself which clearly makes this distinction. Justice Harlan was a federalist and asserted the primacy of state over federal authority in public health. A power not surrendered by the states is a power not conferred to the central government.

[bywhatright2]

12:06 AM on 06/22/2012

While it is correct to note specific constitutional grants of federal legislative authority are accompanied by broad powers to enact laws conducive to the exercise of specific legislative authority, these ancillary legislative powers may not exceed the scope of the specific constitutional grants of legislative authority they purportedly promote. The lesser may not devour the greater. Hence, Gibbons v. Ogden adds nothing to the discussion.
It is a mistake to advance the case of Gonzalesv. Raich in support of the Affordable Care Act without also recognizing the means chosen to attain an otherwise legitimate end under the commerce power cannot be allowed to eviscerate one’s liberty by reaching into a sphere of power the states and people did not surrender to the central government and that such an overreaching means is not “reasonably adapted” for the effective exercise of a specific and limited constitutional power the states and people conferred upon the central government.
An illogical comparison is one that asserts the minimum coverage requirement is no more intrusive than Social Security or Medicare, since the Social Security Act requires individuals to make payments to provide for old age retirement. It is quite apparent that people, who choose not to work, are not required to make payments to provide for old age merely because they exist or are sitting on their couch.

[bywhatright2]

12:05 AM on 06/22/2012

This type of deductive reasoning allows no room whatsoever for the constitutional principle of liberty. To the contrary, the mandate to buy something does not proscribe a rule by which commerce is governed; rather it proscribes a rule by which commerce must be created. The self-fulfilling logic that the mandatory purchase of health insurance becomes a legitimate exercise of ancillary legislative powers necessary and proper to the exercise of specific powers because the “scheme” will not work absent the mandate iscircular black magic.

[bywhatright2]

12:05 AM on 06/22/2012

Arguments are also based on the lament that the scheme imposed on the private insurance industry would not be “workable” without the individual mandate. For example, it is argued that to make this regulation of the national insurance market workable, Congress found it necessary to include a financial incentive for individuals to maintain minimum insurance coverage i.e., the individual mandate. Let us apply this logic to the Federal Communications Commission (FCC) which regulates the long distance telephone industry under the commerce clause via a policy of competition over which the FCC issues approved tariffs. Using the above logic, if the FCC were to get the idea it wanted to require all long distance companies to provide long distance service to everyone in the country, the FCC could simply issue a rule mandating everyone in the entire country to buy long distance service whether they wanted it or not. After all, without such a mandate it wouldn’t be “workable” as the long distance companies could not afford the cost of bringing service to everyone regardless of remote their locations. I suppose the logic would go something like this: “To make this obviously valid regulation of the national long distance market workable, the FCC found it necessary to include as well a financial incentive for individuals to maintain minimum long distance. That is the so-called individual long distance mandate.”

[bywhatright2]

12:03 AM on 06/22/2012

“The Constitutionality of the Affordable Care Act”

The individual mandate and the 85% medical loss ratio imposed by the Affordable Care Act are unconstitutional because the former finds no basis in the power to regulate commerce or the power to tax and the latter finds no basis in the Constitution which, while permitting the taxation of income, does not permitthe limitation of income.

It is not accurate to say if health insurance is commerce, then the health care mandate is a regulation of commerce authorized by Article I, section 8 of the Constitution. Using this logic, one could substitute most anything into this “if-then” syllogism. For example, if true, one could then say “And if selling hybrid cars is commerce, then the mandate to buy a hybrid is a regulation of commerce, authorized by Article I, section 8 of the Constitution.” After all, this mandate would to make hybrids affordable for everyone. We could add to the list flat screen TVs, computers, and whatever else our keepers in Washington wanted to add to the national collective.[1]The people and the states did not surrender such authority to the central government.

[Trudy Zufelt]

01:06 AM on 06/20/2012

My adult daughter on my health plan was just diagnosed with cancer. I am super concerned about what will happen if this law is repealed. My guess is my insurance will automatically drop her and she will not be able to get medical insurance anywhere. We could never in a million years afford cancer treatments without our insurance nor could she. I guess this is why medical bills are the top of the list as to why people file bankruptcy and will have to be a consideration for her if this law is repealed.

[edyie47]

02:08 PM on 05/06/2012

I don't know what happened to Health Care but my daughter has to have surgery, it was all set with her OB-GYN doctor to perform the surgery, and she tried to give them a down payment then make payment arrangements with the Hospital and they flat out refused her, she asked if she could have that in writing and they refused to give that to her also, she does not have insurance and she has to have this surgery. I though it was against the Law for a Hospital to refuse medical help.

[kurt kramer]

01:30 AM on 04/25/2012

The pending health care litigation before the U. S. Supreme Court highlights the vulnerability that it is not founded on the market principle of voluntary participation of freely choosing individuals, but depends instead on mandatory participation, “coercion” as the objectors emphasize. Judging by the oral argument, the Court seems about ready at the end of June to dismember the legislation and set health care coverage for those who can’t afford it back for another 20 years.
The Democrat creators of the legislation, if they still care about those disenfranchised from health coverage, should at this moment, while the Supreme Court is deliberating, put forward in the Senate a correction which addresses and allays the concern that seems to be bothering the Court. The desired goal of getting broad participation in health insurance can very easily and “Constitutionally” be achieved by tax incentives and disincentives. Every individual can be assigned a health insurance tax status, ranging from full premium tax exemption for those, who have maintained coverage over their entire adult years through ages 21 to 65, to heavily punitive premium taxation for those who have delayed until the last few years before medicare eligibility. This tax gradient should be calibrated to generate revenue to cover the augmented Medicaid assistance under the new law for those who can’t afford health insurance, for whom and for which purpose the legislation was passed in the first place, addressing our national crime of not providing for the health of 15% of citizens.

[davefaler]

09:17 PM on 04/07/2012

An unconstitutional ruling on the Affordable Healthcare Act will open the door to challenge Medicare. At 65 years old, a Part A premium is taken out of your check whether you sign up or not. The insurance giants will definitely move to eliminate medicare with inadequate vouchers for their product, if the Supremes find against the AHA. That theory could even be applied to Social Security. If your under 55 you better start saving a few hundred a week.

[ntmessage]

06:12 PM on 04/07/2012

This framing is wrong. It is framing Insurance when we should be framing health care and access. All these things here we can regulate these things and be done with it. We can tax the insurance companies to pay for Medicare and be done with it. But instead we are taxing the people in order to send 50 million more customers into the jaws of the Insurance Industry? Are we kidding? The system today pays for all of those people. This solution makes the whole thing so much worse; we need to start over with a different premise. Like actual Health Care and going after the financial engineering that actuaries and the Insurance Companies have turned our Health Care system into. We went after the Banks. What are we rewarding the Insurance Industry?