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BY KEN ORTOLON The U.S. Supreme Court’s decision to up- hold the constitutionality of the Patient Protection and Afford- able Care Act (PPACA) means that unless a future Republican- controlled Congress musters the votes to repeal it, PPACA will remain the law of the land. But certain parts of the health reform law may not become the law of Texas any time soon. In July, Gov. Rick Perry followed the lead of Republican governors in Florida, Louisiana, Wisconsin, and elsewhere by announcing that Texas would not implement two key PPACA provisions — creating an online state health insurance ex- change where people can shop for health coverage and com- pare prices and benefits of competing health plans, and ex- panding Medicaid to cover adults earning up to 133 percent of the federal poverty level. “I stand proudly with the growing chorus of governors who

reject the PPACA power grab,” Governor Perry wrote in a July 9 letter to Health and Human Services Secretary Kathleen Se- belius. “Thank God and our nation’s founders that we have the right to do so. Neither a ‘state’ exchange nor the expansion of Medicaid under the Orwellian-named PPACA would result in better ‘patient protection’ or in more ‘affordable care.’ What they would do is make Texas a mere appendage of the federal government when it comes to health care.” PPACA supporters immediately criticized Governor Perry’s decision to forego the Medicaid expansion as “squandering an opportunity” to pump tens of billions of federal dollars into the Texas economy. The Austin-based Center for Public Policy Priorities (CPPP) says not expanding Medicaid could leave up to 2 million Texans without the health care coverage promised under the law.

But opponents of the law hailed the decision, calling PPACA

a “bureaucratic scheme from Washington” that will not provide quality health care assistance for low-income Texans. “Texas needs true health care reform, not thousands of pag-

es of directives from Washington,” said Peggy Venable, state director for Americans for Prosperity-Texas. Texas Medical Association President Michael E. Speer, MD, said TMA is already developing an alternative approach to present to Governor Perry and the Texas Legislature.

14 TEXAS MEDICINE September 2012

Even if the state expanded Medicaid, TMA officials and others question whether it would have enough physicians to treat those patients. A recent TMA survey showed that only 31 percent of Texas doctors accept new Medicaid patients. (See “State Medicaid, Medicare Crisis Worsens,” page 19.) “Medicaid expansion will give a false sense to some people that they now have insurance,” said Fort Worth pediatrician Gary Floyd, MD, immediate past chair of TMA’s Council on Legislation, noting that many of the new Medicaid patients would continue to rely on hospital emergency departments for their care because they would not be able to find a primary care physician to see them.

THE CONSTITUTIONAL QUESTION The 5-4 Supreme Court decision, written by Chief Justice John Roberts, surprised both opponents of the law and the Obama administration. Court watchers expected the decision to re- volve around whether the Commerce Clause of the U.S. Con- stitution authorizes the law’s individual mandate requiring all Americans to buy health care coverage. The court ruled that the Commerce Clause does not give

Congress the authority to compel Americans to buy health in- surance, but it upheld the individual mandate on grounds that the $695 penalty on those who do not buy coverage is permis- sible under Congress’ taxing authority. Ironically, President Obama and other proponents of the mandate argued during debate on the bill and continue to argue that the penalty is not a tax.

The second surprise was the court’s ruling that a section al- lowing the federal government to withhold current Medicaid funding from any state that failed to expand Medicaid is un- constitutional. That opened the door for states, such as Texas, to opt out of the Medicaid expansion. What’s more, some experts say the ruling also allows states to cut Medicaid for people already enrolled. That’s because the justices let stand a provision of PPACA that says beginning in 2014 states are no longer barred from making it harder for adults to qualify for Medicaid. Texas Attorney General Greg Abbott, one of 26 state at-

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