The New Healthcare Law Gets Its Day in Court

From The Floor

The New Healthcare Law Gets Its Day in Court

The Supremes face the music

By Genevieve M. Clavreul, RN, Ph.D.
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When President Obama signed The Patient Protection and Affordable Care Act (ACA) into law on March 23, 2010, opponents and proponents alike agreed that the Supreme Court justices would eventually be called to rule upon its constitutionality. This prediction has come true. This past week, the Supreme Court has held arguments on Dept. of Health and Human Services v. Florida, NFIB v. Sebelius and Florida v. HHS. These cases are among a slew of lawsuits that have challenged various parts of the ACA.

Animated Conversation

The politicking, debate and passage of the ACA were quite arguably one of this nation’s most divisive in recent memory. Almost every American had an opinion about this sweeping healthcare legislation and took sides accordingly. I can still recall the emotionally charged town hall meetings that took place in August two years ago. These town halls served to energize supporters both for and against, although many in Congress were ill-prepared to face rooms that were literally standing-room only. The proposed law invigorated the American public and the “conversation” became quite animated.

 Watching the legislative process with all the horse-trading, debating, posturing and arguing was correctly compared to watching sausage being made. Pundits, talking heads, legislators and spokespersons were just a few of the personalities that were called upon to weigh in on the ACA.

 Healthcare protestMeeting Resistance

The genie was let out of the bottle once the American people were given an opportunity to download and read the nearly 1,000-page bill, which was written in legalese and did little to answer the many questions raised. The bill’s language seemed open to interpretation by both supporters and detractors.

Signing the bill into law did not signal an end to the debate, but seemed to ramp up resistance. Lawsuits were announced almost immediately, with the most notable being filed by the State of Florida. Joining in this challenge were suits from 25 other states (Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming).

The litigants and their lawsuits wound their way through various local, district and federal courts, which in turn issued various rulings, many contradictory, but with each decision the ACA inched its way towards the Supreme Court.

As other provisions in the law began to be fully explored, various groups and agencies added to the cacophony, and the Obama administration began to make the following subtle and not-so-subtle changes.

So-Called “Death Panels”

In February 2011, the Administration had to backpedal on a proposed Medicare “end-of-life planning” regulation. The proposed regulation would allow for the reimbursement for physicians to provide end-of-life planning as part of the annual physical examination of their more senior patients. Many people interpreted this to mean that patients might feel pressured into making these decisions before they were ready to do so. After a hue and cry from the public at large the Obama administration back-tracked on this prickly issue.

States Opting-Out

At the end of February 2011, President Obama announced he would support states opting-out of certain provisions of the ACA. This was in response to a bill sponsored by Senators Scott Brown (R-Mass.), Mary Landrieu (D-La.) and Ron Wyden (D-Ore.) that would allow states to ask for “innovation waivers” in 2014 instead of 2017.

Medicare Savings

March 2011 saw the release of rules for Accountable Care Organization (ACO) models. ACOs are a collaboration of doctors and hospitals that treat Medicare patients. They are expected to provide computerized databases and other resources to coordinate care with hospitals and specialists for the management of at least 5,000 patients. It’s anticipated that this model of care will save taxpayers hundreds of millions of dollars by helping patients stay healthier and avoiding unnecessary complications.

The Waiver Controversy

June 2011 saw the first of several states request waivers to parts of the ACA under the grounds that implementation might lead to the destabilization of the individual market. Other entities, other than states, also requested waivers from portions of the newly-enacted law. As of August 2011, a total of 1,472 one-year waivers and 106 three-year waivers had been granted, representing about 3.4 million enrollees. When this information became available, many complained that some of the same organizations that pushed for the passage of the ACA were now requesting waivers to the very law that they supported. Thus some saw this request as being hypocritical. Others simply saw the system working to allow organizations, groups, associations and so forth to have the time to modify their insurance plans to meet the new law’s requirements.

Coverage Standards

In December 2011, the Obama Administration announced that it would shift the decision about which treatments insurance companies must cover to the states. Coverage standards would align with those of either the largest plan in the state, the most popular state government-employee plan, the most popular federal-employee plan, the largest plan offered to consumers who buy coverage in a small group, or the largest HMO in a state’s market.

Of course, as with almost anything associated with the ACA, this new bulletin received praise from some sectors and criticism from others. Most notably a concern that this state-by-state option might give rise to disparities in healthcare coverage, with people in some states having a better plan than others. Some pundits speculated that people might move to a state specifically for its more-generous healthcare coverage.

Nine Justices Hold the Cards

There was much speculation as to when the Supreme Court would take up the case, with many guessing that it might wait until after the 2012 presidential election in order to avoid this politically charged law; others declared that the Supreme Court would tackle this issue prior to the 2012 election. The latter would prove true.

These are the four important issues of the ACA will were addressed by the Supreme Court. A brief description of each is provided below:

1.    Anti-Injunction Act

The court will consider whether those challenging the law can be barred from making any legal or constitutional claims until the individual mandate actually goes into effect in 2014.

2.    Individual Mandate

This key provision requires nearly all Americans to buy some form of health insurance beginning in 2014 or face financial penalties. The question being, can the federal government, under the Constitution’s commerce clause, regulate economic “inactivity”?

3.    Severability

This provision is considered a “domino effect” issue, because if the individual mandate section is ruled unconstitutional, must the entire law collapse as well?

4.    Medicaid ‘Coercion’

The question before the court is whether states can be forced by the federal government to expand their share of Medicaid costs and administration, with the risk of losing that funding if they refuse.

Only time and the Supreme Court will tell us how this story ends.  


What’s In the Law?

In a nutshell, the ACA promises or enacts the following:

•  If you pay for insurance on your own, you can keep your current plan or buy coverage through new state-run insurance marketplaces called “exchanges” starting in 2014. The same applies to those receiving insurance through an employer.

•  If you receive Medicare, you will pay less for preventive care and prescription drugs, but your benefits might change if you are insured through a private Medicare Advantage plan.

•  If you receive Medicaid, you and your children can maintain eligibility and receive free preventive services.

• If you’re uninsured, then coverage would be made available in several ways. If you’re refused coverage because of your health, you can get insurance from a new high-risk pool or you can obtain coverage through Medicaid. If your employer does not cover you, and you make too much to qualify for Medicaid, you’d be eligible to buy from private insurers through exchanges starting in 2014.

• Starting in 2014, most Americans will be required to buy health insurance or pay a penalty.

These were the ACA’s main components with the goal of helping rein in the cost of health insurance. It also allowed for children to remain covered under their parents’ insurance until the age of 26 and would prohibit discrimination against Americans with pre-existing conditions.


Geneviève M. Clavreul RN, Ph.D., is a healthcare management consultant who has experience as a DON and as a lecturer on hospital and nursing management.

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