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PPACA Supreme Court Review – The Last Day

The Supreme Court arguments on the Patient Protection and Affordable Care Act (PPACA) concluded Wednesday. With the first two days dedicated to arguments on whether the case can be heard and on the constitutionality of the individual mandate, Wednesday was devoted to the Medicaid expansion’s constitutionality and whether PPACA should be struck down in whole or just part if portions are deemed unconstitutional (known as severability).

On the Medicaid expansion, the 26 states have a hard task of convincing justices because PPACA calls for funding the expansion at 100 percent initially and later 90 to 95 percent. However, some conservative justices were concerned that the federal government could coerce states to expand by somehow withholding funds and support for the state’s entire Medicaid program. Proponents argued there is nothing in the law that allows this.

On the issue of severability, some legal scholars argue that a decision should rest on whether a provision can logically stand on its own and meets the original intent of Congress. The federal government argued that some aspects would not work if the mandate was struck down (e.g., guaranteed issue, barring pre-existing condition exclusions), but otherwise the other parts of the law should stand. Indeed, even House Republicans have included hundreds of billions of PPACA changes in their recent budget proposal.

Opponents say if the core is struck down, the whole bill should go. Interestingly, Justice Kennedy and a few other conservative justices are arguing that a complete strike down is less judicial activism than picking and choosing what might stand on its own. The point: Congress as the policy body should relook at the constitutional provisions and decide. Why should nine unelected justices make those decisions?

With the arguments concluded, where do we stand?

It is probably fair to say that there is consensus on ruling on the merits of the case now and not later.

As for the mandate, Medicaid expansion, and severability, Chief Justices Roberts and Kennedy appear to be the decision-makers. Expect a 5-4 decision. If the two are together the mandate goes down. If they split, the mandate is upheld. It is likely that if the mandate is struck down, Roberts and Kennedy will fall on the side of returning everything to Congress. But the Court has surprised everyone before.

Marc Ryan

Marc S. Ryan serves as MedHOK’s Chief Strategy and Compliance Officer. During his career, Marc has served a number of health plans in executive-level regulatory, compliance, business development, and operations roles. He has launched and operated plans with Medicare, Medicaid, Commercial and Exchange lines of business. Marc was the Secretary of Policy and Management and State Budget Director of Connecticut, where he oversaw all aspects of state budgeting and management. In this role, Marc created the state’s Medicaid and SCHIP managed care programs and oversaw its state employee and retiree health plans. He also created the state’s long-term care continuum program. Marc was nominated by then HHS Secretary Tommy Thompson to serve on a panel of state program experts to advise CMS on aspects of Medicare Part D implementation. He also was nominated by Florida’s Medicaid Secretary to serve on the state’s Medicaid Reform advisory panel.

Marc graduated cum laude from the Edmund A. Walsh School of Foreign Service at Georgetown University with a Bachelor of Science in Foreign Service. He received a Master of Public Administration, specializing in local government management and managed healthcare, from the University of New Haven. He was inducted into Sigma Beta Delta, a national honor society for business, management, and administration.

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