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Behind the Waning Support for ACA's Individual Mandate

 |  By Philip Betbeze  
   February 04, 2011

Amazing what you'll find when you spend a few minutes each day cleaning out your email box. Doing so was one of my New Year's resolutions, and one I've actually been able to stick to for more than a month. Anyway, while doing this mundane and hated task, I ran into a survey that I found pretty interesting, given this week's developments with health reform in the court system.

Here's what was interesting about one press release I stumbled across: Almost two years ago today, public support for the individual mandate included in healthcare reform legislation, which came to be known as the Patient Protection and Affordable Care Act, was actually pretty strong, if a scientific survey from the influential journal Health Affairs is to be believed.

The survey focused on the public support for the mandate. In short, in a telephone survey of 1,704 adults age 18 and older, conducted between Feb. 14 and Feb. 24, 2008, half of the respondents were asked about a standalone mandate. The other half were asked about a shared-responsibility plan containing an individual mandate. Support was somewhat tepid for the standalone mandate, at 48%. However, 59% of those surveyed supported an individual mandate when it was part of a shared responsibility among government, employers, insurers, and individuals.

That kind of mandate is what eventually made it into the legislation. Beginning in 2014, among other requirements, insurers are no longer allowed to exclude individuals based on pre-existing conditions. They're also prohibited from capping benefits for their insured population in a lifetime maximum methodology. Government is doing its part by covering many of the previously uninsured. Employers (at least those who employ at least 50) are being forced to either provide a certain level of insurance coverage for their employees, or pay a schedule of penalties based upon their coverage levels. Individuals, well, they'll be required to carry health insurance, or pay a penalty themselves, albeit a very small one.

Yet it seems fairly likely, based on developments this week, that despite that support, the mandate is in serious trouble—not from the public, but from the courts. And if the individual mandate is in trouble, so is the entire law.

Just read what Senior U.S. District Judge Roger Vinson wrote in a 78-page ruling. "This case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government. Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void."

The ruling will likely be appealed by the federal government at the U.S. Court of Appeals in Atlanta, and the case is expected to be heard eventually by the U.S. Supreme Court. It'll make it that far, bet on it.

Speaking of betting, I don't know whether they're taking bets on this in Britain, where the off-track betting parlors will take a wager on just about anything, but I'll be the odds are against the law surviving, given the Court's current 5-4 split, Republican to Democrat.

So does that put us all back to square one if the law is struck down on Constitutional grounds? In some ways, yes. The uninsured would remain uninsured, I suppose. Insurers could go back to their old way of doing things. And hospitals' bad debt expense (as a result of those uninsured seeking care without any means of paying for it) wouldn't be cured anytime soon either.

In other ways, no.

Much of the focus on cost and quality doesn't depend on the legislation's survival. In fact, despite its huge scope, cost control and quality were two big items that left a noticeable hole in that many feel they received short shrift in the legislation. Commercial payers, and even CMS, will move forward on many of these efforts regardless of what happens to PPACA. Many of the more innovative hospitals and health systems are re-engineering to meet these new standards. So stay tuned. If you thought last year's progression toward the legislation's actual passage was turbulent, you've seen nothing yet.

Now it's really about to get interesting.

Philip Betbeze is the senior leadership editor at HealthLeaders.

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