Friday, November 30, 2012

It’s The Law of The Land, or is It?

 

For those who state “PACA is the law of the land, so get on with it”; they are sadly mistaken. While our goal is and should be a system that is universal, accessible and affordable to all...PPACA is on a course to certain death as the cancer of bureaucracy overwhelms our ability to pay for it, as will also gridlock our current system. We as physicians and healthcare providers simply can not nor should not sit by idly to let this poorly devised system be set in stone. (author: gml)

The battle begins:

Stuart Taylor, Jr. is an author, journalist and nonresident fellow at the Brookings Institution, and this work is attributed to him.

Analysis: Health Exchanges And The Litigation Landscape

The pending challenges to the law, and related regulations, range from the Goldwater Institute's claim that it gives the Independent Payment Advisory Board unconstitutionally broad powers over Medicare services and payments, to the more than 35 lawsuits by religious employers attacking a Department of Health and Human Services rule that requires them to provide their employees with insurance that covers women's contraceptives without a copayment.

The broadest and potentially most damaging of the legal challenges turns on whether Congress intended that tax credits and subsidies to help consumers buy health insurance be available only through state-created exchanges. Many states are signaling that they may not create their own exchanges, leaving the federal government to do so, as the law requires.

If subsidies and tax credits aren't available in states with federally run exchanges, conservative legal scholars say, then two other lynchpins of the law would also be undermined: the requirements that employers of a certain size offer insurance and that most individuals buy insurance.

Confident of their case, some health law opponents, including Jonathan Adler of Case Western Reserve Law School, Michael Cannon of the libertarian Cato Institute andNational Affairs editor Yuval Levin, are urging Republican-led governments to refuse to set up the online insurance purchasing exchanges, which would, as the argument goes, make their residents ineligible for the tax credits and subsidies. They say that this step also would gut the so-called employer mandate, which the law says will take effect in states where residents are eligible for such assistance.

The mandate requires employers with more than 50 full-time workers to offer health insurance policies for employees and their families that include a minimum set of benefits, or pay a tax of $2,000 per employee for failing to do so. The tax wouldn't apply to the first 30 workers.

Health law critics theorize that by refusing to set up exchanges, states could also carve a hole in the provision that requires individuals to either obtain insurance or pay a tax as a consequence of choosing not to, which the Supreme Court upheld in June. And if states could disable both the employer mandate and part of the individual mandate, they could wreak havoc with the law's overall operation.

Confident of their case, some health law opponents, including Jonathan Adler of Case Western Reserve Law School, Michael Cannon of the libertarian Cato Institute andNational Affairs editor Yuval Levin, are urging Republican-led governments to refuse to set up the online insurance purchasing exchanges, which would, as the argument goes, make their residents ineligible for the tax credits and subsidies. They say that this step also would gut the so-called employer mandate, which the law says will take effect in states where residents are eligible for such assistance.

The mandate requires employers with more than 50 full-time workers to offer health insurance policies for employees and their families that include a minimum set of benefits, or pay a tax of $2,000 per employee for failing to do so. The tax wouldn't apply to the first 30 workers.

Health law critics theorize that by refusing to set up exchanges, states could also carve a hole in the provision that requires individuals to either obtain insurance or pay a tax as a consequence of choosing not to, which the Supreme Court upheld in June. And if states could disable both the employer mandate and part of the individual mandate, they could wreak havoc with the law's overall operation.

Last year, the Internal Revenue Service issued an interpretive rule saying that federal exchanges also would have the power to distribute the tax credits and subsidies.

But Oklahoma Attorney General E. Scott Pruitt, a Republican whose state has refused to set up an insurance exchange, has urged a federal district court to invalidate the IRS rule and thereby nullify the employer mandate in Oklahoma.

With only 17 states having so far committed to creating their own health insurance exchanges -- in part because of concern that the administration has not provided clear guidance on how they should work -- more lawsuits could be on the way, brought by states, employers or both.

These arguments are detailed in a paper to be published in Health Matrix by Adler and Cannon. There are, of course, also forceful counterarguments.

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