Capitol Hill Report: Fate of Health Care Reform Hangs on Scales of Justice

April 9, 2012

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

With Congress on a two-week recess and election day looming closer, focus is moving from legislating to campaigning and courts. This was especially true with the recent oral arguments before the Supreme Court on the constitutionality of the Affordable Care Act. The court's ruling could have a significant effect on neurology.

The AAN closely followed the Supreme Court as it finished three days of debate on the 2010 health care law which contains a number of provisions beneficial to primary care providers but fails to include neurology.

Many observers saw the arguments as a blow to the law. The government's defense lawyer, Solicitor General Donald Verrilli, faced tough questions from the justices and didn't always present a perfectly smooth front. But others point out that oral arguments often have little persuasive effect on the justices' decisions.

The first day of arguments focused on the part of the law that would require most Americans to buy health insurance, the so-called "individual mandate." Paul Clement who represented the parties challenging the law argued that the mandate is an overreach of congressional power. Verrilli argued that the government has the power to regulate commerce under the Constitution. The justices seemed split on this issue, with Justice Anthony Kennedy, often a swing vote, likely to be the deciding factor.

If the individual mandate is struck down, however, the justices must decide whether the rest of the law can stand. Here, they again appeared to be split, with liberal justices arguing in favor of "severability"—allowing portions of the law to be struck without eliminating the law altogether—and conservative justices seeming to argue that the whole law must fall.

The final arguments surrounded the law's pressure on states to expand their Medicare programs or risk a suspension of federal funds.

Mute Court in City Full of Leaks

Washington is full of leaks but not at the Supreme Court. The justices likely took a preliminary, private vote shortly after the oral arguments so how the court will rule is known by the justices. But no one will hear about it until the actual opinion is released because there are no leaks from the Supreme Court.

If Chief Justice John Roberts is in the majority he will assign a justice to draft the majority opinion. If Roberts is in the minority, the most senior justice in the majority will assign the duty. Draft opinions will circulate for several months with a ruling expected by late June.

Impact on AAN?

If the Court invalidates the entire law it will throw out several provisions that are popular on both sides of the aisle, including access to insurance for those with pre-existing conditions and allowing dependents access to parents' insurance through age 26.

This could lead to immediate action by Congress to recreate these provisions and many more including, perhaps, even incentives for primary care providers such as the 10-percent primary care bonus.

This will be of great interest to the AAN and I met with several top staff from the Republican side to start laying the groundwork for ensuring that cognitive providers are not left behind again.

One good discussion I had was with the senior health policy advisor to Speaker John Boehner (R-OH), who reminded me that the primary care bonus only exists for five years before it sunsets so that any lasting reforms are going to need to be more meaningful and that she wouldn't expect Republicans to pass similar proposals.

On whether action could occur the answer across the board was "it depends." It depends on whether the congressional leadership on both sides will look at it as an opportunity to come to the table and agree to agree on some of these issues or if November's elections will have to come first. My bet is on the elections.

Either way, the AAN is well positioned to argue for cognitive care providers if Congress has to start over. We have been working with other cognitive specialties like rheumatology, endocrinology, and infectious diseases to educate members of Congress and their staffs about the need to recognize all physicians who, just like primary care physicians, primarily provide evaluation and management care to patients.