The Supreme Court and Health Care Reform: The Impact of Potential Findings and the Individual Mandate

Sitting in Grand Junction, Colorado at the helm of a health plan that is described as one of the best in the country (U.S. Health Care:  The Good News, a PBS documentary broadcast this past February), I am struck by the fervor in Washington, DC as we await the Supreme Court decision on the Affordable Care Act (ACA).  I’m told by some folks in Washington that the ruling will be a huge “win” or a huge “loss” for President Obama. While that might be true in politics for this election year, that perspective misses the mark for health care professionals.   For your health care, the opinion will be neither a “win” nor a “loss” nor even a “solution”; it will simply define what parts of the proposed federal health reform law will create the framework for our future.


In other words, whatever the Court’s Opinion might be, the problems of health care will not disappear, and solutions will remain elusive without a lot of work.  The ACA is a group of proposals designed to create a foundation for progress.  It is not the solution itself; it is a set of potential tools with which to build a solution.


Before we discuss the solution, we must first understand what the problem is.  To my mind, the problem is this:  Cost.  Health care is simply becoming unaffordable.  This is true across the board.  Consider a few examples:

— American businesses, from the shoe store on Main Street to the internet company competing in a global economy, are struggling to provide health care for their workers. They are overwhelmed facing ever-rising premiums year after year, and often cut coverage or require the employees to share the cost as a result.

— Every day, ten thousand more Americans turn 65 and become eligible for a Medicare system that was designed for 1960s medical care.  As we have developed medical miracles ranging from cancer treatments to hip replacements, that extend life and enhance the quality of life for our seniors, we must design how we are going to fund this system in a sustainable way.

— In this tough economy, hundreds of thousands of Americans have had to rely on Medicaid for their care. This rise in new Medicaid members results in a system costing billions of public dollars, and straining state budgets to the breaking point.

There are a dozen things that drive health care costs higher, and one key component of the rising costs is the lack of access for the uninsured. Someone who is uninsured often can only get treatment if they are so sick or hurt they go to a hospital emergency room. When they can’t pay their medical bills, the hospital must balance those costs, passing them on to the rest of us.  Colorado’s health care reform commission determined that your hospital bill is more than 30% higher because of cost-shifting like this.


So, how do we tackle these rising costs after the Supreme Court rules?  Well, it depends what the ruling is.


If the Court affirms the entire law, it becomes the framework for reform.  But we will need to make sure to implement the concepts of the ACA in ways that work. Everyone will have a right to insurance despite preexisting conditions, and Health Benefit Exchanges will be built in every state that will offer premium subsidies for folks needing financial help.  The subsidies will be available for a family of four with a household income up to $88,000.  But additional rules will be needed to make sure that the guarantee of insurance actually works in practice the way it’s meant to work in theory. The process will be extensive: beginning – not ending – if the ACA law is upheld.


If the Court rejects the Individual Mandate, but affirms the rest of the law, we must find a way to make the ACA’s guarantee of insurance affordable.  State experiences and studies show that when you only require a guarantee of insurance, without finding a way to encourage people to get covered before they need care, costs go up… a lot.  So, if we’re going to lower costs and the Individual Mandate is stricken, we have to work together to find other mechanisms to encourage people to take advantage of the guarantee and become insured.  This not only can be done, it must be done.  (It’s done right now with the Medicare drug benefit, where beneficiaries can buy a lower cost product when they turn 65, or choose to pay more if they want to wait).  We don’t have to adopt that specific model, but we do have to do something.


If the Court rejects the whole law, states and communities must rise to the occasion with actual improvements in the efficiency of the system. We should not accept that costs  continue to rise at the rates they are rising. We will simply need to do more for less.  That doesn’t mean we have to ration care, but we do have to make it rational.


The factors that influence cost are complicated issues.  After all, there are a dozen reasons that health care costs are going up so high and so fast.  Some people look at that and say it’s just too confusing to fix, especially in an election year.  I look at that and say:  there are a dozen ways to make things better.  But we have to do work together.


Some say this can’t be done.  Well, we’ve been doing it in Western Colorado since the 1970s.  And we’re not alone.  There are high-performing health systems from the coast of Maine to the Pacific Northwest, that put patients over profits and care about everyone in the community.  And that is U.S. Health Care: The Good News.



About the Author:

Steve ErkenBrack currently serves as President and Chief Executive Officer of Rocky Mountain Health Plans. Prior to assuming this position, he served as Vice President of Legal and Government Affairs for the organization since 2002.


For more than twenty years, Mr. ErkenBrack worked as an attorney with an emphasis on health care, civil litigation, and government affairs. Mr. ErkenBrack maintained a private practice with offices in Grand Junction and Denver, and served six years as Mesa County’s elected District Attorney and four years as Colorado’s Chief Deputy Attorney General. He is admitted to practice before the United States Supreme Court.

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