HAPPY ANNIVERSARY TO THE AFFORDABLE CARE ACT0

March 23 marks the two-year anniversary of President Barack Obama’s ambitious and controversial Patient Protection and Affordable Care Act. While the ultimate legacy of this landmark legislation remains to be seen, its fate will soon rest in the hands of the nine U.S. Supreme Court Justices, and then possibly the Electoral College.

With talk of constitutional challenges and potential repeal sharing headlines almost every day, now is the perfect opportunity to trace the changes in American health care over these past 24 months.

As our health care system continues to experience growing pains, certain basic tenets of reform have already made their mark, and may be difficult to retract in the event of the bill’s failure. The number of insured young adults under the age of 26 has continued to rise since 2010, as has the estimated 105 million Americans who no longer face lifetime limits on health benefits. Statistics also point to 50,000 newly insured who had in the past failed to qualify for health insurance due to pre-existing conditions.

Across the nation, individual states are gearing up for health insurance exchanges, while hospitals and physicians prepare for monumental changes in the Medicare reimbursement infrastructure as it transitions from a historically cost-based to a performance-driven platform.

Under the reform bill, the Federal Government has increased its presence with an unprecedented focus on eliminating health care fraud, abuse and waste.

Thanks to the Office of the Inspector General, Centers for Medicare & Medicaid Services and Department of Justice having procured health care fraud-related settlements and judgments in excess of $3 billion last year (capping the largest three-year streak in history with a total of $8.7 billion since January 2009), health care providers are now busy crafting or fine tuning their own custom-tailored compliance programs.  At the same time, providers must also fight off Medicare and Medicaid related audits from a number of newly created entities known only by their acronyms (RACs, MICs, MACs and ZPICs to name a few).

No matter what effects the Supreme Court’s decision and upcoming elections may hold for the Affordable Care Act, it is clear that American health care will never be the same.

Only time will offer any definitive perspective for us to evaluate the changes it has imposed upon the delivery of our nation’s health care.

Welcome to health care reform, year three, as it promises to be a busy one.

Adjudicating health care reform by dissent0

This article first appeared in the Daily Journal on March 15, 2012.

The procedural infrastructure within which the nation’s judicial system operates is as important as the canons of law the Courts espouse. In many ways, the doctrine of justiciability affords the federal courts an opportunity to rule with finality in matters of the U.S. Constitution, while at the same time ensuring that an appropriate distance is maintained between the three branches of federal government. Given the numerous preconditions upon which certiorari is determined, rightful passage through the Supreme Court’s Corinthian columns can seem as improbable as procuring a return ticket across the river Styx.

However, those for whom certiorari is ultimately granted can count on a few basics from the Supreme Court, including a session each first Monday in October, quill pens on counsel tables, and the Court’s own general prohibition from issuing judicial advisory opinions. In commenting upon this most revered prohibition, Chief Justice Earl Warren noted: “When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III.”[1] … Read more →