Proquest LLC reports:
Although federal legislation leading to universal coverage has been signed into law, it’s facing constitutional challenges likely to be resolved by the United States Supreme Court, according to a prominent health care attorney.
Robert R. McMillan , of counsel to Bee Ready Fishbein Hatter & Donovan in Mineola, said at an ExecuLeaders breakfast at Carlyle on the Green Friday morning that he expects challenges to reach the nation’s highest court.
While Congress and President Barack Obama approved universal health care as of 2014, McMillan said the courts may have the last word on this issue.
After a judge in Michigan threw out one case, a federal judge in Florida on Oct. 14 upheld a challenge by 20 state attorneys general to mandatory coverage, setting the stage for what could be the first step in a ladder leading to the Supreme Court.
U.S. District Judge Roger Vinson , who was appointed by Ronald Reagan , in Pensacola, Fla., threw out four grounds for the challenge, but allowed attorneys to proceed with a case on two grounds, including one that the federal mandate violates the Constitution’s 10th Amendment.
McMillan said the 10th Amendment states powers not delegated to the federal government “are reserved to the states,” potentially leading to a legal interpretation that mandatory health insurance oversteps federal authority.
“In the federal law, there’s no law that says everybody must have automobile liability insurance,” said McMillan, a former trustee of the American Medical Association for six years and a former director of Empire Blue Cross Blue Shield, when it was a nonprofit, before it was taken over by WellPoint
In a speech titled “Healthcare Today and in the Future,” he outlined a history in which numerous efforts to provide universal health care have been abandoned or derailed, although none ever got as far as that of the Obama administration.
McMillan said Theodore Roosevelt , running on the Bull Moose ticket in 1912, called for national health care.
Although Franklin Delano Roosevelt extended health care benefits, the idea of universal health insurance coverage remained fallow for years until Richard Nixon , in 1973, the year he would resign, proposed universal insurance through employer-mandated coverage.
“With Watergate, that evaporated and nothing took place,” said McMillan, who had been an assistant to Nixon.
McMillan then described a situation in which health care virtually forced itself onto the political stage due to soaring costs.
He said 61 percent of health insurance today is employer sponsored, 16 percent is Medicaid, 5 percent is private and roughly 18 percent of the population is not covered.
He said health care spending is expected to reach $2.5 trillion this year and hit $4.3 trillion by 2019. Between 2000 and today, premiums for employer sponsored health care doubled, he said. Fewer than half of small businesses offer insurance.
“Costs are accelerating for a lot of reasons. There’s new and more technology. Every hospital has to have up-to-date equipment. That costs a lot,” McMillan said. “More people are taking prescription drugs. And there are more prescription drugs out there to take.”
McMillan said in addition to legal challenges, more than 50 companies and unions have requested waivers from provisions in the new health care law. McDonald’s, which provides health insurance for hourly workers, sought the right to set limits on pay-outs.
“Stay tuned. You’re going to hear a lot more about this,” he said. “That waiver provision was involved in 2,700 pages of the law. I wonder how many members of Congress actually read even ten pages of the law.”
The law indicates that as of 2014 everyone is required to have coverage or pay a $95 fine. But fines rise up to 2.5 percent of income by 2016.
Companies with more than 50 employees must provide coverage or pay a $2,000 fine, which he described as “another issue that I think is very much up in the air.”
McMillan said the new law is expected to generate 10,000 pages of regulations, leading to more work for consultants as well as courts.
“There’s no doubt about it in my mind,” he said. “The lawyers and accountants will have a field day in trying to implement and figure out what steps a company will have to take.”
While other suits could be filed and proceed, McMillan sees the suit in Florida as most likely to reach the nation’s highest court.
“Attorney generals have joined the Florida case. A number of business groups have joined them,” McMillan said. “I think the Florida case will go to the Supreme Court.”
He expects the case regarding universal coverage to be resolved well before 2014, when the insurance coverage mandate kicks in. Judge Vinson plans to hear the case on Dec. 16.
“I would think it might be a year or a year and a half before this gets finally resolved,” McMillan said.
