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VOL. 127 | NO. 64 | Monday, April 2, 2012

Health Care Talks Turn to Waiting Game

By Aisling Maki

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After three days of hearing challenges to President Barack Obama’s health care overhaul, the U.S. Supreme Court last week wrapped up public arguments to the Patient Protection and Affordable Care Act, which aims to extend health insurance to most of the 50 million Americans currently without it.

The court’s decision will affect the way almost every American receives and pays for health care.

“Depending on how the vote goes, we’ll get the final ruling by the Supreme Court this coming June,” said Gene Thornton, an attorney with Memphis-based Evans | Petree, who focuses on health care-related issues, including counseling clients in their efforts to comply with the legal and regulatory requirements of the federal health laws. “There will be a number of months that they’ll have to actually write this opinion. The justices themselves basically know what the answer is, but the rest of us won’t know until June.”

The first issue the court must decide is whether the individual mandate – the centerpiece of the law and its funding mechanism, requiring nearly all Americans to carry insurance or pay a penalty – is constitutional.

“The main question is whether or not it’s in the federal government’s power to force citizens to purchase health care insurance,” Thornton said. “Going by what the justices said and the questions they asked, it does seem like they’re leaning towards making that individual mandate unconstitutional. Looking at what they said, as well as the opinions of other people who were in the court that day, it does seem like it’s likely to be a five-to-four (Republican-appointed justices over Democratic appointees) split that it’s unconstitutional, but we won’t know that until June. A lot of things can change between now and then.”

Thornton said the ideological split along party lines evident this week played out as expected.

“The conservative justices are likely to vote for the unconstitutionality of it, while the more liberal justices will vote the opposite,” he said. “It will likely be a five-four vote finding at least the individual mandate unconstitutional. It depends on who you’re listening to, but that’s my prediction, just from looking at how the justices reacted and the questions they asked during the hearings.”

A number of provisions of the Affordable Care Act – which began being implemented after the bill was signed into law in 2010 – have already come to pass, such as expanding coverage to adult children up to age 26 and protecting coverage for children with pre-existing conditions.

Thornton said those provisions are unlikely to be repealed.

“A lot of quality reporting and initiatives have gone through, whereby you get better coverage for patients by spending less money,” he said. “Some of those have already happened, and I seriously doubt that any of those things will change.”

The justices last week also weighed a challenge by 26 states to expansion of the federal-state Medicaid program for low-income Americans, a feature that alone was expected to extend coverage to 15 million people and which no lower court has rejected.

“The government is saying to the states, ‘Since we provide you with Medicaid funding and you accept Medicaid funding, we’re going to force you to cover more people under Medicaid,” Thornton said. “And the states say that’s obviously financially impossible and they’re saying that being forced to cover more people under Medicaid is unconstitutional. I’m not sure how that one’s going to play out; it does seem that could go either way.”

The Associated Press contributed to this report.

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