Yesterday the Supreme Court agreed to hear challenges to the Patient Protection and Affordable Care Act, the landmark health reform legislation signed into law by President Obama last year. The Supreme Court will consider several questions related to the constitutionality of the Act.

The first issue, and the one that has received the most attention so far, is whether the individual mandate is a constitutional exercise of Congress' power to regulate interstate commerce or to tax and spend for the general welfare. When the mandate goes into effect in 2014, it will require individuals to purchase insurance, unless they qualify for an exemption. This mandate raises a novel and important question about the scope of the government's power to require individuals to purchase a service from a private entity. So far two appellate courts (the Sixth and DC Circuits) have upheld the mandate based on Congress' power to regulate commerce, while the Eleventh Circuit held the mandate unconstitutional. For more on the constitutionality of the individual mandate, click here.

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The DC Circuit is the latest appellate court to uphold the constitutionality of the individual mandate in the Affordable Care Act. Click here to read the decision.

An article titled "More Young Adults Insured Since Health Law Took Effect," appeared in the New York Times on Thursday, September 22, 2011. The article describes three surveys which show that an increasing number of adults under 26 are becoming insured through private insurance, despite the fact that the recession has left young adults unemployed at nearly double the rate of older Americans. Although the cause of the increase has not been proven, some attribute it to the new health reform law (the Affordable Care Act), which contains a provision allowing parents to cover dependents up to age 26. To read the article, click here.

So far two circuit courts have weighed in on the constitutionality of the individual mandate in the Affordable Care Act: the Sixth Circuit, which found the mandate constitutional, and the Eleventh Circuit, which found it unconstitutional. The Fourth Circuit had an opportunity to weigh in as well - it recently heard appeals from two Virginia district courts that reflected the same divide: Virginia v. Sebelius, which found the mandate unconstitutional, and Liberty University v. Geithner, which upheld the mandate. I describe both district court opinions in greater detail in a prior post.

Probably to most people's surprise, the Fourth Circuit dismissed both cases based on a lack of jurisdiction, and therefore did not reach the merits of the constitutional challenge. Practically, this will not impact whether the challenge is ultimately heard by the U.S. Supreme Court in light of the split between the Sixth and Eleventh Circuits. The court's reasoning for dismissal in the Liberty case is potentially significant, however, because it is the first time that a court has embraced the federal government's characterization of the mandate penalty as a "tax." This characterization has two important implications.

Continue reading "Fourth Circuit Dismisses Health Reform Challenges, But is the First Court to Adopt HHS's View of the Mandate as a "Tax"" »

Michael Campbell, the Visiting Reuschlein Clinical Professor at Villanova University School of Law, and former Executive Director of the Pennsylvania Health Law Project, has recently published a paper titled "Did I Do That? An Argument for Requiring Pennsylvania to Evaluate the Racial Impact of Medicaid Policy Decisions Prior to Implementation," in the Temple Law Review. Professor Campbell looks at the Medicaid program in Pennsylvania to examine how state funding decisions can have a disproportionately harmful impact on African Americans and Hispanics, while other policies seem to disproportionately benefit white populations.

Continue reading "Why Racial Impact Statements Should be Required for Medicaid Policy Decisions" »

Recently, the Eleventh Circuit U.S. Court of Appeals, in Florida v. HHS, partially affirmed a lower court decision which found the individual mandate of the Affordable Care Act unconstitutional. Earlier this year, the Sixth Circuit in Thomas More Law Center v. Obama, came to the opposite conclusion, upholding the mandate. So far every federal court addressing the merits of this challenge rejects the government's claim that the mandate (with resulting penalty) is an exercise of its very broad taxing power. Rather the issue turns on whether the mandate is a constitutional exercise of Congress' power to regulate interstate commerce. Although the power to regulate interstate commerce has also been interpreted very broadly by the Supreme Court, using this power to mandate the purchase of insurance is unprecedented and presents an important legal question about the scope of the interstate commerce clause. This creates a circuit split on a politically and legally divisive issue that will ultimately be decided by the U.S. Supreme Court.

Despite striking down the mandate, the Eleventh Circuit rejected the part of the lower court's holding that would have invalidated the entire health reform law. The Eleventh Circuit's holding is consistent with the District Court's ruling in Virginia v. Sebelius discussed in greater detail at my prior blog post Will the battle over the individual mandate threaten the entire health reform law? Both courts emphasized the presumption in favor of severability: "Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any 'problematic portions while leaving the remainder intact." Given the lack of clear legislative intent regarding severability, and the fact that many provisions in the law were not directly tied to the mandate or even related to private insurance regulation, the Eleventh Circuit held that the mandate should be severed from the rest of the law.

Click here for a chart of key decisions about the constitutionality of the individual mandate with links to the cases. Go to Health Care Justice Blog for more information on each of the cases and links to the decisions.

Not long after a federal district court judge in Indiana temporarily enjoined a law excluding Planned Parenthood from participation in a federally funded program, a federal court in Kansas did the same. In both instances, the state law effectively singled out Planned Parenthood for exclusion because of its association with abortion. And in both cases, the court issued a preliminary injunction and held that the law would likely be found unconstitutional because it imposed additional eligibility criteria that were inconsistent with the federal law.

The Kansas case is significant because it went even further. It held that by targeting Planned Parenthood for exclusion because of its association with abortion, the state law created an "unconstitutional condition" on public funding that violated the First and Fourteenth Amendments. In this way, the court highlighted the real problem with state defunding attempts: it isn't simply about states getting carried away legislatively in ways the conflict with federal law; rather it is about states deliberately using their administrative power to punish not only providers that perform abortions, but those who actively seek to promote women's access to this kind of health care.

Continue reading "Another Court Prevents State Attempt to Defund Planned Parenthood" »

In the last few years, a renewed wave of attacks on abortion rights has captured media attention. One form of attack has been to target public funding for Planned Parenthood -- a provider of a wide range of women's reproductive and other preventive health services that some associate with abortion, despite the fact that abortion only makes up a very small percentage of the services it offers, and that some Planned Parenthood facilities do not offer abortion at all. At the national level, Republicans in the U.S. House of Representatives led an unsuccessful attempt to defund Planned Parenthood, but now states have taken up the fight. Indiana was the first to enact a law prohibiting Planned Parenthood from receiving Medicaid payments or federal funding for disease intervention services, and other states are trying to follow Indiana's lead. A successful challenge to Indiana's law in federal court, however, shows that these defunding attempts likely violate federal law.

In May of this year, Indiana enacted a law prohibiting the state from contracting with entities that perform abortions, but it exempted hospitals and ambulatory surgical centers. Effectively, this meant that the state could exclude Planned Parenthood of Indiana (PPIN) from participating in its Medicaid program, as well as prevent it from receiving other grants administered through the state, such as the Disease Intervention Services grant funded entirely by federal money. A number of plaintiffs, including PPIN, Medicaid beneficiaries, and individual health care providers, challenged the law in Planned Parenthood of Indiana (PPIN) v. Commissioner of Indiana State Department of Health. In June, a federal district court judge enjoined the state from implementing the law, holding that the exclusion from both programs violated federal law. A full hearing on the merits has not occured yet, but the plaintiffs won the preliminary injunction because they were able to prove a likelihood of winning on the merits, a lack of adequate remedy at law, and future irreparable harm if the injunction were not granted. The plaintiffs challenged the exclusions on several grounds, but the court's decision turned on plaintiffs' claim that the Indiana law conflicted with express federal spending conditions that regulated each program, and thus was preempted under the Supremacy Clause of the U.S. Constitution.

Continue reading "Federal Court Halts Indiana's Defunding of Planned Parenthood" »

With the passage of the Affordable Care Act, President Obama took a huge step forward to ensure greater health care access. But now he is taking political and legal action that threatens to undermine his promise of expanded access through Medicaid.

Politically, Obama has been criticized for his willingness to accept Medicaid cuts as part of a deal with Republicans to raise the debt ceiling. In order to see how such cuts threaten access, one need only look at recent headlines about the number of states already struggling to balance their budgets, in part through deep cuts to Medicaid programs and provider reimbursement. Cuts that result in the elimination of an entire service category are clearly problematic, but access is also threatened when Medicaid reimbursement becomes so low that providers refuse to accept Medicaid beneficiaries, or to work in emergency rooms in underserved communities that have disproportionate numbers of Medicaid patients. A common complaint by Medicaid beneficiaries is their inability to find a provider willing to accept them.

These cuts have legal implications as well. (Previously I have blogged about the legal implications of this problem in California). States have a lot of discretion in how they run Medicaid, especially with respect to setting provider reimbursement, but this discretion is not absolute. States must comply with a number of conditions of federal funding, and one of the most important mandates, found at 42 U.S.C. Section 1396a(a)(30)(A), is commonly referred to as the "Equal Access Provision" or "30A" requirement. This provision requires states to "assure that provider payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available to the general population in the geographic area.” States cannot honestly and reasonably make such assurances without doing some kind of analysis to assess the impact that rates have on access; yet many states do nothing before implementing rate cuts. They cut provider rates solely in response to fiscal concerns, and without any consideration of access.

Since the 1970s, Medicaid beneficiaries and providers have brought suits in federal court challenging these kinds of illegal cuts. While these suits have yielded mixed success for plaintiffs, federal courts have halted or delayed cuts in many cases, especially where the violation was egregious. These suits have been an important legal check on state violations that implicate Medicaid access, but beneficiaries and providers may soon lose this tool. As I described in an earlier blog post, the Supreme Court has granted cert in Independent Living Center v. David Maxwell-Jolly , a case that calls this right into question.

Despite Obama's promise to expand Medicaid access, his administration has taken a step that would make it much more difficult to prevent illegal cuts that threaten access: the U.S. Department of Health and Human Services (HHS) has filed an amicus brief in the Independent Living Center case urging the Supreme Court to hold that Medicaid providers and beneficiaries do not have a legal right to sue in federal court to prevent illegal state cuts. Why would a President who fought so hard for health care reform undermine one of the most important legal tools that exist for protecting Medicaid access?

Continue reading "Obama Undermines Health Reform Goals by Urging the Supreme Court to Eliminate Legal Rights for Medicaid Beneficiaries & Providers" »

Today, July 21st, the National Women's Law Center is hosting the "Birth Control: We've Got You Covered" Blog Carnival to discuss the Institute of Medicine (IOM)'s recent recommendations on women's preventive health services. Click here to join the Blog Carnival.

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