On November 14, 2011, the U.S. Supreme Court agreed to review the Eleventh Circuit Court of Appeals' determination that the individual mandate provision of the 2010 Patient Protection and Affordable Care Act (PPACA) is unconstitutional. See HHS v. Florida, (U.S. Nov. 14, 2011). The Court will consider several questions in addition to the constitutionality of the individual mandate and is unlikely to issue a ruling for several months. In the meantime, employers should continue to take steps necessary to ensure compliance with the Act's requirements.

The Eleventh Circuit's decision, discussed in our August 18, 2011, Legal Alert, Eleventh Circuit Finds Individual Mandate Provision of Health Care Reform Law Unconstitutional, available at http://www.fordharrison.com/shownews.aspx?show=7510, held that Congress exceeded its Commerce Clause power in enacting the individual mandate provision of the PPACA. The individual mandate requires that, beginning in 2014, everyone (with certain limited exceptions) must purchase federally-approved health insurance or pay a monetary penalty. Although the Eleventh Circuit held that the individual mandate provision is unconstitutional, it also found that this provision is severable from the remainder of the Act. Accordingly, the Eleventh Circuit did not strike down the entire PPACA.