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Is Employer Mandate in Affordable Care Act Constitutional?

“It was a choice between either buying this insurance that you didn’t want ... or pay $100 per day per employee to the federal government and get nothing in return for it.”

By Vera Gruessner

- On Monday, the Association of American Physicians and Surgeons (AAPS) filed an amicus brief with the US Supreme Court that asks the justices to provide a writ of certiorari in a court case that claims the employer insurance mandate of the Patient Protection and Affordable Care Act is unconstitutional.

Patient Protection and Affordable Care Act

The case, called Stephen F. Hotze, M.D., and Braidwood Management v. Sylvia Mathews Burwell and Jacob J. Lew, claims that the mandate goes against the Origination Clause of the Constitution, which declares that all revenue-raising bills are originally passed in the House of Representatives, according to a press release from AAPS.

AAPS Executive Director Jane Orient, M.D., mentions that the drafting of the Affordable Care Act was done “outside the usual committee process.” A Fifth Circuit court dropped the case because the Anti-Injunction Act stops businesses from bringing a complaint against the employer mandate and its tax.

According to the US Chamber of Commerce, the employer mandate took effect in 2015 alongside the Affordable Care Act. It requires employers with more than 50 employees who do not offer affordable health insurance through their company to receive a penalty tax if at least one full-time employee receives a subsidy and purchases insurance through the state or federal exchanges.

AAPS stance on employer mandate

READ MORE: Open Enrollment Dates Announced for Health Insurance Exchange

For more information about the Association of American Physicians and Surgeons' stance on the employer insurance mandate and the Affordable Care Act, HealthPayerIntelligence.com spoke with Executive Director Jane Orient.

“Our stance is that we are opposed to the federal government making insurance mandates on anybody,” Orient explains. “What it does is it forces people to buy policies that they otherwise wouldn’t buy.”

“In case of the plaintiffs in this case, they were forced to drop the insurance that they had and liked – which violated Obama’s promise that if you like your insurance, you can keep your insurance – and they had a very limited choice of other plans that were much higher in premium cost and did not have the benefits that they wanted but had benefits that they didn’t want.”

“It was a choice between either buying this insurance that you didn’t want – in many cases, it does not include the hospitals or physicians that you liked – or pay $100 per day per employee to the federal government and get nothing in return for it.”

READ MORE: CMS Ruling Changes Medicare Advantage and Part D Programs

Is the Affordable Care Act constitutional?

When asked if there any other parts of the Affordable Care Act that AAPS finds unconstitutional, Orient replied, “We filed a lawsuit against ACA three days after it was signed into law, arguing that it was unconstitutional on many grounds.”

“It violated the commerce clause. The federal government has no authority to intrude into the health insurance market. It should be overturned in its entirety. Later, we filed a case against it after the Supreme Court determined that the penalty was a tax. [We filed because] it was unconstitutional since it violates the Origination Clause of the Constitution which says that all revenue-raising bills have to originate in the House of Representatives.”

AAPS perspective on Budget Reconciliation bill

When asked about the organization’s perspective on the Senate passage of the Budget Reconciliation bill, which could repeal aspects of the Affordable Care Act, Dr. Orient answered, “I think it’s good that parts of the Affordable Care Act would be repealed. I think the whole thing fits together on one part and depends on the other part.”

READ MORE: Medicaid Coverage Expansion Boosts Healthcare Access in Flint

“A part repeal is going to destabilize what was already a clunky, unstable, highly expensive, crony capitalist bill. We’re in favor repealing each and every part of it.”

When the Supreme Court found the Patient Protection and Affordable Care Act constitutional several years ago, it also established some important provisions. The individual mandate, for instance, required the everyday person to either purchase health insurance throughout the year or pay a penalty. The Supreme Court established that this penalty would actually be a tax. As previously stated, the AAPS feels that creating this type of tax is unconstitutional.

The benefits of Medicaid expansion

Additionally, the Supreme Court no longer required states to expand their Medicaid program, but instead to do so on a voluntary basis. This led to as many as 20 states declining to expand their Medicaid coverage to a higher volume of low-income individuals.

Many opponents of the Affordable Care Act argued that Medicaid expansion would have put too much stress on the finances and budgets of individual states. However, the federal government had offered to fully subsidize this expansion until 2020 when the states would have to cover 10 percent of the Medicaid coverage costs.

While as many as 20 state governments did not support expanding Medicaid coverage due to the associated costs starting several years down the line, a report from the Center on Budget and Policy Priorities suggests that this line of thought is not accurate. The Congressional Budget Office has found that the funds already used to cover uncompensated healthcare services including the use of free clinics would instead be put toward expanding Medicaid coverage.

It seems that the federal government would essentially be handling as much as 93 percent of the costs for expanding Medicaid while healthcare spending among individual states would increase by no more than 2.8 percent, according to the report.

As previously reported, in the states that have expanded their Medicaid coverage among a greater low-income population, the number of uninsured individuals has gradually decreased. The number of patients hospitalized in some of these states were more likely to have Medicaid as their insurance instead of being uninsured starting in the second quarter of 2014.

This shows that Medicaid expansion has truly brought more benefit to patients and hospitals, as there is now a method of payment secured for receiving much-needed medical services. While there may be some opposition toward the Affordable Care Act for years to come, there is no doubt that some provisions like Medicaid expansion have brought more healthcare coverage to the nation.

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