National Health Reform Moves Forward Despite Court Rulings

This is an open letter from the Chiropractic Summit.

Despite a series of federal court rulings regarding the recently enacted national health reform law (The Patient Protection and Affordable Care Act, or PPACA), the latest of which declared the law “unconstitutional,” the implementation of the far-reaching statute continues to move forward in keeping with the timeline established by the new law — the various court rulings having no impact on this process thus far.  Since the enactment of the law in early 2010, four separate U.S. District Court judges in different localities have ruled on the constitutionality of the bill.  Two of the court rulings upheld its constitutionality. 

One ruling, in the U.S. Federal District Court of Richmond Virginia, declared the “mandate” portion of the bill to be unconstitutional.  The most recent ruling, a result of a lawsuit jointly brought by the state attorneys general representing 26 states, occurred January 31st, 2011, when U.S. District Court Judge Roger Vinson of the U.S. District Court for the District of Northern Florida, ruled the entire law unconstitutional – based on his interpretation that the “unconstitutional mandate” portion of the legislation was not severable from other portions of the law, requiring the entire statute to be invalidated. 

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As Judge Vinson’s ruling was the most recent and sweeping of those finding constitutional problems with the law, and the ruling was in direct response to the lawsuit brought by the majority of states, it has garnered the most media attention.  Most recently, on March 3rd, Judge Vinson ordered a “stay” of his own ruling, an explicit statement that implementation can and should continue.  

Misinterpretation of the Facts

The widespread reporting of Judge Vinson’s January ruling has led many citizens — and some within the chiropractic community — to wrongly conclude that the implementation of PPACA has come to a halt.  This is a huge and dangerous misinterpretation of the facts, and the implementation of the law, including the development of regulations that will directly impact the chiropractic profession, continues by the Obama Administration without interruption.  “What many might not understand, is that neither of the federal court rulings finding constitutional fault with the law contained, or attempted to contain, any judicial order or ruling that would halt the implementation of any portion of the new law,” said Dick Gephardt, former U.S. House of Representatives Majority Leader, who has been retained to advance the interests of the chiropractic profession regarding PPACA and its implementation.

According to Gephardt, it is understood by legal scholars, that even if one of the rulings had attempted such a halt or partial halt, the Obama Administration would have been on firm legal ground to have a higher federal court “stay” or put on hold any lower federal court ruling on the issue, until the issue could be heard in the U.S. Court of Appeals or before the U.S. Supreme Court where most observers believe the question of the law’s constitutionality will ultimately be determined.  At present, no one can accurately predict a precise timetable by which the process of “judicial review” by the Appeals Courts or the Supreme Court will play itself out.  It could require a period of one or more years before the issue is fully determined by the courts, and in the meantime, PPACA’s implementation continues.

Law Moving Forward

As proof that implementation of the law is moving forward, one need only look at the response of the various states, including those states which brought the lawsuit against the legislation in Judge Vinson’s court.  Readers should be reminded that PPACA requires the establishment of new health care marketplaces, called “exchanges” in every state and these entities are to be operational by 2014.  To assist the states in establishing the exchanges, PPACA provides states with “seed” money for this purpose. 

While objecting to the constitutionality of the law in court, almost all states have “accepted” the federal government’s seed money to plan for the establishment and implementation of the state “exchanges” – and this planning process is in the active stages of implementation in the overwhelming majority of states.  Accordingly, it remains crucial for chiropractic state associations to closely monitor and engage in the process of establishing the state exchanges, as failing to do so could leave the profession without influence or input into the local process of implementing the exchanges and carrying out the provisions of the new law.

Further proof that the law is moving forward is easily demonstrated by policy declarations from senior officials such as HHS Secretary Kathleen Sebelius, who has clearly stated the implementation of the law is moving forward without delay.  As recently as February 15th, chiropractic champion, U.S. Senator Tom Harkin (D-Iowa) in an address to nearly 500 chiropractic students and DCs at the National Chiropractic Legislative Conference made it abundantly clear, that in many respects the battle over health reform has “just begun” – and that attempts to roll-back the reform initiative would, in his opinion, be strongly resisted and would ultimately “fail.”  

• Chief among the plethora of issues contained in PPACA that will impact the provider community, including all doctors of chiropractic, when the law is fully implemented, are: the extent to which the newly created marketplaces called “state exchanges” provide fair access to services of doctors of chiropractic;
• how the “essential benefits” packages are ultimately defined via the regulatory or future legislative process; and
• the effectiveness of Section 2706 of PPACA (non-discrimination) as a vehicle to ensure access to the services of doctors of chiropractic when that provision takes effect in 2014. 

Cooperative Effort

Virtually all chiropractic leaders and mainstream chiropractic organizations are taking part in a cooperative effort via the Summit process to appropriately respond to these major issues and to work in a unified manner to address the ongoing regulatory environment, including possible future legislative modifications to PPACA that might arise.

 “I think it important that the chiropractic community understands that it will be the combined impact of these major provisions and how they ultimately interrelate as the law is fully implemented, that will most greatly affect their profession,” Gephardt added.  As for strategies to advance the interest of the profession and the patients DCs serve, Gephardt added, “The process of reform and its implementation is a fluid and complicated one – and should be recognized as such, with coordinated and on-going responses to the multi-faceted challenges we face.”

The clear and compelling conclusion that all DCs should draw, from the actions of the law’s opponents in Congress, the federal courts and the Obama Administration, is that the reform process remains dynamic – and the need for the profession to protect itself, guard those gains it has achieved legislatively, and to mobilize when or if future events related to PPACA and its implementation might in some way threaten the profession, remains paramount.  

Conclusion

Accordingly, the profession’s national associations and, importantly, the various state associations must remain vigilant and fully engaged in all issues relating to national health reform.  This means continuing to expand the profession’s capabilities, including support for CHAMP; supporting pro-chiropractic policymakers; expanding the profession’s cadre of “key contacts” with state and federal lawmakers; and greatly expanding the grassroots capabilities of the profession through the growth of patient e-mail databases such as CHIROVOICE and Adjust-the-Vote; and the continuation of the Summit process of unified action and consistent messaging.