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Last modified: Monday, June 18, 2012

Upcoming Supreme Court health care decision: IU experts offer insights

June 15, 2012

The U.S. Supreme Court is expected to rule this month on the constitutionality of the Patient Protection and Affordable Care Act, the landmark health care law that Congress passed and President Barack Obama signed into law in late 2010. The ruling is expected to have important repercussions in law, politics and health policy.

Indiana University experts in the area of constitutional law, health economics, public health, health administration and business ethics offer the following insights:

One of most important federalism rulings
Ethical concerns and doctor-owned hospitals
Public health ramifications
Policy questions will remain
Myth vs. reality
A potential backlash from the left against the court
Medical providers still will face incentives to cut costs if court rules against act
ACA and the Commerce Clause
Landmark legislation is necessary, but not sufficient

Constitutional law expert: One of most important federalism rulings

The Supreme Court will be making important legal history if it strikes down even part of the health care law, says Daniel O. Conkle, a constitutional law expert at the Indiana University Maurer School of Law in Bloomington.

"If the court invalidates any of the law's provisions, it could be one of the most important federalism rulings from the court -- and one of the most dramatic confrontations between the court and the president -- since the 1930s," he says.

Conkle is available to comment to media from the standpoint of constitutional law on various aspects of the case, including the constitutionality of the individual mandate, the constitutionality of the law's expansion of Medicaid and the issue of severability -- whether the entire law must be struck down if any part is found unconstitutional.

As he said when the case was argued in March, he believes the court could rule either way on the questions that are being disputed.

Conkle is the Robert H. McKinney Professor of Law at the Maurer School of Law. Top

Ethical concerns and doctor-owned hospitals

Ethics should drive health policy reform, especially with physician-owned specialty hospitals, says Joshua Perry, assistant professor of business law in the IU Kelley School of Business. Perry believes that the ethical principles that have for centuries shaped the relationship between patient and physician should also guide legislators, regulators -- and justices of the highest court -- charged with crafting U.S. health care policies that demarcate the boundaries of a physician's business practice.

This is all the more pressing with the "creeping commercialization" that now characterizes medicine in the form of physician-owned specialty hospitals, according to an analysis by Perry published in the June issue of the American Business Law Journal.

Some of the clearest examples of these ethical considerations are the reforms to the physician-owned specialty-hospital industry enacted in the Patient Protection and Affordable Care Act, Perry says, arguing that it could have gone further and completely banned physician-owned hospitals. Short of that, his article provides justification for the aggressive regulation of physician-owned hospitals contained in the PPACA.

"Ethics are the bedrock of health care, the root of total trust between physician and patient and what makes health care unique among economic enterprises," Perry said. "But rising tides of commercialization have eroded longstanding, ethics-based self-regulation and internal constraints. As systemic complexities related to cost, quality and access are debated, ethics deserve a seat at the table where policies are being argued."

The PPACA legislation prohibits new or expanded physician-owned specialty hospitals from filing Medicare claims if a financial relationship exists between the referring physician and the hospital receiving the government reimbursement, among other regulations designed to promote transparency, fair competition and patient safety. No such restrictions were placed on existing entities, allowing for a gradual exploitation of a legislative loophole.

"A more prudent, ethically driven course would have been complete closure of existing loopholes that gave rise to physician-owned facilities and the retroactive removal of Medicare certification from those currently operating," Perry said. Top

Public health expert: Decision 'could have system and population health reverberations for generations'

Beth Meyerson, assistant professor of health policy and management in the School of Health, Physical Education and Recreation at IU Bloomington, said the impact of the Supreme Court decision, depending upon its scope, could be felt at various levels -- and for generations to come.

"Insurers may need to roll back the planned and implemented systemic changes such as coverage of children to age 26. States governments working toward health exchanges may have to 'undo' or abandon unfinished work that no longer can be incentivized by the federal government," Meyerson said. "People themselves will feel the change, especially those hoping to keep their kids on their insurance longer, those who are out of work and in need of continued insurance coverage, and those with pre-existing conditions.

"From a public health perspective, undermining preventative services and continuity of care elements could have system and population health reverberations for generations."

Meyerson can discuss some of the potential public health ramifications of the ruling.

Meyerson is co-director of the Rural Center for AIDS/STD Prevention at IU. Top

Policy expert: Court ruling will open door to more questions

Important questions about health policy will need to be addressed regardless of how the Supreme Court rules, says Kosali Simon, professor in the IU School of Public and Environmental Affairs and an expert on the economics of health care.

If the court strikes down only the individual mandate for insurance coverage, the most controversial part of the law, an important question will be whether insurance pricing rules will stay in place, she said. However, if the court strikes down the entire law, patients and policymakers will be watching to see whether states can, on their own, arrive at provisions similar to those in the federal act.

Some insurers have said they will keep some of the law's popular provisions regardless of what the court does, such as providing preventive care without co-payments and letting adult children stay on their parents' policies to age 26.

"But that's not binding, of course," Simon said, "if the companies decide later on that the provisions are costing them money in ways they can't pass on to customers."

Simon conducts research on health economics and policy, including the impact of state and federal regulations on the availability of private and public health insurance for vulnerable populations. She will soon be releasing results of research evaluating the dependent coverage provision in the Affordable Care Act. She has written on how employer health insurance incentives are affected by the law, and on how Medicaid expansions affect insurance and various outcomes. Top

'Those who profit from the inefficient, unfair status quo generate myths'

Samuel Flint

Samuel Flint

Samuel Flint, associate director for the Indiana University School of Public and Environmental Affairs at IU Northwest, said the Affordable Care Act, while less than perfect, will "dramatically improve this country by opening the health care system's doors to 32 million uninsured citizens, the vast majority of whom work every day. It will subsidize small business health insurance costs, improve Medicare by expanding its benefits and adding a decade to the solvency of its Trust Fund, and it won't add a nickel to the national debt.

"Those who profit from the inefficient, unfair status quo generate myths about death panels and out-of-control spending to confuse the public," Flint said. "However, objective observers need only to look at the positive results in the state of Massachusetts to gauge the progress that this plan has made there and multiply that by 50 to project the level of progress that will be made under the ACA once it is implemented nationwide."

Flint teaches health administration and is also a nationally recognized expert witness in Medicaid cases. Since joining IU Northwest in 2005, he has had several opportunities to use his advocacy research expertise in federal court. His experience stems from years of involvement in the public health policy realm, including several years serving as the associate executive director for the American Academy of Pediatrics. Top

Federal judiciary expert: A potential backlash from the left against the court

Charles Geyh

Ann Schertz

Charles G. Geyh

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If the Supreme Court strikes down the Affordable Care Act, the decision could trigger a liberal backlash in Congress and among court observers, according to Charles G. Geyh, an expert on the judiciary at the Indiana University Maurer School of Law.

"If the court strikes down the law, the decision could lead the political left to challenge the Supreme Court in ways unprecedented since the New Deal," Geyh said. "This could include efforts that run the gamut from mild forms of saber-rattling to more aggressive assaults on the court's legitimacy."

Geyh is available to comment on the decision as it relates to the balance of power between Congress and the Supreme Court and the extent to which the court's action will trigger further shifts in that balance.

Geyh is the associate dean for research and John F. Kimberling Professor of Law at the Maurer School of Law. Top

Health care law expert: Medical providers still will face incentives to cut costs if court rules against act

David Orentlicher

David Orentlicher

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"Most likely, the Supreme Court will uphold the Affordable Care Act, with a narrow opinion that distinguishes the act's health insurance mandate from other mandates that Congress might pass in the future," said David Orentlicher, a health care law expert in the Indiana University Robert H. McKinney School of Law in Indianapolis.

"But even if the court strikes the mandate down, the impact will be felt largely by a small percentage of the public. Hospitals and physicians still will face powerful incentives to lower costs, and most Americans still will receive their coverage as a benefit of employment. For the 5 percent or so of Americans who will lose the opportunity for coverage, an adverse decision by the Supreme Court will be a serious blow. For those Americans and other Americans who were never included in the Affordable Care Act, it will be critical that Congress follow up with an alternative plan to ensure universal access to health care in the U.S."

Orentlicher is the Samuel R. Rosen Professor of Law at IU Robert McKinney School of Law and co-director of the William S. and Christine S. Hall Center for Law and Health, a unit of the McKinney School of Law, on the campus of Indiana University-Purdue University Indianapolis. Orentlicher holds an M.D. from Harvard Medical School and a J.D. from Harvard Law School. He is an adjunct professor of medicine at the IU School of Medicine, also at IUPUI. In addition to his duties as a professor, Orentlicher served in the Indiana House of Representatives from 2002 to 2008.

Orentlicher previously served as director of the Division of Medical Ethics at the American Medical Association for almost seven years. Top

Constitutional law and legal history expert: ACA and the Commerce Clause

Gerard M. Magliocca

Gerard M. Magliocca

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Critics of the Patient Protection and Affordable Care Act say that Congress lacks the authority under the Commerce Clause to make citizens buy health insurance against their will. "Opponents of the individual mandate are right to say that Congress has never tried to use its Commerce Clause authority to regulate inaction until now," said Gerard N. Magliocca, an expert on constitutional law and legal history at the Indiana University Robert H. McKinney School of Law. "When the Supreme Court reviews the constitutional challenge to the Patient Protection and Affordable Care Act, though, the justices may conclude that this fact is irrelevant."

"A careful review of the state action doctrine reveals that the claim that there should be a comparable private action limit on the Commerce Clause is without merit," Magliocca wrote in "The Private Action Requirement," first posted online in the Florida International University Law Review on Dec. 18, 2010, and last revised on May 27, 2012.

Magliocca is a graduate of Yale Law School and the author of two books and several law review articles on the relationship between politics and Supreme Court opinions. He also comments on legal issues for The New York Times and other media outlets. He is an active blogger on Concurring Opinions and Balkinization. Top

Health policy expert: Landmark legislation is necessary, but not sufficient

Eric Wright, professor and interim chair of the Department of Public Health at the IU School of Medicine and director of the Center for Health Policy at Indiana University-Purdue University Indianapolis, believes that the Affordable Care Act has laid out an ambitious and complicated roadmap for improving access and reforming the health care delivery system.

"While there will be many challenges ahead in implementing various ACA provisions, the landmark legislation is a necessary but not sufficient step in our long-term goal of improving the health of all Americans," he said. Top