(Other) Affordable Care Act Litigation. Litigation clusters

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1 (Other) Affordable Care Act Litigation Elisabeth Smith Northwest Health Law Advocates November 7, 2014 Litigation clusters 1) Tax credits & the federal marketplace 2) Individual Mandate & Employer Mandate 3) Origination Clause 4) Independent Payment Advisory Board 5) Enforcement suits Elisabeth Smith, Staff Attorney, Northwest Health Law Advocates 1

2 TAX CREDITS & THE FEDERAL MARKETPLACE Tax Credit Cases Halbig v. Burwell (DC circuit) En banc review, oral arguments: December 17th King v. Burwell (4th circuit) SCOTUS conference: November 7, 2014 Indiana v. IRS (S.D. Indiana) Oral arguments: October 9, 2014 Pruitt v. Burwell (E.D. Oklahoma) Expected appeal to 10th circuit Elisabeth Smith, Staff Attorney, Northwest Health Law Advocates 2

3 Issues Claim: The text of the ACA makes tax credits available only in state-run exchanges and the IRS exceeded its authority. Possible Effects: People in FFM states would not qualify for tax credits. More people could claim an exemption from the individual mandate based on premiums exceeding 8% of their income. 26 U.S.C. 36B(c)(2)(A)(i), interpreted by IRS regulation 26 C.F.R. 1.36B-2(a)(1) 42 U.S.C (d) Chevron Deference Step 1: Did Congress directly speak to precise question at issue? Step 2: Is agency s answer based on permissible construction? Yes: none No: King, Pruitt, Halbig(vacated) Yes: King No: Pruitt, Halbig (vacated) Elisabeth Smith, Staff Attorney, Northwest Health Law Advocates 3

4 INDIVIDUAL & EMPLOYER MANDATES Individual Mandate Coons v. Lew (9th circuit): Claim: medical autonomy & informational privacy Mandate upheld American Freedom Law Center v. Obama (DC District Court) Claim: exempting some people from mandate violates separation of powers and APA Motion Hearing: November 5, 2014 Elisabeth Smith, Staff Attorney, Northwest Health Law Advocates 4

5 Employer Mandate Hotze v. Burwell (5th circuit) Claim: mandate violates "takings clause" by forcing a private business owner to pay other businesses (insurance companies) without just compensation Oral arguments: December 2, 2014 U.S. CONST. amend. V. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Article 1, Section 7, Clause 1 ORIGINATION CLAUSE Elisabeth Smith, Staff Attorney, Northwest Health Law Advocates 5

6 Sissel v. HHS (DC Circuit) Claim: ACA is illegal because it did not begin as a revenue bill in the House (also argued by Hotze) Opinion: The purposive approach embodied in Supreme Court precedent necessarily leads to the conclusion that Section 5000A of the Affordable Care Act is not a Bill for raising Revenue. Purpose of bill critical to inquiry Inquiry does not hinge on the existence (or absence) of another source of constitutional authority. Sissel petitioned for en banc review on October 6th Administration responded on October 17, 2014 If triggered by an actuarial finding about medical costs, IPAB will have the discretion to recommend reduced reimbursement rates to providers. INDEPENDENT PAYMENT ADVISORY BOARD Elisabeth Smith, Staff Attorney, Northwest Health Law Advocates 6

7 Coons v. Lew (9th Circuit) Plaintiff: physician IPAB Claim: financial harm as a result of IPAB s recommendations about provider rates 9th Circuit: dismissed, holding claims were not ripe for review IPAB discretion to recommend reduced reimbursement: 42 U.S.C. 1395kkk(c)(2)(A)(iv) Cannot recommend reduction until January 1, 2019: 42 USC 1395kkk(c)(2)(A)(iii) ACA ENFORCEMENT Elisabeth Smith, Staff Attorney, Northwest Health Law Advocates 7

8 St. Louis Effort for AIDS v. Huff (WD, Missouri) Challenge to Missouri s Health Insurance Marketplace Innovation Act of 2013 Act prohibited dissemination of health insurance information Claims: preemption, Supremacy Clause, First Amendment& Due Process Court awarded preliminary injunction as applied to navigators, certified assistance counselors & Counselor Designated Organizations Missouri Insurance Commissioner appealed the case to the 8th circuit on March 6, 2014 OCR Complaint National Health Law Program & the AIDS Institute Claim: four Florida insurers are imposing overly restrictive medical management criteriato commonly used HIV/AIDS medications and placing all HIV/AIDS medications in the highest cost-sharing tiers. 1557, codified at 42 U.S.C Still under review Florida Office of Insurance Regulation also investigating whether the plans were unfairly discriminatory. Elisabeth Smith, Staff Attorney, Northwest Health Law Advocates 8

9 Medicaid Backlog Wilson v. Gordon (M.D. Tennessee) Claim: Tennessee has unreasonably delayed TennCare adjudications & failed to provide fair hearings on the delayed adjudications Eligibility determinations timeline: 42 C.F.R (c)(3) Fair Hearing: 42 U.S.C. 1396a(a)(3), (8) Preliminary injunction granted: must provide fair hearings within 45/90 days & delayed adjudication is defined as taking longer than 45 or 90 days Class certification: Everyone who applied for TennCare on or after October 1, 2013, who has not received a final eligibility determination or been given a fair hearing Rivera v. Douglas (Superior Court of California, Alameda County) 350,000 applicants awaiting determinations Request for preliminary injunction to benefit those waiting more than 45 days: Conditional Medi-Cal eligibility &benefits Individual notice about fair hearings Federal & state law claims Contact Information Elisabeth Standley Smith Staff Attorney Northwest Health Law Advocates th Ave NE #305 Seattle, Washington T:(206) E: elisabeth@nohla.org Elisabeth Smith, Staff Attorney, Northwest Health Law Advocates 9