Tuesday, July 10, 2012

Why the Affordable Care Act is a Drafting Mess and Why No Single Act is the ACA

The health reform legislation is very difficult to read and there is even some confusion about what it should be called. From reading John E. McDonough's book, Inside National Health Reform, here is my understanding about why there are these difficulties.

On November 7, 2009, the House passed the "Affordable Health Care Act for America Act." Then the Senate passed the "Patient Protection and Affordable Care Act" ("PPACA") on December 24, 2009.

The Senate included a Title 10 in the PPACA which amends the other nine titles. The reason it was done that way was that the Republicans in the Senate indicated that they would force a cloture vote for each amendment, which would have been too time consuming. The Senate Democrats expected that the House would fix the problem and incorporate the amendments in each of the other nine titles.

After Scott Brown won the election to replace Senator Kennedy in Massachusetts on January 19, 2010, the House had to pass exactly what the Senate had passed, because there were no longer 60 votes in the Senate to break a filibuster threat. The House passed the PPACA with a separate Title 10 on March 21, 2010. President Obama signed the PPACA on March 23. Subsequently, the Senate passed through a budget reconciliation procedure, which cannot be filibustered, a "sidecar" piece of legislation, the "Health Care and Education Reconciliation Act" ("HCERA"), on March 26, 2010. The House passed it on the same day, and President Obama signed it on March 30. HCERA amends the PPACA.

Thus, we have a PPACA with a Title 10 that amends the language in the other nine titles and a HCERA which amends the PPACA. That makes things difficult. Apparently, there is a reading copy in existence that incorporates the amendments, but any disputes have to refer to what Congress actually passed.

The name "Affordable Care Act" or "ACA" now generally refers to the PPACA as amended by HCERA.

Incidentally, the Senate had not included a severability clause for political reasons having to do with Republicans saying that the Democrats doubted the constitutionality of the legislation. (A severability clause would say that if one provision is found to be unconstitutional the other provisions remain in force.) The Senate Democrats planned to include a severability clause at a later point, but the Senate parliamentarian ruled that it could not be included in the sidecar legislation under the reconciliation procedure because it was not related to the budget. This made it easier for the four dissenters to argue that the whole of the ACA should be invalidated because of the Constitutional problems they found with the individual mandate and Medicaid provisions. In the end, it did not matter, since Chief Justice Roberts decided to rule the individual mandate constitutional under Congress's taxing authority and decided on a much less draconian remedy for the Medicare issue (limiting the withholding of federal Medicaid funds to states not going along with the Medicaid expansion to the amount to finance the expansion).

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