Although major components of the Patient Protection and Affordable Care Act (PPACA) do not go into effect until 2014, the fate of PPACA depends on the outcomes of four key events this year, according to a perspective paper published online Jan. 26 in the New England Journal of Medicine.
First is the 2012 state legislative sessions, wrote David K. Jones, MSPH, from the department of health management and policy and the department of political science, University of Michigan, Ann Arbor. “One of the defining features of the PPACA is the role it assigns to the states,” he wrote. “States face important decisions about high-risk pools, regulating the commercial insurance market, Medicaid eligibility, creating a health insurance exchange...under guidelines released in December 2011, defining essential health benefits packages. States not meeting certain requirements by January 2013 will lose control of the exchanges to the federal government.”
According to Jones, the 2012 session is the last chance states have to act before the January 2013 deadline.
The constitutionality of the PPACA, expected to be decided by the end of June, also presents a significant event. Given that only nine states have sessions running into July, waiting until the end of June to see how the U.S. Supreme Court rules would be a risky strategy for many states, which may by default cede control of key elements to the federal government, Jones wrote.
It’s possible the entire law could be struck down by the Supreme Court’s decision or that the insurance mandate cannot be challenged until penalties have been collected to be challenged. If the latter were to occur, the courts should not rule until after the mandate becomes operational in 2014 and taxes are assessed in 2015. “The most likely scenarios, however, are that the law will be upheld or that the individual mandate, the Medicaid expansion or both will be found unconstitutional but the rest of the law will stand,” wrote Jones. “Although much of healthcare reform would therefore remain in place, its policy merits would be severely weakened.”
The third event is the June 29 deadline for applications for the final federal grant that states can obtain to support establishment of a health insurance exchange. “Because these grants represent states' last chance to receive federal funding for creating an exchange, states choosing not to apply will face the unpleasant choice of either ceding control to the federal government or spending their own resources,” Jones wrote.
The fourth is election day, Nov. 6. If the PPACA survives the legislative waters and President Barack Obama wins a second term, this would allow him to ensure that implementation goes according to plan. However, if he loses and the law is still around, Jones reported that “most Republican candidates say that as President they will use waivers and executive orders to slow implementation. Republicans running for Congress will probably campaign on a promise of ‘repeal and replace.’ However, even if Republicans retain control of the House and gain control of the Senate, it will be very difficult for them to reach the 60 Senate seats needed to repeal or replace the PPACA.”
“Ironically, many of the states most opposed to federal involvement are putting themselves in a position to cede control,” Jones concluded. “The gamble that leaders in these states are taking is that the Supreme Court will strike down the entire law, that a new President will weaken the implementation administratively, or that Congress will repeal the PPACA. Rather than laying the groundwork in case none of these events happen, they are being guided by the fear that implementing any aspect of the reform will legitimize the law and thus undermine their opposition. If they choose to wait, however, they will probably not have time to do enough to maintain control.”