Monday, January 31, 2011

Now We Have Real Uncertaintly--The Entire Health Law Ruled Unconstitutional!

We all knew the question of the constitutionality over the new health care law was going to be taken up by the Supreme Court.

We knew that because the law inexplicably lacked a severability clause a judge could throw the whole thing out if the individual mandate were to be found unconstitutional and critical to the legislation.

And, we expected this Florida judge would likely rule against the law in some way.

Up to today, we knew that one federal judge had ruled that only the individual mandate was unconstitutional while two other federal judges had upheld the law.

But, I will suggest that the market's uncertainty about implementing the Affordability Act just went up exponentially with a second federal judge ruling against it. And, there is nothing like the whole thing being thrown out in a suit 26 states have brought.

It will likely be 18 months before we get a final Supreme Court ruling--not to mention a number of Appeals Court Rulings in the meantime. Will they uphold the entire law, throw it all out, or just the individual mandate? Four federal judges have put at least those choices on the table.

If you are a provider, do you now spend millions of dollars developing an Accountable Care Organization? Do you build that new building or make a big technology purchase? If you run an insurance company do you make a big strategic bet on exchanges or now marginal markets?

We really don't know any more this afternoon then we knew this morning.

But the uncertainty index just took a huge jump!


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