This Week – November 18, 2011

This Week in Washington DC:

  1. U.S. Supreme Court to Rule on Health Reform Law
  2. Congress Passes Bill to Avoid Medicare Payment Withholding

Supreme Court Agrees to Rule on Health Reform Law
On Monday November 14th, the U.S. Supreme Court announced it would decide on whether sections of the health reform law, the Patient Protection and Affordable Care Act passed in March 2010, pass constitutional muster. The court will hear oral arguments in March 2012 and is expected to make a final ruling in June 2012. The central issue is whether the federal government can use its power under the Commerce Clause to require individuals to purchase health insurance or face a penalty. The court will hear argument on whether the law’s expansion of Medicaid, and the requirement that states help pay for this expansion, is also constitutional. Since the law did not include a severability clause allowing other parts of the law to remain intact should any provision be found unconstitutional, the court must decide whether the entire law must also be struck down. 

As background, the Supreme Court has previously held that Congress has the power to regulate interstate commerce as well as local activities having a substantial impact on interstate commerce under the Commerce Clause of U.S. Constitution. Also, the Anti-Injunction Act of 1867 bars consideration of tax suits until the tax is actually levied. Since the penalty for not purchasing health insurance would not be collected until after 2014, the court will also hear arguments on whether it is premature to consider the challenge at this time. This was the holding of the 4th Circuit Court of Appeals in Virginia. Two other federal appellate courts (D.C. and 6th Circuit in OH) have upheld the constitutionality of the individual mandate under the Commerce Clause. The Supreme Court agreed to hear the case out of Florida, with 25 other states joining this lawsuit. The 11th Circuit Appellate Court in Atlanta ruled in August 2011 that the individual mandate was unconstitutional but the rest of the law should remain intact (including the Medicaid expansion). It is expected that the Supreme Court will uphold the law even if the individual mandate and Medicaid expansion are both found unconstitutional. However, other legal experts remain unsure on how the Supreme Court will rule.

ACG will continue to update membership as parties prepare for oral argument and will further review the issues to understand the full impact to clinical gastroenterology, including other provisions in the health care law impacting provider reimbursement.

Congress Passes Repeal of Withholding Tax That Included Medicare Providers
On Wednesday, November 16th Congress passed the “Government Contractor Witholding Repeal Act of 2011,” legislation that repeals a law that called for a 3 percent “withholding tax” for certain goods and services, including Medicare payments. This law was originally passed in 2006 but delayed many times. In an effort to increase tax compliance, the statute required all payments to anyone providing goods and services to federal, state, and local governments to include a 3 percent withholding until the following tax year. President Obama is expected to sign the bill into law.

ACG applauds Congress for correcting this unnecessary withholding of Medicare payments to providers, especially at a time when providers face a 27 percent reduction in Medicare payments beginning 2012 and while additional cuts loom as part of any deficit reduction panel agreement.

ACG will also continue to update membership on Medicare reimbursement and deficit reduction negotiations currently before Congress.

Please stay tuned for further updates. Please also share and discuss your thoughts with fellow ACG members on the ACG GI Circle. To login and share your comments, go to and sign in as a member. Once you have done so, click here and then click the orange "Visit ACG GI Circle" button to be taken to the GI Circle site. If you have not yet activated your ACG GI Circle account, please email us at

Contact Brad Conway, VP Public Policy, with any questions or for more information.

Brad Conway