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Panel of Health Law Experts Debates Affordable Care Act

By John Masson

They were lined up outside the Supreme Court building March 26, and they were lined up just after noon in Hutchins Hall.

The big draw in both locations? The Patient Protection and Affordable Care Act (ACA).

And while lawyers from the federal and state governments were dueling before the justices over the enactment of the president's sweeping health care reform plan, four panelists—Michigan Law professors Jill Horwitz and Nicholas Bagley, as well as Michigan Legal Services attorney Gary Benjamin and Michigan Consumers for Health Care lawyer Ryan Sullivan—were analyzing the ACA's impact, as well as some of the possible arguments against it.

The purpose of the law was threefold, according to Prof. Horwitz, co-director of the Law School's Program in Law and Economics and one of dozens of experts (including four Nobel Prize–winners) who signed an amicus brief analyzing the economics of the case. The law's goals: controlling costs, improving access to care, and improving quality of care.

The law addresses all three of those concerns mostly by regulating insurance, Prof. Horwitz said.

"The problem we all face with health care is, it's expensive, and it's unpredictable… so we need insurance to help us shift our payment over time," Prof. Horwitz said. Society is "just not willing to let people die on the street… so what happens is, the costs get shifted" to the rest of us.

Health care is completely different from most other consumer products, she added, because it can't be planned for in advance, people don't know exactly what they need even when they know that they need something, and higher prices don't necessarily reflect higher quality.

Other topics tackled by panelists included the lack of a "severability clause" in the law. Prof. Bagley explained that Congress generally inserts such clauses to ensure that even if part of a law is found unconstitutional, the rest of it can remain in force. Its absence in this case, Prof. Bagley said, makes the Court's decision-making considerably more complex.

"The courts don't have a ready-made instruction from Congress on what the heck to do" if part of the law is deemed unconstitutional, Prof. Bagley said.

Also discussed were some of the act's changes. In Michigan, for example, the expansion of Medicaid eligibility to people at 133 percent of the federal poverty level means between 400,000 and 600,000 more Michiganders would qualify, Sullivan said. And establishment of insurance exchanges under the law means that, ideally, consumers have better tools to compare coverage.

"With the establishment of exchanges, there's a marketplace for people to look at insurance on an apples-to-apples basis," Sullivan said.

Benjamin, who authored another amicus brief in the case, addressed opponents' claim that the law coerces states by threatening to withhold Medicaid funding.

"It's just not true that if you opt out of this expansion, you'd lose all your Medicaid (funding)," he said. "It's not very likely the act will be found unconstitutional based on the coercion doctrine, but it is a danger."

The panel, "The Supreme Court and the Affordable Care Act: A Consumer Perspective," was moderated by Michigan Law's Prof. Alison Hirschel, who also serves as director of the Michigan Elder Justice Initiative.

 Watch a video of the panel discussion.


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