Implementing Health Reform. Although Affordable Care Act (ACA) litigation seems unending, virtually all of the ACA lawsuits brought by private individuals have now either come to an end or are in their death throes (an important exception being the contraceptive coverage cases, which may well end up before the Supreme Court this term). Several cases filed by public entities, however, still continue before the courts.
The most important of these is undoubtedly House v. Burwell, the case brought by the House of Representatives challenging the legality of funding for the ACA's cost-sharing reduction payments, which will be heard in federal district court this winter. A number of pending cases have also been brought by state governments, including a lawsuit brought by several Ohio governmental entities challenging the imposition on state and local government group health plans of the tax that funds the reinsurance program, and a complaint recently filed by Texas and several other states challenging the imposition of the insurance provider fee on Medicaid managed care plans and thus on the state Medicaid programs that fund them.
On October 30, 2015, Judge Amit Mehta of the federal District Court for the District of Columbia dismissed yet another state government case. West Virginia had sued the Department of Health and Human Services (HHS) claiming that it was injured by the "administrative fix" announced by HHS late in 2013. Under this arrangement, HHS delayed for 2014 enforcement of eight of the ACA's insurance market reform requirements against existing insurance plans in the individual and small group market; this was done to forestall mass cancellations of insurance coverage in those markets and allow a more orderly transition to enforcement of the ACA reforms. In March of 2015, HHS extended the administrative fix to delay enforcement against existing individual and small group plans for policy years beginning on or before October 1, 2016.
While HHS announced it would not enforce the insurance reforms against transitional plans, it left to the states discretion to decide whether or not they would themselves enforce the ACA reforms. West Virginia sued HHS, claiming that HHS's passing off of the decision whether or not to enforce the law to the states was illegal — violating the ACA itself and the Administrative Procedures Act, as well impinging on state sovereignty under the Tenth Amendment and unlawfully delegating federal executive and legislative power to the states. HHS moved to dismiss West Virginia's complaint, contending that the court had no jurisdiction to hear the claim because West Virginia had not been injured by the HHS decision and thus had no standing to pursue a federal lawsuit.
The Constitution only allows the federal courts to hear lawsuits when a complainant has standing — that is, when the complainant has suffered an injury, in fact caused by the defendant's complained-of conduct, that can be redressed by the court. West Virginia claimed that it had been injured by the HHS transition plan policy because the policy made the state "politically accountable" for enforcement of the law when the ACA itself imposed the political accountability for enforcing the law on the federal government. West Virginia claimed that citizens of the state who wished to see the ACA enforced would blame it for non-enforcement when the real blame belonged with the federal government.
Judge Mehta's decision deals with this claim at length, discussing all the relevant precedents and permutations of the state's argument. In the end, however, he concludes that the claimed injury, "is not the kind of sovereign state interest that the Supreme Court has recognized as giving rise to standing if allegedly infringed." The Supreme Court has long held that "a State's general challenge to the lawfulness of federal action, predicated on an abstract injury to the State's sovereignty, is not sufficient to confer standing." West Virginia's claim to injury would lead the court "into the area of speculation and conjecture" beyond the bounds of its jurisdiction.
Moreover, the fact that the ACA itself already gave the states concurrent authority to enforce the ACA reforms together with the federal government means that the transitional policy only made the states only marginally more politically accountable, making any injury even more speculative. Finally, nothing in the transitional policy coerced that states into enforcing federal standards, so cases allowing states standing to challenge federal laws commandeering their authority did not apply.
Judge Mehta's decision joins a long line of cases in which the federal courts have rejected challenges to the ACA because the claims were grounded in an abstract political grievance rather than in a concrete injury. Nevertheless, political opposition to the ACA remains deep seated, and opponents who have so far been unable to overturn the law through political channels continue to hope the judiciary will come to their aid.
from Health Affairs Blog http://ift.tt/1k5HtRv
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