When Republicans were swept back in to power earlier this month, one of their first vows was to either repeal the whole healthcare reform bill or dismantle it piece by piece. It’s starting to look like they will accomplish their goal without ever having to say the word “healthcare” on the Congressional floor. In Virginia, a lawsuit brought by the Republican state Attorney General challenging the insurance mandate portion of the law is awaiting a decision Federal district court. And as described in the New York Times,
Virginia’s attorney general, Kenneth T. Cuccinelli II, a Republican who filed the Richmond lawsuit, argues that if Judge Hudson rejects the insurance requirement he should instantly invalidate the entire act on a nationwide basis.
Such a ruling could be a disastrous setback for the transformational movement currently underway in healthcare IT. While much of these efforts are funded by the stimulus act rather than the reform act, there is a fair amount of interplay between the two. For example, the latter authorizes the Department of Health and Human Services to establish many of the interoperability standards that will be critical in the information exchanges and electronic health records funded by the former. And it seems like this setback could occur because of a simple “oversight.”
As the NYT goes on to describe, the fact that the Affordable Care Act is susceptible to wholesale invalidation is because of the lack of a severability clause. Basically, it would have held that if one part of the act is found to be unconstitutional, the other parts of the act would continue to stand on their own. In its absence, Republican lawyers are arguing that language in the bill defining the insurance mandate as a critical piece of the whole package means that the all provisions of the act must be declared unconstitutional if any one part is. The lack of a severabilty clause was apparently an “oversight” on the part of Democrats.
In any case, any ruling will likely be appealed to the Supreme Court. But that could be a year or more away and the entire act, if declared unconstitutional in Federal court, could be suspended during that time. When it comes to healthcare IT, a lot of people are preparing to make major investments based on the certainty that the time has finally come for a shift. This certainty was based on a federal commitment backed by a lot of cash. My fear is that even if the Supreme Court later upholds the law, with or without the individual mandate, the uncertainty introduced into this sector could be a setback that will extend well beyond the eventual final ruling.
Whether or not you agree with many of the principles in the reform — this isn’t going to help with the overall effort to move healthcare IT into the new age. The question then remains, will health systems, IT companies, and others be willing to make major investments if the political reform movement is being beaten back?
