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Kingsdale: ‘People Are Aware That There Are Huge Problems’

This is the first installment of KHN’s video series “Supreme Uncertainty: What’s Next After The Court Rules,” which solicits views from public officials and policy experts about the upcoming Supreme Court ruling on the health law and its implications for the future of health care.

KHN’s Mary Agnes Carey talks to Jon Kingsdale about the upcoming Supreme Court ruling on the health law and its implications for the future of health care.

Kingsdale, who helped implement the Massachusetts health law, divides states into three camps when it comes to implementing the 2010 federal law: Some are preparing in earnest to be ready on time, some are taking steps but waiting on others until the Supreme Court rules and the fall elections occur, and other states have done nothing, with hopes the law will be struck down. Kingsdale now consults with states and others on implementation of the federal health law.

Read a transcript of the interview:


MARY AGNES CAREY:  How would you describe states’ approaches now to implementing the health law? There’s a variety of ways they’re looking at it. Could you talk about what your experiences have been on that?

JON KINGSDALE:  Sure.  We’re working with about a dozen states, and they fall, I’d say, into two camps: One, working very, very hard with a real strong vision of what they want to set up, to implement by Oct. 1, 2013 – which is less than 18 months away. Others that are planning – they’re preparing. They’re waiting to see, in fact, if it’s implemented after the Supreme Court decision, which is expected to be announced in June – and/or the election in November.  And then there are states, frankly, we are not working with that are pretty much waiting to see this go away.

MARY AGNES CAREY:  What are some of the biggest obstacles that you see – as you mentioned, they’re waiting on the Supreme Court ruling. If the law is upheld, will states be ready to implement this? What are some of the problems they’re encountering with exchanges, enrollment, that sort of thing.

JON KINGSDALE:  It’s important initially to distinguish between exchanges and the many, many other elements of this law.  Will they be ready? I think it’s a challenge. I think some of the states that are trying to drive for Oct. 1, 2103, recognize that timing is a real challenge. That’s one reason that CMS has created this fallback option of a partnership, where states can do some things towards implementing an exchange, but rely on the federal government to do the bulk – at least until they’re ready to implement.

But there are many other elements that they are moving forward with, including new eligibility and determination systems that span Medicaid and CHIP, as well as the exchange, tax credit and getting ready to expand Medicaid eligibility.

MARY AGNES CAREY:  Do you think if the law is upheld and if President Obama were elected for a second term – there has been some discussion that states may delay implementation, because so many states are struggling with these issues. Do you see that as a possible scenario?

JON KINGSDALE:  I think it makes some sense, but I’m not sure that there’s legislative – and I’m not a lawyer – whether there’s legislative authorization to do that.  So, if that requires an amendment to the legislation, I think in the current context, that’s problematic.

MARY AGNES CAREY:  If the Supreme Court strikes down the health law, what elements of state preparation would continue in the absence of a federal law?

JON KINGSDALE:  There’s a couple of different ways the court could rule against the health law.  One is simply to eliminate the mandate.  Another is to eliminate the mandate and some very closely tied provisions of Title I. And a third is to actually strike down the entire act. They’re very different answers to your question depending on which.

MARY AGNES CAREY:  Let’s say they strike down the whole law, and perhaps, maybe, strike down the mandate.  Because those seem to be the two scenarios that could move forward.

JON KINGSDALE:  I think their striking down the entire law is much less probable than striking down the mandate. 

I’ve begun to talk to people in insurance companies and states and vendor organizations about what happens if the entire law is struck down, and I am struck by the lack of anticipation of what that would mean. People are aware that there are huge problems. There are many things that have been implemented already, in terms of insurance coverage and Medicare payment policies and accountable care organizations, the authorization of which would be undercut. 

It seems like Congress would have to step in to at least preserve some things that it wants to see continue without the Affordable Care Act, and that becomes, again, problematic.

In the more limited circumstance, where there is simply an elimination of the mandate – that was just one tool to reform the insurance market.  And so I think most of the Affordable Care Act remains in place, especially an increase in subsidies through exchanges for lower income folks and/or through Medicaid. A big piece of the Affordable Care Act is an expansion of coverage through public subsidies. That will continue and states will find ways to work around the loss of the individual mandate.



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States The Health Law