Update on Legal Challenges to Reform. Will the Supreme Court Upend the ACA? 12/18/2014. The Federally Facilitated Exchange

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1 Update on Legal Challenges to Reform State of Reform Washington January 8, 2015 Eric J. Neiman Williams Kastner Stephen D. Rose Garvey Shubert Barer Sallie Thieme Sanford Associate Professor UW School of Law Will the Supreme Court Upend the ACA? Sallie Thieme Sanford Associate Professor, UW School of Law 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 1

2 Cases Challenge Tax Subsidies Halbig v. Burwell, 758 F. 3d 390 (D.C. Cir.), vacated en banc, 2014 WL (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 2

3 If the IRS Rule is Invalidated: 1. Who will be harmed? 2. What markets will see death spirals? 3. When could states create exchanges? 4. Where might Congress take action? 5. 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 Anchorage Beijing New York Portland Seattle Washington, D.C. Coons v. Lew 762 F.3d 891 (9 th 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 3

4 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 ) 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 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. HHSmust implement the recommendations unless overruled by Congressional vote. 4

5 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 6 th Circuit denying claim. Informational Privacy issue not ripe. Preemption Arizona Constitutional Amendment preempted by the ACA. 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 5

6 Increasing Need/Decreasing Funding Washington State % Washington State Population -36% 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,

7 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 Williams Kastner Stephen D. Rose Garvey Shubert Barer Sallie Thieme Sanford Associate Professor UW School of Law 7