Capitol Hill Report: One Member at a Time

February 4, 2011

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By Mike Amery, Legislative Counsel, Federal Affairs, (202) 506-7468, mamery@aan.com

Health Reform Declared Unconstitutional

Meeting and Greeting, DC Style

January and February are meet and greet months for members of Congress. With many new faces in Congress and on key committees, opportunities abound for these new members and committee assignees to get to know the Academy without any obligations for political action committee (PAC) contributions.

The AAN is particularly interested in the new members of committees with jurisdiction over health care policy and financing that impact the practice of neurology, such as:

  • Senate Finance and Health, Education, Labor, and Pensions (HELP) Committees
  • House Energy & Commerce (E&C) and Ways & Means (W&M) Committees

Over the last few weeks I have had the opportunity to attend several meet and greets with members including West Virginia Sen. Joe Manchin (D), new E&C member Brett Guthrie (R-KY), and two new freshman for Georgia at an event hosted by Georgia Republican representatives and physicians Tom Price, Phil Gingrey, and Paul Broun. Next week the Academy will be hosting its own meet and greet for the physician community with second term representative and new W&M member Erik Paulsen (R-MN).

These meet and greets often remind me of the work neurology needs to do in educating 535 members and their staff. I recently introduced myself to a new freshman who proceeded to tell me about a "neurologist who was a huge contributor and volunteer on his campaign." Based on all of the laudatory praise this neurologist was receiving, I found it odd that I had never heard of him when the congressman mentioned his name. A few questions later, and I was again describing the difference between a neurologist and a neurosurgeon as we work to increase the profile and influence of neurology in the nation's capital. One member of Congress at a time.

Health Reform Declared Unconstitutional

US District Court Judge Roger Vinson has ruled the federal health reform law's individual mandate for health insurance unconstitutional and voided the entire law, finding that the mandate is "inextricably bound" to other provisions in the health reform bill.

Attorneys general from 26 states had brought the lawsuit, which marks the second time a federal judge has declared the law's individual mandate unconstitutional, but this makes the first time that the entire law has been thrown out. Other courts have ruled in favor of constitutionality, but the consensus is that this ruling is the most important because of the number of plaintiffs.

Obama Continues Health Reform

In an interesting twist, the White House said that it will continue with its implementation efforts for health reform while appealing the ruling. Despite invalidating the overhaul, Vinson — a Reagan appointee — refused to grant the states' request to suspend further implementation of the law, saying that such an order is unnecessary because of a "long-standing presumption" that the federal government will comply with judicial rulings such as his.

This has left states in confusion, with Wisconsin's attorney general stating that the health law is dead in his state unless it is revived on appeal. Georgia, on the other hand, has said it will continue implementation out of fear of falling behind if the law is ultimately upheld.

One of the really fascinating discussions in the 78 page opinion surrounds the reasoning to invalidate the entire law rather than just the specific portion related to the individual health insurance mandate. Vinson argues:

"Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it… Courts should not even attempt to do that. It would be impossible to ascertain on a section-by-section basis if a particular statutory provision could stand (and was intended by Congress to stand) independently of the individual mandate. The interoperative effects of a partial deletion of legislative provisions are often unforseen [sic] and unpredictable. For me to try and 'second guess' what Congress would want to keep is almost impossible."

The appeal will take place in the 11th Circuit Court of Appeals, based in Atlanta, but most agree that this is a temporary stop for an issue that has a future date with the US Supreme Court.

Three Courts—Three Rulings

Three courts are now in tension after ruling on the law with one upholding it, one invalidating the individual mandate but upholding the rest of the law, and the last invalidating the individual mandate and the entire law. There is speculation that the Supreme Court may "fast track" this by calling for quick resolution by the appeals courts in anticipation that the tensions will remain and the high court will need to decide the question.

House Republicans already have voted to completely throw out the law. But with the Obama Administration vowing to carry on, and the Senate's failure to reach the 60 votes needed for repeal last week, I think it is best for the AAN to keep considering health reform a done deal until the Supreme Court says otherwise.

The Academy position always has been to improve the legislation specifically for neurology such as working to add neurology to the primary care incentive. More on our ongoing efforts in the next Capitol Hill Report as we expect legislation to be introduced in the Senate soon.

Next Up: Medical Malpractice Reform!

With Republicans in control of the House for the first time since 2006, it is time to again pass HR 5, the Help Efficient, Accessible, Low-cost, timely Healthcare (HEALTH) Act of 2011 sponsored by Phil Gingrey, MD (R-GA). If you have followed this issue in the past you will remember that the House passed a comprehensive medical malpractice reform bill with caps on punitive damages every Congress beginning in 1994 until Democrats took power again in 2006. This legislation, always HR 5, routinely left the House only to die in the Senate.

On January 25, the Academy joined the AMA and more than 100 other groups in sending a letter of support to Dr. Gingrey. There is hope this year for a better outcome as President Obama mentioned the need for liability reform in his State of the Union speech. We'll see what he means before making any predictions of actual passage of reforms.