MDNews - Greater Kansas

December 2011/January 2012

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++++++++++++++++ +++ +++ ++++++++++++++++ LEGAL RX + + PPACA: The Road Ahead By Cody G. Robertson the Patient Protection and Affordable Care Act (PPACA), will ultimately be determined by the Supreme Court of the United States. On Monday, Nov. 14, SCOTUS announced that it will take A up the appeal of a decision from the Eleventh Circuit Court of Appeals, Florida ex rel. Atty Gen. v. U.S. Dep't of Health & Human Servs., in which Florida, along with twenty-fi ve other states, challenged the constitutionality of the PPACA's now-infamous individual mandate. SCOTUS will hear oral arguments in the case in March 2012, with a decision likely to come sometime in late June. In a nod to the importance and complexity of the questions presented, the court has allowed an unprecedented amount of time — more than fi ve hours — in which to hear oral arguments in the case. Thus far, the PPACA's individual mandate provision, which requires that most Americans purchase a minimal level of health insurance coverage or pay a tax penalty, has garnered the lion's share of attention, both in the press and in the lower courts that have heard challenges to the law. However, SCOTUS will consider a number of additional issues that may ultimately play an even larger role in determining the PPACA's ultimate fate. Chief among those is an issue raised by Justice Brett Kavanaugh of the D.C. Circuit Court of Appeals in Sevensky, et al. v. Holder. Although that opinion ultimately upheld the constitutionality of the PPACA, Justice Kavanaugh penned a dissenting opinion, fi nding that the federal Tax Anti-Injunction Law prohibited any federal court from hearing a challenge to the individual mandate until that law actually goes into effect S THIS ISSUE of MD News goes to press, the nation is learning of something that most of us surely suspected to be true all along — that the fate of President Obama's health care reform legislation, in 2014. SCOTUS will hear one hour of argument on this issue, which could potentially render the remainder of the states' challenge moot at this time. Assuming the Supreme Court can find its way past this threshold question, it will then take up the constitutionality of the individual mandate. While it is anyone's guess how the court will rule on this issue, most commentators agree the ultimate outcome will almost certainly be determined by the votes of Justice Anthony Kennedy and Chief Justice John Roberts, with the remaining seven justices voting reliably along ideological lines. The court will hear two hours of argument on this issue. Next, the court will consider whether the individual mandate is severable from the rest of the PPACA — in other words, if the individual mandate is deemed unconstitutional, may the rest of the law remain in place? The Eleventh Circuit previously over- ruled trial court Judge Roger Vinson's ruling that the individual mandate is not severable. The Supreme Court has allowed 90 minutes for arguments on this issue. Finally, the court will determine the constitutionality of the PPACA's Medicaid amendments, which require the states to increase Medicaid spending. In essence, the states have asserted that these provisions overstep Congress' conditional spending power, resulting in a commandeering of state funds. The court will devote its fi nal hour of argument to this issue. Perhaps conveniently, the court's opinion will be released just in time for the Republican and Democratic conventions for the 2012 presidential election, surely leading to even greater acrimony and rhetoric than could previously be expected in that campaign. While all of this will surely make for great high political drama, it unfortunately also spells another eight months for providers, businesses and individuals to continue asking that now-all-too-familiar question, "Now what?" n

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