vIn a highly anticipated decision, on November 14, 2011 the United States Supreme Court granted certiorari in three cases on the constitutionality of the Affordable Care Act (“ACA”): National Federation of Independent Business v. Kathleen Sebelius, Secretary of HHS, et al.; Florida, et al. v. Department of Health and Human Services; and Department of Health & Human Services et al. v. Florida, et al. The Court’s review will address four fundamental questions: (1) whether the ACA’s individual mandate is constitutional, (2) whether the individual mandate may be severed from the ACA if it is unconstitutional, (3) whether the claim brought by the opponents to the mandate is barred by another federal statute, and (4) whether the ACA’s expansion to Medicaid coverage was valid. The Court has granted a total of four and a half hours of oral argument for the three issues, which is highly unusual. This decision will be monumental for the future of the ACA, and will be closely followed by Duane Morris attorneys.
View the United States Supreme Court’s order here.
On November 8, 2011, in the latest scrimmage regarding the Affordable Care Act’s (ACA’s) individual mandate, the D.C. Circuit Court of Appeals upheld the mandate’s constitutionality. The Court found that Congress could create “national solutions to national problems, no matter how local–or seemingly passive–their individual origins,” and that the individual mandate was therefore constitutional because it was within Congress’ authority.
On November 10, 2011, the United States Supreme Court will hold a private conference to decide whether to hear the challenges to the ACA.
Read the entire decision here.
On August 12, 2011, the Internal Revenue Service (“IRS”) released proposed regulations regarding the health insurance premium tax credit available to certain individuals who enroll in insurance plans through the state-based Affordable Insurance Exchanges (“Exchanges”). The tax credit is designed to make health insurance purchased through the Exchanges more affordable. The proposed regulations outline eligibility for and calculation of the tax credit, providing several examples for explanation and clarification. The proposed regulations were published in the Federal Register on August 17, 2011. Comments are due October 31, 2011, and a public hearing is scheduled for November 17, 2011.
To read the text of the Proposed Rule, please go to http://www.gpo.gov/fdsys/pkg/FR-2011-08-17/pdf/2011-20728.pdf.
Interim final regulations released on August 3, 2011 by the Department of Health and Human Services, the Department of the Treasury and the Department of Labor (DOL) give the Health Resources and Services Administration (HRSA) the discretion to exempt religious employers that offer insurance to their employees from the requirement to cover contraception. These regulations amended the previous interim final regulations addressing coverage of preventive services by new insurance plans. The Interim Final Rule sets forth a definition of “religious employer” based on the most commonly used definition in those states that exempt religious employers from state law requirements to cover contraception. HHS is accepting comments on this definition.
To read the Interim Final Rule, please go to: http://www.gpo.gov/fdsys/pkg/FR-2011-08-03/pdf/2011-19684.pdf.
This regulation, issued on November 15, 2010, amends an earlier regulation published in June that outlined rules governing whether group health plans and health insurance coverage in both the individual and group markets can maintain “grandfathered” health plan status. The grandfathered status allows plans to retain an exemption from some new requirements under the Patient Protection and Affordable Care Act. Under the amended regulation, a group health plan may now switch insurance companies and maintain its grandfathered plan status as long as it adheres to other requirements outlined in this and the original regulation. This amendment affords employers more flexibility in shopping for health plans that offer coverage at a lower cost. Additional information regarding this provision is available at: http://www.hhs.gov/news/press/2010pres/06/20100614e.html.
This regulation outlines the requirements for the following processes of group health plans and health insurance coverage in the group and individual market: (1) internal claims and appeals, and (2) the external review processes. These updated processes become effective for plan years (policy years in the individual market) beginning on or after September 23, 2010. Key provisions of this regulation include: how insurers can comply with the new internal claims and appeals process, guidance for external review processes and whether insurers must follow state or federal procedures, and notice requirements for appeals processes. This regulation is not applicable to grandfathered group health plans.
This regulation outlines requirements for group health plans and health insurance coverage in the group and individual markets for two areas: (1) expansion of coverage of recommended preventive services, and (2) restrictions on or prohibition of the implementation of cost-sharing mechanisms by the insurers (i.e. coinsurance, deductibles and copayments). These requirements generally become effective for plan years (policy years in the individual market) beginning on or after September 23, 2010. A list of recommendations and guidelines for insurers with respect to preventative services is available at: http://www.HealthCare.gov/center/regulations/prevention.html
This regulation outlines the requirements for dependent coverage of children until the attainment of 26 years of age by their parents’ group health plans and health insurance issuers in the group and individual markets. This regulation also contains information regarding whether this provision preempts existing state laws that have different age limitations. Eligible dependents may be enrolled no earlier than the first day of the first plan year (policy years in the individual market) beginning on or after September 23, 2010.
This regulation was adopted to offset the inadequate employer insurance coverage of employees in the early retiree age group (and their eligible spouses, surviving spouses and dependents of the retirees). Five billion dollars ($5,000,000,000) of federal funding was set aside for this temporary reinsurance program to help cover a portion of the insurance costs to participating employers that provide employment-based health insurance to employees in this retiree group. Reimbursement is available for claims between $15,000 and $90,000 (the amounts are “indexed for plan years starting on or after October 1, 2011”). Funds are awarded on a first come, first served basis, and nearly 3,000 employers and other sponsors have already been approved for participation. This program began no later than 90 days after the enactment of the statute, which was June 21, 2010 and will end by January 1, 2014. Additional information regarding this provision is available at: http://www.errp.gov/