Legal Challenges

Next week starts out strong, with the Supreme Court’s scheduled Monday announcement of the healthcare reform challenges it will take up next year. The high court has been asked to examine multiple court cases and a slew of issues, including several pertaining to the law’s requirement that everyone carry insurance starting in 2014.

The individual mandate questions are the ones the court is most likely to address, probably before the 2012 presidential election. They include whether the individual mandate is constitutional, whether it’s a tax and whether the rest of the law can survive if it is struck down. The tax issue matters, because federal law prohibits challenges to taxes before they go into effect.

The House on Tuesday initiates a bitter partisan fight to eliminate the healthcare law’s long-term-care CLASS Act with a subcommittee markup of repeal legislation from Rep. Charles Boustany Jr. (R-La.). Most of the Democrats on the Energy and Commerce Health panel are expected to vote against repeal, but they’ve been put in dire political straits by the administration’s acknowledgment that it doesn’t see a way to make the program work.

The liberal advocacy group Health Care for America Now (HCAN) said Thursday that Supreme Court Justice Clarence Thomas should recuse himself from a case involving President Obama’s healthcare law.

Thomas previously failed to disclose income his wife earned through work and speaking engagements with groups that oppose the healthcare law. She has also given public speeches calling for its repeal.

“If Justice Thomas fails to recuse himself, it will threaten the integrity of the entire Supreme Court,” HCAN said in a statement.

Former Rep. Anthony Weiner (D-N.Y.) led the push for Thomas's recusal while he was in Congress, but the controversy has quieted somewhat since Weiner resigned. HCAN renewed the call for Thomas to absent himself from the case on the same day the Supreme Court justices met privately to determine how to proceed. An announcement could come Monday.

The court is widely expected to take up the suit filed by 26 states and the National Federation of Independent Business, and to rule next summer on whether the law’s individual coverage mandate is constitutional.

The calls for Thomas’s recusal match conservative advocates’ effort to get Justice Elena Kagan to sit out the healthcare suit. Kagan was Obama’s solicitor general when the solicitor general’s office began preparing to defend the law in court. But she and her aides have said she was not involved in shaping the administration’s legal strategy.

Conservative legal activists on Wednesday renewed their calls for Supreme Court Justice Elena Kagan to abstain from cases involving President Obama’s healthcare law.

Conservatives say Kagan should recuse herself from suits over the law’s individual mandate because the administration began planning its defense while she was solicitor general. Kagan has recused herself from dozens of cases because of her work in the Justice Department, but has shown no signs so far of sitting out healthcare suits.

The justices are slated to meet privately Thursday to discuss whether they should hear a challenge to the healthcare law’s constitutionality. Ahead of that meeting, the conservative Judicial Crisis Network (JCN) reiterated suspicions about Kagan’s objectivity.

“Her jump from advocate to judge on the same issue raises profound questions about the propriety of her continued participation in the case,” JCN said. “Moreover, the legitimacy of any decision where she is in the majority or plurality would be instantly suspect if she chooses not to recuse herself.”

Proponents of the law are praising Judge Laurence Silberman, a Reagan appointee, for ruling in favor of the individual mandate.

The Supreme Court is expected to weigh in on the healthcare reform law next year, but which cases — and what arguments — will be heard has yet to be determined.

Justices will take their first stab at those questions during a private session on Thursday, and could announce their decision that same day. They are widely expected to rule on the constitutionality of the law’s individual mandate to buy insurance, since both plaintiffs and the government want them to resolve the contradictory rulings of lower courts.

The high court will be reviewing at least five petitions for review, according to SCOTUSblog, an authority on the court’s inner workings.

The Center for Medicare Advocacy on Thursday filed a class action lawsuit on behalf of seven Medicare beneficiaries who had to bear the brunt of their hospitalization costs because they were classified as "outpatient."

The lawsuit challenges Medicare's use of what's known as the "observation status," which classifies certain hospital patients as not having been admitted for billing purposes even though they might have stayed in the hospital for several days. The practice not only sticks Medicare patients with higher hospital costs, but also denies them Medicare coverage for follow-up care, in nursing homes for example.

The lawsuit says the term "observation status" appears nowhere in the Medicare statute but that the practice has been increasing in recent years. Some experts say the healthcare reform law may have inadvertently made things worse by penalizing hospital readmissions, creating an extra incentive for hospitals not to admit some patients in the first place. Read more...

Attorneys suing the government over President Obama’s healthcare law say the case is a referendum on unchecked federal power.

Drugmakers are challenging legal prohibitions against off-label marketing of medicines for uses not approved by the FDA, The Wall Street Journal reports.

Wal-Mart's decision to scale back coverage could be part of a trend, NPR reports.

The U.S. government glossed over cancer concerns as it rolled out airport X-Rays, ProPublica reports.

The antitrust attorney opposing the Express Scripts-Medco merger before the FTC lays out his case in a Hill op-ed.

The health law's rate review rules started this week for policies sold through association, CQ HealthBeat reports.

The Obama administration's approval of Medicaid cuts in California isn’t expected to affect the Supreme Court case.

Justices will for the first time formally consider whether to hear a challenge to the healthcare reform law.