With Federal District Court Judge Roger Vinson ruling the health care reform law unconstitutional in 26 states that joined in a class action lawsuit, what happens to Obama Administration efforts to implement provisions of the law as the legal issues move to the Court of Appeals and Supreme Court?

Attorney Howard Burde believes the administration won't stop promulgating rules. "My sense is they will continue until a ruling that applies nationally from the Supreme Court," Burde, principal at Howard Burde Health Law LLC, Wayne, Pa. However, any proposed or final rules to implement reform provisions--issued prior to a Supreme Court ruling--would be subject to legal challenge, he adds.

If the Supreme Court strikes down all of the reform law, the administration may be able to do a legal run-around to maintain the mandate of establishing and adopting "operating rules" to further standardize the HIPAA financial and administrative transactions, Burde speculates. There are other laws enacted prior to reform that could be used as statutory justification to keep the operating rules on track, he notes. "We still have HIPAA, that law passed in 1996," he adds. "Given the breadth of the HIPAA administrative rules, you could drive operating rules through HIPAA, although you may not be able to set deadlines."

On the other hand, for all practical purposes, state insurance exchanges now are on hold unless a state on its own sets up a voluntary exchange, Burde says.

The limbo that now exists for health care reform provisions could last a while, Burde notes. He'd be surprised if the court even hears the case in 2011 and he doesn't expect a ruling to be released in 2012. The court tends not to issue politically charged decisions during a presidential election year, he adds.

--Joseph Goedert


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