ACA: Challenges Aren't Over Yet

July 5, 2012— -- The Supreme Court challenge to the Affordable Care Act (ACA) may have been the most recent obstacle to implementing the healthcare reform law, but it won't be the last, according to a Harvard professor.

"The next mortal challenge comes with the Nov. 6 elections," wrote John McDonough, DrPH, of the Harvard School of Public Health.

"Although many issues, especially economic ones, will determine the outcomes of the presidential and congressional races, the policy consequences of the election will be most immediately and compellingly felt in connection with healthcare reform," he wrote in a Perspective article published in the New England Journal of Medicine.

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McDonough predicted that if President Obama is reelected, and if the Democrats retain control of the Senate and regain control of the House, the ACA will be implemented according to current law.

However, if the GOP's presumptive presidential nominee, Mitt Romney, wins the presidency, and Republicans win the Senate and keep their hold on the House, the ACA will face "major deconstruction" starting in 2013, McDonough wrote.

"Thus, the November elections increasingly feel like a referendum on the ACA," he argued.

Last week, the Supreme Court ruled 5-4 to uphold virtually all of the ACA when it decided that the law's controversial individual mandate -- which requires nearly everyone to have health insurance -- does not violate the U.S. Constitution.

The court also upheld the ACA's expansion of Medicaid to cover nearly all people under age 65 with household incomes at or below 133% of the federal poverty level. That provision is set to go into effect in 2014. However, the court struck down a provision that gives the Secretary of Health and Human Services the authority to withhold funds from states that do not comply with the Medicaid expansion, a penalty that many states considered too onerous.

While the bulk of the ACA will go forward as planned, the court's ruling on Medicaid will have the biggest impact on the immediate future of the law, McDonough wrote. "This decision creates new uncertainties in the dynamic relationship between states and the federal government with regard to social welfare programs."

Under the ACA, the federal government will cover 100% of a state's cost of the Medicaid expansion starting in 2014, and gradually decrease to 90% in 2020 and in the subsequent years. While some healthcare experts predicted that states wouldn't turn down that money from the federal government, McDonough noted that some Republican governors have already announced their intention not to expand Medicaid.

"That reaction isn't surprising in today's hyperpoliticized pre-election environment," he wrote. "More telling will be judgments made after the elections."

If it were a less hostile political environment, congressional Democrats and Republicans might work together to figure out how to best implement the law's many provisions.

"And perhaps we will still get there, as the Supreme Court ruling begins to recede in the rear-view mirror and the dust from the November elections settles," McDonough concluded. "For now, there are still many obstacles ahead."