Legal Challenges

Voters in Ohio will likely have the chance to vote on a measure that would challenge a key piece of the healthcare reform law.

A proposed amendment to the state constitution would prohibit the federal government from forcing Ohioans to purchase insurance. The Columbus Dispatch reported Tuesday that the amendment's backers have enough signatures to place the amendment on the Nov. 8 ballot.

Several states have adopted anti-mandate measures, either through their legislatures or a referendum. According to the conservative American Legislative Exchange Council, two states have adopted constitutional amendments disapproving of the new law. Ten have enacted statutory measures, and ballot initiatives are pending in another four.

State law is at the center of Virginia Attorney General Ken Cuccinelli's lawsuit charging that the individual mandate is unconstitutional. But a panel of federal judges in the case was said to be skeptical of Cuccinelli's argument that a state can pass a law that conflicts with a federal law, then sue to defend it.

Virginia was the only state to get an anti-mandate statute on the books before the federal law passed.

A New Orleans judge gave preliminary approval Friday for a $25 million settlement for patients and visitors at Memorial Medical Center during Hurricane Katrina, the investigative website ProPublica reports.

The bodies of 45 patients were found at the hospital after the 2005 storm, and doctors have said they hastened some patients' deaths. In addition, 187 patients and some 800 visitors were trapped for days in the hospital after the storm.

A class-action lawsuit against the hospital's owner alleges that the hospital should have planned better for emergency evacuations and backup power.

The settlement would release the Tenet Healthcare Corp. from future claims by the patients and visitors. The families of some of the patients who died, however, are pursuing separate legal actions.

The Republican hearings this week on a cost-control panel for Medicare are drawing attention to a legal challenge that has been filed against it.

Diane Cohen, the lead attorney for plaintiffs challenging the Medicare board, is scheduled to testify Wednesday before the Energy and Commerce Committee. 

Cohen will argue that Congress gave up too much of its power when it approved the creation of the 15-member Independent Payment Advisory Board (IPAB) in the healthcare reform law. Critics of the panel hope the argument will resonate with Democrats on the committee.

"Certainly we're concerned that lawmakers don't realize what they've done in terms of the delegation, and we'll certainly keep pushing on and educate anyone who wants to listen," Cohen told The Hill.

Republicans say the Medicare panel amounts to a "rationing board." The House Budget Committee will also examine IPAB on Tuesday in a separate hearing.

The number of House Democrats who support Republican legislation to repeal the board now stands at eight, after Del. Donna Christensen (Virgin Islands) endorsed it Monday. And Republicans are hopeful that Rep. Frank Pallone Jr. (N.J.), the top Democrat on the Energy and Commerce Health panel, might sign on as well, after he told Politico that he "never supported it and ... would certainly be in favor of abolishing it."

Republicans want to know whether the Supreme Court justice helped develop a legal defense of the law for President Obama.

No comprehensive overnights this week, but here's a short roundup of health news that didn't make the blog.

Kagan ties to health law probed: The House Judiciary Committee is probing Supreme Court Justice Elena Kagan's involvement in the healthcare reform law when she was President Obama's solicitor general. Federal law prohibits justices from judging cases if they served as counsel or adviser on the case or expressed an opinion about its merits while in previous government service.

Runaway wheelchairs: Sixty-one percent of power wheelchairs provided to Medicare beneficiaries in the first half of 2007 were medically unnecessary or didn't have enough documentation to justify their need, says a new government audit. Power wheelchairs cost Medicare $95 million during that period.

Disease mongering: Abbott is under fire for hyping the health impacts of insomnia in order to sell sleeping pills in India.

Pacemaker coverage: Medicare is expanding MRI coverage to beneficiaries with implanted pacemakers.

The 6th Circuit Court of Appeals upheld the coverage mandate in a 2-1 decision directly validating the government’s primary argument.

Both sides of the debate over healthcare's individual coverage mandate were reeling Wednesday from a conservative judge's ruling in favor of the provision.

Judge Jeffrey Sutton joined a 2-1 decision upholding the mandate as constitutional — the first appeals court ruling on the issue. Sutton was appointed by President George W. Bush and clerked for Supreme Court Justice Antonin Scalia. Prominent conservatives said they were shocked by his support for the mandate, and liberals were eager to trumpet Sutton's decision.

Sutton sided with the government's argument that the insurance mandate regulates how people pay for healthcare, rather than forcing them to buy it. The policy is therefore within Congress's power to regulate commerce, he said.

Healthwatch's Sam Baker has more.

Norquist backs Lieberman on Medicare: Anti-tax activist Grover Norquist said Wednesday that he supports the Medicare plan released by Sens. Joe Lieberman (I-Conn.) and Tom Coburn (R-Okla.). The Lieberman plan would require higher-income beneficiaries to pay more out-of-pocket costs and raise the Medicare eligibility age to 67. Read the Healthwatch story.

Exchange over exchanges: A controversial new report suggesting millions of American workers will get dumped into the healthcare reform law's insurance exchanges is a "great thing," former Vermont Gov. Howard Dean said Wednesday.

Legal observers expect newly installed Solicitor General Donald Verrilli to personally argue cases over the healthcare reform law, as his predecessor did.

Verrilli was sworn in as solicitor general on Friday. He replaced acting Solicitor General Neal Katyal, who argued the healthcare suits himself in federal appeals courts. Legal scholars said that move was unusual — although the solicitor general represents the federal government before the Supreme Court, the Justice Department rarely sends its top litigator into circuit courts.

Katyal’s presence was a sign of how serious the cases are, scholars said.

Simon Lazarus, public policy counsel for the National Senior Citizens’ Law Center, said he expects Verrilli will also handle arguments over the healthcare law’s requirement that most people buy insurance.

Lawsuit advances: The highest-profile legal challenge to the healthcare reform law took another step toward the U.S. Supreme Court on Wednesday. A three-judge panel of the 11th Circuit Court of Appeals heard oral arguments in the suit brought by 26 state attorneys general, and people in attendance said the judges seemed skeptical of the federal government's arguments.

Former Solicitor General Walter Dellinger said the judges spent a lot of time debating whether the entire healthcare law would fail if the individual coverage mandate were ruled unconstitutional. They won't need to answer that question unless they strike down the mandate.

Healthwatch has more reaction to the arguments.

White House, GOP trade barbs over health insurance: The White House and House Republicans are in a tough fight to shape public perception of the healthcare reform law after a consulting firm said it could lead to 30 percent of employers dropping coverage starting in 2014.

What the report shows, said Energy and Commerce Health panel member Cathy McMorris Rodgers (R-Wash.), is that "what President Obama promised during the healthcare — that if you liked your health insurance plan you'd be able to keep it — is really not true. That is an unkept promise."

The Obama administration responded with a post on the White House blog calling the report, from McKinsey & Company, an "outlier." Healthwatch's Julian Pecquet has the story.

Carney weighs in: White House spokesman Jay Carney called the report "starkly at odds with history" during Wednesday's briefing. Read The Hill's story.

Health technology boost: The Obama administration on Wednesday launched a new initiative aimed at spurring health information technology innovations and awarded the first $5 million to two projects.

In the highest-profile challenge to the healthcare reform law, judges appeared skeptical of the federal government's defense.