Case 9:13-cv WPD Document 17 Entered on FLSD Docket 12/13/2013 Page 1 of 6

Transcription

1 Case 9:13-cv WPD Document 17 Entered on FLSD Docket 12/13/2013 Page 1 of 6 U.S. DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION CASE NO.: DIMITROULEAS/Snow KAWA ORTHODONTICS, LLP, vs. Plaintiff, JACK LEW, et al., Defendants. / PLAINTIFF S STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Plaintiff Kawa Orthodontics, LLP ( Kawa Ortho ), by counsel and pursuant to Local Rule 56.1, respectfully submits the following Statement of Material Facts in support of its Motion for Summary Judgment. Kawa Ortho submits that the following facts are undisputed. 1. Kawa Ortho is an orthodontics and oral surgery practice organized under the laws of the State of Florida and having its principal place of business at State Road 7, Suite F18, Boca Raton, Florida Kawa Ortho has been providing orthodontic treatment services to patients in Miami-Dade, Broward, and Palm Beach Counties for over 20 years. Declaration of Larry Kawa, D.D.S. ( Kawa Decl. ), attached hereto as Exhibit 1, at Kawa Ortho employs more than 50 full-time equivalent employees and offers these employees a choice of different group health insurance options as an employment benefit. Kawa Ortho pays a portion of the premium costs of the health insurance options it offers its employees. Kawa Decl. at 4.

2 Case 9:13-cv WPD Document 17 Entered on FLSD Docket 12/13/2013 Page 2 of 6 Kawa Orthodontics, LLP v. Lew, et al. Case No CIV Page 2 3. Prior to July 2, 2013, Kawa Ortho expended a substantial amount of time and resources, including money spent on legal fees and other costs, in anticipation of the employer mandate provisions of the Patient Protection and Affordable Care Act ( ACA ) taking effect on January 1, Kawa Ortho estimates that, between early 2013 and the end of June 2013, it spent approximately 100 hours and in excess of $5,000 in attorney s fees and costs researching the ACA and the employer mandate and seeking and obtaining professional advice on how best to comply with the mandate. Had Kawa Ortho not spent approximately 100 hours of time researching and seeking and obtaining professional advice on how best to comply with the mandate, it would have spent this time generating new patients for its practice. Kawa Ortho also estimates that the 100 hours it spent preparing for the mandate has an estimated value to the practice of approximately $1.2 million. Kawa Ortho expended this time and these resources in order to determine what obligations it has under the employer mandate, what options were available to it to comply with the mandate, and how the mandate would affect its ability to continue to offer the same group health insurance options that it currently offers its employees. Kawa Decl. at Kawa Ortho would not have expended its time and resources researching and preparing for the employer mandate in 2013 if the mandate had not been scheduled to take effect on January 1, Nor would it have incurred legal fees in 2013 in anticipation of the mandate taking effect on January 1, It would have waited at least until 2014, if not later, to decide whether to expend its time and resources planning for the mandate, and may have decided not to expend any time and resources on the matter at all. Kawa Decl. at On July 2, 2013, the U.S. Department of Treasury posted an announcement on its website stating that the employer mandate was being delayed until Kawa Decl. at 11.

3 Case 9:13-cv WPD Document 17 Entered on FLSD Docket 12/13/2013 Page 3 of 6 Kawa Orthodontics, LLP v. Lew, et al. Case No CIV Page 3 See July 2, 2013 Announcement, available at Continuing-to-Implement-the-ACA-in-a-Careful-Thoughtful-Manner-.aspx (visited December 5, 2013), attached hereto as Exhibit On July 9, 2013, Defendants formalized their July 2, 2012 announcement by issuing Notice , entitled Transition Relief for 2014 Under 6055 ( 6055 Information Reporting), 6056 ( 6056 Information Reporting) and 4980H (Employer Shared Responsibility Provisions). See IRS Notice , available at (visited December 5, 2013), attached hereto as Exhibit Because the effective date of the employer mandate was postponed for at least a year, the time and resources Kawa Ortho expended in 2013 in anticipation of the mandate taking effect on January 1, 2014 were largely wasted. At a minimum, by choosing to prepare for the mandate taking effect instead of generating additional business for its practice, Kawa Ortho incurred opportunity costs that were made unnecessary as a direct result of the mandate s delay. Kawa Decl. at In addition to the employer mandates provisions of the ACA, the new health care law also contains a provision requiring employers to give notice to their employees about the availability of health insurance coverage through newly created public health insurance exchanges. The delay of the mandate created uncertainty about the notice requirement. Out of an abundance of caution, Kawa Ortho expended additional time and incurred additional expenses, including approximately $4,000 in additional attorney s fees, determining whether and how to comply with this exchange notice requirement. Kawa Decl. at Because of the delay of the employer mandate and continued uncertainty in the health insurance market in Florida and across the country associated with the implementation

4 Case 9:13-cv WPD Document 17 Entered on FLSD Docket 12/13/2013 Page 4 of 6 Kawa Orthodontics, LLP v. Lew, et al. Case No CIV Page 4 of the ACA, Kawa Ortho anticipates that it will have to expend yet more time and resources in 2014 preparing for the mandate taking effect in Kawa Decl. at According to the White House s website, at least 200,000 employers in the United States employ more than 50 employees. See The White House, The Affordable Care Act Increases Choice and Saving (sic) Money for Small Businesses, (available at (visited December 5, 2013), attached hereto as Exhibit 4, at pg According to the Agency for Health Research and Quality ( AHRQ ), which is an entity within the U.S. Department of Health and Human Resources, the number of employers in the United States having more than 50 employees is as high as 1.6 million. See Medical Expenditure Panel Survey, Table I.A.1 - Number of private-sector establishments by firm size and selected characteristics: United States, 2012, (available at mepsweb/data_stats/summ_tables/insr/national/series_1/2012/tia1.htm.) (visited December 5, 2013), attached hereto as Exhibit 5 (identifying 1,668,613 private sector U.S. employers with more than 50 employees). 12. According to the Congressional Budget Office ( CBO ), Defendants delay of the employer mandate will result in an estimated loss of $10 billion in penalty payments by employers. See Letter from Douglas W. Elmendorf, Director, Congressional Budget Office, to the Hon. Paul Ryan, Chairman, Committee on the Budget, U.S. House of Representatives, Re: Analysis of the Administration s Announced Delay of Certain Requirements Under the Affordable Care Act, July 30, 2013 (available at default/files/cbofiles/attachments/44465-aca.pdf) (visited December 5, 2013), attached hereto as Exhibit 6, at 3. Also according to CBO, roughly 1 million fewer people are expected to be

5 Case 9:13-cv WPD Document 17 Entered on FLSD Docket 12/13/2013 Page 5 of 6 Kawa Orthodontics, LLP v. Lew, et al. Case No CIV Page 5 enrolled in employment-based coverage in 2014 than the number projected in CBO s May 2013 baseline, primarily because of the one-year delay in penalties on employers. Id. at 4. Dated: December 13, 2013 Respectfully submitted, s/ Christopher B. Lunny CHRISTOPHER B. LUNNY (FL ) chris@radeylaw.com Secondary cdemeo@radeylaw.com HARRY O. THOMAS (FL ) hthomas@radeylaw.com Secondary jday@radeylaw.com Radey, Thomas, Yon & Clark, P.A. Post Office Box (32302) 301 South Bronough Street, Suite 200 Tallahassee, Florida (850) (phone) (805) (facsimile) s/ Paul J. Orfanedes PAUL J. ORFANEDES (Admitted Pro Hac Vice) porfanedes@judicialwatch.org JAMES F. PETERSON (Admitted Pro Hac Vice) jpeterson@judicialwatch.org JUDICIAL WATCH, INC. 425 Third Street, SW, Suite 800 Washington, DC (202) (phone) (202) (facsimile) Attorneys for Plaintiff

6 Case 9:13-cv WPD Document 17 Entered on FLSD Docket 12/13/2013 Page 6 of 6 CERTIFICATE OF SERVICE Kawa Orthodontics, LLP v. Lew, et al. Case No CIV Page 6 I HEREBY CERTIFY that a copy of the foregoing was electronically served through the Court s CM/ECF system, unless otherwise noted, on all counsel or parties of record on the Service List below, this 13th day of December, Caroline Lewis Wolverton U.S. Department of Justice, Civil Division Post Office Box 883 Washington, D.C caroline.lewis-wolverton@usdoj.gov s/ Christopher B. Lunny CHRISTOPHER B. LUNNY

7 Case 9:13-cv WPD Document 17-1 Entered on FLSD Docket 12/13/2013 Page 1 of 5

8 Case 9:13-cv WPD Document 17-1 Entered on FLSD Docket 12/13/2013 Page 2 of 5

9 Case 9:13-cv WPD Document 17-1 Entered on FLSD Docket 12/13/2013 Page 3 of 5

10 Case 9:13-cv WPD Document 17-1 Entered on FLSD Docket 12/13/2013 Page 4 of 5

11 Case 9:13-cv WPD Document 17-1 Entered on FLSD Docket 12/13/2013 Page 5 of 5

12 Case 9:13-cv WPD Document 17-2 Entered on FLSD Docket 12/13/2013 Page 1 of 2

13 Case 9:13-cv WPD Document 17-2 Entered on FLSD Docket 12/13/2013 Page 2 of 2

14 Case 9:13-cv WPD Document 17-3 Entered on FLSD Docket 12/13/2013 Page 1 of 3

15 Case 9:13-cv WPD Document 17-3 Entered on FLSD Docket 12/13/2013 Page 2 of 3

16 Case 9:13-cv WPD Document 17-3 Entered on FLSD Docket 12/13/2013 Page 3 of 3

17 Case 9:13-cv WPD Document 17-4 Entered on FLSD Docket 12/13/2013 Page 1 of 4

18 Case 9:13-cv WPD Document 17-4 Entered on FLSD Docket 12/13/2013 Page 2 of 4

19 Case 9:13-cv WPD Document 17-4 Entered on FLSD Docket 12/13/2013 Page 3 of 4

20 Case 9:13-cv WPD Document 17-4 Entered on FLSD Docket 12/13/2013 Page 4 of 4

21 Case 9:13-cv WPD Document 17-5 Entered on FLSD Docket 12/13/2013 Page 1 of 4

22 Case 9:13-cv WPD Document 17-5 Entered on FLSD Docket 12/13/2013 Page 2 of 4

23 Case 9:13-cv WPD Document 17-5 Entered on FLSD Docket 12/13/2013 Page 3 of 4

24 Case 9:13-cv WPD Document 17-5 Entered on FLSD Docket 12/13/2013 Page 4 of 4

25 Case 9:13-cv WPD Document 17-6 Entered on FLSD Docket 12/13/2013 Page 1 of 6

26 Case 9:13-cv WPD Document 17-6 Entered on FLSD Docket 12/13/2013 Page 2 of 6

27 Case 9:13-cv WPD Document 17-6 Entered on FLSD Docket 12/13/2013 Page 3 of 6

28 Case 9:13-cv WPD Document 17-6 Entered on FLSD Docket 12/13/2013 Page 4 of 6

29 Case 9:13-cv WPD Document 17-6 Entered on FLSD Docket 12/13/2013 Page 5 of 6

30 Case 9:13-cv WPD Document 17-6 Entered on FLSD Docket 12/13/2013 Page 6 of 6