Wednesday may be the stickiest part of the three-day hearings at the Supreme Court regarding health care reform’s individual mandate, as the issues being argued on this final day have the greatest potential to make HR/benefits managers lives — and those of the employees and families they serve — quite complicated. What is at hand today is the issue of “severability,” whether the entire Patient Protection and Affordable Care Act must fall if the insurance mandate is found to be unconstitutional, or if the other remaining parts of the law can survive.
When Congress adopts legislation, it sometimes includes a severability clause that allows other provisions to stand in case the courts strike down another part. However, PPACA contains no such clause. Thus, today’s arguments hold special importance. If the individual mandate is struck down and also found to be not “severable” from the remainder of the law, it means that when the unpopular mandate falls, all of the more popular provisions—including guaranteed issue, coverage for dependents up to age 26, prohibiting insurers from denying coverage to individuals with pre-existing conditions, and prohibitions on gender rating and lifetime benefit caps—will go down along with it.
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