Thursday, December 16, 2010
An unbalanced delay tactic?
Health reform unconstitutional? So says a Federal judge in Virginia. The center of this brewing storm relates to the ability of the U.S. Government to mandate that individuals purchase health insurance coverage.
And today, attorneys from 20 states have petitioned to have the new law overturned on the grounds that it will expand the government's powers in dangerous and far reaching ways.
I'm contrasting these actions with the comments of both Democratic and Republican Congressional staffers during our visit to Washington DC a few months ago (pre-midterm elections). The prevailing sentiment was that no matter the outcome of the elections, there would never be enough political vim and vigor to overturn the reform law.
But the issue they did not address was whether or not there might be enough legal basis to attempt to accomplish the same task. The legal challenge has been brewing for a while, but the recent decision in Virginia and the persistence of the 20 anti-reform states lends credence to the argument that legal action (or inaction) could tie up implementation of the major provisions of the law so as to render it largely irrelevant. I've asked a few attorney friends to comment on whether there is enough legal standing to truly impact reform law implementation. The emerging consensus view seems to be that the legal challenges may not have a great likelihood of holding water... yet, they may force substantial delays and postponements of key milestones such that a future Congress (which could actually have the votes to reverse major reform provisions) could take up the issue.
This is reminiscent of the onetime Massachusetts health reform deal crafted during the Dukakis Administration but then carved thin by the effects of time and ensuing economic crises which pushed it so far toward the back burner that it fell off the stove.
The home health industry does not have the luxury of waiting to see how these legal and political theatrics resolve. Massive Medicare reimbursement cuts are upon us now. Draconian face-to-face and documentation requirements are due to hit next month which will likely have the unintended effect of reducing access to services for the most needy among the populations we serve. I fear that the high impact provisions on home care will hit now while many of the downstream provisions will ultimately be delayed or even dropped.
If we're going to have these delay tactics, it would be best if their impact could be fairly distributed...