“Anybody smart ought to be thinking about what-ifs,” said Sen. John Kerry (D-Mass.), a senior member of the Finance Committee, who attended one of the day's arguments. But it's too soon to think about specific legislation, he told Modern Healthcare, “because you don't know what's in and what's out.”
Similarly, policy experts said the range of possible legal outcomes is too great to develop any specific legislative responses before a decision.
“There are so many possible legislative scenarios it makes your head hurt,” said Larry Levitt, a senior vice president and insurance expert at the Kaiser Family Foundation.
But the week's aggressive arguments against the law also have left open the possibility—once seen as remote—that large portions of the law could be rejected. Specifically, Justice Anthony Kennedy, who is widely seen as a critical swing vote on the law, said the more cautious legal approach for the court would include striking down the entire law if it finds key portions unconstitutional, rather than deciding which provisions should remain.
Legislators would face the task of identifying and passing legislation that aimed to achieve the same goal as removed portions. In the case of the individual mandate, possible fixes include a law that escalates insurance premiums as enrollment is deferred, an approach used in Medicare parts B and D. If insurers are still required to accept all applicants and no mandate exists to buy coverage, the insurance market could face insolvency without new legislative efforts to increase insurance coverage, Levitt said.
But the possibility of any major healthcare legislation clearing Congress during a bitterly contested presidential election appears slim, especially when healthcare policy has become so controversial and Democrats have lost control of the House of Representatives since the law's passage in March 2010.
“Whether they declare it unconstitutional or not, nothing is going to happen on comprehensive healthcare reform until after the presidential election,” Sen. Chuck Grassley (R-Iowa), ranking member of the Senate Finance Health Care Subcommittee, said in an interview.
That could mean providers will see lower Medicare reimbursement but won't get the benefit of the 32 million newly insured patients they expected in return, said Paul Ginsburg, president of the Center for Studying Health System Change.
The promised coverage expansion led hospitals, nursing homes, other providers and insurers to agree to at least $220 billion in cuts on the premise that the law would offset reduced funding with a greater number of paying patients.
“What's a real danger for the providers is that the overall fiscal situation is so dire that Congress may be tempted to go through with those provider payment cuts in order to reduce the budget deficit, even if there are much smaller expansion in coverage or no expansions in coverage” allowed by the court, Ginsburg said.
Beth Feldpush, vice president for policy and advocacy at the National Association of Public Hospitals and Health Systems, refers to that scenario as “our worst nightmare.”
“There are certain provisions on the cuts side of things that really are intrinsically entwined with the coverage expansion,” Feldpush said.
Providers may have a window for averting that and other impacts of the court's decision during the waning days of the current Congress immediately after the Nov. 6 general election. In a lame-duck session, campaign politics might subside and difficult decisions could be made that the new Congress might avoid.
Provider advocates said they plan to push any high priority changes required by the court's action during the lame-duck session. They already plan to use the post-election session to address the looming Medicare physician payment cut and other priority legislation.
However, any fixes to sustain the healthcare overhaul likely would run into opposition from many Republicans, who control half of Congress and said the entire law needs to be replaced.
“Regardless of what the Supreme Court decides, we remain committed to the full repeal of Obamacare,” Rep. Renee Elmers (R-N.C.), told reporters as the court was wrapping up its arguments.
