Ricardo Alonso-Zaldivar, Associated Press
WASHINGTON (AP) — The courts may not get the last word after all on President Barack Obama's historic health care overhaul.
A Virginia federal judge ruled this week that the law's key requirement for individuals to carry health insurance is unconstitutional. But even if the Supreme Court ultimately agrees, Obama has a readily available Plan B.
The administration could borrow a strategy that Medicare has used successfully for decades.
Medicare's coverage for doctor visits is totally voluntary and carries a separate premium, yet more than nine in 10 seniors sign up. The reason is simple: those who opt out when they first become eligible face a lifelong penalty that escalates the longer they wait.
The same kind of penalty could be incorporated into the health care overhaul in place of the current mandate that all Americans who can afford a policy must carry one. That would be a stiff nudge to get healthy people into the insurance pool, keeping premiums in check after the law takes away the ability of insurers to deny coverage to those in poor health.
Even if it doesn't work as well as for Medicare, it could still provide a strong incentive.
"It wouldn't be a nirvana solution," said health policy consultant Chris Jennings, but "it's better than nothing." A Democrat, Jennings served as a senior health care adviser to Bill Clinton and Hillary Rodham Clinton in the 1990s when the president and first lady unsuccessfully pushed for coverage for all.
Jennings believes the law as written would cover more people for a lower cost, but says "it would be irresponsible not to try an alternative" if the courts reject it.
Other prominent experts say Medicare's way could be more effective.
That's because the fines that back up the health care law are relatively low. When the individual coverage requirement takes effect in 2014 many people might still come out ahead by ignoring it. The fines they'd face could be lower than the premiums they would have to pay.
It's a "mandate lite," said economist Gail Wilensky, who ran Medicare for President George H.W. Bush. "A modification of what is done with seniors on Medicare would be a much more powerful tool. You don't have to buy insurance. But if you don't, the first time you come in, we're going to add a penalty that you'll have to pay for the next four or five years."
The White House says the law will ultimately be vindicated and there's no need for a fallback plan.