© 2010 Foley Hoag LLP. All Rights Reserved.Political and Legal Challenges to Health Reform Brian...

© 2010 Foley Hoag LLP. All Rights Reserved. Political and Legal Challenges to Health Reform

Political and Legal Challenges to Health Reform

Brian Carey

Foley Hoag LLP

December 15, 2010

© 2010 Foley Hoag LLP. All Rights Reserved. Presentation Title | 2

November Elections

Republicans won 63 seats and control of the House (242-193)

Republicans picked up 6 seats in the Senate (53-47)

Democratic incumbents defeated: 49

GOP incumbents defeated: 2

Republicans picked up majority of state governors


Red Tide Sweeps The House


Senate Election Results


Significant GOP Governor Wins


States Governorships GOP Captured

Iowa

Michigan

Ohio

Pennsylvania

Wisconsin

Maine

Kansas

New Mexico

Oklahoma

Tennessee

Wyoming

Florida


State Legislative Results

Republicans now control 57 state legislative chambers, Democrats control 39, and two are tied. (Nebraska is unicameral and nonpartisan.)

GOP did not lose a single state legislative chamber this election cycle.

Republicans gained over 500 seats in state legislative chambers across the country.


November Election Impact on Health Care Reform

Outright repeal of ACA highly unlikely given presidential veto and Democratic majority in Senate.

House Republicans likely to hold “symbolic” repeal vote and pursue targeted strategies to limit ACA implementation.

House floor votes likely on unpopular portions of health reform (e.g. 1099 tax filing mandate and medical device fees).

Republicans are likely to attempt to use appropriations process to prevent HHS from implementing key ACA provisions.

Congressional Review Act joint resolutions.

Aggressive use of House subpoena power — oversight investigations and hearings.

Key GOP themes – ACA impact on employers, health care premiums and cost, health care innovation, and seniors.


“Repeal and Replace”

Very good campaign rhetoric, but not political reality

House of Representatives may pass legislation in 2011 repealing ACA — but Senate will not act

President Obama would veto any legislation to repeal ACA

Sets up the ACA as major issue for 2012 Presidential election


Rolling Back Health Reform

A Coordinated Political Effort–De-funding specific programs and implementation

–Challenging HHS regulations

–Drafting targeted legislative proposals to amend statutory provisions

–Holding House oversight hearings

–Engaging in Litigation


Court Challenges to Health Reform

Nearly two dozen lawsuits filed to challenge individual mandate and the ACA in general

20 State Attorneys General have filed suit in Florida challenging the ACA

Virginia’s Attorney General filed a separate lawsuit in the Eastern District of Virginia

The primary legal question at issue is whether the Constitution permits the federal government to require citizens to purchase commercial health insurance


Court Decisions Tally

12 cases have been dismissed on procedural grounds

3 federal district court decisions on the merits

– Eastern District of Michigan court found ACA constitutional (currently on appeal to the Sixth Circuit, with briefs due Dec. 20)

– Western District of Virginia court found ACA constitutional (notice of appeal filed with Fourth Circuit)

– Eastern District of Virginia court found individual mandate unconstitutional


Virginia v. Sebelius

On Monday, December 13, federal district court Judge Henry Hudson in the Eastern District of Virginia struck down the “individual mandate” provision of ACA.

Judge Hudson stated:

“At its core, this dispute is not simply about regulating the business of insurance -- or crafting a scheme of universal health insurance coverage – it’s about an individual’s right to choose to participate.”

The is decision was limited to Section 1501 [Individual Mandate] and “directly-dependent provisions”

The court denied plaintiff’s request for an injunction.


ACA Litigation Timeline

Northern District of Florida case will be the next major district court decision (appeal will be to the Eleventh Circuit)

Fourth Circuit Court of Appeals will likely take up the split decisions in Virginia in early 2011

Supreme Court unlikely to hear case before 2011-2012 term — although Virginia plaintiffs are proposing expedited review


Significance of the Individual Mandate

Individual mandate was a key provision for private insurers to offer guaranteed issue

The provision has its roots in past Republican proposals–GOP health care proposal in 1994 –Romney plan in Massachusetts in 2005–Wyden-Bennett proposal in 2007

There are a variety of ways to restructure the mandate in the private insurance market to meet constitutional challenges


Final Thoughts

Debate on health reform was a debate over the role of government

The implementation of ACA will go on and so will the political challenges

Any Supreme Court decision is important for fate of both the ACA and the 2012 Presidential election

Deficit commission and rising health care costs make clear that these issues will be debated for years

© 2010 Foley Hoag LLP. All Rights Reserved.Political and Legal Challenges to Health Reform Brian...

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