1. law, govt and politics

12/18/2014
Update on
Legal Challenges to Reform
State of Reform Washington
January 8, 2015
Eric J. Neiman
Partner
Williams Kastner
eneiman@williamskastner.com
Stephen D. Rose
Partner
Garvey Shubert Barer
srose@gsblaw.com
Sallie Thieme Sanford
Associate Professor
UW School of Law
sanfords@uw.edu
Will the Supreme Court
Upend the ACA?
Sallie Thieme Sanford
Associate Professor, UW School of Law
sanfords@uw.edu
The Federally Facilitated Exchange
• More than 30 states not running exchanges
• 2014: 80%+ purchasers received a premium
subsidy (tax credit); average subsidy $240 per
month; 4 million+ people received subsidies via
the federally facilitated Exchange
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12/18/2014
Cases Challenge Tax Subsidies
• Halbig v. Burwell, 758 F. 3d 390 (D.C.
Cir.), vacated en banc, 2014 WL 4627181
(D.C. Cir. 2014).
• King v. Burwell, 759 F. 3d 358 (4th Cir.),
cert. granted, 135 S. Ct. 475 (2014).
ACA Provisions at Issue
• §1401: “through an Exchange established by the State”
• §1311: Establishes State-run exchanges
• §1321: Or HHS shall “establish and operate such
Exchange”
• Other provisions interrelate
• Individual Mandate; Employer Mandate implications
Legal Theories at Issue
• Is statutory language clear, unambiguous?
– Plain language, literal reading
– Textualism, context within the statute
– Legislative intent
• If ambiguous, highly deferential to agency
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12/18/2014
If the IRS Rule is Invalidated:
1.
2.
3.
4.
5.
Who will be harmed?
What markets will see “death spirals”?
When could states create exchanges?
Where might Congress take action?
Why is U.S. universal coverage so hard?
WILL THE COURTS KILL
THE “DEATH PANELS”
Stephen D. Rose, J.D., M.B.A.
GARVEY SCHUBERT BARER
srose@gsblaw.com
Anchorage
Beijing
New York
Portland
Seattle
Washington, D.C.
www.GSBLaw.com
Coons v. Lew
762 F.3d 891 (9th Cir. 2014)
• Plaintiffs
– Nick Coons
– Eric N. Novak, M.D.
• Defendants
– Jacob L. Lew, Secretary of the Department of
Treasury
– Kathleen Sebelius, Secretary of HHS
– Eric H. Holder, Attorney General
– Barack Obama, President
www.GSBLaw.com
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12/18/2014
Challenges Brought By Plaintiffs
• Facial Constitutional Challenges
– Challenge to the “Individual Mandate”
– Challenge to the Independent Payment Advisory
Board (“IPAB”) aka “Death Panel”
• Arizona Health Care Freedom Act
– Sought ruling that the Arizona Health Care
Freedom Act was not preempted by the
Affordable Care Act (“ACA”)
www.GSBLaw.com
Ninth Circuit Decision
• Challenge to the Individual Mandate:
– Part dismissed based on National Federation of
Independent Business part dismissed as not
being a denial of Due Process claims, and part
dismissed as not ripe.
• Challenge to the IPAB:
– Dismissed as not being ripe for decision
• Arizona Health Care Freedom Act:
– Preempted by the ACA
www.GSBLaw.com
IPAB—The Death Panel
• 15 member administrative board.
• Monitor growth of Medicare spending.
• If actual growth exceeds projected growth,
panel will make recommendations to reduce
growth rate.
• HHS must implement the recommendations
unless overruled by Congressional vote.
www.GSBLaw.com
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12/18/2014
Ninth Circuit Dismisses All Claims
• Article I Non-Delegation Challenge to IPAB
– Dismissed for lack of jurisdiction due to not being
ripe for decision.
• Substantive Due Process and the Individual
Mandate
– Medical Autonomy—join 6th Circuit denying claim.
– Informational Privacy—issue not ripe.
• Preemption
– Arizona Constitutional Amendment preempted by
the ACA.
www.GSBLaw.com
Are Courts Remaking
Washington’s Mental
Health System?
• Eric J. Neiman
Williams Kastner
• In the Matter of the Detention of DW -Washington Supreme Court
• Effective: 12/26/14
• Trueblood v. DSHS -- U.S. District
Court, W.D. Washington
• Trial: 3/16/15
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12/18/2014
Increasing Need/Decreasing
Funding
Washington State 2000-2010
+14.1%
-36%
Washington
State Population
ITA-Certified Beds
In the Matter of the Detention
of DW
“We affirm the trial judge’s ruling that the
ITA does not authorize psychiatric
boarding as a method to avoid
overcrowding certified evaluation and
treatment facilities.”
Trueblood v. DSHS
“… And you're asking me, and I may not
be unwilling to do this, to take over the
mental health system in this state and
essentially enter orders that have farreaching impact….”
Hon. Marsha J. Pechman
October 8, 2014
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12/18/2014
Questions about Court
Actions
• Are courts overstepping their role?
• Is the true solution more funding for
community mental health?
• If the solution is more money, where
should it come from?
• Where is the federal government in all
this?
• What can we learn from TR?
Questions?
Comments?
Predictions?
Eric J. Neiman
Partner
Williams Kastner
eneiman@williamskastner.com
Stephen D. Rose
Partner
Garvey Shubert Barer
srose@gsblaw.com
Sallie Thieme Sanford
Associate Professor
UW School of Law
sanfords@uw.edu
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