D. The Unknowable Future of Health Insurance
A final assumption made by supporters of the proposal is that the law will
remain in effect over the lifetime of the person seeking compensation for fu-
ture medical expenses. 56 The authors themselves admit, however, that the
ACA is still open to repeal by the federal government. 57 As stated by
Congdon-Hohman and Matheson, “[ i]n fact, the Republican Party has made
the repeal of the ACA a primary plank of their election campaigns in both
2010 and 2012 (Sack 2010 and Cooper 2012).” 58
Even if the ACA is not repealed in whole or in part, the effective dates of
the requirements that are key to the proposal may be postponed, or their en-
forcement may be delayed. 59 In August 2013, for example, the maximum out-
of-pocket cost limit was delayed for some insurers until 2015.60 Similar de-
lays have been announced for restrictions on retaining preexisting health
plans and for the so-called employer mandate. 61 Furthermore, HHS has made
it clear that it does not view enforcement as a high priority, as evidenced from
the following statement on its website:
Our approach to implementation is and will continue to be marked by an
emphasis on assisting (rather than imposing penalties on) plans, issuers and
others that are working diligently and in good faith to understand and come
into compliance with the new law. This approach includes, where appropri-
ate, transition provisions, grace periods, safe harbors, and other policies to
ensure that the new provisions take effect smoothly, minimizing any disrup-
tion to existing plans and practices. 62
56. See Congdon-Hohman & Matheson, supra note 1, at 159.
57. See Cardeli, supra note 15, at 19 (“As long as the law is subject to repeal or modification, there is no reasonable certainty that an individual will be subject to the ACA’s mandate
for the rest of his or her life.”).
58. Congdon-Hohman & Matheson, supra note 1, at 159 (“Though Republican candidates vary on which specific parts of the law they would vote to repeal, the individual mandate
is the clearest target. Without the mandate, the guaranteed issue requirement of the ACA which
is what would allow plaintiffs to be able to purchase affordable insurance, would not be economically feasible for health insurers.”). Some think that the prospects for repealing the ACA
are looking brighter with predictions that the Republicans may win control of both houses of
Congress in 2014.
59. See Robert Pear, A Limit on Consumer Costs Is Delayed in Health Care Law, N.Y.
TIMES, Aug. 12, 2013, http://www.nytimes.com/2013/08/13/us/a-limit-on-consumer-costs-is-
delayed-in-health-care-law.html?pagewanted=all (giving examples of various key components to ACA that have been delayed thus far).
60. See id.
61. See Nicholas Bagley, The Legality of Delaying Key Elements of the ACA, 370 N. ENG.
J. MED. 1967, 1967-68 (2014); see also Timothy Stoltzfus Jost & Simon Lazarus, Obama’s
ACA Delays — Breaking the Law or Making It Work?, 370 N. ENG. J. MED. 1970, 1970 (2014).
62. The Center for Consumer Information & Insurance Oversight, Affordable Care Act
Implementation FAQs-Set 1, CTRS. FOR MEDICARE & MEDICAID SERVS., http://www.cms.gov/
CCIIO/Resources/Fact-Sheets-and-FAQs/ aca_implementation_faqs.html (last visited May