This blog is written by Mr. Steven C. Schurr, Esq. and focuses on health care law matters that pertain to food and drug law, regulatory compliance, privacy rights, insurance coverage, state and federal disability coverage, patient advocacy issues, and mental health coverage and treatment.

Saturday, December 15, 2018

What Is the Effect of the Recent Court Decision in Texas That Ruled the Entire Affordable Care Act is Unconsitutional?

There is no immediate effect to yesterday's court ruling.  You can still enroll in health care plans on the exchange through the end of today and any plan that you enroll in will be in effect for all of next year.  But there could be long term effects and the decision once again throws uncertainty into the health care insurance industry, which is an industry that does not fare well under, or appreciate, uncertainly.
Technically, that court ruling only effects the federal district in Texas where the court resides and the judge did not order cessation of the law even in that district.  However, the case will be appealed first to the appeals court and then almost certainly to the Supreme Court of the United States where there is a possibility that the Supreme Court could uphold the ruling and invalidate the entire law nationwide.
Such a ruling would be devastating because it would invalidate unrelated portions of the law that have nothing to do with the insurance mandate, such as the expansion of Medicaid and Medicare reforms, and remove protections for pre-existing conditions.
There are two prongs to the court's ruling.  First, the judge ruled that the law can no longer be upheld as a constitutional tax because Republicans removed the tax penalty in 2017.  In 2012, the Supreme Court upheld the law as an acceptable use of Congress's power to tax.
Second the judge ruled that if the insurance mandate part of the law is unconstitutional, the entire law must be unconstitutional because the insurance mandate is a critical component of the law.
However, the entire law is so massive and comprehensive I do not agree that the individual mandate is critical to many of the unrelated provisions of the law which have little to do with insurance coverage.  In addition, there are other parts of the law that do pertain to health care coverage, such as the expansion of Medicaid for the states, that are not affected by the individual mandate.   I do not agree that the entire law should be declared unconstitutional.
Regardless, if the individual mandate is ultimately declared unconstitutional nationwide, this will cause all sorts of problems for the insurance industry and many people will lose their coverage either under their insurance plans or Medicaid.
The bottom line as usual is that you get what you vote for.  If you live in one of these states and ultimately lose you health care as a result of this decision, you have your government to thank: Plaintiffs are the States of Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, Governor Paul LePage of Maine (the “State Plaintiffs”), and individuals Neill Hurley and John Nantz (the “Individual Plaintiffs” and, collectively with the State Plaintiffs, “Plaintiffs”).  If you live in one of these states, your Republican Attorney General filed this suit specifically in an attempt to achieve this result.
Also, if you voted for a Republican congressman or senator and they voted to repeal the tax penalty of the Affordable Care Act, this was an intended consequence.
The chances of a Democrat Congress, a Republican Senate and the President agreeing upon a fix to this problem is very slim indeed.
Below is some of the critical text of the decision:
Texas District Court: Repeal of Penalty Renders Individual Mandate Unconstitutional -- Entire ACA Ruled Invalid (PDF)
55 pages. "Plaintiffs allege that, following passage of the Tax Cuts and Jobs Act of 2017 (TCJA), the Individual Mandate in the [ACA] is unconstitutional. They say it is no longer fairly readable as an exercise of Congress's Tax Power.... The Supreme Court's reasoning in [NFIB v. Sebelius] ... compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause -- as the Supreme Court already held....
"Congress stated many times unequivocally -- through enacted text signed by the President -- that the Individual Mandate is 'essential' to the ACA.... All nine Justices to review the ACA acknowledged this text and Congress's manifest intent to establish the Individual Mandate as the ACA's 'essential' provision.... Because rewriting the ACA without its 'essential' feature is beyond the power of an Article III court, the Court thus adheres to Congress's textually expressed intent and binding Supreme Court precedent to find the Individual Mandate is inseverable from the ACA's remaining provisions....
"Under the law as it now stands, the Individual Mandate no longer 'triggers a tax' beginning in 2019. So long as the shared-responsibility payment is zero, the saving construction articulated in NFIB is inapplicable and the Individual Mandate cannot be upheld under Congress's Tax Power....
"The Court today finds the Individual Mandate is no longer fairly readable as an exercise of Congress's Tax Power and continues to be unsustainable under Congress's Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional and GRANTS Plaintiffs' claim for declaratory relief ...
"All told, Congress stated three separate times that the Individual Mandate is essential to the ACA. That is once, twice, three times and plainly. It also stated the absence of the Individual Mandate would 'undercut' its 'regulation of the health insurance market.' Thirteen different times, Congress explained how the Individual Mandate stood as the keystone of the ACA. And six times, Congress explained it was not just the Individual Mandate, but the Individual Mandate 'together with the other provisions' that allowed the ACA to function as Congress intended....On the unambiguous enacted text alone, the Court finds the Individual Mandate is inseverable from the Act to which it is essential....
"For the reasons stated above, the Court grants Plaintiffs partial summary judgment and declares the Individual Mandate, 26 U.S.C. Section 5000A(a), UNCONSTITUTIONAL. Further, the Court declares the remaining provisions of the ACA, Pub. L. 111-148, are INSEVERABLE and therefore INVALID. The Court GRANTS Plaintiffs' claim for declaratory relief[.]"
[Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)]

Saturday, November 3, 2018

How To Vote If You are In a Health Care Facility During Election Time

Can you still vote if you are stuck in a hospital or a health care facility around election time?  In Illinois and Indiana, yes.

 In Illinois, the following instructions are given by the state board of elections:


1. Voter must obtain an Application for Ballot for Qualified Voter Admitted to Hospital, Nursing Home or Rehabilitation Center . The application can be obtained from the election authority (county clerk or board of election commissioners, depending on where the voter is registered to vote).

2. Voter must complete his/her application and his/her physician must complete and sign the Ce rtificate of Attending Physician section of the application.

 3. After the form is completed and signed by the voter and his/her physician, a registered voter from the voter’s precinct or any legal relative can then hand deliver the application to the election authority’s office.

4. After signing an affidavit, the precinct voter or legal relative may personally hand deliver the ballot to the voter at the health care facility he/she has been admitted to.

5. Once the voter receives the ballot, he/she will vote the ballot in secret and complete the certification on the ballot return envelope.

 6. After depositing his/her voted ballot in the return envelope, the voter will securely seal the envelope, and give the envelope to the precinct voter or to the legal relative.  The ballot must be delivered back to the election authority before 7:00 p.m. on Election Day.

Assistance is the actual casting of votes for a voter in accordance with the voter’s wishes. Assistance can be given by a friend or relative, but cannot be given by an officer or agent of the voter’s employer or the voter’s union.  A candidate whose name appears on the ballot is also prohibited from assisting a physically incapacitated voter unless the candidate is the spouse, parent, child, brother, or sister of the incapacitated voter.  This would prohibit precinct committeemen from giving assistance in a primary election.  If assistance is given, the name and address of the person giving assistance must be provided on the certification envelope.



You may vote by absentee ballot In Indiana if:
  • You have a specific, reasonable expectation that you will be absent from the county on Election Day during the entire 12 hours that the polls are open (6:00 a.m. until 6:00 p.m.).
  • You have a disability.
  • You are at least 65 years of age.
  • You will have official election duties outside of your voting precinct.
  • You are scheduled to work at your regular place of employment during the entire 12 hours that the polls are open.
  • You are prevented from voting due to the unavailability of transportation to the polls.
  • You will be confined due to illness or injury or you will be caring for an individual confined due to illness or injury during the entire 12 hours that the polls are open.
  • You are prevented from voting because of a religious discipline or religious holiday during the entire 12 hours that the polls are open.
  • You are a participant in the state’s address confidentiality program.
  • You are a serious sex offender as defined in Indiana Code 35-42-4-14(a).
  • You are a member of the military or a public safety officer.
Per Indiana law, a disabled person or one who is unable to read or write English may request assistance in the voting booth:

"Sec. 2 . (a) A voter who:
(1) is a voter with disabilities;  or
(2) is unable to read or write English;
may request assistance in voting before entering the voting booth and designate a person (other than the voter's employer, an officer of the voter's union, or an agent of the voter's employer or union) to assist the voter in voting at an election, as required by 52 U.S.C. 10508 .
(b) The person designated must execute a sworn affidavit on a form provided by the absentee voter board or the precinct election board stating that, to the best of the designated person's knowledge, the voter:
(1) is a voter with disabilities or is unable to read or write English;  and
(2) has requested the designated person to assist the voter in voting under this section.
(c) The person designated may then accompany the voter into the voting booth and assist the voter in marking the voter's paper ballot or ballot card or in registering the voter's vote on the electronic voting system.  IC 3-11-9-2.