Potential Outcomes for Oncology
In summary, this June the Court will rule on the constitutionality of the ACA’s minimum coverage requirement (assuming it moves past the Anti-Injunction Act issue) as well as the issue of the Medicaid expansion. If the Court strikes the minimum coverage requirement, the Medicaid expansion, or both, the Court will consider severability.
As a result, there are a number of permutations of rulings the Court may reach:
• The minimum coverage requirement could be stricken alone.
• The minimum coverage requirement could be stricken in combination with a small number of closely related provisions.
• The Medicaid expansion could be stricken alone (or in combination with a small number of closely related provisions).
• The entire ACA could be stricken.
• The entire ACA could be upheld.
These possibilities are discussed in greater detail below.
Minimum coverage requirement alone stricken
If the Court finds the minimum coverage requirement unconstitutional but leaves the rest of the law intact, a number of problems could arise. In particular, the Obama administration asserts that the minimum coverage requirement is necessary to properly implement the ACA’s guaranteed issue provision (which requires health insurers to accept all qualified applicants regardless of health status or preexisting conditions) and community rating provision (which prohibits varying health insurance premiums based on factors other than family size, geography, age, and tobacco use). Without the minimum coverage requirement, the administration has argued, these provisions could cause health insurance premiums to increase and the number of insured people to decrease, since people would be more likely to wait until they became ill before obtaining coverage. Although this circumstance would cause significant problems for all stakeholders in the health care industry, cancer care providers might be particularly affected by an increase in the number of uninsured patients.
The Government Accountability Office and other entities have examined policies that might replace the minimum coverage requirement if such a situation were to arise. Some methods of encouraging healthy people to obtain coverage might include modifying open enrollment periods (by making them fewer and further between), imposing penalties on those who do not enroll as soon as they become eligible, and allowing for greater variation in premium rates based on enrollee age. However, it is unlikely that any combination of these changes would have as large an impact on individuals’ decisions to purchase health care insurance as the minimum coverage requirement is expected to have. In any event, the current political climate may create insurmountable challenges for Members of Congress interested in replacing the minimum coverage requirement if it alone is stricken by the Court.
Minimum coverage requirement and other key insurance reforms stricken
Alternatively, the Court could decide to strike the minimum coverage requirement and also strike a limited number of ACA provisions that are closely related to that requirement. For example, the Obama administration has argued that the community rating and guaranteed issue provisions are so inextricably linked with the minimum coverage requirement that they too would have to be stricken if the minimum coverage requirement were invalidated.
If the Court agrees with the administration on this point, it would remove desirable safeguards that protect individuals with cancer. The ACA’s existing guaranteed issue provision ensures that individuals with cancer and cancer survivors will be able to access coverage on the individual insurance market even after being diagnosed with cancer. The community rating provision prevents insurers from penalizing cancer patients and survivors with exorbitant premiums. Removing these protections would, in many cases, leave these vulnerable people in the same difficult situations they confronted prior to the ACA’s passage.
Medicaid expansion stricken
The Medicaid expansion, through which an estimated 16 million people will be added to the Medicaid roles, is a major component of the ACA’s efforts to reduce the number of uninsured Americans. If the Court finds the Medicaid expansion to be unconstitutionally coercive, the Court could allow the expansion to remain in effect for states that voluntarily accept it, or it could eliminate the expansion completely.
If the Court finds that eliminating the Medicaid expansion undercuts the minimum coverage requirement (which might leave some people with a mandate to obtain coverage but no means of doing so absent Medicaid eligibility), the Court might also invalidate the ACA’s insurance market reforms or the law in its entirety on the basis of a ruling that the Medicaid expansion is unconstitutional. It is also worth noting that, while some believe that the Medicaid expansion could be stricken in a relatively narrow manner, others argue that a ruling striking the expansion could threaten the constitutional basis of a number of other laws, including Medicaid in its current form and the Clean Air Act.
Entire law stricken
If the Court finds the minimum coverage requirement or the Medicaid expansion to be unconstitutional and decides that Congress would have intended for the entire law to be invalidated absent the offending provision, a number of important protections that are of particular interest to the oncology community and are relatively unrelated to the disputed sections of the ACA would be lost. For example, the ACA:
• Eliminates annual and lifetime benefit limits, which are particularly problematic for cancer patients, cancer survivors, and other individuals with conditions that are expensive to treat.
• Prohibits insurance companies from rescinding coverage except in cases of fraud or intentional misrepresentation of material fact. Prior to enactment of the ACA, there were concerns that some insurance companies investigated beneficiaries who had recently been diagnosed with cancer or another costly disease in order to identify undisclosed conditions that would provide grounds for cancelling coverage.
• Requires Medicare, Medicaid, and private insurers to cover a variety of preventive services, including many cancer screenings, often without cost sharing.
• Requires health insurers to cover the routine patient costs associated with participation in clinical trials for the treatment of cancer and other life-threatening diseases.
These are just a sampling of the protections that would be eliminated if the entire ACA were invalidated.
Entire law stands
If the Court decides that the provisions it is considering do not violate the Constitution, all of the ACA reforms that have been discussed over the last several years will remain in place. The federal government is still working to implement the ACA as originally scheduled by soliciting comments and issuing regulations on the law’s numerous programs.
A number of media reports of the ACA’s week at the Supreme Court attempted to extrapolate from the justices’ questions how they were likely to rule on these important issues. Although some observers were surprised that certain justices’ statements seemed to signal reluctance to rule the law constitutional, forecasting Supreme Court decisions is a highly speculative endeavor. As a practical matter, many states and businesses are operating under the assumption that the law will stand, at least with regard to ACA deadlines approaching in the near term.
Although this article has not touched on every nuance relevant to the Court’s consideration of the ACA, we hope this discussion will assist the oncology community in contextualizing the oral arguments and understanding how each of the Court’s potential rulings may impact cancer patients and cancer care professionals. Regardless of how the Court rules, its opinion will provide a clearer picture of how the federal government may interact with the health care industry in years to come.