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Health reform's judgment day; This week, the Supreme Court likely will decide whether Obama's health law is constitutional. The ruling will shape the future of health care in America

Two years after Congress remade the American health care system, the U.S. Supreme Court may be poised to remake it again.

As soon as Monday and almost certainly sometime this week, the high court will rule in a series of cases that will determine whether every American will have to buy health insurance starting in 2014 and whether states will have to expand their Medicaid programs to reach beyond the poor.

The 2010 health care law mandated those changes and many others, and their future, oddly, may be the least of what is at stake in the pending decisions.

In question, too, is the very scope of congressional power.

Yet despite the likely significance of the court's ruling on American medicine and far beyond, Buffalo-area health care experts agree on an ironic fact.

While the justices may, in fact, overturn "Obamacare," they can't end health care reform -- which continues on a daily basis far apart from any act of Congress, especially in communities with cutting-edge health care systems such as Buffalo.

"When the decision comes down, millions will approve and millions will scratch their heads and wonder what it means," said Joe McDonald, president and chief executive officer of Catholic Health of Buffalo. "We're just going to keep our view on what we're doing."

If the high court overturns the key provision in the Affordable Care Act, the 2010 law at question in these cases, there's no doubt that millions will approve.

The "individual mandate," which would force everyone to buy health insurance, remains deeply unpopular.

Seven in 10 Americans polled by the Kaiser Family Foundation in April opposed it.

And in a poll of 477 Erie and Niagara county residents conducted last month by Thoroughbred Research Group on behalf of Independent Health, 64 percent of respondents opposed a mandate that forces people to either buy health insurance or pay a fine.

But the mandate isn't subject to a popularity contest. Its fate depends on the high court's reading of one of the key clauses of the Constitution.

The Obama administration argues that the Constitution's Commerce Clause, which gives Congress the power to regulate interstate commerce, gives it the right to force people to have health coverage.

At oral arguments in March, Solicitor General Donald B. Verilli Jr. said that's because the uninsured invariably affect business across state lines.

"The Affordable Care Act addresses a fundamental and enduring problem in our health care system and our economy": the fact that more than 40 million uninsured Americans still will get health care someday -- and leave everyone else to pay for it, Verilli said.

But to conservative opponents of the bill, using the Commerce Clause to justify forcing everyone to buy health insurance constitutes a mighty legal stretch.

"The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce," said Paul D. Clement, the lawyer who asked the high court to overturn the law.

>The power of Congress

Clement's comments hint at what is really at stake in this week's ruling: how much power Congress really has.

The Commerce Clause is the legal bulwark of much federal legislation since President Franklin Delano Roosevelt's New Deal. Federal labor laws and environmental regulations are among many that rely on the Commerce Clause.

That's why progressives are deeply worried about the case's outcome. They fear that a ruling limiting the breadth of the Commerce Clause could open the door to litigation challenging other federal programs -- while hamstringing Congress as it tries to address other crucial issues.

"The critical question we are talking about in this litigation is the reach of the federal government's power to solve national problems," said Neera Tanden, chief operating officer of the left-leaning Center for American Progress, at a recent American Constitution Society discussion on the health care cases.

Strangely, though, conservatives don't seem to be overplaying the importance of a ruling overturning the individual mandate.

The impact of such a ruling could be limited because only one law in history forces Americans to buy something they may not want: the Obama health law, said Randy E. Barnett, a libertarian and law professor at Georgetown University.

The huge, unsettling precedent would come if the court upholds the individual mandate, Barnett said at that American Constitution Society discussion.

"You'd have the affirmative duty to do whatever Congress deems to be convenient in its regulation of the national economy," he said. "Wow. That's pretty big."

Equally big would be a high-court ruling that the Affordable Care Act's Medicaid expansion unconstitutionally coerces states into growing a program that they may not want to make bigger.

The decision in this often-overlooked issue before the court will decide what strings Congress can put on federal money that it sends to the states.

The federal government long has put conditions on aid it sends to the states for education, highways and other programs. And the courts have never found those conditions to be unconstitutionally coercive.

If it does in this case, "that would be a huge change," said Simon Lazarus, public policy counsel at the National Senior Citizens Law Center, at that recent panel discussion.

Still, health care professionals, lawyers and lawmakers are much more focused on the fate of the individual mandate -- and the rest of the Affordable Care Act.

The high court could overturn just the individual mandate or the entire health bill. And experts agree that the health care consequences of either such decision would be profound, but very different.

>Individual mandate

If the justices kill the individual mandate but leave the rest of the health law standing, health insurance premiums could rise in price by 15 to 20 percent, the nonpartisan Congressional Budget Office says.

That's because the Affordable Care Act counts on the individual mandate to bring young, healthy people into the insurance market, where they would, in effect, subsidize the new requirement that insurers not discriminate against those with pre-existing medical conditions.

Pull those young, healthy people out of the insurance market, and then the rest of us would have to subsidize those older, sicker patients with pre-existing conditions. And some of the rest of us might not be able to afford that.

"A ruling to invalidate the individual mandate would bring into question the affordability of health care, since only those who need health insurance would likely buy it," said Dr. Michael W. Cropp, president and chief executive officer of Independent Health.

Then again, if the high court rules that the rest of the bill rests on the individual mandate and that therefore the entire bill must die if the mandate is unconstitutional, a host of other questions and complications would arise.

Most notably, the question would be: What about the popular parts of the Affordable Care Act?

Lawmakers say there is broad public support for the provision barring discrimination against those with pre-existing conditions.

The provision allowing people to keep their children on their health policies up to age 26, and the provision eliminating the costly "doughnut hole" in the Medicare prescription drug plan, are popular, too.

That's why a decision invalidating the entire health law would put the heat on Congress to put at least some of those popular reforms back into effect.

"We would take action in the House by the end of the year," said Rep. Tom Reed, a Corning Republican who sits on the House Ways and Means Committee, which has jurisdiction over health care.

But Reed conceded that "it's very hard to speculate" on whether the deeply divided House and Senate could reach a deal on new health legislation, and most others remain deeply pessimistic that any such deal could be struck.

"Congress is so dysfunctional that I don't how you come up with legislative fixes," said William P. Keefer, partner and health law practice team leader at Phillips Lytle LLP in Buffalo.

>Progress in Buffalo

The good news is that while Congress may be dysfunctional, the American health care system, particularly in places like Buffalo, is not.

"For us, this might have less impact than in the rest of the country," said Cropp, of Independent Health.

Dr. Raymond V. Paolini Jr., president of the Medical Society of Erie County, agreed.

Doctors are deeply divided on the individual mandate and the rest of the Affordable Care Act, but as for the high court's decision, "it's not going to affect us that much," Paolini said.

One big reason for all of that, Cropp said, is that in Buffalo, "we're already on a path toward reform."

Proof of that can be found in a report published in March by the Commonwealth Fund, a national health policy foundation.

The report ranked 306 locales nationwide in terms of access to health care, prevention and treatment, health care costs, outcomes and other factors.

Metro Buffalo ranked 54th nationwide. The region finished in the top 10 percent for health care access and affordability and in the top 25 percent for prevention and treatment.

Local health care experts said several factors contribute to Buffalo's strong performance in that study.

The dominant health care providers and insurers here are nonprofits, a fact that holds down costs.

The painful but necessary consolidation of the region's hospitals has left the area with fewer but better hospitals.

And perhaps most importantly, an openness to change extends from the Buffalo Niagara Medical Campus to Catholic Health System to the region's insurers.

Catholic Health, for example, is moving away from the traditional -- and expensive -- fee-for-service model of paying doctors. For Medicare patients, it's forming an Accountable Care Organization, which ties medical provider payments to the quality and affordability of care the patients receive.

That experimental program is part of the Affordable Care Act, but McDonald, of Catholic Health, said such experiments must go on no matter the fate of the health law.

Rep. Brian Higgins, D-Buffalo, agreed that no matter how the court rules, health care providers will have to embrace Accountable Care Organizations, comparative effectiveness research -- which studies various treatments to determine what works best -- and other changes.

"These are all things that should have been embraced 20 or 30 years ago," said Higgins, who served on the Ways and Means Committee as it worked on health reform legislation.

Meanwhile, Independent Health is embracing changes included in the Affordable Care Act no matter what the high court decides.

While Buffalo's other major insurers declined to comment in advance of the court ruling, Cropp said Independent Health would continue to cover those with pre-existing medical conditions regardless of how the court rules, and would continue to let people keep children up to age 26 on their parents' policies.

It's all part of an evolution in health care in Buffalo that, health care experts said, is certain to continue no matter how revolutionary the high court's ruling is.

email: jzremski@buffnews.com

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The Supreme Court and health care reform / What the justices will decide

*Whether the "individual mandate" requiring people to buy health insurance starting in 2014 is constitutional.

*If the rest of the 2009 health care law can stand if the individual mandate is unconstitutional.

*Whether the health care law's expansion of Medicaid unconstitutionally coerces states to expand a program against their will.

*Whether the entire court debate on the health care bill is premature.