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Robert Bliss, Director of Communication, Department of Revenue

      The new federal health care law and the previously enacted Massachusetts health care law have come under media review the past few days. Both laws have as a centerpiece an individual mandate requirement to purchase health insurance if it is deemed affordable. But the similarities of the laws' legal underpinnings pretty much end there.

    On Monday, Dec. 13, a federal judge in Virginia ruled that the federal law's requirement that most Americans obtain health insurance exceeded the regulatory authority granted to Congress under the Commerce Clause. (Two other federal judges to date have upheld the law.)

    As the New York Times wrote, "The case centers on whether Congress can use its powers under the Commerce Clause to compel citizens to buy a commercial product — namely health insurance — for the purpose of regulating an interstate economic market." 

The Washington Post wrote that while Virginia argued that people who choose not to carry health insurance are not engaging in any type of commerce, the administration of President Obama argued that health care, and health insurance, are unlike any other form of commerce because everyone will, at some point, need care. As a result, the Justice Department argues that the federal government has a stake in this because the costs of caring for the uninsured will ripple into the insurance market and drive up costs for those who are insured.

    The Massachusetts individual mandate law, passed in 2006 well before the federal law, has survived constitutional review unrelated to the federal Commerce Clause, a legal principle which is not at issue in the state's health law. On March 5 of this year, the Massachusetts Appeals Court affirmed a 2009 Essex County Superior Court judgment of dismissal in favor of the Commissioner of Revenue. The case revolved around the claim of George Fountas that the Massachusetts Health Care Reform Act violated his rights under the United States Constitution and the Massachusetts Declaration of Rights.

    Fountas had filed a personal income tax return for 2007, the first tax year for which the new law was in effect, but had refused to indicate that he had obtained health coverage or that he was otherwise exempt. As a result, DOR assessed a penalty of $219. 

    In its decision, the Superior Court said "The Massachusetts Declaration of Rights provides the Legislature with full power and authority … from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without," a view which the Appeals Court upheld.

     While the challenge to the federal law revolves around interpretations of the Commerce Clause, the defeated challenge to the Massachusetts law revolved around whether the Legislature had the authority to enact such a law.

    Meanwhile, as legal arguments swirl on the federal law, the Massachusetts Division of Health Care Finance and Policy this week released a report noting that 98.1 percent of Massachusetts residents had health insurance coverage, up from the Spring of 2009 when 97.3 percent of state residents were insured. Driving this result was improvement in the rate of coverage of children, with 99.8 percent of children insured compared to 98.1 percent in 2009.

    Those numbers put Massachusetts at the top of the nation in terms of health care coverage. The coming debate in Massachusetts is not likely to concern the legality of the state's individual mandate law, but rather will focus intently on how to reign in the spiraling cost of health care.

        

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