Blog Post

The 3 biggest remaining threats to the ACA

June 25, 2015

    Josh Zeitlin, Associate Editor

    The Supreme Court just ended the most significant challenge to the Affordable Care Act (ACA) in King v. Burwell. But several threats remain that could have a significant impact on the law—and with it Americans' access to care and hospitals' reimbursement rates.

    The House GOP's court case

    The House Republicans' lawsuit could mean trouble for an oft-forgotten type of subsidies. While most know about the ACA's subsidies to help Americans purchase exchange coverage, the law also includes subsidies to help enrollees use their coverage—"cost-sharing reductions" (CSRs) that help consumers pay for out-of-pocket costs.

    Those subsidies—which total billions of dollars a year—were at stake in King, and the House GOP suit could put them in jeopardy again. The lawmakers argue that the administration's payments to insurers for CSRs are illegal because they were never authorized by Congress.

    If a court puts a halt to those subsidies, that would make it more difficult for some low-income Americans to pay their medical bills, and could discourage individuals from seeking care at all.

    The lawsuit, which also target's the administration's delay of the employer mandate, is currently before a U.S. district court.

    The IPAB challenge

    In March, the Supreme Court announced that it would not hear Coons v. Lew, a case challenging the constitutionality of the Independent Payment Advisory Board (IPAB)—a 15-member panel of health care experts established to make cost-cutting recommendations in Medicare annually if program spending exceeds a certain target growth rate.

    In passing on the case, the high court let stand a lower court's decision that IPAB could not be reviewed by the judiciary because it had not yet been established or issued any recommendations for Medicare. (The Obama administration also has yet to nominate any panel members.)

    However, attorneys for the plaintiffs said the issue was not settled.  "This case is not dead; we're simply in a holding pattern," said Christina Sandefur, a senior attorney at the Goldwater Institute, adding, "We will bring this challenge again once [IPAB] takes action."

    Many providers would want that challenge to succeed, and more than 500 groups—including the American Medical Association—recently sent a letter to lawmakers calling for IPAB's repeal. They wrote that the board would likely "consider short-term savings in the form of payment cuts for health care providers" which "would be devastating for patients, affecting access to care and innovative therapies."

    The 2016 elections

    Nearly every Republican running for president has called for the ACA's repeal, while leading Democratic contender Hillary Clinton strongly supports the law. A Republican president would not have enough GOP support in the Senate for total repeal, but—if Republicans hold the upper chamber—could overturn parts of the ACA through the budget reconciliation process.

    Have King v. Burwell questions? We've got answers

    Want to understand the impact of the Court's decision? Join the Advisory Board's popular "Pulse Check" panelists as they break down the Supreme Court's decision on the Affordable Care Act, the latest data on ACOs and bundled payments, and the industry's continued shift toward value-based care.


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