On your mark … Get set … WAIT!!!! Supreme Court expected to soon decide on constitutionality of ACA

Seems like only yesterday that the Supreme Court was debating the merits of mandating broccoli consumption…what??  Oh wait , they were comparing that mandate to whether individuals can be required to have health insurance (a debatable comparison, just not for the Supreme Court apparently).  In any case, in the next few weeks, the Supreme Court is expected to render a decision on the Accountable Care Act (ACA), including whether the requirement that individuals maintain health insurance (commonly known as the individual mandate) is a constitutional exercise of federal powers under the Commerce Clause.  If the individual mandate is found to be unconstitutional, the Supreme Court will also need to decide what to do with the rest of the ACA, potentially concluding that because the individual mandate is so inextricably linked with the remainder of the law, the whole law must be thrown out.  One of three things will likely happen:

#1 – The Supreme Court will find the individual mandate to be constitutional, leaving the law in place.  Employers will continue to comply with the provisions, both current ones and those effective over the next few years.  It will be “business as usual” for employers. 

#2 – The Supreme Court will find the individual mandate is not constitutional, but that it is severable from part or all of the remainder of the ACA.  The portions of the ACA that are severable will stand, while the portions that are not severable will cease to apply.  This decision would mean that some or all of the requirements affecting employers may remain in place, however, the final determination of which ones do apply may not be known for several months.  Employers will need to be poised to make the needed changes, without knowing what they will be!

#3 – The Supreme Court will find the individual mandate is not constitutional, but that it is not severable from the rest of the ACA.  The entire law would be voided and employers would no longer have to comply.  This includes portions of the ACA that are already effective.  Employers will need to decide whether to make changes to their plans, and, if they make changes, when those changes will be effective.  Depending on the timeliness of the decision, many employers will be under the time crunch of open enrollment planning, adding more intrigue to the already arduous decision-making process.  In general, employees will not find the turn back of provisions favorable (e.g. the reinstatement of lifetime limits, the addition of employee cost sharing to certain preventive care, or the requirement of pre-existing conditions provisions for children under age 19).  Subsequently, employee relations issues will most likely factor into the decision. 

A fourth possibility, seen as less likely, is that the Supreme Court will decide that it cannot hear a case regarding the individual mandate until an individual violates the mandate and pays the associated penalty.  Therefore, it wouldn’t be in a position to decide this issue until 2015. 

If you’ve ever run track, you know what a “false start” feels like — all the work is done, you’re poised and ready to get to the finish line, adrenaline is pumping and……BANG!!…you’re back at the starting line.  

And, at this point, it’s just not clear where the starting line is.      

Stay tuned for additional updates on the forthcoming ACA decision.