Prior to ACA hear­ings, both sides take aim

Modern Healthcare - - NEWS - Rich Daly and Jes­sica Zig­mond

Both sides take aim as Supreme Court bat­tle over ACA looms

READ Our cov­er­age of health­care re­form at mod­ern­health­­tran­si­tion

The cir­cus-like at­mos­phere about to take over Washington dur­ing the U.S. Supreme Court’s con­sid­er­a­tion of the Pa­tient Pro­tec­tion and Af­ford­able Care Act got an early start last week as Democrats touted the law and Repub­li­cans con­tin­ued to break it apart.

In the days lead­ing up to the law’s sec­ond an­niver­sary, Democrats in Congress and the ad­min­is­tra­tion high­lighted its pro­vi­sions in daily news con­fer­ences, news re­leases, an Obama cam­paign video and a new re­port from HHS about in­creased in­sur­ance cov­er­age for young-adult Amer­i­cans. The Re­pub­li­can-con­trolled House of Rep­re­sen­ta­tives, mean­while, voted to repeal the In­de­pen­dent Pay­ment Ad­vi­sory Board the law cre­ated (See story, p. 8) as part of the Re­pub­li­can ma­jor­ity’s con­tin­ued ef­fort to elim­i­nate the law.

“The White House has good rea­son to ig­nore this an­niver­sary, but hard­work­ing tax­pay­ers can’t avoid Obama care, which is rais­ing costs, jeop­ar­diz­ing cov­er­age and mak­ing it harder for small busi­nesses to hire new work­ers,” House Speaker John Boehner (R-ohio) said in a state­ment last week.

Mean­while, HHS Sec­re­tary Kath­leen Se­be­lius and U.S. Sur­geon Gen­eral Regina Ben­jamin pro­moted the Af­ford­able Care Act in vis­its across the coun­try last week on be­half of the ad­min­is­tra­tion. Pres­i­dent Barack Obama did not do the same for a land­mark piece of leg­is­la­tion that many con­sider to be his sig­na­ture do­mes­tic achieve­ment. In an e-mail, a White House spokesman re­ferred Mod­ern Health­care to a tran­script of re­marks from White House Press Sec­re­tary Jay Car­ney in which Car­ney said the ad­min­is­tra­tion is fo­cused on the law’s im­ple­men­ta­tion.

Start­ing Mon­day, the con­tro­versy sur­round­ing the Af­ford­able Care Act will turn up a notch as the na­tion’s high­est court will be­gin to ex­am­ine the law’s con­sti­tu­tion­al­ity. The line of ques­tion­ing pur­sued by the Supreme Court jus­tices may give some in­di­ca­tion, within lim­its, of their ul­ti­mate rul­ing in the case.

Neal Katyal, for­mer act­ing solic­i­tor gen­eral who ar­gued all of the gov­ern­ment’s cases lead­ing up to the high court and is now a part­ner at Ho­gan Lovells in Washington, urged cau­tion in ex­trap­o­lat­ing out­comes from the ques­tions.

How­ever, ob­servers should note whether the jus­tices move into pol­icy ar­eas or the “vast pol­icy de­bate in this coun­try about whether or not the Af­ford­able Care Act is good leg­is­la­tion or not.” That is, whether the court is mov­ing to sec­ond-guess Congress’ de­ter­mi­na­tion that the law is both nec­es­sary and solves the prob­lem of about 50 mil­lion Amer­i­cans lack­ing in­sur­ance.

“If there is a tol­er­ance to ac­cept those kinds of ar­gu­ments then that’s go­ing to be where the chal­lengers are on stronger ground than on the pure con­sti­tu­tional plane,” Katyal said in an in­ter­view.

The last time the court chal­lenged Congress on such a broad and im­por­tant ini­tia­tive was 1935, when it in­val­i­dated var­i­ous as­pects of the New Deal.

Jen­nifer Kraft, part­ner at Sey­farth Shaw, which filed a friend-of-the-court brief against the law on be­half of the Na­tional Res­tau­rant As­so­ci­a­tion, is look­ing for early in­di­ca­tions as to whether the court would strike down the en­tire law if it finds the in­di­vid­ual man­date un­con­sti­tu­tional. The law lacks a sev­er­abil­ity pro­vi­sion that is usu­ally in­cluded in large bills that would al­low the rest of the bill to re­main if any one pro­vi­sion is struck down. An ex­tended line of ques­tions about the im­pact of the loss of the man­date on in­di­vid­ual pro­grams may in­di­cate the jus­tices are con­sid­er­ing sev­er­abil­ity.

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