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If you were anything like me during the Supreme Court oral arguments on the Affordable Care Act, you jumped every time a news alert came over your email, and then audibly groaned as you read missives such as: "THE ACA IS DOOMED! 9 OUT OF 10 LEGAL SCHOLARS AGREE!"  Amazing how conventional wisdom can change so dramatically in only a few days.  I blame, among other things, the 29,057 news lists I'm subscribed to--as I devoured each email with "breaking news," it left little opportunity to take a step back and assess the big picture.

Now with a little more time for reflection, I have focused my energy on trying to "Keep Calm and Carry On". The British government created posters with that phrase at the beginning of WWII to raise morale in the event of an invasion.  It has now re-emerged in popular culture and is a great reminder to take a deep breath and remember that there's no invasion yet, and the best thing to do is to continue with the important work of moving forward under the current law. 

We can't ignore that there is some risk that pieces, or even the entire law, could be struck down.  Making matters worse, the current dialogue and election year posturing only elevates the black and white thinking that it's ACA or no ACA. Reality is often found in shades of grey and ACA is no exception.  Let's consider some of the possible outcomes:

1. The entire Affordable Care Act stands. 

2. The individual mandate is struck down, but insurance reforms and Medicaid expansion stand.

3. The individual mandate and insurance reforms are struck down, and the Medicaid expansion stands.

4. The mandate, insurance reforms, and Medicaid expansion are struck down.

These are overly simplified scenarios, but help illustrate the point that the majority of possible outcomes would maintain all or some part of the law, notably new insurance marketplaces and the Medicaid expansion in states, that will provide new paths to coverage for many Americans. 

Would the work change under each? Sure. Dramatically? It depends.  But advocates are certainly no strangers to dealing with uncertainty and overcoming challenges as laws are implemented. Many of us remember a time when children's coverage was nowhere near the levels we see today--and there were plenty of bumps in the road to success. No matter what happens, the hard work of defending the law - or implementing the many key parts that remain--will continue after June and we should be ready to adapt as needed. 

Is it Doomsday? It may feel like it, but we cannot let our anxiety take over and lose months of work that are crucial to preparing for 2014.  Keep Calm and Carry On.

We haven't heard much about what Politico has dubbed the "sleeper issue" of the Supreme Court case because it is the least likely to be found unconstitutional.   This week, Attorney Paul Clement tried to stoke a little life into the sleeper issue by tying it to the more controversial mandate provision.  In the brief he filed on behalf of the states challenging the constitutionality of the Affordable Care Act, he argued that the Medicaid expansion is possibly more coercive than the mandate (otherwise known as the individual responsibility or minimum-insurance coverage provision).

As with most anti-Affordable Care Act arguments, the point that expanding Medicaid would be "coercive" and impose a mandate on the states is based on "more rhetoric than fact".    I would like to take credit for that phrase but I found it in the 11th Circuit Court ruling on the topic. 

"While some individuals are exempt from the penalties designed to enforce the mandate, no state is exempt from the massive penalty -- the loss of the entirety of funding under the single largest grant-in-aid programs for the states -- and so Congress did not even contemplate the possibility of a state opting out of Medicaid," wrote Clement in a brief filed with the court Tuesday.

Hopefully even that super-charged rhetoric can't wake the Rip Van Winkle of sleeper issues. 

For another viewpoint, read the New England Journal of Medicine piece "All Heat, No Light - States' Medicaid Claims Before the Supreme Court" by Sara Rosenbaum and Tim Jost.  They write:

"From a legal perspective, nothing about this latest Medicaid expansion is different from past expansions, other than the fact that it passed as part of a broader health care reform effort. This fact does not change Medicaid's fundamental status as a voluntary program. Were a state to decide that it would rather end its Medicaid program than cover poor adults, it might have to devise a health care alternative for its poorest residents. But that has always been the question states face when Congress expands Medicaid. States may be confronted with a "hard choice," in the words of the 11th Circuit, as to whether to continue participating in Medicaid. But that is not a constitutional matter."

The Department of Justice brief on the Medicaid expansion is due on February 10.  Oral arguments on the topic are scheduled for March 28.  For more information on the Supreme Court timeline and a synopsis of the friend of the court briefs filed in support of the Affordable Care Act so far, visit the Center for Progress.

By Eva Marie Stahl, Community Catalyst

The awaited day is here. The Supreme Court announced that it will hear the case against the Affordable Care Act's (ACA) individual responsibility requirement (and other related requests). For those immersed in football season, this is the Super Bowl of legal challenges.

Game time. Be prepared, the oral arguments will last five and a half hours. Here's a breakdown:

 • The Court will devote two hours to the constitutionality of the individual responsibility requirement

 • Ninety minutes will address "whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate."

 • One hour is devoted to whether the Anti-Injunction Act (AIA) prevents a ruling before the individual responsibility requirement goes into effect in 2014.

 • The final hour will address the constitutionality of the expansion of Medicaid

The Court will hear the case at the end of March 2012, releasing a decision sometime in the summer if not before. The ruling will come at the height of the presidential campaign, ensuring its outcome will affect the election.

What is at stake?? The Court will address three main issues:

• Individual responsibility requirement. This is the centerpiece of the legal challenges to the ACA around the country. Anti-ACA supporters take issue with the requirement that most Americans purchase health insurance by 2014, if they can afford it. The Court will consider the constitutionality of the individual responsibility requirement and will subsequently review the severability of the mandate from the rest of the law. In other words, if the individual responsibility requirement fails, can the ACA stand?

• Anti-Injunction Act (AIA). The Anti-Injunction Act states that consumers cannot challenge a tax law until they have paid the tax. This issue was raised in the 4th circuit opinion regarding the two Virginia cases. The argument is that jurisdiction to rule on the individual responsibility requirement is precluded by the AIA simply because it has not happened yet! This would lead to all cases against the individual responsibility requirement being thrown out until 2015. If the AIA is upheld, millions of Americans would have health insurance through Exchanges and Medicaid prior to a determination of the constitutionality of the individual responsibility requirement.

• Medicaid expansion. Medicaid expansion as a threat to state autonomy was raised initially by the 26 states and National Federation of Independent Business (NFIB) case, originating in Florida. The group maintains that the Federal government is coercing states, essentially forcing them to participate in the Medicaid program. This coercion, the states maintain, is unconstitutional. The Medicaid question has yet to be supported by any lower court; however, analysts believe adding the Medicaid expansion issue has raised the profile of the case.

The decision to address the individual responsibility requirement was expected while the Medicaid expansion was not. However, the Court seems to be giving a nod to the concerns of all participants, agreeing to review the issues presented in the Florida case as well as the AIA, an issue raised in the 4th circuit.

Analysts agree that the main issue at stake remains the constitutionality of the individual responsibility requirement and further, whether or not it may be severed from the law. If the requirement is struck down while the rest of the law is left intact, it will raise a number of policy and political questions going forward. Analysts have explored the consequences of life without the individual responsibility requirement, concluding that the ACA could still function though it would not be as successful at expanding insurance coverage. Insurers, however, would be sure to raise a major outcry over guaranteed issue and community rating provisions if the requirement falls.

Place your bets.?The 26-state and NFIB case (often labeled the Florida case) dominates the spotlight as its arguments regarding the individual responsibility requirement won over 11th circuit Judge Roger Vinson. Vinson ruled against the individual responsibility requirement and threw out the ACA altogether, maintaining that the law was not viable without the requirement.

The Obama Administration, however, is feeling optimistic after having two conservative judges rule in their favor. The first is Judge Jeffrey Sutton of the 6th circuit, a former law clerk for Justice Antonin Scalia. The second is Judge Laurence Silberman of the DC Circuit who eloquently defended the individual responsibility requirement and is cited as a respected conservative.

In the end, the Obama Administration believes that they have a strong case in support of the individual responsibility requirement. Yet if SCOTUS embraces the Anti-Injunction Act, it could delay any decision until 2015. This path offers SCOTUS a way out of the political quagmire that they face in light of the 2012 elections. Yet, maybe not - with an early June decision, four months remain in the campaign season. As one analyst noted, "That's a very long time in politics, especially for something that won't have any immediate, tangible effect on people's lives"

Game on. Brief filings will begin as early as this December as all sides prepare for their legal Super Bowl. So, bring on the wings and get comfy - this is one of the longest oral hearings on record. We will all be watching for the last minute Hail Mary.

(This blog originally appeared in the Health Policy Hub.)

This week, the Sixth Circuit Court of Appeals upheld the Affordable Care Act as constitutional (including the key individual responsibility provision) infusing a large dose of rational thinking into the highly polarized world that surrounds the health reform law.

In fact, the majority opinion used the word "rational" several times in rejecting the challenge by the conservative Thomas More Law Center. 

"By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons. First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance."

A prominent conservative and proponent of state's rights, Judge Jeffrey Sutton, joined the majority.  Sutton was appointed to the bench by President George W. Bush and clerked for Supreme Court Justice Antonin Scalia.  He is the first Republican appointee on the federal bench to rule in favor of the individual responsibility provision requiring people to purchase health insurance or face a penalty. 

"No one is inactive when deciding how to pay for healthcare," Sutton wrote, rejecting the argument by opponents of the Affordable Care Act that Congress could not regulate "inactivity" such as the decision not to buy health insurance.  "Self insurance and private insurance are two forms of action for addressing the same risk," he wrote. "Each requires affirmative choices."

Legal challenges are still pending in three other federal appeals courts: the Fourth Circuit Court of Appeals based in Richmond, Virgina (in a case brought by Virginia Attorney General Ken Cuccinelli) the Eleventh Circuit Court of Appeals based in Atlanta, Georgia (in case brought by over two dozen GOP state officials), and the District of Columbia Circuit Court of Appeals (in a case brought by several private individuals).

The Supreme Court will likely make the final decision on the constitutionality of the health reform law sometime next year.  Let's hope the Justices read the rationale for this decision and make a rational decision.

By Jane Perkins, Legal Director, National Health Law Program

The U.S. Supreme Court is set to hear Douglas v. Independent Living Center, a group of cases addressing whether Medicaid-participating providers and enrollees may enforce the Medicaid provider payment provision, 42 U.S.C. § 1396a(a)(30)(A), in court.  Among other things, Section (30)(A) requires states to establish payments that are "sufficient to enlist enough providers so that care and services are available under [Medicaid] at least to the extent that such care and services are available to the general population in the geographic area."  The Medicaid providers' and enrollees' claimed that various California laws imposing across-the-board cuts to provider rates that threatened the ability of enrollees to access critical health services were inconsistent with Section (30)(A) and, under the Supremacy Clause of the U.S. Constitution, those state laws had to yield to the federal law.  The Ninth Circuit agreed.

When California asked the Supreme Court to take the case for review last year, the U.S. Solicitor General submitted a brief to the Court arguing against review.  The Court took the cases anyway.  Last week, in a friend-of-the court brief, the Solicitor General wrote on behalf of the Obama administration supporting California's position and asking the Supreme Court to find that Section (30)(A) cannot be privately enforced.  To advocates' dismay, the Administration did not stop there.  In an expansive argument, the brief, suggests that a cause of action in this case would "not be compatible" with the statutory scheme envisioned by Congress and that Medicaid enforcement rests within the sole purview of the Secretary of Health and Human Services (who is statutorily authorized to terminate federal funding but somewhat hamstrung from taking any less drastic actions to enforce compliance by states).  This position is wrong both factually and legally.  It is true that Medicaid does not include an express cause of action.  However, in 1965, when Medicaid was enacted, Congress was acting under controlling Supreme Court precedent that recognized a remedial imperative--the notion that federal judicial power would be used to accord individuals relief from harm in the absence of an express statutory authorization.  Thus, it makes sense that Congress would not have placed an explicit private right of action in the statute at that time, because enforcement of statutes by individuals was the norm.  Granted, recent Supreme Court decisions have pulled back from the remedial imperative. However, in 1994, Congress passed a law explicitly clarifying that it intends private enforcement of Social Security Act laws like Medicaid.  So, not only has the Administration dealt a stunning blow to the vulnerable Medicaid enrollees who rely upon the courts to ensure that states do not ignore federal law, it has taken a position that rests on a faulty foundation. The Administration is inviting the Court to set a very dangerous precedent and to undermine the health care security that Medicaid provides to low-income children, families, people with disabilities and elderly.  Lacking an enforceable right to Medicaid coverage, Medicaid would become charity, not a legal entitlement. 

The Supreme Court will hear oral argument in these cases next Term. Meanwhile, the Administration needs to hear from us.  Please take a moment to let them know you are unhappy with the Administration's position in this case.  Here are contact numbers:

• Nancy-Ann E. Min DeParle, Assistant to the President and Deputy Chief of Staff for Policy: 202-456-1775, ndeparle@who.eop.gov
• Melody C. Barnes, Assistant to the President and Director of the Domestic Policy Council: 202-456-5594, domesticpolicycouncil@who.eop.gov
• Jeffrey S. Crowley, National AIDS Policy Director and Senior Advisor on Disability Policy: 202-456-4450, jcrowley@who.eop.gov
• Jeanne M. Lambrew, Deputy Assistant to the President for Health Policy, 202-456-3326, ssekhar@who.eop.gov

White House switchboard: 202-456-1414.

(The views expressed by guest bloggers do not necessarily reflect the views of Georgetown University Health Policy Institute's Center for Children and Families.)

We've all heard the observation that putting a Medicaid or CHIP card in a parent's hand doesn't necessarily mean that a child will get all the health care he or she needs--many of us have probably said it ourselves.  For coverage to translate to care, kids and parents need access to the right providers at the right time.  How is your state doing on access for Medicaid beneficiaries?  How would access be affected by changes in the payment rates to providers?  You might find it difficult to answer these questions, since much of the access data we have comes from national sources and the effect of payment rates on access in a given local area is not always clear.  States have not, to date, reported regularly on comprehensive measures of access in Medicaid.  And as the adage suggests, it's next to impossible to improve performance without measuring the outcomes of interest.

CMS has moved to address the lack of access measures with proposed new guidelines for states that encourage them to measure and analyze access in Medicaid. The proposed rules come in response both to lawsuits from providers challenging state payment rates and to recommendations from the Medicaid and CHIP Payment and Access Commission, which was created in the CHIPRA law and expanded by the ACA.  They build on longstanding federal law that requires that states ensure that medical services are available to Medicaid beneficiaries at least to the extent that they are available to the general population in the same geographic area.  Separate federal laws apply to the availability of services through Medicaid managed care, so these proposed rules apply only to fee-for-service Medicaid beneficiaries.  The proposal states that CMS plans to write additional rules that apply to access to care within managed care.

The proposed rule envisions states undertaking an ongoing process to measure access so that each service (physician visits, dental visits, hospital services, etc) is measured at least once every five years.  When states propose to adjust provider payment rates, an analysis of the effect on access would need to be part of the state plan amendment.  The proposed rule aims to create a consistent national approach to analyzing and documenting access in Medicaid, but it doesn't establish a single, uniform process for measurement.  Instead, it allows states to develop metrics that reflect their own circumstances and priorities.

This new attention for measuring and maintaining access to care is an important step all by itself.  But in reviewing the proposed rule, a couple of points stood out:  First, CMS strongly suggests that beneficiaries' experiences of care should be the

"primary determinant" of whether access is sufficient.  That means asking families whether they have difficulty getting an appointment or whether they can find the right specialist--it's a great way to keep patients at the center of decisions about Medicaid.  Second, the proposed rule expects that states will solicit public comment on both their access measures and in payment policy changes that could impact access.  This improves transparency and gives advocates and families a chance to weigh in on these important decisions.

With the Affordable Care Act, we're moving closer to universal coverage, including millions of new enrollees in Medicaid.  We'll need to monitor access issues even more closely to ensure that the possession of a Medicaid card means the right care is available when it's needed.  These proposed rules represent a solid start in making sure that essential measurement happens.

By Jane Perkins, National Health Law Project

This past Monday, Florida district judge Roger Vinson issued his decision in one of the most closely watched cases challenging the constitutionality of the Affordable Care Act (ACA).  At least 24 such cases have been filed in federal district courts around the country.  The Florida case is different from all others because of the large number of plaintiffs--which include elected officials from 26 states (Judge Vinson allowed six newly elected officials into the case in January).  The decision has four major elements:

1. Judge Vinson holds the individual responsibility requirement (to have minimum insurance coverage) unconstitutional because the Commerce power does not allow Congress to regulate economic "non-activity" - i.e, the choice not to buy health insurance.  He says the requirement could result in the government requiring us to buy broccoli.  This ruling (including the broccoli reference) was not surprising based on his earlier statements and questioning throughout the case.  This decision matches the Virginia case involving Judge Henry Hudson, but stands in contrast to two other Federal Court decisions (now on appeal to the 4th and 6th circuit courts of appeal).

2. By contrast, Judge Vinson rejected the state officials' arguments that the ACA's Medicaid expansion was unconstitutional because the states were being coerced to participate.  This was excellent news and was somewhat foreshadowed by some of the Judge's statements in the past months. 

3. Judge Vinson decided, in contrast to even the prior Virginia decision and reasonable expectations, that the individual mandate could not be separated from the rest of the ACA, legally speaking the provision was not severable and, because that part was unconstitutional, the entire ACA was void.

4. Judge Vinson only declared the provision was unconstitutional.  He denied a request to enjoin further ACA implementation.  He indicated that he was opting not to rule for the injunction because his declaration that the ACA is unconstitutional should be sufficient to bar any Federal official from implementing the law.

The most surprising aspect of the decision concerns the ruling on severability.  The individual responsibility requirement is not in effect and it won't be until 2014.  Moreover, the Judge's order is not a model of clarity, and it is not certain whether the declaratory relief is actually intended to stop all federal implementation efforts.  To avoid the risk of being seen as noncompliant with a judicial order, the Federal government may well seek to stay this aspect of the decision.  Pursuant to Federal rules of procedure, the ordinary course is for the request to be made first to the district court (before asking the court of appeals).  While it may seem counterintuitive, district courts will sometimes stay their own rulings where, as here, complex or sensitive matters are being raised.   At any rate, the hope is that, if requested, a stay would issue promptly, thus clarifying that implementation can continue while the case is appealed.  Barring a request for expedited review being made to and granted by the Supreme Court, the case would be heard by the Eleventh Circuit Court of Appeals and then the Supreme Court if it has not already accepted one of the other cases already making their way through the courts of appeal.

Meanwhile, the severability ruling is causing a lot of confusion. Until the situation is clarified, the following question will be asked:  Should the state continue implementing health reform in light of the Florida decision.  Here are five reasons to say, "Yes."  (For five more reasons, go to our website):     

1. The decision is being used to stir up confusion.  Let's not add to that confusion by changing the status quo away from the careful path of review and implementation that is underway.  

2. The judge did not rule against any state.  His ruling only applies to the federal government.  States can and should continue what they are doing:  carefully paving the way for health reform in 2014--activity that is and will be matched by significant federal matching funds.    

3. Judge Vinson is only one judge and this is one decision.  So far, at least six federal district courts have dismissed cases that sought to have the ACA declared unconstitutional.  Two courts have found the ACA individual responsibility mandate to be constitutional, and two have found it unconstitutional. 

4. Judge Vinson is at odds with the only other decision holding the ACA individual responsibility provision to be unconstitutional.  Virginia Federal District Judge Hudson declared the provision to be unconstitutional but easily found it to be severable from the remainder of the ACA.  As he noted, the provision is not to be implemented until 2014.

5. Judge Vinson began his own analysis with the following observation:  "Severability is a doctrine of judicial restraint."  Opinion at 64.  The remainder of the opinion should be looked at with skepticism because he did not exercise restraint.  

(This blog originally appeared on the Health Policy Hub)

By Eva Marie Stahl, Community Catalyst

Vinson toasts anti-ACA supporters with tea

Alas, the Judge Roger Vinson (Florida v. HHS) ruling is here. The Florida-led case remains the media darling of the handful of cases challenging health reform that are rolling through the Federal courts in various circuits across the country. The Florida-led plaintiff list (those opposing the law) brags of 26 states; this case represents a larger Republican strategy to challenge the almost year old health reform law. The plaintiffs argue that the individual mandate (or the provision that all individuals hold health insurance by 2014 and also termed the minimum coverage provision) infringes upon individual liberty. No one should make you buy health insurance - alternatively, the Department of Justice (DOJ) argues that no one should make you pay for those who decide not to buy health insurance. Confused? We are just getting started.

Sit back and let your tea brew...

Many have waited anxiously for this moment even though there was little doubt regarding the outcome. Judge Vinson did, however, jolt the media with his far right leaning, tea bag dipping, and Constitution defending language: "it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place."

Vinson's stance is most striking because of his position on what is termed 'severability'; in other words, can the ACA stand without the individual mandate? Vinson maintains that while he did not read the entire Affordable Care Act (ACA) (no fair, we did), that it is clear to him that the individual mandate is inextricably linked to the provisions of the ACA and was the intent of Congress. Therefore, the entire law must be declared unconstitutional because it cannot exist without the individual mandate (and the individual mandate is unconstitutional).

Good news?

On that front, there remain questions about implementation and the responsibilities of states. Did the Judge grant an injunction? (No.) Do states need to implement the law? (Yes.) Will DOJ appeal to the 11th circuit? (Yes.) Various legal minds are trying to sort through these questions - however, the current analyses suggest that because Vinson issued a declaratory judgment, there is no need for a 'stay' - or a requirement that until the appeals process is complete, the law stays put on the books. That is not to say that states won't think this their 'out' - advocates must continue to educate the public about the benefits of the law and move forward with implementation. Jonathan Cohn does his best to summarize this confusing outcome here.

In short, states are not off the hook. The ACA is still the law of the land and unless SCOTUS rules otherwise, our work continues. It is important to remember that as the public reaps the benefits of the law, they will embrace it. This will give SCOTUS pause; overturning ACA will be damaging to all Americans. It is our job to remind the public of a state's need to continue to work to insure millions of Americans, giving them greater access to health care and better health.

Few commentators are touting the win for Medicaid as a result of this ruling. Judge Vinson did tell the right wing to back off of Medicaid - he maintains that there is no legal foundation to their argument that states are being coerced into the program. This is encouraging news for advocates who are working tirelessly to protect a vital program for vulnerable populations.

Keep the context.

The ruling differs from that of Judge Henry Hudson (Virginia v. Sebelius) issued this past December.  Hudson did not go as far as Vinson in his ruling - although Hudson claims that the individual mandate is unconstitutional, he does not maintain that the entire law is null and void. It is important to put all of this into context. These are two rulings of four - the two opposed to the ACA are both from Republican appointed judges in more right leaning circuits (yes, this is part of a Republican strategy as to where they filed cases) while the two rulings in support of the ACA come from Democratic appointed judges - and judges have thrown out 12 cases due to a lack of merit. So, the rulings scoreboard reads 2-2 and we are not even to the seventh inning stretch.

Therefore, the most important 'take away' from Vinson is that this is one piece of a larger judicial process - more rulings will be unveiled before the Supreme Court makes its determination regarding the constitutionality of the ACA. However, as pointed out by our own Michael Miller, the ruling is fodder for Republicans to feed their far right base and motivate newly reddened states to hold defiant in their progress toward ACA implementation.

Just Roll with it.

What's next? The 4th circuit. The two Virginia cases will be heard by the same appeals panel (three judges selected at random). While DOJ will appeal in the 11th circuit, the 4th circuit will most probably have the privilege of issuing the first appeals ruling regarding the individual mandate.

The views expressed by Guest Bloggers do not necessarily reflect the views of the Center for Children and Families.

As you've probably seen in the news media, there will be a long road ahead in getting a final answer to the legal challenges to the Affordable Care Act.  The Obama administration will appeal the ruling (and possibly also request a stay of the ruling) by a Florida judge.  U.S. District Judge Roger Vinson in Pensacola found that the individual responsibility provision (aka "mandate") was unconstitutional as it exceeded the power of Congress to regulate commerce. 

Three other courts have previously ruled on the constitutionality of the law, two of them upholding it. In the third case, U.S. District Judge Henry Hudson in Richmond, Virginia, struck down the individual responsibility provisions but did not strike down the rest of the Affordable Care Act.  That ruling is also under appeal.  It's expected that the U.S. Supreme Court will make the final decision on legal questions raised by opponents of the Affordable Care Act. Meanwhile, states that use the ruling as an excuse not to move forward with implementing the new law run a significant risk as a resolution of this legal question could take years.  Besides delaying the benefits of the Affordable Care Act for their residents, they would risk having the federal government intervene if they haven't made adequate progress in establishing health insurance exchanges by January 1, 2013.

Michael Miller of Community Catalyst shared these insights with readers of the Health Policy Hub:

"Essentially the ruling has no immediate practical significance other than providing fresh ammunition for the attack dogs who were quick to seize on it. It doesn't really change the calculus with regard to implementation. Federal regulators will certainly move ahead and the situation is not much different in the states. Since all or most of the ACA that pertains to states is likely to survive the legal challenges, the consequences of inaction are too significant for state government to sit back and do nothing while the court cases play out. For example, state administrations politically opposed to the ACA who want to use this ruling as an excuse for inaction risk turning over the operation of the Exchange (and the keys to Medicaid eligibility) in their state to the federal government."

He encouraged people to focus on more immediate threats to the Affordable Care Act such as efforts to repeal the maintenance-of-effort provisions. 

In another development, Senate Minority Leader Mitch McConnell plans to attempt to attach an amendment to the FAA bill to repeal the Affordable Care Act as early as today (which would make Jocelyn Guyer's comparison of the re-debate of ACA to Ground Hog Day even more fitting.)  If you want to know our view on the repeal efforts, please re-read Jocelyn's blog as nothing has changed about how important the Affordable Care Act is to the American people.  Congress has grappled with health reform for far too many Ground Hog Days to turn the clock back now.  

We'll have more on the legal challenges and repeal efforts in future blogs so please stay tuned. 

By Anne Swerlick, Florida Legal Services

Last week I had a front row seat in Judge Vinson's Pensacola federal courtroom where arguments were heard on cross motions for summary judgment in Florida v. Sebelius.  In contrast to the rather modest number of spectators in the courtroom, there was literally an army of lawyers from all over the country representing the plaintiff twenty states, as well as a business organization and two individuals. Blaine Winship, from Florida's AG office and David Rivkin Jr., a D.C. based private attorney, presented oral argument on behalf of the plaintiffs.  A mere four Department of Justice (DOJ) attorneys were present in the courtroom including Ian Gershengorn who argued on behalf of the federal government.

The court's October 14, 2010 Order on Defendants' Motion to Dismiss gave a good preview of the legal arguments heard on summary judgment. That order authorized two counts to go forward - one on the Affordable Care Act (ACA) individual responsibility provision (aka mandate) and the other on the Medicaid program. Consistent with his earlier ruling, at the summary judgment hearing, the Judge appeared to be persuaded by plaintiff's' arguments on the individual responsibility provision, but highly skeptical of their constitutional challenge to the Medicaid provisions.

Plaintiffs contend that the ACA Medicaid amendments exceed Congress' Spending Clause authority. Specifically, they allege that states are being forced into a new, "drastically transformed" and "costly" Medicaid program. The right to opt out, they argue, is illusory because states cannot realistically walk away from substantial Medicaid federal funding necessary to support their neediest residents. What plaintiff's' counsel lacked on case law support, he made up for with repeated reliance on cliché catch-phrases, e.g.,  states are faced with a "Hobson's choice," they have been denied "free and unfettered choice" about whether to accept the new Medicaid terms, Congress has put states in a "bait and switch situation," " a contract of adhesion" and he questioned whether "the carrot of federal funding" [had] become a stick."

In response, Judge Vinson noted that in fact some states were contemplating withdrawing from the program, while others reported they will save money under the ACA. He also noted that for the first few years the federal government will pay the full costs of the expanded Medicaid enrollment. He expressed concern on how a court would "measure" coercion and apply it as a legal standard.  Would it necessitate looking at individual state circumstances? He also commented that multiple appellate courts have denied similar spending clause challenges involving various states' Medicaid programs.

The Florida AG countered that "original" Medicaid was at issue in those earlier Spending Clause cases and that Congress should have offered states the choice to sign on for the new Medicaid program. With regard to the cost issue, the AG said that cost projections relied on by the defendants did not consider "the elephant in the room." He explained that under the ACA states will have new responsibilities for the provision of services (not just reimbursement) and will open the states up to more liability for the lack of a sufficient number of Medicaid providers.  (In fact, this ACA provision was not a change in the law, but clarifying language added in response to recent federal court decisions applying overly restrictive interpretations of states' responsibilities under federal Medicaid law).

The DOJ attorney emphasized that there are no cases which have invalidated a federal spending program based on plaintiff's' coercion argument and that finding an appropriate legal standard to measure coercion "plunges courts into endless difficulties." DOJ called the plaintiffs' assertions about the "transformative" nature of the Medicaid amendments under ACA to be "preposterous," noting that Congress has a long history of defining the "categorically needy" and asked why individuals earning just $14,000 per year (133% FPL) would not be considered "needy?" The Judge commented that some states were considering opting out of Medicaid and asked whether that was contrary to the intent of the ACA. DOJ responded that no one wants states to opt-out, but the fact that states are considering it demonstrates that this is not a case of coercion.

Both sides also addressed the issue of "severability." DOJ argued that a "meat-axe" approach (declaring the entire ACA law unconstitutional as urged by plaintiffs) would be inconsistent with Supreme Court standards and that the Medicaid expansion provisions do not depend on implementation of the individual mandate. In response to the Judge's question on whether Congress would have passed the Medicaid expansion without the individual mandate, DOJ argued that this is not a judicially manageable test, nor a proper inquiry for the court. The Judge seemed to agree.  

At the end of the arguments, the Judge complimented the attorneys on their oral presentations and briefs and also recognized the high quality of the amici briefs filed in the case. He stated that he would rule as quickly as possible.

In the meantime, people continue to fall through the cracks. As I'm finishing up this blog, I've taken a quick phone call from another Florida health law attorney who is trying to help his client with paraplegia. The client is on the verge of having his wheelchair and other essential medical equipment repossessed because his SSI and Medicaid are terminating and he is not yet eligible for Medicare. Medicaid expansion can't happen soon enough in Florida!   

The views expressed by Guest Bloggers do not necessarily reflect the views of the Center for Children and Families.