November 18, 2011
This week's announcement by the U.S. Supreme Court that it will review the Florida v. HHS case was welcome news for employers seeking to operate in an environment of greater legal certainty, but under any scenario the Court's decision will still leave a number of issues unresolved.
If the individual mandate is struck down, the Court will also have to decide whether it negates the entire law or just the mandate. If the entire law were struck down, something not considered likely, health care law and regulation would presumably revert to its pre-PPACA days, but there would be considerable pressure to restore popular reform provisions such as the extended dependent coverage. On the other hand, if only the mandate is struck down, Congress would need to address the problem this creates for health insurance companies which must accept all applicants – regardless of their health status – and would generally be prohibited from raising premiums based on health conditions. It is also possible that the Court could adopt a position that the Obama Administration has taken in some of the lower courts that if the individual mandate is struck down then it also must invalidate PPACA's provisions providing guarantee issue and prohibiting the exclusion of individuals with pre-existing conditions because those provisions are integrally tied to the mandate.
If the individual mandate is upheld, it will increase the urgency of meeting the law's deadlines, most importantly the January 2014 deadline for having the health care exchanges in place. As discussed in a separate story, new hurdles to accomplishing that emerge on a regular basis. Moreover, even a Supreme Court victory will not avoid the "repeal and replace" mandate that could emerge from a Republican sweep of Congress and the White House after the elections.