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If the Affordable Care Act had been struck down…

June 28, 2013

    Dan Diamond, Managing Editor

    A world without the ACA is only a thought experiment today, but it didn't seem so hypothetical a year ago.

    The Supreme Court was finally ready to rule on the various legal challenges to Obamacare, and Solicitor General Don Verrilli's bumpy defense had disheartened many of the law's supporters. (Verrilli had made "the worst Supreme Court argument of all time," according to one liberal columnist.) Bettors on InTrade thought that the law had an 80% chance of being struck down by the Court...and if not for a single vote from Chief Justice John Roberts, they would've been 100% right.

    Instead, the law stood—and the graphic below charts some of the ripple effects across the past 12 months.


    But what would have changed if the ACA had been struck down?

    Legislatively, there wasn't much of a back-up strategy; a split Congress was unprepared to pass any sort of patch, and most state legislatures had already wrapped their annual sessions by late June 2012. There likely would have been a splintering effect, policy experts told me, with state leaders taking very different paths to either salvage parts of the law or abandon it, based on their own financial (and political) calculations.

    The courts also might have had to step into new legal battles, too, such as deciding the fate of ACA funds and grants that were in the process of being paid out.

    In the private sector, though, the world might not look so different. In the year since the Supreme Court's verdict, many firms have experimented with plan design and provider contracting, and "we would have seen more of the same" if the law had gone away, said Steve Wojcik of the National Business Group on Health. 

    Employers have been trying to bring down their health costs for years, Wojcik notes, whether through employee wellness initiatives or attempts to strengthen primary and preventive care through options like worksite clinics. And while those efforts were kicked into higher gear by the ACA's passage—and the looming threat of the excise tax on "Cadillac" health insurance plans—the fundamental cost pressures would've remained, regardless.

    However, "we would've seen more [direct] contracting" in a world without the ACA, Wojcik told me, citing Walmart's deals with leading hospitals around the nation as an example of the center-of-excellence strategy that would appeal to large firms seeking to lower health spending and ensure that employees would be treated by top providers.

    There also would've been continued debate over national health spending, too. Even in a world where the ACA and the government's financial obligations to expand coverage didn't exist, "we'd still be pretty busy" trying to figure out how to fund public programs like Medicaid, according to Matt Salo, executive director of the National Association of Medicaid Directors. Salo pointed out all the ways that Congress has been pushing to rethink Medicaid design and administration, regardless of the health law's passage, such as Republican-led efforts to block grant the program.

    Alternately, what if the ACA had stood, but the individual mandate had been struck down?

    "There would have been a full stop in most states on construction of the exchanges," said Bryce Williams, Bryce Williams, Managing Director of Towers Watson’s Exchange Solutions.

    Without guaranteed issue individual coverage and community rating, "there's just no way to organize an imperfectly regulated market where the carriers can pick—as they do today—who gets coverage and who doesn't," Williams added.

    And "if the individual mandate had gone away, why do we need an employer mandate?" Wojcik asked. "That would have been one of the things" that employers would have pushed on Congress to overturn.

    Want to know more about the ACA's coverage expansion?

    In 2014, the ACA's Medicaid expansion and health insurance exchanges will go live, expanding insurance to millions of Americans.  

    The insurance exchanges: Register for our July webconferences to learn everything you need to know about the insurance marketplaces before they begin enrolling patients on Oct. 1. For an immediate look, check out our new white paper.

    The Medicaid expansion: Listen to this on-demand webconference to learn how to manage your hospital's new Medicaid population. For a quick glance, check out the Daily Briefing's primer.

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