DECEMBER 7, 2012
ATLANTA - On June 28, 2012, in what was one of the most highly debated and closely watched decisions in recent history, the U.S. Supreme Court issued a landmark ruling in National Federation of Independent Business v. Sebelius on the Patient Protection and Affordable Care Act (PPACA). Following the decision, the Georgia State University’s Center for Law, Health & Society at the College of Law and Institute of Health Administration at the J. Mack Robinson College of Business hosted a multi-part series entitled “The State of Constitutional Law and Health Care after the Supreme Court Decision.”
The series, which was co-sponsored by the Student Health Law Association, the American Constitutional Society, the Public Interest Law Association, and Future Healthcare Executives, included a primer on PPACA and discussions of the impact of the Supreme Court’s decision on constitutional law and on the future of Medicaid in Georgia. A large, standing-room-only audience attended each of the three sessions.
The first session of the series, held on August 27, was tailored to students. This introductory “crash course” on the PPACA was conducted by one of Georgia State College of Law’s newest health law faculty members, Professor Erin Fuse Brown, JD, MPH. “We wanted to provide our students with an approachable, practical overview in order for them to better understand the underlying debate and the Supreme Court’s landmark decision.”
Following the primer, Nirvi Shah (1L) shared that despite aspirations to be a health law attorney, “I barely know anything about one of the most relevant health care acts of our generation,” namely, the PPACA. “Learning the basics of the Affordable Care Act was my main purpose of attending, which was clearly achieved.”
“The PPACA primer did a great job of breaking down this complex piece of legislation,” said Trey Kelley (2L), Republican Nominee for the Georgia House of Representatives District 16. “Whether you support the PPACA or not, it is important we continue to have conversations regarding the health care crisis which continues to exist in our country.”
The second session, entitled “PPACA and the Supreme Court: Different Perspectives,” was held on September 6 and featured Fuse Brown and constitutional law Professor Eric Segall, JD, author of Supreme Myths: Why the Supreme Court is Not a Court and its Justices are Not Judges.
The Supreme Court upheld the individual mandate to purchase health insurance as constitutional, not under the Commerce Clause, but under Congress's power to tax. Addressing students and members of the medical and legal communities, Segall contended the Supreme Court got it wrong.
“The Court absolutely should have found that the PPACA was constitutional under the Commerce Clause coupled with the Necessary and Proper Clause,” argued Segall. “By enacting the PPACA, Congress passed a 2000-plus page law regulating this trillion-dollar industry affecting people in every state and across state lines as they travel.”
“The Court basically gutted the Commerce Clause and found that Congress cannot force people to buy broccoli - or health insurance,” Segal continued. “Instead, the Court found the PP ACA constitutional as a tax… so while you can’t be forced to buy broccoli, you can be taxed for not buying it.”
“Professor Segall's energy rarely fails to captivate an audience,” noted Hanish Patel (3L). "I never thought about the Supreme Court's opinion in the health care case in terms of what it does for the future of the Commerce Clause," Wan Park (3L) added.
Fuse Brown discussed the effect of the Court’s decision on the right to health care. “The right to health care is the non-excludable right to access and receive some minimal level of health care services that is financed through affordable insurance,” Fuse Brown asserted. “The PPACA creates a right to health care for the uninsured through expanded access to private sector insurance and by increasing the pool of people covered by Medicaid.”
“The Court’s decision blows a huge hole in the right to health care,” explained Fuse Brown. “Because states will now be able to opt out of Medicaid expansion, some of the most vulnerable groups, such as childless adults earning less than 100% of the federal poverty level, may be left uncovered and will not be eligible for premium subsidies that are available to persons earning between 100% and 400% of the federal poverty level.”
“The panel definitely underscored the importance of the upcoming presidential election and what it means for meaningful reform,” said Andrew Weis (2L).
The third session in the series, entitled “The Impact of the Supreme Court’s Decision on the Future of Medicaid,” was held on September 13 and hosted invited panelists Cindy Zeldin, MA, MPH, Executive Director, Georgians for Healthy Future; Temple Sellers, JD, Vice President, Legal Services, Georgia Hospital Association; and Sidney Welch, JD, MPH, Partner at Arnall Golden Gregory, LLP. This final session focused on how the Medicaid landscape may change in Georgia in the wake of the U.S. Supreme Court's decision that Congress cannot coerce states into expanding Medicaid by withholding all current Medicaid funds, essentially making Medicaid expansion optional for states.
Each speaker focused on the future and impact of Medicaid in the wake of the PPACA as experienced by different health care constituencies, including Georgia patients, hospitals, and physicians. “Having panelists who represent three different groups of interested parties was particularly effective and informative,” said Susan Haynes (2L). “The presentation helped increase my understanding regarding the intricacies of this complicated decision.”
“In Georgia, nearly two million people are uninsured,” said Zeldin. “This is nearly one-fifth of the population and one-fourth of working-age adults. Forty-five percent of the uninsured population in Georgia earns less than 100% of the federal poverty level. This is a very low income group of people.”
“Expanding Medicaid is good for consumers, good for the health care system, and good for the economy,” continued Zeldin. “Georgia taxpayers already pay federal income taxes. This money will go to other states if it doesn’t come back to Georgia.”
“The mission of most hospitals in the country is to meet the health care needs of patients – those who have insurance as well as those who don’t,” said Sellers. “In 2010, Georgia hospitals provided $838 million dollars’ worth of charitable services to uninsured. One third of the hospitals in this state are operating in the red.”
“There is a diversity of opinions among physicians on the subject of Medicaid expansion,” stated Welch. “But if there was one word that every physician might agree with, that word would be ‘FRUSTRATED’ in all caps.”
“Physicians already are paid significantly less for services under Medicaid than Medicare or private insurance, and they fear that the expansion of Medicaid will lead to future problems, including the impact to the scope and quality of care they can provide when the cost to providing care, including overhead, has increased, but Medicaid reimbursement has been flat for 10 years,” explained Welch.
When asked what was needed to change the minds of Georgia lawmakers opposed to Medicaid expansion, the panelists agreed that building a coalition of support would be necessary and that all stakeholders needed to be present and have a voice to help direct the changes. “We can all put our heads together and say, ‘How do we best move the needle?’” said Zeldin. “Otherwise, we just throw our hands up and walk away.”
Stacie P. Kershner, JD
Associate Director, Center for Law, Health & Society