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Bob McMillanAn Opinion

By Bob McMillan
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Health Care Update

With the passage of the Affordable Care Act in 2010, a law sometimes referred to as “Obamacare,” a great deal of controversy followed with 26 states filing legal actions to stop the new law from going into effect. Different rulings took place around the country.

Circuit Court of Appeals rulings approved the law in Washington, D.C. and Cincinnati, Ohio. In Atlanta, Georgia, the Court struck down Obamacare while the Circuit Court in Virginia said it could make no decision until 2015 when the penalties are to be applied when no insurance is purchased under the mandate.

The challenge is based on the Commerce Clause of the Constitution, which states that powers not delegated to the United States “… are reserved to the States…”

The Supreme Court of the United States decided, on November 14, 2011, that it would take the appeals from the Circuit Courts. Hearings have been scheduled for March of 2012. The unique part of the ruling by the Supreme Court relates to the length of time allocated for arguments before the Court. Normally the Supreme Court rules that arguments will last only one hour. But, in the case of Obamacare, the court has rules that arguments can be five and one-half hours!

It looks like a decision will be rendered no later than July of 2012 – right in the middle of the 2012 Presidential Campaign.

Can the Supreme Court take into account that automobile liability insurance and workers compensation laws are only enacted and mandated by the states? This question will be one to watch in the March arguments.

But, there is also another issue before the Court relating to whether two Justices will have to recuse themselves from participating in the decision process? Elena Kagan who was President Obama’s Solicitor General, worked on the Affordable Care Act in that capacity. And Justice Clarence Thomas has a wife who has worked closely with healthcare interests. Chief Justice Roberts does not see any conflict and does not feel that either Justice has to leave the debate. Only time will tell whether these two Justices will participate in the decision process.

There is another issue, which has already been decided. One of the provisions of the law is called “CLASS,” the Community Living Services and Supports Program. CLASS would have gone into effect in 2015, providing long term care insurance at an “affordable cost”. The program, even though enacted as a law has been abandoned by the Obama Administration with Secretary of HHS Kathleen Sebelius saying, “I do not see a viable path forward for CLASS at this time.”

Finally, there is another part of the law receiving strong opposition — the Independent Payment Advisory Board. The purpose of this Board is to cut Medicare expenditures by over $400 billion. Medical groups are leading opposition, saying that healthcare decisions should be made by doctors and their patients – not a government organization.

Stay tuned, because the healthcare debate is far from over.

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