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Beyond the Health Care Arguments: The Waiting Games

By Jane Norman, CQ HealthBeat Associate Editor

March 23, 2012 -- When the Supreme Court finishes its third and final day of arguments about the health care law on Wednesday, a national waiting game for a decision will begin. And for some of the states charged with the nitty-gritty work of implementing the overhaul, there will be a second waiting game that might not end until after the November elections.

Experts in state health policy say that political leaders in Republican-controlled states that have fiercely resisted the overhaul might not let this matter drop, even if the justices uphold the entire health care law, which 26 states are challenging. They predict some elected officials will insist on waiting for the voters to decide who will occupy the White House and control Congress next year, hoping that if it’s a good election for the GOP, Republicans would repeal the law, regardless of what the court decides. Such a delay would give state officials even less time to meet their deadlines to implement the law by 2014.

“There are actually two waiting games going on,” says Matt Salo, executive director of the National Association of Medicaid Directors. “Regardless of how the [court decision] plays out, there is also an election coming up.”

The court is expected to issue its ruling by June 29 at the latest, which is the Friday before the July 4 holiday and the last day of the court session. Lawyers with long experience before the high court say they doubt that the justices’ deliberations will continue past late June, providing they can muster a majority in the difficult and complex health care case. Lawyers also say they anticipate each justice will write his or her own separate opinion.

Supreme Court decisions in recent history have almost never lingered into the summer, says Tom Goldstein, a veteran Supreme Court lawyer and the publisher of SCOTUSblog, which tracks the court. “They are religious about this,” says Goldstein, though he allows as to how “there can be a first time for anything.”

Joe Onek, a lawyer with the Raben Group and former senior counsel to House Democratic leader Nancy Pelosi of California, also says he doubts the decision will be later than June. Onek says the justices likely already have been thinking about their opinions of the health law (PL 111-148, PL 111-152) and may already have them formed. Lyle Denniston, a veteran court observer, says that the comments made by justices during oral arguments are aimed more at persuading other justices than at the lawyers arguing the case.

Plus, it’s summer. Says Onek: “They have their own vacation plans.”

Some have compared this matter to another extremely high-profile summertime case that moved rapidly—the Pentagon Papers. In that case, on June 30, 1972, the Supreme Court allowed the Washington Post and the New York Times to publish articles detailing government decisions in connection with the Vietnam War. But that order, just days after the arguments, came quickly because it involved an attempt to block publication.

It is unlikely that the court will rule as quickly on the health care law. But the longer the justices wait to issue their decision the more difficult it will be for the overhaul to be implemented on time.

So far, “this case has moved incredibly quickly for federal litigation,” says MaryBeth Musumeci, a lawyer and senior health policy analyst at the Kaiser Commission on Medicaid and the Uninsured.

Thirteen states filed suit the day the law was signed by President Obama — two years ago Friday—on March 23, 2010. On Jan. 31, 2011, Federal District Court Judge Roger Vinson ruled the law’s individual mandate unconstitutional, a decision the 11th Circuit Court of Appeals upheld on Aug. 12. The Supreme Court accepted the case on Nov. 14.

Decision Date Could Impede Implementation
If the court does wait until late June to issue its ruling, that would be well past the time when many state legislatures have adjourned for the year, including Republican-controlled states where work on setting up health insurance exchanges has slowed or stopped pending the court decision. That means that if the court upholds the law, a long slog is ahead.

Unless states convene special sessions, the legislative work needed to establish exchanges wouldn’t begin again until early 2013. States are facing a Jan. 1, 2014, deadline for exchanges to be up and running.

In recent months, some GOP governors and legislators have announced publicly that they won’t proceed with health care implementation without the go-ahead from the high court. At the same time, Department of Health and Human Services officials have trumpeted the success of other states which are accepting federal exchange grant funds and moving ahead.

Alan Weil, executive director of the National Academy for State Health Policy, says what is really happening lies somewhere in between. States that claim to be resistant actually are working on implementation quietly behind the scenes. States that are actively setting up exchanges are just as quietly experiencing stumbles and setbacks. “The reality is a lot more in the middle than the rhetoric is,” he says.

But Weil also says he has no doubt that a decision in June will not be an end point for states that have fiercely resisted the law, such as Florida, the leader in the health care suit. He predicts that if the law is upheld, leaders in states in which the law is particularly unpopular will then wait for the results of the November presidential and congressional elections.

Even if Obama is re-elected and Congress does not change control, there still may be states that don’t accept the law if it is upheld, says Weil. In that case, some GOP states that would have preferred to keep their exchanges state-run could wind up with a federal partnership for their exchanges or even a federally run marketplace.

Steve Larsen, director of the Center for Consumer Information and Insurance Oversight at the Centers for Medicare and Medicaid Services, emphasized at a recent meeting with insurance company representatives that the federal government is aggressively moving ahead on its federal fallback system.

Salo says that at the same time states are “all over the map” in their progress on revamping their Medicaid systems so they can comply with the law’s requirement that they expand Medicaid to uninsured adults and align the program with private insurance plans in the exchanges. Between now and 2014, there’s an “enormous amount of work” that must be done and any delay makes it that much more difficult, says Salo.

“If you wait until after November, and rolled the dice and lost at that point, you really don’t have a lot of time,” he says. While lawmakers might be able to move relatively swiftly on putting together an “exchange in a box,” using an existing model developed by another state, it will be much tougher for the staff members developing individualized state systems. They will likely encounter delays that are typical of such projects, he says.

The Medicaid expansion is the subject of an hour of argument on its own on Wednesday, with the states that oppose the law contending that they have been forced into accepting the expansion because without it, they would lose their Medicaid funds. Thus the debate over Medicaid is “incredibly important” for states and the poor people enrolled in the program, says Jane Perkins, legal director for the National Health Law Program.

Jane Norman can be reached at [email protected].

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