Health Law Ticker : California Lawyers & Attorneys for Regulatory, Transactional & Litigation Representation for Healthcare Professionals in the US

Immediately after Congress passed the health care reform bill, the Patient Protection and Affordable Care Act (PPACA), Virginia enacted its own countermeasure, called the Virginia Health  Care Freedom Act; and its Republican Attorney General then brought suit to enjoin the Federal government's performance of section 1501 of the PPACA, which requires individuals to pay a "penalty" along with their taxes if they do not purchase health insurance.  Virginia claims that this provision is beyond the power of the Federal government to enforce and also contradicts Virginia's own newly enacted law. 

The Secretary of Health and Human Services moved to dismiss this complaint for a variety of reasons, many extremely technical and not notable from the general health reform perspective.  What is important here is that Congress based its law on extensive findings concerning the effect on interstate commerce of the manner in which individuals obtain health care.  The Commerce Clause of the Federal Constitution has served, certainly since the New Deal, as the linchpin for economic regulation and control over much of the country's overall activities.  Probably best known of the many cases which have upheld expansive Federal legislation under the Commerce Clause are the cases Wickard v. Filburn (1942), which upheld a fine on a farmer who raised food to feed his own geese,  finding this a violation of market controls during World War II, and Gonzales v. Raich (2005) which upheld  a  Federal prohibition against the growth of marijuana for the grower's home use despite  the express authorization  of that conduct by the  grower's home state.   In the Virginia case, the Federal government argued that everyone must at some point in their life receive health care, and that therefore the regulation of health care economics -- by requiring the purchase of health insurance and assessing a "penalty" on those who fail to do so -- lies well within its powers under the Commerce Clause as interpreted by Wickard, Raich and many other cases.

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We are pleased to include here the comments of colleague, Paul Quinn, a Partner in Nossaman's Washington DC office.

Two new final governmental rules implementing the “HITECH Act,” an aspect of the “Obama Stimulus Bill,” now provide financial incentives through Medicare and Medicaid for qualified hospitals and individual healthcare professionals who can demonstrate “meaningful use” of Electronic Health Records (EHR).

One rule, issued by the Centers for Medicare and Medicaid Services (CMS), defines the minimum requirements providers must meet in order to qualify for the payments and the other rule, issued by the Office of the National Coordinator for Health Information Technology (ONC), identifies the standards and certification criteria for the certification of EHR technology.

The amount of financial incentives for hospitals from Medicare and Medicaid is not specifically limited and may run into the millions of dollars. The amount for professionals is limited to $44,000 for Medicare and $63,750 for Medicaid.

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