Washington Lawyer - January/February 2020 - 36

FEATURE
obtain health insurance in the prior year. The
so-called individual mandate was the most
unpopular piece of the Affordable Care Act, but
its removal throws the insurance system out of
balance. Republicans are loath to do away with
politically popular guarantees of coverage for
preexisting conditions, which drive up risks and
therefore costs in the system.

availability of short-term health plans. U.S.
District Court for the District of Columbia
Judge Richard Leon, a George W. Bush
nominee, upheld the Trump rule. Plaintiffs
appealed to the U.S. Court of Appeals for the
D.C. Circuit in July, and 21 major health care
interest groups, including the American
Medical Association, have submitted amicus
curiae briefs in support of the plaintiffs.

WHAT THE FUTURE HOLDS
Another post-election scenario the legal profession may be called upon by lawmakers to
address is finding ways to make the Affordable
Care Act work better. That might be tough.
"The biggest problem for the Affordable Care
Act is really the Supreme Court decision holding
that states did not have to expand Medicaid,"
says Kanner.
In 2012 the Supreme Court ruled in National
Federation of Independent Business v. Sebelius that
the act's Medicaid expansion was unconstitutionally coercive of the states. To date, while 37
states and the District of Columbia have
adopted Medicaid expansion, 14 states have
not, according to the Kaiser Family Foundation.
States that expanded Medicaid saw significant
coverage gains and reductions in uninsured
rates, Kaiser studies show.
Starting in 2019, Republicans in Congress eliminated the penalty for individuals who failed to

the Affordable Care Act to Medicare for All and
their potential effects.
November seems a long way off, and formation
of a new Congress and administration even
further down the road. Trying to predict policy
outcomes is fraught with uncertainty, and translating campaign slogans into actual legislation is
likely to require compromises. The advocacy and
lobbying from stakeholder groups trying to
shape the dialogue will be intense.

"Potentially, there's a role for lawyers to be
played in looking at the existing case law
and the precedents, and looking at whatever
Congress has done in the intervening time
and coming up with things that a new administration could do under the existing law to
further the goals of the Affordable Care Act,"
Kanner says.

"It's one thing for candidates to be saying to the
electorate, 'I hear you. Health care is too expensive. And I am going to have the government
do something about it.' As we get close to the
general election, that becomes a complicated
message because you get pushback from
people who are just as adamantly opposed to
further government involvement in health care,"
Fried points out.

To be sure, a new Congress and administration
have a wide range of real options for improving
health insurance in the United States. A pair of
reports issued by the Urban Institute and the
Commonwealth Fund in October suggest the
nation could achieve new universal health care
with moderate decreases in spending within
the existing public-private system.

"The challenges the U.S. health care system
presents to providers and patients - the regulatory complexities, the reimbursement issues,
the fraud and abuse cases - exist in other
countries, but they are just not as significant
as they are here," he adds.

The studies - "Comparing Health Insurance
Reform Options: From `Building on the ACA'
to Single Payer" and "From Incremental to
Comprehensive Health Reform: How Various
Reform Options Compare on Coverage and
Costs" - analyzed eight health care reform
proposals falling on a continuum, from fixing

William Roberts is a regular contributor to
Washington Lawyer.
Photos: Flag, iStock; Bruce Fried, courtesy of Dentons; Paul Rudolf,
courtesy of Arnold & Porter LLP; Sheree Kanner, courtesy of Hogan Lovells;
Ladd Wiley, courtesy of Ladd Wiley/OFW Law; stock photos, iStock

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Washington Lawyer - January/February 2020

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