Originally Published on Health Policy and Marketplace Review here.
I guess this question is no longer a theoretical one.
December will be a big month when it comes to seeing some of the fallout accruing from the very partisan passage of the Patient Protection and Affordable Care Act.
First, the White House is worried big time about a Richmond federal judge who has said he will rule by year-end on a suit brought by the Virginia Attorney General, and a number of others, on the constitutionality of the individual mandate. This Republican appointee has already telegraphed a cynical view of the administration’s constitutional defense of the bill. More problematic, the Senate staff forgot to put a “severability clause” in the new health care law. That means the whole thing (2,800 pages) can get thrown out if a core element of the law is found unconstitutional. And, there are lots of people in this town worried this judge just might do that.
We all know this is going to be finally decided by the Supreme Court—make that by Justice Anthony Kennedy in what could well be a 5-4 decision—but getting the whole thing thrown out in even one of the many pending suits could send shockwaves of uncertainty into the health care industry trying to figure out just what it will finally have to implement, taxes it will have to pay, and which people it will have to cover. A bad decision for the new law will also present lots of fodder for conservative critics of the new law.
Second, we’ve got the infamous 1099 requirement in the new law that will have every business going crazy sending out tax forms to everyone it does business with beginning in 2011. I keep hearing this will be repealed but no one can tell me where the money is going to come from—$17 billion will be needed over ten years to do it.
Then there is the doc fix. Now the docs are scheduled to get their Medicare fees slashed on January 1, 2011. Again, everyone says the Congress is going to fix this one for the docs but no one knows where the money will come from—about $1 billion for each month they patch the problem and a total of $300 billion over ten years.
The Congress, both Republicans and Democrats, are intent, make that desperate, to find the money for both the small business and physician lobby. It also looks like Republicans are intent on blackmailing the Dems over where to get it by demanding billions come out of the new health care law—from places like preventive health care spending to insurance subsidies—in order to come up with the cash needed to get the small business and doc lobby off everyone’s backs.
I will suggest that while many of those eager to ram this new law through didn’t see the need for bipartisan support a year ago they may understand its value now.
Robert Laszewski is president of Health Policy and Strategy Associates, LLC (HPSA), a policy and marketplace consulting firm specializing in assisting its clients through the significant health policy and market change afoot.