The ThomasMoreLawCenterfiled a writ of certiorari requesting the United States Supreme Court to review the individual mandate under health reform, stating that Supreme Court review is ?Ç£necessary to establish a meaningful limitation on congressional power under the Commerce Clause.?Ç¥?á The petition was filed as a result of the Sixth Circuit?ÇÖs 2-1 decision in ThomasMoreLawCenterv. Obama, in which the?á U.S. Court of Appeals for the Sixth Circuit found that the individual mandate was a valid exercise of congressional authority under the?á Commerce?á Clause of the U.S. Constitution.?á In general, the petition argues that individual mandate is unconstitutional based on the fact that prior case law indicates that the Commerce Clause cannot be used to require affirmative action; it can only be used to provide limitations on activities, and the individual mandate does not regulate an activity as it attempts to regulate an individual?ÇÖs decision.?á A copy of the petition is available… Continue Reading
Agencies Release Interim Final Regulations and Additional Guidance on Health Plan Claims and Appeals Requirements under Health Reform
The Departments of Treasury, Labor (the ?Ç£DOL?Ç¥), and Health and Human Services (?Ç£HHS?Ç¥) published amendments to the final regulations that were issued in July 2010 implementing the internal claims and appeals and external review processes required under health reform for non-grandfathered group health plans. In connection with amended regulations, the DOL issued Technical Release No. 2011-02, providing additional guidance and transition relief with respect to various requirements. This new guidance makes several significant changes to the prior interim final regulations issued last July. For additional information on the changes made, click here.
The Sixth Circuit this week became the first?áfederal?áappellate court to issue a decision on the constitutionality of the Patient Protection and Affordable Care Act (?Ç£PPACA?Ç¥) by affirming a district court decision that PPACA’s individual insurance mandate is constitutional.?á In the case, a public interest law firm and four individuals challenged this mandate, which is effective in 2014, claiming that?áit unconstitutionally compels them to purchase health insurance. The district court held that the provision falls within Congress’s authority under the Commerce Clause. On appeal, the Sixth Circuit affirmed, in a split decision, with two of the three judges upholding the mandate under the Commerce Clause, and each issuing his own opinion.?á With respect to the Commerce Clause, the lead opinion found that the?áindividual insurance mandate?áis a?áconstitutional?áexercise of?ápower under the Commerce Clause power because Congress had a rational basis for concluding that (1), in the aggregate,?áthe practice of self-insuring for the cost… Continue Reading
On June 17, 2011, the U.S. Department of Health and Human Services (?Ç£HHS?Ç¥) released CCIIO Supplemental Guidance 2011-1D entitled: ?Ç£Concluding the Annual Limit Waiver Application Process?Ç¥ (the ?Ç£Supplemental Guidance?Ç¥). The Supplemental Guidance modifies certain terms of the program under which a health plan or insurer may obtain a waiver from the minimum annual limit requirements contained in the Patient Protection and Affordable Care Act (the ?Ç£Act?Ç¥). Under the Supplemental Guidance, the waiver application process will conclude on September 22, 2011, and no new applications will be accepted after that time. Applicants seeking to renew their existing waiver can apply starting June 24, 2011. Applicants can extend their waiver until January 1, 2014. As a condition of the extension, the Supplemental Guidance requires annual limit updates?ábe filed annually on December 31, 2012 and December 31, 2013. Additionally, as part of the Supplemental Guidance, HHS issued new model notice language that must… Continue Reading
The Department of Health and Human Services published final regulations implementing the health care reform requirements for the disclosure and review of potentially unreasonable rate increases by health insurers. Proposed regulations on this topic were issued in December 2010, and the final rule adopted most of those provisions. The final regulations establish a rate review program to ensure that a rate increase that meets or exceeds a specified threshold is reviewed by a state regulatory agency or by the U.S. Centers for Medicare & Medicaid Services to determine whether (1) the rate increase is unreasonable and (2) certain rate information has been made publicly available. A copy of the regulations is available here.
The Internal Revenue Service released Notice 2011-36 (the ?Ç£Notice?Ç¥) addressing the shared responsibility provisions of health reform that will go into effect after December 31, 2013. The Notice includes a request for comments on the process of developing regulatory guidance regarding the shared employer responsibility provisions in the Internal Revenue Code. Added by the Patient Protection and Affordable Care Act of 2010, the shared responsibility provisions will, after 2013, impose a penalty on applicable large employers that fail to meet certain standards for providing affordable health coverage to their full-time employees. The Notice describes potential approaches which could be incorporated into future regulations, such as who is a full-time employee for purposes of Section 4980H. Any comments must be submitted by June 17, 2011. The Notice is available here.
Supreme Court Will Not Rush Review of Virginia Case Challenging the Health Reform?ÇÖs Constitutionality
The U.S. Supreme Court denied the Virginia Attorney General?ÇÖs request for an expedited review of the earlier ruling made by a Virginia federal district court that the individual mandate under the Patient Protection and Affordable Care Act was unconstitutional. The district court’s decision has been appealed to the federal court of appeals and is currently awaiting a mid-May hearing. The Virginia Attorney General had asked the Supreme Court for an immediate review of this decision but the Supreme Court denied such request without comment.
The Department of Defense and Full-Year Continuing Appropriations Act, 2011 (the “Act”), signed into law on April 15, 2011, repealed the health reform mandate requiring certain employers to provide “free choice vouchers” to lower income employees for whom the cost of the employer’s health plan coverage exceeded a certain level. The repealed provision, which was to become effective January 1, 2014, impacted employers who offered minimum essential coverage to employees and paid any portion of the cost of coverage. As a result of the repeal, and conforming changes made elsewhere in the Act, employers who will be subject to a penalty when employees elect to purchase coverage through the exchange will no longer benefit from the exception that previously applied to employees who were given free choice vouchers. Employers who had calculated the pay or play costs for 2014 may find that this change impacts those numbers. Other provisions in… Continue Reading
The HHS announced that it will no longer accept applications for the Early Retiree Reinsurance Program (ERRP) after May 5, 2011. PPACA created ERRP as a temporary program to provide reimbursement for a portion of the costs of providing health coverage to early retirees and their eligible dependents. HHS announced that because the funding appropriated to ERRP is expected to be depleted, HHS will not process ERRP applications received after May 5, 2011. The guidance clarifies that the application must be received by the ERRP?ÇÖs intake program by the deadline; an application postmarked by the May 5 deadline is not sufficient. A copy of the guidance is available here.
The Employee Benefits Security Administration (?Ç£EBSA?Ç¥) on April 4th released a set of six frequently asked questions (?Ç£FAQs?Ç¥) regarding issues for grandfathered plans under the Patient Protection and Affordable Care Act (?Ç£PPACA?Ç¥). The FAQs were prepared jointly by the Department of Health and Human Services (?Ç£HHS?Ç¥), Department of Labor and Department of the Treasury, and are the sixth set of FAQs issued to help stakeholders implement provisions of PPACA. The new FAQs cover topics such as the anti-abuse rules under the Interim Final Grandfather Regulations and whether certain scenarios would cause a plan to relinquish grandfathered status. This set of FAQs can be found here. Previously issued FAQs are available?áhere.