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.

Continue reading "Supreme Court Will Hear Challenge to Health Reform" »

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"" »

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.

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.

Continue reading "Birth Control: We've Got You Covered Blog Carnival" »

Health and women's advocates are praising the Institute of Medicine (IOM)'s recent recommendations to include prescription birth control among the preventive health services that insurance companies must cover without a co-pay under the Affordable Care Act. This is important because cost can be a significant barrier to the consistent, effective use of birth control. For decades, birth control has been excluded from many health plans, but even when it is covered, cost-sharing keeps some women from getting it or using it consistently. A 2010 survey reveals that more than a third of women voters struggle with the cost of birth control, and the IOM report notes that women are consistently more likely than men to delay or forego health care because of cost.

The consequences of cost-related barriers to birth control are signficant: According to the Guttmacher Institute, women who do not use contraceptives or use them inconsistently account for 95% of the three million unintended pregnancies that occur every year. Unintended pregnancies can have harmful physical and emotional health effects for women, especially those who sufffer from chronic medical conditions or are at risk for health complications resulting from pregnancy. The IOM's recommendation to provide birth control as part of preventive health services is an important step toward improving the health and well-being for insured women.

As we celebrate this achievement, however, we must remember that for many women the fight for reproductive and sexual health care continues. Even with private insurance expansion under the Affordable Care Act, many women will be uninsured or covered by Medicaid. Currently, the uninsured and many Medicaid beneficiaries rely on clinics that provide free or low-cost reproductive health care, including birth control, and these clinics depend heavily on federal and state funding. Cuts in funding for family planning services, and the more radical defunding attacks that target providers of free and low-cost birth control are threatening reproductive health access and the well-being of our most vulnerable women.

Continue reading "Birth Control Coverage is a Critical Win for Women's Health, but the Fight Continues for Medicaid Beneficiaries & the Uninsured" »

Today, in Thomas More Law Center v. Obama, the Sixth Circuit upheld the constitutionality of the individual mandate in the Affordable Care Act. It is the latest court to weigh in on this issue, but everyone agrees that the fate of the law will ultimately be decided the U.S. Supreme Court.

Continue reading "Sixth Circuit is the Latest Court to Weigh in on Constitutionality of Health Reform" »

Last month, I wrote a blog post about why Ryan's plan to turn Medicaid into a block grant program would harm Medicaid consumers and states. Last week, two professors at the School of Public Health & Health Services at George Washington University authored a report titled Medicaid Works: A Review of How Public Insurance Protects the Health and Finances of Children and Other Vulnerable Populations, which provides further evidence that the Ryan plan is not the right solution to rising health care costs. The Medicaid Works Executive Summary lists some of the report's key findings:

Continue reading "More Evidence that Ryan's Plan for Medicaid is Bad Health & Fiscal Policy" »

The National Health Law Program (NHeLP) and the O'neill Institute for National and Global Health Law recently launched a website designed to track the various legal and state legislative challenges to health reform. The new Health Law & Litigation website is a great practical resource for policymakers, practitioners, scholars, and anyone else interested in tracking health reform developments.

Kaiser Family Foundation also provides a web resource to track health reform implementation that is particularly helpful for consumers, as well as patient advocates. It provides information about evolving rules and guidance for expanding private and public insurance. It also discusses the impact of health reform on employment-based insurance and Medicaid access.

Today the Governor of Vermont signed a bill that would create a single payer health insurance system in the state and authorize a state heath insurance exchange under the new federal reform law, PPACA. This bill is just the first step. More will need to be done to determine exactly how the system will be financed and to obtain the appropriate waivers from the federal government. This latest development highlights the continued importance of state heath reform even after PPACA, and the degree of flexibility that PPACA and the Obama administration provide for state initiatives.
You can read more information about the bill at ModernHealthcare.com and
at CaliforniaHealthline.org.

Another court has weighed in on the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act, but the implications of this decision are devastating to the entire health reform law. It would eviscerate some of the most popular consumer protections in the Act, such as prohibiting insurance companies from refusing to issue health plans to people with preexisting conditions (guarantee issue), regulation of insurance premiums, mandates to cover adult children up to 26, and even the expansion of the Medicaid program. This decision has highlighted another potentially critical legal question that may ultimately be addressed by the Supreme Court: if the individual mandate is found unconstitutional, does this mean that the entire Affordable Care Act is also invalid?

Continue reading "Will the battle over the individual mandate threaten the entire health reform law?" »

On Monday, a federal court in the Eastern District of Virgina (Virginia v. Sebelius) found the individual mandate in the Patient Protection and Affordable Care Act unconstitutional.

The key constitutional question in this case is whether the individual mandate is a valid exercise of its power to regulate interstate commerce. The Supreme Court has consistently upheld the federal government's right to regulate even local activity if it substantially affects interstate commerce or is an integral part of a broader regulatory scheme that permissibly regulates interstate commerce. The federal mandate presents a novel and important question of law, however, about whether the commerce clause is broad enough to allow the federal government to require citizens to purchase private goods.

The court in Virginia v. Sebelius says no. In its decision, the court embraced the plaintiff's characterization of the subject being regulated as "inactivity" and noted that " to survive a constitutional challenge the subject matter must be economic in nature ... and involve activity." Allowing the federal government to regulate "inactivity" by forcing citizens to purchase insurance merely as a condition of their existence seemed a radical extension of the commerce clause power that is inconsistent with legal precedent. Two other district courts in Florida (Florida v. U.S. Department of Health and Human Services) and Ohio (U.S. Citizens Ass'n v. Sebelius) have refused to dismiss legal challenges to the individual mandate based on similar reasoning.

Despite this latest development, this issue is far from settled. The Virginia decision is being appealed, and so far two other courts have upheld the individual mandate.

Continue reading "Virginia Court Finds Individual Mandate Unconstitutional, But Other Courts Disagree" »

This summer, the Blue Cross Blue Shield (BCBS) of Massachusetts Foundation produced a report about the impact of health reform in Massachusetts since its implementation in 2006. One of the findings was boldly announced in the headline of Bureau of National Affairs article, Massachusetts Health Law Has Erased Racial Disparity in Coverage, Report Says. This is relevant for the rest of us because federal health care reform hopes to expand health coverage based in large part on the Massachusetts model of requiring everyone to purchase insurance through a centralized insurance exchange. We also know that lack of insurance coverage is a barrier to health care access and contributes to worse health outcomes for many racial minorities, which is why universal coverage has been an important goal for many civil rights and health advocates.

While celebrating this good news, however, we should not overlook the bad: despite equality in coverage in Massachusetts, racial and ethnic disparities in access persist. This is not a new or shocking finding - countless studies have documented disparities in access and health outcomes in the U.S., even after controlling for insurance coverage. Here are just a few recent examples:

Continue reading "Will Expanding Insurance Coverage Eliminate Health Disparities?" »

On Monday, in Golden Gate Restaurant Association v. San Francisco, the U.S. Supreme Court denied review of a legal challenge to San Francisco's universal health care program (the "Healthy San Francisco Plan"). In 2006, the City and County of San Francisco created a local health care plan designed to improve health care access for low and moderate income residents. An important source of funding for the plan came from the employer spending requirements - commonly termed "pay or play" provisions. Basically, this provision requires certain employers to spend a minimum amount on health care for their employees. They can do this directly (for example, by setting up a traditional employee-based health plan, establishing an on-site clinic, or reimbursing employees for certain health care expenditures) or they can satisfy this requirement indirectly by paying into a city-based health plan which their employees can join.

The Golden Gate Restaurant Association challenged this employer spending requirement by claiming that it was preempted by the federal Employee Retirement Income Security Act of 1974 ("ERISA"). This case represents the latest in a long line of legal challenges by employers using ERISA as a shield against state and local regulation designed to improve health care access for consumers. The practical impact of the Supreme Court's denial of review is good because it preserves the Healthy San Francisco plan for now. Unfortunately, the case highlights the legal uncertainty facing states and local governments that want to craft local solutions to their health care crises. This uncertainty is unacceptable given the long history of ERISA being used to frustrate state and local reform efforts and the fact that this kind of local reform will probably still be needed even after federal health reform is implemented.

Continue reading "What the "Healthy San Francisco" Case Means for Local Health Reform" »

In a recent post titled "California May Get Jump on Feds with Prior Approval of Health Insurance Rates," Frederick Pilot discusses legislation approved by the California state Assembly last week that would require prior approval of insurance premiums for managed care service plans and traditional indemnity insurance policies. For more information on health insurance reform, go to the Health Insurance Crisis Blog.

Since federal health reform was enacted, a number of law suits have been filed to prevent its implementation and lawmakers in 39 states have introduced bills opposing it. The piece of reform generating the most attention is the individual mandate to purchase health insurance. Attacks have come from across the political spectrum: On the right, people fear that government is getting too big and exercising too much control over personal decisions; on the left, people fear that the mandate will transfer more wealth and power to private insurance companies that prioritize profits over health. Although this political fight was supposedly decided once President Obama signed the law, these concerns are animating recent legal challenges as well.

Challengers claim that Congress does not have the authority to mandate these kinds of decisions, and that if Congress is allowed to do this, it will set a dangerous precedent that gives the federal government unfettered authority to regulate every aspect of our lives. While the mandate does raise an important question about the scope of the government's power to do something unprecedented - to require individuals to purchase a service from a private entity - concerns by challengers are overblown. The key to understanding why this mandate will likely be found constitutional, and why it does not set a precedent that gives the federal government limitless power, lies in the unique nature of health care and our highly regulated and government subsidized health care delivery system.

Continue reading "The Constitutionality of the Individual Mandate" »

The new health reform law, the Patient Protection and Affordable Care Act, is under attack from many fronts. A number of states filed suit almost immediately, challenging several aspects of the new Act. The most recent legal challenge has come from four individuals and the Thomas More Law Center (a nonprofit Christian legal organization). In April, they filed a motion in a federal district court in Michigan to preliminarily enjoin the part of Act that would require individuals to purchase health care coverage or be assessed a tax penalty. Their main claim is that the individual mandate is unconstitutional because the federal government does not have the authority to create such a mandate. While these suits raise a novel and interesting legal question about the ability of the federal government to require citizens to purchase goods or services from a private entity, this latest challenge will probably be rejected for other reasons.

Continue reading "Can Government Fend Off Constitutional Challenges to Health Reform For Now?" »

One of the new federal health reform protections scheduled to take effect later this year is expanded insurance coverage for young adults. As of Sept. 23, 2010, if your child is under 26 and unmarried, insurance plans must give you the option of adding insurance coverage for your child. Because this requirement does not technically go into effect until later this year, in many states children graduating from college or about to age out of their parents' plan could lose their coverage for a few months. The good news is that HHS has been working with insurance companies to close this gap, and several insurers have agreed to maintain coverage for these students. HHS Secretary Kathleen Sebelius has just issued two press releases announcing which insurers have agreed to do this and she is trying to get commitments from more. So far, Blue Cross Blue Shield, Kaiser Permanente, Humana, WellPoint, and United Healthcare are among the plans offering to continue coverage. Unfortunately, this does not appear to help young adults who have already lost coverage. They will have to wait until the law goes into effect in September.

Continue reading "Good News for Parents: Insurers Agree to Earlier Coverage Date for Some Young Adults up to Age 26" »

The Obama administration took an important step toward implementing insurance rate regulation on Monday, April 12. The U.S. Department of Health and Human Services (HHS) is requesting information that will help it effectively regulate medical loss ratios and health premium increases under the new reform legislation. Medical loss ratio refers to the proportion of premium revenues spent on clinical services and quality improvement, as opposed to profits, bonuses, and other overhead expenses.

Continue reading "First Step Toward Implementing Insurance Rate Regulation" »

Under the new health reform legislation, interim insurance pools will be established to provide coverage for high risk individuals until the requirements prohibiting plans from denying high risk individuals take effect. On his blog, Health Insurance Crisis, Fred Pilot explains why these high risk pools may not significantly reduce ranks of medically uninsured.

One of the most important pieces of the new health reform legislation is the expansion of private insurance. Congress tries to accomplish this by doing three things:

(1) Creating health insurance exchanges that will serve as a centralized place for regulating, standardizing, and purchasing insurance.

(2) Creating shared responsibility by individuals, employers, and the government. Employers with more than 50 employees that do not provide insurance will have to pay a fee that will be used to fund the insurance provided through exchanges. Individuals will be required to purchase insurance if it satisfies certain requirements, but will pay a tax penalty if they choose not to buy it. And to help people buy insurance, the government will provide tax credits to small employers and subsidies to individuals who make between 100%-400% of the federal poverty level (for 2009, the poverty level is $18,310 for a family of three).

(3) Creating new consumer protections and regulation of insurance to ensure that plans are affordable, provide a minimum level of benefits that are meaningful, and to prohibit plans from refusing to cover people who may seem high risk (guaranteed issue and nondiscrimination protections).

I recommend visiting the Kaiser Family Foundation website for a nice overview of the health reform legislation.

Continue reading "Regulation of Insurance Rates Key to Reform Success" »

As Congress debated health care reform, many people criticized the expansion of Medicaid as an illusory promise to expand care. In many states there is a Medicaid access crisis. Beneficiaries have trouble accessing care because providers refuse to treat them. And in communities where the numbers of Medicaid beneficiaries and the uninsured are high, providers like private hospitals, physicians, and other specialty centers are fleeing the community altogether.

The federal government has a critical role to play in fixing this problem, but the latest health care reform law does not signal a serious commitment by federal goverment to use its power in that way.

Continue reading "Federal Oversight & the Medicaid Access Crisis" »

Expanding Medicaid eligibility is an important part of the current health reform law, but many question whether this will mean better health care access. Medicaid beneficiaries have had trouble accessing care for years. From the beginning, Medicaid has been plagued with two problems: low payment rates for providers, and a slow, often confusing, reimbursement system. Medicaid pays far less than Medicare for the same service, and rates are usually too low to even cover providers' costs. Recent state budget cuts have exacerbated the problem - states are cutting already low rates as a way to fix their budget deficits.

Continue reading "California Lawsuit Evidence of Medicaid Access Crisis" »

The political fight over health care reform did not end when President Obama signed the Patient Protection and Affordable Care Act (the "Care Act") into law on March 23. It evolved into a legal fight that is now being waged in federal courts in Florida and Virgina. Many Republicans see this legal battle as their second chance to scuttle health care reform, but this is going to be an even harder battle to win.

Continue reading "Legal Challenges to Medicaid Expansion Likely to Fail" »

Even before the Patient Protection and Affordable Care Act (the "Act") was signed into law, lawmakers and health policy analysts in every state began trying to figure out what reform would mean for their state - the benefits and the costs. While the Act includes many different types of reform that would need to be considered carefully in order to really answer this question, the Medicaid reforms are generating a lot of attention because of the potential cost to states responsible for implementation. Specifically, the Act does several things to expand, improve and preserve existing Medicaid coverage. It redefines certain federal standards and criteria that states must implement.

This post gives a brief overview of the key reforms and then review some of the benefits and costs to states.

Continue reading "State Reactions to Medicaid Reforms" »

The Patient Protection and Affordable Care Act recently signed into law by President Obama builds on the existing public and private financing system to increase the number of people who can afford insurance, and thus access care. One way it does this is by expanding the existing Medicaid program to cover more people.

Continue reading "Medicaid Expansion in New Health Care Law" »

President Obama just signed into law the Patient Protection and Affordable Care Act -- one of the most significant health reform measures since enactment of Medicare and Medicaid.

This Act attempts to build on our existing health care system by significantly expanding Medicaid, giving Medicare beneficiaries better prescription drug coverage, and increasing consumers' access to affordable, quality health insurance. Among the most important provisions in the bill are legal rules that remove existing barriers to health insurance. Plans will no longer be able to deny people insurance on the basis of preexisting conditions, terminate coverage when an insured turns out to be high risk, or set annual or lifetime limits on benefits. Children can stay on their parents' insurance until age 26, and government regulators will have more authority to review and regulate insurance rates to prevent unreasonable rate hikes, like the recent one by Anthem Blue Cross in California (the one that reinvigorated the health reform bill everyone thought was dead). And there are many other consumer protections, as well as promises of government subsidies to help some people pay for insurance.

Continue reading "Law is Good Medicine" »