Affordable Care Act implementation is still fraught with uncertainty

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by Cynthia Price
Legal News

It felt as if much of the nation was holding its breath leading up to the recent U.S. Supreme Court decision on the constitutionality of the Patient Protection and Affordable Care Act (PPACA), and when the decision came many people breathed a sigh of relief while others gasped.

That is largely because, unexpectedly, the conservative-majority Supreme Court upheld PPACA’s constitutionality, and Chief Justice John Roberts cast the deciding vote.

Handicapping the court’s decision going in, people thought that Anthony Kennedy was likely the swing vote, but the chief justice surprised everyone. He went on to write the majority opinion declaring that the court would not strike PPACA down.

Ultimately, the five-person majority consisted of Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Chief Justice Roberts. Justices Clarence Thomas, Antonin Scalia, Samuel Alito and Anthony Kennedy issued a joint opinion that the PPACA was, indeed, unconstitutional.

Those who would like to read the opinion itself may find it online at http://media.lifehealthpro.com/
lifehealthpro/article/2012/06/28/11-393c3a2.pdf.

The most prominent rulings in the SCOTUS decision are: 1) that the individual mandate provision constitutes a tax and is therefore constitutionally within the purview of Congress; and 2) while it is constitutional to expand Medicaid coverage — PPACA, when fully implemented, calls for states to extend Medicaid to people with incomes up to 133% of the Federal poverty level — the U.S. government cannot withhold all Medicaid funds from states that choose not to expand Medicaid.

But along the way several other provisions, including the prohibition against health insurers denying coverage due to pre-existing conditions, and the requirement that insurers cover their insureds’ children up to age 26 (humorously called the “slacker mandate”) were upheld.

At a panel discussion held last Tuesday by the Alliance for Health and Grand Valley State University,  participants tried to grapple with what all this means, stressing that there is still significant uncertainty.

It is not yet known what the state of Michigan will do, either with the mandated Health Care Exchange (which the Federal government will supply should a state fail to create one), nor with Medicaid expansion. Nor have the appropriate authorities in the U.S. administration finalized rules and procedures, and panelists reminded audience members that often the devil is in the details.

Carl VerBeek, a Partner at Varnum who has long been very active in the health care community, moderated the panel. VerBeek was a good choice not only for his expertise and skills, but also because his community service has made him familiar with the organizations operating in the health care arena.

VerBeek is chair of the Kent Health Plan Corporation, a non-profit which “develop[s] innovative programs that improve access to healthcare for thousands of low-income people in Kent County without health insurance.”  He also serves on the boards of Children’s Healthcare Access Program, Holland Home, and Faith Hospice, and on the Health and Human Resources Committees of both the Michigan and the Grand Rapids Area Chambers of Commerce.

VerBeek’s practice at Varnum also focuses on health care, along with labor and employment law.

On the panel were Steve Heacock, former Warner Norcross and Judd attorney who is now Vice President of Community Relations for Spectrum Health; Ron Palmer, CEO of the Grand Valley Health Plan; Win Irwin, owner of Irwin Seating, who filled in for a scheduled panelist who could not make it, and who felt that the Congressional failure to consider the single payer option resulted in an unfair burden on employers; Mary Alice Williams, President and CEO of the Nokomis Foundation, an organization working to create, and to be, a stronger voice for women and girls, which had given a grant to Michigan Consumers for Healthcare to advocate for PPACA; and Vondie Woodbury, Director, Community

Benefit, Trinity Health Services, and Executive Director of the Muskegon Community Health Project.

VerBeek introduced the discussion by noting that he has been involved in some of the discussions at the state level concerning whether Michigan will go with the expanded Medicaid criteria. He noted that Governor Snyder has asked for an analysis of the effects of the expansion.

“What assumptions will be made in the process of doing that analysis will determine what results the analysis comes up with,” VerBeek said.

“Whoever writes the assumptions will be instrumental in determining the outcomes.”

In his presentation, Heacock focused largely on the political aspects of both Congress considering the act, and of the way the Supreme Court aligned itself.

“This is great fun for lawyers, and really great sport for us all,” he said of the months-long attempt to figure out how the Supreme Court would rule.

Heacock pointed out that Chief Justice Roberts, in calling the individual mandate a tax, inherently made it subject to the reconciliation process, meaning it can be overturned. Therefore, said Heacock, “He gave the Republicans a road map for how to repeal without repealing.”

Heacock also reminded the audience that major provisions of PPACA were originally the idea of conservative factions. In the mid-1990s, for instance, Stuart Butler of the conservative Heritage Foundation came up with the idea of the individual mandate; though he later found fault with it in  Democratic and “Hillary Care” versions, his analysis at the time seemed more concerned with the details, never mentioning constitutionality issues.

The same is true of the Health Insurance Exchanges, which Heacock traced back as far as the Nixon years.

Palmer went over the penalties to be paid as part of the individual mandate to have health insurance, as well as those employers will have to pay. He said he found the task of informing the public on this “unfortunate” because of the uncertainty about what the state will do, but if Michigan does opt in to the Medicaid expansion, it is likely to swell the rolls by somewhere between 300,000 and 500,000.
Like many others, he also finds the level of detail in the penalty payments daunting.

As for Williams, though she said Nokomis understands that the PPACA may not be perfect, the foundation applauds the government for jumping in and getting a good start.

The Nokomis Foundation had done listening sessions with low income people in ten counties around Kent almost ten years ago, and had fashioned a pro-health care reform advocacy stance what it heard from the many low-income women who were uninsured.
Vondie Woodbury advised that her employer, a Catholic-faith-based health care institution, continued to be opposed providing services that run counter to its belief system, such as birth control.

She praised PPACA for other provisions, especially mandating that health care employees and Public Health employees work together.
Several on the panel echoed Heacock when he said, “Inaction solves even less than the Affordable Care Act, and regardless of what happens, West Michigan health care providers will continue to take care of the poor.”