Healthcare decision a waiting game
By Rep. Michael C. Burgess (R-Texas)
06/05/12 07:09 PM ET

All the pacing and worry leading to anticipation of this month’s Supreme Court decision on the Affordable Care Act has the characteristics of the waiting area outside a hospital delivery room. Everyone has strong opinions about what this ruling born of the court should look like. Why the acrimony? The high degree of concern is understandable when you consider how personal healthcare is to each of us and how widespread the law’s impact is on one-sixth of our economy. Yet, as experts line up and pundits weigh in, the hard-set opinions leave little room to operate.

We need to allow for the possibility that the Supreme Court will leave parts of the law on the books. It doesn’t mean we will do a thing to enshrine the remains of a law that has been struck down by the court, but we damn well better be prepared to move ahead. Unlike the confident position of the Obama administration, unlike federal agencies blindly marching forward to implement the law, many of us in Congress are planning for contingencies. In contrast to how top Obama officials secretly negotiated this healthcare law using off-the-books emails and coffeehouse conferences, the American people will expect straight talk about options and demonstrated leadership.

Because we don’t know what parts — or if all — of the law could remain or be lost by a court ruling, the process of preparing to respond is difficult. If the court struck down the law in its entirety — a scenario once almost unthinkable, but after the tenor of the March oral arguments, a distinct possibility — immediate consequences and the need for action by Congress would benefit from a clear-eyed assessment of revelations found in the negotiating positions with the Obama White House taken by the hospitals and insurance and pharmaceutical industries.

For example, just in the last two weeks we have learned much from what was revealed about the closed-door dealings between PhRMA and President Obama’s top officials that resulted in modifications of the coverage gap in Medicare Part D — the so-called “doughnut hole.” Note that these agreements predate the passage of the Affordable Care Act.

What is instructive is that regardless of the court ruling, bargaining positions were revealed. Perhaps renewed focus on these commitments would soften hardened positions.

After the ruling, coverage for children on their parent’s policies to age 26 could require rethinking and ultimately legislation at some point in time, but not immediately. Most coverage continues for the “plan year” that will not expire until the late fall months, giving the legislative branch time to work out a compromise, if required. In fact, individual insurance companies might decide to continue this coverage to attract customers, if the reported popularity of the option holds true. Indeed, the marketplace could be more agile than Congress and simply solve that problem.

Finally, there is the issue of individuals who have pre-existing medical conditions — an aspect that was oversold as part of the crisis to pass the health law. Although only the small group and individual markets excluded patients with pre-existing conditions, they do need access to coverage. If the court strikes down provisions that impact the structure and financing of high-risk groups, there are 62,000 people under the healthcare law who might lose coverage the very day after the decision. On their own, more than half the states took the initiative prior to the Affordable Care Act to set up risk pools or reinsurance programs. To carry out their blueprint so that they could include those who might lose coverage after a court decision, financial help from federal sources would make more policies available and affordable. There must be a choice of coverage to include at least one policy that must be a high-deductible plan coupled with a health savings account. Whatever the solution, we need to be prepared for their potential loss of coverage.

Balancing these three variables — pre-existing conditions, dependent coverage to age 26 and the doughnut hole — will require Congress and the president to create some necessary breathing space to deal with the court’s decision.

A great deal of work would remain and would require Congress to continue in session throughout the rest of the year — no long weeks of August or October work periods back in our districts. We would remain at the Capitol, listening, legislating and voting. It would be a major undertaking, but the public will expect us to deliver.

Burgess is a physician and vice chairman of the House Energy and Commerce subcommittee on Health.