Health care reform: Here to stay? Courts may disagree

There have been many news reports about House Republicans’ efforts to repeal the health care reform legislation that was passed last spring, including the largely symbolic passing of HR 2, titled “Repealing the Job-Killing Health Care Law Act” and many other proposed bills. But regardless of the volume of legislative activity devoted to opposing health care reform, most experts agree that if our legislators have anything to say about it, health care reform is here to stay. The Democratic-controlled Senate is unlikely to even take up HR 2 for consideration and President Obama would almost certainly veto any repeal effort that came across his desk. While Republicans may be able to pass legislation repealing various unpopular parts of health care reform—for example, the expanded Form 1099 reporting requirements—and they may be able to limit enforcement by stifling funding for the enforcing and rulemaking agencies, a wholesale repeal is unlikely at best.

The real unknown in this area is what will happen in the courts. For example, a federal district court in Florida recently found the individual health insurance mandate (which would take effect in 2014) to be unconstitutional. The Patient Protection and Affordable Care Act doesn’t contain a severability clause, so the judge ruled that because one portion was unconstitutional, the entire law is invalid (Florida v. U.S. Dept. of Health and Human Services, ND Fl, Jan. 2011). We expect this case and other similar legal challenges to eventually come before the U.S. Supreme Court.

Regardless of the outcomes, Vigilant will keep members apprised of new developments. If you have questions about health care reform and how it will impact your business, contact Kristine Bingman (k.bingman@vigilantcounsel.org or 800-733-8621).