The Game’s Not Over, and It May Not Even Be The Real Game

Brian Klepper

Posted 6/29/12 on Medscape Connect’s Care and Cost Blog

Like most health law watchers, I was surprised by yesterday’s decision. I’m sure that on this issue, as with everything else, zealous responses will rationalize the result and split the country down the middle.

I expected the Court to be purely partisan, but apparently Chief Justice John Roberts acknowledged the gravity of his role and saw his way clear to support the law with some constraints. Here’s the comment from SCOTUS (Supreme Court of the United States) Blog:

Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial – feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

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Day Three – The Wrap Up

Merrill Goozner

Posted 3/29/12 on Gooz News

This is what conservative justices will do if they strike down or cripple the health-care law … A court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology. now – E.J. Dionne, The Washington Post

The insurance mandate was effectively reduced to a bumper sticker by the opponents in their constitutional challenge, and the entire law reduced to little more than an appendage to the mandate. . . The fate of the mandate should not determine the survival of the other elements of the law — like prohibiting insurers from denying coverage to people with pre-existing conditions or charging them higher fees — which can operate without the mandate. – New York Times editorial

Overturning the whole law would be an act of judicial restraint. – The Wall Street Journal editorial

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If the Supreme Court Overturns the Individual Mandate

Robert Laszewski

Posted 3/28/12 on Health Policy and Marketplace Review

First, trying to predict how the Court will rule is at best just speculation. I know what Justice Kennedy said both today and yesterday and it certainly doesn’t look good for the Obama administration and upholding at least the mandate.

But I will remind everyone, based upon oral arguments, most Court watchers expected a ruling in favor of the biotech industry on a recent case involving health care patents. “Surprisingly,” the Court ruled against the industry.

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Health Care and the Supreme Court: Prepare Your News Dial

Bradley Flansbaum

Posted 3/25/12 on The Hospitalist Leader

To get a sense of why this case is different and will dominate the news cycle now until the decision in June, appreciate this fact: the time allotted for arguments—the period in which plaintiffs and defendants present their views to the justices—is six, instead of the usual one. Moreover, the proceedings will transpire not just in one day, but three. This is substantial.

There are several issues under debate, but the most significant, and the one you have likely heard about, is the individual mandate. This is the requirement in the Affordable Care Act that all individuals without insurance must purchase it. The alternative is paying a penalty (but not a tax)–and this is important. Nevertheless I will revisit that below. For most people, the mandate is not applicable, as folks with Medicare or Medicaid, or receiving insurance from their employer meet the necessary waiver requirements.

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Defending the Affordable Care Act

Merrill Goozner

Posted 3/14/12 on Gooz News

What will they do? The Supreme Court (more or less) that gave us Bush v Gore in 2000 will later this month hear arguments by states challenging the Affordable Care Act, a.k.a. health care reform. The heart of the legal challenge raised by conservative state attorneys general is whether the individual mandate is constitutional. What happens if the Supremes say no? Does the entire law fall, or just the mandate?

The issue for lawyers is called “severability.” Did Congress when passing the law believe the mandate was necessary to the smooth functioning of the rest of the law? Clearly there are large swaths of the law for which the mandate is largely irrelevant: the physician payments sunshine act (disclosure of drug company payments to doctors); the creation of the Patient Centered Outcomes Research Institute to conduct comparative effectiveness research; the numerous payment pilot projects; and more.

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2012: A Year of Huge Uncertainty in Health Care Policy

Robert Laszewski

Posted 1/10/12 on Health Policy and Marketplace Review

2013 may be the most significant year in health care policy ever.

But we have to get through 2012 first.

Once the 2012 election results are in there will be the very real opportunity to address a long list of health care issues.

If Republicans win, the top of the list will include “repealing and replacing” the Affordable Care Act. If Obama is reelected, but Republicans capture both houses of Congress, we can still expect a serious effort to change the law. Then there is the granddaddy of all problems, the federal debt. The 2012 elections could well prepare the way for entitlement reform—particularly for Medicare and Medicaid. Even if Obama is reelected, the 2013 agenda will include a serious debate about Republican ideas to change Medicare into a premium support system and block grant Medicaid to the states.

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Health IT in 2012: a Dynamic Sector in the Context of a Fiscally-Challenged Health System

Jane Sarasohn-Kahn

Posted 12/20/11 on Health Populi

2012 will be a dynamic year for health information technology (health IT) in the U.S., which I outline in my annual health IT forecast in iHealthBeat, the online publication on technology and health care published by the California HealthCare Foundation. The full forecast can be found here.

The key headlines for you Reader’s Digest abridged fans are that:

The Health IT sector will continue to grow jobs in the ongoing Great Depression, particularly in key competencies in data security, analytics, integration, and EHR implementation.
There will be more data breaches, and consumers will be justifiably concerned about data security. Government will more consistently implement sharper “teeth” in their punishment of health organizations who leak personal health information.
Health IT suppliers will consolidate. The Microsoft-GE combination, announced in December 2011, is a sentinel event in this regard.
Health IT start-ups will continue to emerge in 2012, some of which will have sound business models that will be acquired by larger firms to round out their offerings and address, in particular, consumer/patient-facing applications that support health engagement to enhance health outcomes.
Connected health, in the form of telemedicine, mobile health, and remote health monitoring to the home will gain traction and business models as health payment moves toward accountable care, medical home, and paying for outcomes.
IBM’s Watson is an example of high-powered data analytics, which will get more practical and targeted in 2012. A ripe area for this will be preventing re-hospitalizations, a focus of health reform and Medicare financing.
People – patients and providers – live multi-channel, multi-platform lives every day. Thismodus vivendi is translating into health and health care. Patients want online connections with doctors for administration (e.g., Rx refills and appointments), clinical decision making, and communications (e.g., email with practices).

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Affordable Care Act: A Date With Destiny

Roger Collier

Posted 12/19/11 on Health Care Reform Update

The schedule for the Supreme Court to hear arguments on the constitutionality of provisions of the Affordable Care Act was announced this week. The following is the agenda.

On March 26, the Court has allotted an hour to hear arguments on whether the Anti-Injunction Act makes challenges to the individual mandate premature until 2015. With neither the government nor the ACA’s opponents pressing the point, the argument for the precedence of the Anti-Injunction Act—an argument that four appellate judges had earlier found convincing—will be presented by Washington attorney Robert Long as a “friend of the court”.

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Reading the Supreme Court Leaves

Roger Collier

Posted 11/18/11 on Health Care Reform Update

The announcement on November 14 that the Supreme Court will review various aspects of the constitutionality of the Affordable Care Act has set legal experts to guessing possible outcomes.

The Court accepted just one of four Appeals Court decisions for review, but the one chosen, from the Eleventh Circuit, covered every major issue and included as plaintiffs twenty-six state attorneys general who oppose the ACA. The Eleventh Circuit ruled in August that the ACA’s individual mandate provision was unconstitutional, but ruled against the plaintiffs on all other issues.

It’s obviously naïve to think that the Justices haven’t already thought a great deal about the issues, and their thinking presumably influenced the decisions as to which questions raised in the lower courts they should address. So what can we guess from the four issues to be argued before the Court in the spring of next year?

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Supreme Court Goes Beyond Individual Mandate

Merrill Goozner

Posted 11/14/11 on Gooz News

The Supreme Court, as expected, will consider the constitutionality of the individual mandate in health care reform. But as Tim Jost, a Washington and Lee University professor of law, noted today on theHealth Affairs blog, the high court will also hear arguments on the constitutionality of using Medicaid to expand insurance coverage to people earning up to 138 percent of the poverty line. States are challenging this mandate under what the attorneys general in the 26 states challenging the law call “the coercion theory.” Noted Jost:

The coercion theory calls into question a multitude of federal government programs. Many federal programs, and not just health care programs, operate through conditional grants to the states. Were the Supreme Court to hold that the Medicaid expansions are unconstitutional, it would open every one of these programs to judicial challenge. New programs, or changes in existing programs, could be tied up for years as litigation proceeded. Such as decision could pose a much greater threat to the power of Congress to address national problems than might a decision holding that Congress exceeded its authority under the Commerce Clause in enacting the individual mandate. It would be a truly radical decision.

I don’t know that this cases yet rises to the level of a Dred Scott decision for the 21st century. But its framing by the states challenging the law has all the hallmarks of the southern states that challenged the 1964 civil rights act, claiming states had the right to nullify federal laws that prohibited local laws condoning segregation, impeding voting and the like. The stakes in this spat over the individual mandate have suddenly grown significantly larger.

Yet Another Appeals Court Heard From

Roger Collier

Posted 11/12/11 on Health Care Reform Update

The final federal Court of Appeals decision on the constitutionality of the Affordable Care Act, before the Supreme Court meets to decide which cases to consider, was issued this week. It includes some interesting twists.

The DC Circuit upheld the law’s requirement that nearly all Americans must have health care coverage in a 2-1 ruling. However, the minority vote was cast not because of the constitutionality issue, but because the dissenting judge, Brett Kavanaugh, a George W. Bush appointee, considered that—under the Anti-Injunction Act, which limits attempts to strike down proposed taxes—no ruling was appropriate at this time. Judge Kavanaugh’s citing of the Anti-Injunction Act echoed an earlier decision by the full Fourth Circuit that imposition of the individual mandate’s penalties could not be considered until they were implemented and individuals had been forced to pay them, in effect interpreting the penalties as a form of taxation.

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The Affordable Care Act Supreme Court Petitions: Issues and Implications

Timothy Yost

First posted 9/29/11 on The Health Affairs Blog

Wednesday, September 28 was a busy day at the Supreme Court clerk’s office.

It had been widely expected that there would be a major pleading filed with the clerk in an Affordable Care Act challenge, as the response of the United States to a certiorari petition in the Sixth Circuit’s Thomas More case, which had upheld the ACA as constitutional, was due. A cert. petition asks the Supreme Court to exercise its discretion to review the decision of a lower court, and the losing plaintiffs in Thomas More had requested the Supreme Court to reverse that decision and find that Congress had no authority under the Commerce Clause of the Constitution to adopt the ACA’s minimum coverage requirement.

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The Administration Decides That Sooner Is Better

Roger Collier

First posted 9/28/11 on Health Care Reform Update

Hot on the heels of Monday’s news that the Obama administration had decided not to ask for a re-hearing of the Eleventh Circuit Court’s ruling that the individual mandate is unconstitutional, came today’s announcement that the Justice Department had asked the Supreme Court to hear the case.

Given that other Appeals Court decisions may also be forwarded to the Supreme Court, it is not certain which case or cases the Court will decide to hear. However, a request by the administration is almost sure to be granted.

While the rationale for the Justice Department decision cannot be known, it seems that the administration believes that it has a better than evens chance of prevailing.

The critical issue now is timing, with a hearing most likely in the spring, and a decision—in the middle of the presidential election campaign—in June 2012.

Violent Brains in the Supreme Court

Neuroskeptic

First published 7/15/11 on Neuroskeptic

Back in June, the U.S. Supreme Court ruled that a Californian law banning the sale of violent videogames to children was unconstitutional because it violated the right to free speech.

However, the ruling wasn’t unanimous. Justice Stephen Breyer filed a dissenting opinion. Unfortunately, it contains a whopping misuse of neuroscience. The ruling is here. Thanks to the Law & Neuroscience Blog for noticing this.

Breyer says (on page 13 of his bit)

Cutting-edge neuroscience has shown that “virtual violence in video game playing results in those neural patterns that are considered characteristic for aggressive cognition and behavior.”

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