Health Reform—That was Then, What is Now?
The Challenges for Attorneys and Physicians Dealing with Health Reform
Over the past year, we have reviewed components of the Patient Protection & Affordable Care Act of 2010 (the “Act”) and the Health Care & Education Reconciliation Act of 2010, discussing the public’s confusion over implementation timelines and the debate over the Act’s constitutionality.
As of the end of September, 2011, members of approximately 45 state legislatures have proposed legislation in the works which would limit, alter, or change various requirements set forth for the states and/or federal governments to carry out. Perhaps in an effort to avoid the embarrassment and confusion of each state deciding how it will implement health reform, the Obama Administration itself asked the United States Supreme Court to look at the constitutionality of the individual mandate set forth in the Act. While critical nationwide, the Administration’s request has particular importance in Florida, as the case Florida et. al. v. United States Department of Health and Human Services et. al. (Florida v. HHS) is the case which prompted the Administration to petition the Supreme Court’s review. In Florida v. HHS, Judge Roger Vinson of the U.S. District Court for the Northern District of Florida found the Act’s individual mandate unconstitutional. Consequently, Judge Vinson held the entire Act fails because the individual mandate is not severable from the Act as a whole. This decision was upheld, in part, and reversed, in part, by the Eleventh Circuit Court of Appeals on August 12, 2011. However, in a 2-1 decision, a three-judge panel of the Eleventh Circuit held that the individual mandate is, in fact, unconstitutional, but further held that it is severable from the Act as a whole, upholding the remainder of health reform law for survival.
Rather than request an en banc re-hearing on the case from the Eleventh Circuit, the Obama Administration filed a Writ of Certiorari on September 27, 2011. This action improves the likelihood that the Supreme Court will hear the case, but delays any ultimate decision on the matter for another year, at least.
As we await the Supreme Court’s decision, how will the Obama Administration’s elimination of its insurance program for long-term care on October 14, 2011 impact additional upcoming provisions of the Act? With all GOP presidential candidates offering their pledge to repeal the Act, should healthcare clients, human resources clients, benefits clients, and all other consumers of healthcare continue actions toward the upcoming implementation dates?
One year later, we are no closer to answering many of the questions which have plagued not only healthcare consumers, but also health plans, physicians, hospitals, and, attorneys; instead, we are left with more questions: It is our jobs as attorneys to counsel our clients on complying with the Act, but how do we counsel on the unknown? What is our duty to provide advice regarding preparation for upcoming implementation dates, when these dates may never come? Moreover, what impact does the recent request for Supreme Court review of the Act have upon its ability to ever be an effective method of change and reform? To be continued…
Jessica S. Cohen is in-house counsel for Physicians Independent Management Services, Inc. She specializes in health law and negotiates managed care contracts, employment agreements, and other pathologist and laboratory specific matters.