The item you have requested is not currently available in English and you have been redirected to the next available page. You may use your browser's back button to return to the item you were viewing.
Country desks feature Dentons lawyers in one jurisdiction with a particular focus or experience in another jurisdiction.
Learn more about our Canada capabilities
Learn more about our United States capabilities
Learn more about our Latin America and the Caribbean capabilities
Learn more about our Europe capabilities
Learn more about our United Kingdom capabilities
Learn more about our Central and Eastern Europe capabilities
Learn more about our Russia, CIS and the Caucasus capabilities
Learn more about our Africa capabilities
Learn more about our Middle East capabilities
Learn more about our Central Asia capabilities
Learn more about our China capabilities
Learn more about our Asia Pacific capabilities
Learn more about our Australia capabilities
At Dentons, we bring together top tier talent found at the intersection of geography, industry knowledge and substantive legal expertise. Start by clicking here
Twenty nine Dentons lawyers recognized by IAM Patent 1000
Global law firm Dentons received 29 individual lawyer recommendations and eight firm recommendations in the 2018 edition of Intellectual Asset Management’s IAM Patent 1000 - The World’s Leading Patent Professionals.
Immigration rules after Brexit could disrupt labour supply in the UK construction industry severely. What are you doing to minimise this risk?
Many European Economic Area (EEA) workers work for or as sub-contractors on projects across the UK.
New Jersey State Senate advances insurance bad faith bill
A bill making its way through the New Jersey legislature, which creates a new statutory cause of action against insurance companies, could have a substantial impact on insurers operating in the state.
The enforceability of "no oral modification" clauses
Contracts frequently provide that they may not be amended, unless in writing and signed by both parties.
Second Circuit reaffirms New York's contestability period for life insurance policies
United States Court of Appeals for the Second Circuit issued a unanimous opinion that declined to recognize a fraud exception to New York's two-year contestability period for life insurance policies.
Starting your career as a student at Dentons exposes you to a world of experience and opportunities
With 125+ locations in 50+ countries, Dentons is home to top-tier talent that is found at the intersection of geography, industry knowledge and substantive legal experience. Working with Dentons, you will have the opportunity to learn from the best lawyers in the industry at the largest law firm in the world.
Dentons wins eight awards at the Europe Women in Business Law Awards 2018
Global law firm Dentons was honored with eight awards at the eighth annual Europe Women in Business Law Awards.
Significant development for persons with disabilities in Alberta with government’s amended AISH legislation
Alberta government passed new legislation to allow for trusts to be set up to provide for individuals with disabilities without negatively affecting their eligibility for the Assured Income for the Severely Handicapped (AISH) program.
Dentons establishes a new “Eurozone Hub” in Frankfurt to advise on European banking and financial market regulation
Global law firm Dentons has set up a new Eurozone Hub in Frankfurt to advise banks, investment firms, funds, insurers, FinTechs and other financial services firms on financial regulation and monetary policy in the Eurozone.
This morning, the United States Supreme Court (the "Court")
issued its long-awaited decision regarding the constitutionality of
President Obama's health care reform law, the Affordable Care
In today's ruling regarding Obama's signature domestic policy
achievement, authored by Chief Justice John Roberts in a 5-4
decision, the Court declared that the majority of the law was
constitutional, a major victory for President Obama and
congressional Democrats and a ruling that ensures continued
implementation of the law.
Interestingly, the Court did not rule that the individual
mandate was constitutional under the Commerce Clause of the
Constitution, but under the taxing authority vested by the
Constitution to Congress. A different 7-2 majority of the Court did
find that the Medicaid expansion as written would have been
unconstitutionally coercive, but the Court remedied that problem by
removing the ability of the federal government to take away
existing Medicaid funding if states do not expand their programs in
accordance with the Affordable Care Act's requirements. The
decision thus could impact the ability of nearly 16 million
individuals expected to receive health insurance coverage under the
Medicaid program if individual States choose not to expand their
Medicaid programs. These individuals might be able to obtain
coverage through the health insurance exchanges.
The Court's decision will have far-reaching impacts on the US
health care system, employers, businesses, and consumers, and the
upcoming November 6 elections.
The Court ruled on the following issues:
On March 23, 2010, President Obama signed into law the Patient
Protection and Affordable Care Act (Pub. L. No. 111-148). One week
later, the Health Care and Education Reconciliation Act of 2010
(Pub. L. No. 111-152) was enacted. Together, these two laws
comprise the Affordable Care Act. Twenty six states brought suit
against the Department of Health and Human Services ("HHS")
challenging the constitutionality of the law, among dozens of other
lawsuits that were filed across the country. Over three days this
March, the Court heard an unprecedented six and a half hours of
oral argument to determine the constitutionality of the law. The
following reviews the key issues debated before the Court and their
The Anti-Injunction Act prevents a taxpayer from challenging a
tax in court before the taxpayer has been assessed the tax. The
individual mandate becomes effective in 2014 and penalty payments
will not be collected by the Internal Revenue Service until 2015.
Both the Obama Administration and the states agreed that the
Anti-Injunction Act does not preclude the Court's consideration of
the case, however, the Court appointed counsel to argue for the
application of the Anti-Injunction Act. The Court-appointed counsel
argued that the Court does not have jurisdiction because the
individual mandate penalty operates as a tax (i.e., it is assessed
and collected in the same manner as an assessable penalty under the
Internal Revenue Code). Thus, because the penalty essentially is a
tax, court-appointed counsel argued that the challenge to its
constitutionality is not ripe and the Court does not have
jurisdiction to hear the case.
Court's conclusion: The Court construed the Anti-Injunction
Act ("AIA") narrowly, holding that the statutory construction of
the penalty imposed on those who do not have insurance did not
render it a "tax" for purposes of the AIA. Nevertheless, as noted
below, the Court also held that the nature of the penalty and its
imposition were both constitutional and within Congress's power
under its taxing authority.
The Affordable Care Act requires most US citizens to obtain
acceptable health insurance coverage (i.e., "minimum essential
coverage"), effective January 1, 2014. The individual mandate will
be enforced by imposing annual penalties on individuals who fail to
demonstrate that they have obtained and maintained minimum
essential coverage throughout a given year. While the states
contended that the individual mandate exceeds Congress's power to
regulate interstate commerce, the Administration argued that the
guaranteed issue and community rating insurance reforms require the
individual mandate to be effective in operation. Thus, the mandate
is a necessary and proper use of the Constitution's Commerce Clause
and plays a critical role in a comprehensive regulatory scheme
enacted by Congress.
Court's conclusion: The penalty for failure to obtain health
insurance is a constitutional use of Congress's taxing
The Affordable Care Act does not contain a severability clause.
The Court was tasked with determining whether certain parts of the
law are not severable from the individual mandate (and thus must
fall with the mandate), or whether the individual mandate is
severable from all other provisions of the Affordable Care Act. The
Administration argued that the guaranteed issue and community
rating insurance reforms should be eliminated if the individual
mandate is declared unconstitutional, believing that these two
reforms, absent a mandate to purchase insurance, would lead to
substantial health insurance cost increases and reduced coverage
(commonly known as the "death spiral" of rising premiums). The
states argued that the entire Affordable Care Act should be
declared invalid if the individual mandate is deemed
unconstitutional, claiming that Congress would not have passed the
law without the individual mandate. The Court appointed counsel to
argue that the individual mandate alone is severable from the rest
of the law. Under this argument, severability is presumed unless it
is evident that Congress would not have enacted the law
independently of the invalidated component.
Court's conclusion: Because the Court upheld the individual
mandate, it was not required to, and did not rule on, the issue of
Under the Affordable Care Act, beginning January 1, 2014, states
must provide Medicaid coverage to individuals and families below
138% of the federal poverty level. The federal government will
cover 100% of the added cost in 2014, 2015, and 2016. States will
be required to cover 5% of the cost in 2017, transitioning to 10%
in 2020 and beyond. The states argued that the mandatory Medicaid
expansion is unconstitutionally coercive. If states do not agree to
expand Medicaid coverage under the Affordable Care Act's
requirements, they would lose all federal matching payments under
the program, resulting in billions of dollars of lost funds and
making it financially untenable for states to operate a Medicaid
program. Thus, the only legitimate "option" for states is to agree
to the expansion and the federal funds that flow with it. The
Administration countered that the Affordable Care Act requires the
federal government to finance the vast majority of the added costs
of the Medicaid expansion and legal precedent has consistently held
that Congress's spending power includes the power to fix the terms
on which funds will be disbursed to the states.
Court's conclusion: While the expansion of Medicaid is
unconstitutionally coercive, the Court resolved that issue by
eliminating the federal government's ability to withhold existing
Medicaid funds for states that choose not to comply with the
Affordable Care Act's Medicaid expansion.
Health Care Sector
Insurance companies. The individual mandate was a
compromise to the insurance reforms that require companies to offer
coverage to all applicants regardless of health status, age, and
without lifetime or annual limits on medical benefits (among other
reforms). Insurance companies argued that without the mandate,
people would wait to get insurance once they needed it, taking
younger and healthier people out of the insurance pool and
substantially raising premiums. Because the mandate was held
constitutional, insurance companies stand to gain younger and
Medicare providers. In general, most providers who
treat Medicare beneficiaries received provider reimbursement cuts
to help pay the Affordable Care Act's coverage expansions. The law
also contains numerous delivery system reforms and pilot programs
designed to increase the quality, and reduce the cost of, care. The
Medicare provisions of the Affordable Care Act remain in place,
including the continued implementation of the Medicare Shared
Savings Program and Pioneer Accountable Care Organizations.
Hospitals. The hospital trade associations agreed to
annual Medicare reimbursement cuts and reduced Medicare and
Medicaid DSH payments in exchange for an expected influx of
newly-insured patients and reduced uncompensated care. While
hospitals will gain newly-insured through private insurance, the
number of estimated Medicaid beneficiaries may be lower in
Pharmaceutical manufacturers. The prescription drug
industry agreed to various reimbursement and monetary changes under
Medicare and Medicaid, similar to the hospital industry, with the
belief that the 32 million newly-insured individuals would equate
to greater volume to offset any loss associated with these changes.
These provisions include increased Medicaid drug rebates, expansion
of the 340B drug discount program, and the Medicare Part D
"Coverage Gap Discount Program," which eventually will fill in the
Part D doughnut hole. If fewer Americans are insured due to the
Medicaid expansion than previous estimates, pharmaceutical
manufacturers will lose more customers, yet pay fewer Medicaid
Medicare Advantage organizations. Medicare Advantage
plans received substantial cuts, most of which have not been fully
implemented. To date, the cuts that have been realized have not
resulted in fewer Medicare Advantage enrollees and a controversial
quality bonus program has offset a non-inconsequential percentage
of these cuts. Medicare Advantage plans will continue to see
implementation of the Affordable Care Act.
Medicare Part D plans. The Medicare prescription drug
benefit (Part D) did not see substantial negative changes under the
Affordable Care Act. The closing of the doughnut hole and offering
50% discounts on brand name drugs under the Coverage Gap Discount
Program comes at the expense of the pharmaceutical industry.
Medicare Part D plans will continue to see implementation of the
Affordable Care Act.
Medicaid program and Medicaid managed care plans. The
Medicaid expansion under the Affordable Care Act is estimated to be
responsible for half of the newly-insured once the law is fully
implemented. As states increasingly rely on managed care to help
control the costs of their Medicaid programs, these organizations
stand to gain millions of new customers. Because the Court
invalidated the penalty for states that do not comply with the
Medicaid expansion, it is unclear whether certain states
(especially the ones objecting to the Affordable Care Act) will
expand their Medicaid programs, despite the fact that these
expansions are largely funded with federal dollars. A reduced
Medicaid expansion would result in fewer enrollees for Medicaid
managed care plans.
Medical device manufacturers. The Affordable Care Act
imposes a 2.3% excise tax on manufacturers and importers of medical
devices. This provision was designed to raise revenue to help pay
for the coverage expansions under the law. This excise tax will go
into effect in 2013, unless Congress intervenes with
The Affordable Care Act contains many new taxes on health care
industry sectors and wealthier taxpayers. As with the provider cuts
and other non-health related provisions in the law, these new taxes
are designed to increase revenue to pay for the increased costs of
providing health insurance to 32 million people (namely, the
Medicaid expansion, premium tax credits, and cost-sharing
reductions). These taxes, including the Court's determination that
the individual mandate's penalty is a tax, will go into effect as
originally scheduled absent congressional action.
The Affordable Care Act creates health insurance exchanges to
operate in each state beginning in 2014. Within each health
insurance exchange, is a small business health options (SHOP)
exchange, tailored to provide coverage to small businesses. The
Affordable Care Act also contains a tax credit for certain small
businesses to offset the cost of providing coverage. Small business
employees will be required to obtain coverage even though their
employers are not required to offer coverage. These provisions
remain in effect.
Employers with greater than 50 employees will be required to
provide acceptable health insurance to their employees beginning in
2014 (and their employees will be required to accept it). Employers
also will be required to report on numerous elements of the health
coverage offered to employees. These provisions remain in
Many of the health insurance reforms are geared toward making
health insurance accessible to any prospective consumer. Subsidies,
the exchanges, the Medicaid expansion, and delivery system and
insurance reforms, among other provisions of the law, are designed
to make health insurance coverage affordable for consumers. While
the mandate, subsidies, and delivery system and insurance reforms
remain constitutional, the penalty mechanism for states that do not
expand their Medicaid programs was removed. Thus, while the
Medicaid expansion remains in effect, the federal government may
not penalize states by withholding funding for a state's entire
Medicaid program. It is unclear what impact this will have on
states (i.e., whether they will refuse to expand Medicaid), and the
subsequent impact on such a state's consumers.
The Affordable Care Act was one of the key political issues
impacting the 2010 mid-term elections and a large factor assisting
the Republican takeover of the House of Representatives. The
Court's decision and the continued politicization of the Affordable
Care Act ensures that health reform will continue to play a role in
the November 6 elections. The congressional response to the Court's
decision, and whether President Obama remains in office or the
Romney Administration comes to power in 2013 will shape the future
of health care reform. Because of the Court's holding, both sides
of the aisle and stakeholder groups of every stripe will step up
their efforts to translate the Court's decision into an electoral
victory. The outcome of this strategy is a complete unknown as most
political observers expect the economy to primarily dictate who
wins and who loses the elections.
For more information, please contact one of the key contacts
listed to the right or your regular SNR Denton
The Supreme Court's decision on the constitutionality of the
Affordable Care Act will impact the entire health care sector,
small and large businesses, and individuals, and is likely to have
far-reaching effects on the political makeup of Congress and the
Please join us for a webinar on July
2 featuring firm lawyers and professionals, who will provide an
overview of this landmark decision and an examination of the
The URL of this tweet is below. Copy it to easily share with friends.
Add this Tweet to your website by copying the code below. Learn more