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HHS says high court can kill insurance provisions of reform law but let others stand


By Joe Carlson
Posted: January 27, 2012 - 7:00 pm ET
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If the Supreme Court decides that it must throw out the healthcare reform law's requirement that private individuals purchase insurance, then the court should also invalidate two provisions in the law that force insurers to offer coverage to almost anyone who wants to buy it, HHS says in a legal brief.

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However, HHS argued in a filing with the U.S. Supreme Court on Friday (PDF) that the elimination of those three insurance provisions should not doom the rest of the Patient Protection and Affordable Care Act, which contains many provisions can stand on their own without the insurance mandate.

Opponents of the law argue that if the mandate is struck down, the Supreme Court should invalidate the entire law.

The 11th U.S. Circuit Court of Appeals in Atlanta—the only appellate court to invalidate any part of the law—ruled Aug. 12 that the rest of the law could stand without the insurance mandate.

In a court filing on Friday with the U.S. Supreme Court, HHS attorneys said that if the court finds the individual mandate “severable” from the law, then it must also eliminate the provisions on “community rating” and “guaranteed issue” of insurance, which require insurers to offer coverage without regard to health status at standardized prices.

Insurance companies have long argued that forcing them to offer insurance to anyone without a corresponding individual mandate to carry coverage could trigger a financial “death spiral” for insurers, since beneficiaries could purchase insurance, for example, in the ambulance on the way to the hospital.

The Supreme Court has granted three days of oral arguments (PDF), March 26-28, on the constitutionality of the Affordable Care Act in late March. Arguments on the discrete question of whether the insurance-mandate can be severed from the law as a whole are slated for March 28.


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