By killing every bit of PPACA, but leaving PPACA's sister, HCERA, in place, the new Texas PPACA ruling could, possibly, eventually...

Slow the Shift Toward Home and Community-Based Care

PPACA Section 2402 told regulators to remove the barriers.


(Photo: Scott Eells/BB)

Kill the Summary of Benefits and Coverage

PPACA Section 2715 told regulators to develop a standard form that could serve as "milk carton label" for health coverage.

Kill the 'Metal Levels'

The "bronze-silver-gold-platinum" coverage classification system was created by PPACA Section 1302 and has spread to other types of insurance products.

Keep the 'Cadillac Plan' Excise Tax Alive

Congress has never let this tax take effect, but, if PPACA dies, the tax could stay in an undead state. The tax is in HCERA Section 1401, not in PPACA.


(Image: Dorling Kindersley/Thinkstock)

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Keep the Health Insurer Tax in Place

PPACA drafters put this multi-billion-dollar tax in HCERA Section 1406 to tap the windfall profits health insurers were supposed to get from PPACA. In some years, Congress has let this tax take effect.

(Related: Texas Judge Throws Out Most of ACA)

The big federal health law ruling in Texas has put a new spotlight on an old problem: Policymakers are attacking and defending the law without defining their terms clearly.

U.S. Circuit Judge Reed O’Connor, a judge in the U.S. District Court for the Northern District of Texas, issued a ruling Friday that declared all of the Patient Protection and Affordable Care Act of 2010 (PPACA) — Public Law 111-1428 — invalid.

O’Connor ruled that the entire law is invalid because the PPACA individual mandate provision, or requirement that many people have a minimum amount of health coverage or else pay a penalty, is unconstitutional, now that Congress has passed a new law setting the penalty at zero.

(Related: ACA Debaters Should Define Their Terms)

If the penalty were greater than zero, the provision would have been a tax protected by the U.S. Constitution and federal law, but, because the penalty is now zero, the requirement is now simply an illegal requirement for consumers to buy a commercial product, not a tax, the judge ruled.

The judge also ruled that, because PPACA has no “severance clause,” or provision letting the rest of the law survive if one part is struck down, the death of the individual mandate provision should kill all of PPACA.

PPACA includes many provisions that have no direct connection with the individual mandate or with the individual major medical insurance market.

PPACA is just one part of the two-law Affordable Care Act statutory package.

Congress put some important health insurance provisions in a related but separate law, the Health Care and Education Reconciliation Act of 2010 (HCERA) — Public Law 111-152.

O’Connor acknowledged in his ruling that PPACA has “hundreds of minor provisions” unrelated to the individual mandate, but he did not offer any ideas in his opinion for ways to keep them out of his ruling; he argued that Congress would have to do that.

Lawyers for Texas and the other states that brought the suit mentioned HCERA in an amended version of their complaint, but they did not mention HCERA in the original version of their complaint.

O’Connor does not mention HCERA in his ruling. It’s not clear whether his ruling applies to HCERA.

In the past, Rep. Steve King, R-Iowa, and Rep. Bill Flores, R-Texas, have introduced bills that could have repealed all of PPACA and all of the health care provisions of HCERA.

Most other ACA opponents in Congress have either proposed repeals solely of the PPACA and HCERA sections directly related to major medical insurance or have talked generally about wanting to “repeal Obamacare” and have avoided defining what they mean when they use the term “Obamacare.”

Officials at the U.S. Department of Health and Human Services have said that they now expect the O’Connor ruling to go through a lengthy appeals process.

If the O’Connor ruling stands, and takes effect as written, it raises the possibility that some federal laws and programs may die, or survive, partly because federal and state policymakers have been vague about what they think the term “Obamacare” means.

For a look at five possible effects of that vagueness, see the idea cards in the slideshow above.

Resources

Josh Blackman, a law professor, has posted a public copy of the opinion here.

Links to the full text of PPACA and the full text of HCERA are available on the HealthCare.gov website, here.

— Read PPACA: A Historyon ThinkAdvisor.

— Connect with ThinkAdvisor Life/Health on LinkedIn and Twitter.