On September 21, 2015, the federal government asked Judge Rosemary Collyer of the D.C. federal district court to allow the government to immediately appeal her order of September 9, 2015 refusing to dismiss the House’s complaint in House v. Burwell.
Judge Collyer held the House’s allegations that it had been injured by the administration’s expenditures for cost-sharing reduction payments under the Affordable Care Act (ACA) to be sufficient to present a case or controversy as required by the Constitution; the judge also ruled that the House had alleged a legal basis for its claims. In the ordinary course of litigation, the district court would proceed to the merits of the case.
However, federal statute 26 U.S.C. § 1292(b) provides that:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
Judge Collyer admitted in her opinion that there was no controlling precedent on the question of standing, and the government argues in its motion that there are substantial grounds for difference of opinion both as to whether the House has suffered sufficient injury to allow it to bring its lawsuit and whether there is any legal basis for its claim. The government also argues that an immediate appeal to the DC Circuit Court of Appeals would materially advance the termination of the litigation because it could end the litigation before the district court becomes embroiled — unnecessarily and improperly in the government’s view — in a dispute between the House and the administration.
The government’s brief identifies a host of disputes between the legislature and executive that the courts could get in the midst of if the district court’s judgment is allowed to stand, such as issues involving appointments or treaties. The government also asks the court to stay all proceedings until the Court of Appeals decides the jurisdictional issues.
If Judge Collyer grants the government’s motion, the government would have to next request permission from the D.C. Court of Appeals to hear its appeal. The House is opposing the government’s motion to defer the briefing of the case.
Federal Judge Dismisses Pruitt v. Burwell
In another case, Judge White of the federal court of the Eastern District of Oklahoma dismissed Pruitt v. Burwell on September 21, 2015. This was one of the longest running of ACA cases, having been filed by Oklahoma Attorney General Scott Pruitt early in 2011 as a challenge to the individual mandate.
When the Supreme Court upheld the individual mandate in 2012 in NFIB v. Sebelius, Pruitt amended his complaint to turn the case into a challenge to the legality of premium tax credits granted by federally facilitated marketplaces. Judge White ruled for Pruitt on this issue in September of 2015. The Supreme Court in King v. Burwell, however, decided this issue in favor of the government. Pruitt finally admitted that he had lost, and Judge White finally dismissed the case.
Burwell Previews Coming Open Enrollment, Highlights New ASPE Data
On September 22, 2015, the Department of Health and Human Services (HHS) Secretary Sylvia Burwell offered remarks on the third ACA open enrollment period at the Howard University School of Medicine. Secretary Burwell noted that the 10.5 million individuals who remain uninsured and are eligible for marketplace coverage are going to be harder to reach than those enrolled in the first two open enrollment periods. Almost half are between the ages of 18 and 34; almost 40 percent have incomes between 139 and 250 percent of the federal poverty level; about one third are people of color. About half of the uninsured have less than $100 in savings and nearly three in five are either confused about how premium tax credits work or do not know they are available.
HHS intends to target for outreach five areas that have high concentrations of the uninsured: Dallas, Houston, northern New Jersey, Chicago, and Miami. It hopes to reach the uninsured with the message that the premium tax credits make health insurance affordable. HHS is also making the marketplaces more transparent and enrollment more streamlined. It will also use call centers and in-person assistance to reach hard-to-reach populations.
The Secretary’s remarks were accompanied by a new new data point from the Assistant Secretary of Planning and Evaluation (ASPE). ASPE estimates that as of the September 2015, 17.6 million uninsured individuals have received coverage under the ACA. This includes 15.3 million adults who have gained coverage since the first open enrollment period began in September of 2013 and 2.3 million young adults who were covered through the expansion of coverage for young adults through their parents’ policies beginning in 2010.
The uninsured rate among Whites aged 18-64 has decreased from 14.3 to 8.3 percent; among African Americans from 22.4 to 12.1 percent, and among Hispanics from 41.8 to 30.3 percent. The uninsured rate has dropped in Medicaid expansion states from 18.2 to 10.1 percent, while in non-expansion states it has dropped from 23.4 to 16.1 percent. The uninsured rate has dropped for men from 21.8 to 14.5 percent, for women from 18.9 to 10.8 percent.
OIG Continues Criticisms Of Federal Marketplace Implementation
Finally, the HHS Office of Inspector General (OIG) continues to issue reports critical of the implementation of the federal marketplace. A report issued September 22, 2015 asserted that the Centers for Medicare and Medicaid Services (CMS) had spent almost $23 million on six contracts on the federal marketplace that were not identified as federal marketplace expenditures. CMS responded that these expenditures were in fact not for the marketplace but for broader implementation efforts, including support for Medicaid systems, existing CMS data systems, and state-based marketplaces.
The OIG observed, “Generally, contractors invoiced and CMS paid Federal marketplace contractors correctly;” however, it took issue with the way in which CMS handled $267,420 in fees that it withheld from one of its contractors, CGI Federal, for work related to correcting defects in CGI’s work. CGI’s costs of about $4 million in correcting defects in its work were paid under its contract, but CMS withheld the 6.75 percent fee (profit) that it normally would pay CGI under its cost-plus contract because of the defects in the work.
The OIG claimed that CMS had not validated properly the charges attributable to correcting defects and had not reached a final determination as to this amount of fees to be withheld. CMS responded that the issue was still being negotiated and finalized with CGI. The OIG observed in general that better contract management up front by CMS might have prevented the need for defect resolution and related charges.
Finally, in another very brief report, the OIG suggested security improvements in CMS’s Multidimensional Insurance Data Analytics System, the central repository for marketplace information. CMS responded that all of the issues raised by the OIG had been addressed by February 2015.
from Health Affairs Blog http://ift.tt/1LxPjhg
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