Will the New ACA Lawsuit Wreak Havoc on Healthcare?

Leigh Page

Disclosures

September 05, 2018

In This Article

What Would Insurers Do?

Even the insurance industry, represented by America's Health Insurance Plans (AHIP), has opposed the court challenges to the ACA in an amicus curiae brief.

AHIP has stated that the DOJ plan would "result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019."[14]

But if the DOJ plan were upheld, Jost says insurers would have no choice but to offer policies that excluded people with preexisting conditions. "If one insurer started doing it, the others might have to follow or risk losing the market," he explains.

What would happen if Judge O'Connor issued a declaratory judgment upholding the DOJ's case? Insurers could then legally change policy on the basis of the order, but would they?

Probably not right away, says one expert. Insurers would wait until the Supreme Court makes a final ruling, which could take a year or two, according to Phil Waters, a clinical fellow at the Center for Health Law and Policy Innovation at Harvard Law School. If the high court overturned the lower court's decision, "insurers would then have to change their policies back again," he says. "They don't want to do that."

But Stuart thinks that insurers would immediately exit some of the ACA exchanges, making it harder for people to buy coverage. "It's too bad, because the exchange markets have been stabilizing," he says.

Defenders of the ACA used to say that the law couldn't survive without the penalty in place, because it forced healthy people to buy insurance. But now that the penalty has been removed, that hasn't happened. Although the penalty ends next year, rates for 2019 have already been filed, and they indicate "the increasing steadiness of individual markets," the AHIP brief stated.[15]

But even if the court challenge is ultimately defeated, it's clear that the ACA is being slowly dismembered. HHS may well continue to make administrative changes that chip away at its power, and if Republicans retain hold of Congress after the upcoming elections, more changes could follow.

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