When the U.S. Supreme Court heard oral arguments about the constitutionality of the Affordable Care Act (ACA) last week, the news media went a little crazy. Despite the evident skepticism of some justices about the individual mandate to buy insurance, there still is no reason to assume that the High Court will knock down the entire healthcare reform law--or even the individual mandate. One or more swing votes are still in play, and nobody has a crystal ball that can forecast the outcome.
But from the perspective of health IT, whether the court chooses to strike down just the insurance mandate or the entire law is critically important. As the Health Information and Management Systems Society (HIMSS) pointed out recently, the statute includes provisions related to "quality reporting initiatives, pay-for-performance initiatives, adoption of state HIEs, operating rules and standards, and health IT work force development."
That's just the beginning. The business model for accountable care organizations (ACOs) is based partly on the Medicare shared savings program authorized by the law--and ACOs cannot exist without a robust IT infrastructure. The ACA also authorizes a bundled payment pilot that depends on coordination of care between hospitals and post-acute-care facilities. And another ACA provision requires Medicare to levy penalties for excessive readmissions, forcing hospitals to bolster their ability to communicate with other providers and patients.
The Meaningful Use program authorized by the HITECH Act--which is totally separate from the ACA--covers some of the same ground. But if the Supreme Court rendered the healthcare reform law null and void, it would probably have a significant impact on health IT. And, to judge by the comments of Justice Antonin Scalia, some justices would like to eliminate the whole kit and caboodle--despite strong arguments that the individual mandate is entirely severable from the rest of the law.
Assuming the court strikes down the individual mandate--and not the entire law--as unconstitutional, there are a variety of ways in which Congress could restructure the requirement to buy insurance so that it would be constitutional.
Princeton professor and former Bill Clinton adviser Paul Starr suggested an easy fix during the debate leading up to the passage of the ACA. Instead of imposing a tax penalty on people who don't purchase health coverage, Starr said Congress simply could make those individuals ineligible for federal subsidies to buy insurance for five years. If they tried to buy insurance during that period, health plans would not have to cover their pre-existing conditions.
Robert Laszweski, an insurance and health policy expert, recently proposed a similar, though less effective approach: people who did not buy insurance at the outset could not have their pre-existing conditions covered for two years if they sought to purchase coverage later.
Either of these proposals could get around a Supreme Court ruling that cut out the individual mandate. In that case, the "guts" of the law, as Scalia described it, would remain intact. But, however the court decides, the ability of Congress to enact such a fix depends on the outcome of the fall elections. - Ken