Implementing Health Reform. On January 5, 2016, another Affordable Care Act (ACA) lawsuit bit the dust when Judge Algenon Marbley of the federal district court for the Southern District of Ohio dismissed Ohio v. United States. The State of Ohio, four of its state universities, Warren County, and the Ohio Turnpike Authority had sued claiming that the fee imposed on insurers and group health plans under the ACA’s Transitional Reinsurance Program did not apply to them, and that indeed, Congress lacked the constitutional authority to impose the fee on them.
Congress created the Transitional Reinsurance Program to help cushion the move in 2014 from a risk-underwritten individual health insurance market to one in which insurers could not discriminate against high-risk individuals. Congress understood that the market would likely attract a riskier-than-average group of enrollees initially and that premiums would likely be volatile as insures adjusted. For 2014, 2015, and 2016, therefore, the program collects assessments from insurers and group health plans and distributes this money to insurers in the individual market to reinsure cases with exceptionally high claims.
Ohio and the other plaintiffs were assessed contributions for their group health plans. They paid, but sued for a refund of the money. They claimed that state employee health plans are not “group health plans” within the meaning of the ACA and that in any event Congress lacked authority under the Constitution to impose the fee on state entities.
Judge Marbley’s opinion is a masterpiece in legal analysis. A dense 71 pages in length, the opinion scrutinizes carefully and rejects in turn each of the plaintiffs’ statutory construction arguments. The court holds that under the ACA, the Public Health Services Act (PHSA) definitions that it incorporates, and the Employee Retirement Income Security Act (ERISA) provisions that the ACA and the PHSA in turn rely on, state employee plans are clearly group health plans subject to the reinsurance fee.
Analyzing in depth a plethora of Supreme Court and lower court decisions, on the authority of Congress to impose fees on state government, the judge further concludes that:
. . . the Transitional Reinsurance Program is constitutional under both the Tenth Amendment and the Intergovernmental Tax Immunity Doctrine because the program regulates state and local governments in their capacity as employers, does not commandeer the legislative or executive apparatuses of state or local governments, and does not discriminate against state or local governments in the contributions imposed.
The opinion begins by recounting the history of the many lawsuits that Ohio and others have brought, largely unsuccessfully, challenging the ACA and its implementation. The judge concludes his statutory construction analysis by stating:
The State of Ohio’s statutory arguments do not pose the first challenge to the Affordable Care Act, nor is this Court under any illusion that this case represents the last attempt to strike down the law, in whole or in part, on the basis of an alleged statutory infirmity. As in previous Affordable Care Act cases, however, this Court’s role is not to “consider whether the Act embodies sound policies.” “That judgment,” the Supreme Court wisely explained, “is entrusted to the Nation’s elected leaders.” Instead, this Court’s role remains confined to determining whether Congress intended and plainly understood the term “group health plan,” . . . to encompass qualifying state and local government health care plans. As explained above, the Court finds that Congress did so intend, and for good reason. Interpreting the Transitional Reinsurance Program to exclude payments from public-sector employers who offer qualifying group health plans would deprive the program of significant revenue necessary to ward off “the very ‘death spirals’ that Congress designed the Act to avoid.” . . . As in King, the Court opts not to construe the Affordable Care Act at odds with its own stated purpose.
Of course, just as Congress enacted the ACA, Congress can amend or repeal it. The House of Representatives late on January 6, 2016 voted 240 to 181 in favor of a bill that would do precisely that. This bill is certain to be vetoed, but a future president may sign such legislation.
CMS Releases Snapshot For Week Nine Of Open Enrollment
On January 6, 2016, the Centers for Medicare and Medicaid Services (CMS) released its enrollment snapshot for the week of December 27, 2015 to January 2, 2016. During this week an additional 83,297 consumers selected health plans for 2016, bringing the total of plan selections in the federally facilitated marketplace to 8.6 million. This number will continue to grow during the remainder of the 2016 open enrollment period, which lasts until January 31, 2016. State-based marketplace numbers are still not available.
from Health Affairs Blog http://ift.tt/1MVKWIi
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