Good News

Special Note:  The Supreme Court's decision on the Affordable Care Act is expected soon, and when it comes there will be implications for us all.  The OHPM publication schedule may change that week to provide timely analysis, and may publish more than once.

I remember how surprised I was the time I was told that a member of my family had hit his lifetime limits on some of his health insurance benefits.  He had about sixty more years of life expectancy!  I knew then that capping health insurance benefits could be a cruel and bankrupting blow to those who need them the most.

That’s why Monday’s announcement by UnitedHealthcare that, no matter what the Supreme Court decides, it will keep in place some of the new  Affordable Care Act-mandated consumer protections was good news.

As reported in Kaiser Health News, the nation’s largest health insurer said that it would keep free preventive services, allow children up to age 26 to stay on parents’ plans, and have no lifetime limits, among other things.

Humana and Aetna quickly followed with similar announcements.

These ACA provisions have already helped millions.

Around 25 million Medicare recipients alone used free preventive services they obtained through ACA in 2011.

And according to a report just issued by the Commonwealth Fund, 6.6 million young people up to the age of 26 are covered on their parents’ health insurance plans as a result of ACA.  This alone may already account for as much as a 2% reduction in the percentage of people who are uninsured. 

UnitedHealthcare’s announcement will be welcomed by the nine million customers it directly affects.

It may feel like a slap in the face to the President of the National Association of Insurance Commissioners, Kevin McCarty of Florida.   Just last week in the Miami Herald  he offered up a convoluted but spirited defense of insurance company overcharges to businesses and consumers when he dismissed ACA as “uninformed tinkering with the health care market.”

Not so fast, Commissioner McCarty. 

The insurers' announcements might also suggest something more – that those consumer provisions are clearly severable from the rest of the law. 

This could be very important.  If the Court finds either the individual mandate or the Medicaid expansion unconstitutional, severability could save other parts of the law – such as closing the Medicare donut hole – too.

There are now at least three good arguments why the Court may have to sever at least some parts of the law.

First, as is the case with almost every politically contentious law, ACA was an amalgam of legislative initiatives that were melded together into one bill.  Closing the Medicare donut hole, expanding Medicaid, funding prevention, and enacting a program of long term care insurance all stood on their own long before they were put together in one omnibus ACA bill.

Second, some provisions of the law have already been implemented (the consumer protections), modified (the prevention fund), or effectively repealed (the long term care insurance program) without affecting either the individual mandate or the Medicaid expansion.  

Third, the conservative Justices of the Court have been clear that when sections of a law can stand on their own, they should remain in place if even other sections of the law are ruled unconstitutional.

Here’s the way Justice Roberts, writing on behalf of a 5-4 majority that included Justices Scalia, Thomas, Kennedy, and Alito spelled it out on page 28 of the Opinion of the Court in Free Enterprise Fund v. Public Company Accounting Oversight Board, (2010):

“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving the remainder intact.”  Ayotte v.  Planned Parenthood  of Northern New  Eng., 546 U. S. 320, 328–329 (2006).   Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,” Champlin Refining  Co. v.  Corporation Comm’n of Okla., 286 U. S. 210, 234 (1932), the “normal rule” is “that partial, rather than facial, invalidation is the required course,” Brockett v.  Spokane Arcades, Inc., 472 U. S. 491, 504 (1985).”

UnitedHealthcare didn’t go all the way in its announcement. 

It did not, for example, say that it would honor the minimum loss ratio requirements in ACA, or cover all children with pre-existing conditions.  And it could be argued that what insurers have the right to do voluntarily isn’t the same as what the government has the right to impose.

But its announcement and those of other insurers – coming in advance of the release of the decision – clearly puts more pressure on the Court. 

And make a move toward better health insurance – one that happened only because of the government’s “uninformed tinkering” with the health care market.