Almost immediately, opponents of the law filed lawsuits challenging its constitutionality. Those suits have wound through the courts and now the Supreme Court will have its say, with oral arguments in January and an opinion expected by this June. The core issue for the Court is whether the individual mandate requiring all persons have health insurance is constitutional-whether Congress exceeded its authority.
There are three basic scenarios for how the court could rule, and each will affect provisions of the law, including at least seven provisions with a strong focus on health information technology.
The scenarios for a ruling are:
* The individual mandate is constitutional so the law stands as is;
* The individual mandate is unconstitutional but everything else in the law is constitutional; or
* The individual mandate is unconstitutional and as a result, that renders the entire law unconstitutional.
In the first scenario, the obvious effect is that nothing changes with the health care reform law. Things will get tricky, however, under the other scenarios.
But first, a look at where the case stands.
The Court decided to review a Court of Appeals ruling that the individual mandate in the reform law is unconstitutional and cannot be severed, or separated, from the rest of the law and therefore the entire law is void.
Judge Roger Vinson, senior judge in the Northern District of Florida, Pensacola Division, ruled with considerable reluctance that the mandate was not severable from the rest of the law because while the mandate was "necessary and essential" to the law as written, it is not "necessary and essential" to health care reform in general.
"Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void," Vinson ruled. "This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled, 'The Patient Protection and Affordable Care Act.'"
Vinson in his ruling seemed to try to set the terms of what the Supreme Court should consider. He made clear that his ruling was based on constitutionality issues and not the merits of the reform law itself. "I emphasized once before, but it bears repeating again: this case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government."
In addition to the Florida case, the Supreme Court also will consider parts of other Appeals Court rulings. On the question of the individual mandate, the Supreme Court could punt and not rule on the issue, declaring the question of constitutionality to be premature.
Under the mandate, the government would issue tax penalties to people not insured by 2014. The Court will consider arguments that the federal Anti-Injunction Act prohibits legal challenges until taxpayers start to pay a penalty. An Appeals Court in Virginia ruled opponents to health reform did not have legal standing because penalties have yet to be paid. The Supreme Court further will consider the constitutionality of significant expansion of state Medicaid programs.
The effect on HIT
Paul Keckley, executive director of the Deloitte Center for Health Solutions, a unit of the Deloitte consultancy, believes the Supreme Court picked the Florida case as the core issue, because Florida is the most pervasive ruling and the court was looking for a wide interpretation of the law.
Florida and other courts considered whether the individual mandate exceeded Congress' authority under the Commerce Clause of the Constitution, which regulates activities that substantially affect interstate commerce. But the Florida ruling was the only one to determine that the mandate violated the Commerce Clause and was unconstitutional, and that the mandate could not be severed from the rest of the law.
An aside: With a little luck, the Obama administration may have never faced the judicial quandary it's now in. Language is commonly put in legislation stating congressional intent that if a provision is found unconstitutional, the rest of the law stands, says Dave Roberts, vice president of government relations at the Healthcare Information and Management Systems Society.
With sleep-deprived congressional staffers racing deadlines to get the bill printed and proofed, that language was inadvertently left out of the Affordable Care Act, according to Roberts. The administration says it was a clerical error and the intent was to include the language.
The reform law includes the individual mandate-which was a Republican idea that Newt Gingrich and Mitt Romney, among others, originally championed before President Obama adopted it-because that was the deal struck with insurers to get them on board. Both Romney and Gingrich now oppose the individual mandate.
Having everyone insured means having all of the younger and healthier population covered and paying premiums but not utilizing a lot of care, says John Moore, managing partner at Chilmark Research, a Cambridge, Mass.-based consultancy.
Also under the reform bill, parents can cover children up to age 26 and keep paying those family plan premiums. Having the young and healthy paying into the insurance system would offset insurers' much higher costs for covering less healthy populations, such as those with chronic or pre-existing conditions, he notes.
Imposition of the individual mandate also paved the way for the law's prohibition of pre-existing conditions in health insurance policies. "In order to prohibit pre-existing condition clauses, there must be a concurrent requirement that all individuals carry health insurance," explains Michael Silhol, a health care attorney in the Dallas law firm Haynes and Boone LLP. "Otherwise, individuals would wait until they got sick before buying health insurance, which would bankrupt insurers. This would be the same situation as if car drivers waited until they had an accident to buy auto insurance and expected the insurance to pay for their accident.
