WASHINGTON | Tue., Mar 20, 2012 7:27pm EDT (Reuters) - The Supreme Court will hear oral arguments on the constitutionality of the Patient Protection and Affordable Care Act — specifically the health care reform law’s individual mandate — starting on Monday and is not expected to rule until as late as June 30. The justices could throw out the entire law or uphold it. They may also issue only a partial ruling, striking down the mandate, for example, or overturning the planned expansion of the Medicaid health program for the poor. Or they could put off a decision until after the law comes into full force in 2014.
If the high court opted only to reverse the law's unpopular individual mandate, which requires most adults to purchase health insurance, there are several alternatives to ensure that enough people participate in coverage to make the law work as envisioned.
The options range from a new tax on individuals who do not acquire coverage to financial incentives that could encourage young, healthy people to sign up for insurance. The government could also consider special subsidies for high-risk individuals who are already sick or vulnerable to disease.
But they would require that Democratic lawmakers use bipartisanship to shore up the law, a daunting challenge during an election year when Republicans are already moving to repeal several of its provisions.
"All of them would require some sort of congressional action," said Larry Levitt, a health care adviser to former President Bill Clinton who is now at the nonpartisan Kaiser Family Foundation. "Congress could end up stalemating, and you could find yourself in a situation where there's no consensus about how to move forward."
Creating a new tax on individuals who do not buy insurance and adding new federal spending to subsidize insurance premiums for higher risk individuals are options unlikely to pass muster with Republicans in Congress.
Partisan politics could also obstruct options that call for scaling back the law's consumer protections or inducing enrollment by adopting cost incentives and penalties that are currently barred by the legislation itself, analysts say.
One option free of congressional entanglement would be to leave it to the states to follow the lead of Massachusetts and adopt their own individual mandates. But that could create big geographic disparities, given the slowness of many states to embrace the exchanges initiative.
No serious attempt to establish an alternative to the mandate should be expected until after the Nov. 6 presidential and congressional elections, according to analysts.
After that point, health care reform might also have a lower legislative priority than tax reform and deficit reduction, delaying debate on health care until late in 2013 and jeopardizing the law's start date of Jan. 1, 2014.
Conservatives agree that the loss of the individual mandate would have fundamental consequences for the entire law.
"There would be a bipartisan recognition that the Affordable Care Act was unworkable," said Douglas Holtz-Eakin, former director of the nonpartisan Congressional Budget Office who served as economic policy adviser to Republican John McCain's 2008 presidential campaign.
"The thing is such an intertwined mess, the court could save us a lot of trouble by striking the whole thing even though that's what they're most reluctant to do," said Edmund Haislmaier of the conservative Heritage Foundation.
If the mandate is struck down, the Justice Department has advised the court that some of the consumer protections — such as the ban on denying insurance for people with preexisting conditions and rules prohibiting higher insurance costs for women and other groups — should be removed to help mitigate the risk to insurers. But the popularity of those protections could provide common ground for lawmakers to find consensus on an alternative that could lead to their preservation.
"Even if these alternatives could pass a polarized Congress, they would be more disruptive, cover less Americans, and increase premiums for people who have coverage due to adverse risk selection," said former Clinton health care adviser Chris Jennings.
(Editing by Michele Gershberg; Desking by Eric Walsh)
© 2011 Thomson Reuters. Click for Restrictions.
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