As is the custom, the editors have identified a few recent items worthy of mention but perhaps not extensive discourse. That does not mean these developments are unimportant but rather that they are, to a large degree, self-explanatory or both too important and too new to address fully. It is also the case for those in “Well, what about . . . .?” mode that our criteria for inclusion are relatively loose and we make no effort to track every development across the spectrum of concerns covered by JCEB in real time. We are, however, very interested in what interests you so please let us know what we left out and whether you know someone who might be interested in developing the omitted item for later article treatment. In that spirit, we offer the following for consideration:
In the “Francisco Franco is still dead” Department. For those recently awakening from a coma or returning from an extended trip some place without access to newsfeed, nothing has passed the Senate so far as to the Affordable Care Act.
When Worlds Collide: Discontinuation of the subsidies to PPACA Insurers. Notable mostly for the spin from all sides swirling around the echo chambers of media, social and otherwise, what happened was that the House of Representatives sued then Secretary of Health and Human Services Secretary Burwell for continuing the subsides beyond what the House claimed was the original appropriations period. Can the House do that as an institution? The trial judge ruled it could. Were the subsidies of the sort that were perpetually appropriated or was annual re-appropriation required? The judge ruled the subsidies required annual appropriation, enjoined further payments of unappropriated sums and stayed the injunction pending appeal. Text of opinion here https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1967-73. There was no question that no appropriation bill had been passed for years or that the subsidies continued to be paid. Then the election occurred and several state attorneys general asked for leave to intervene in the appeal which was granted. In the interim, the next subsidy payment was coming due if it was to be paid. The Administration announced it would not make the payments pending appeal because it thought the case was rightly decided. Undeterred, a group of state attorneys general sued seeking to force resumption of the payments. Their request for injunctive relief was preliminarily rejected. State of California et al. v. Trump et al., case number 3:17-cv-05895, in the U.S. District Court for the Northern District of California. Stay tuned.
The Intriguing Lives of not-so-Retired Annuitants: Under a retirement incentive plan offered by a county to employees all age 65 or older, retirees accepting the plan were entitled to five years of supplemental health insurance (secondary to Medicare coverage) through Aetna. The county allowed a group of these retirees to be rehired on a part-time basis, (known some places as retired annuitants) and the group was allowed to remain in the supplemental health insurance plan. The insurance carrier in true Hanna-Barbera fashion issued a “Hold On That Baba Looey” notification that the rehired retirees would have to terminate either their reemployment or their plan coverage, so that the plan could qualify for the retiree-only plan exemption under the Affordable Care Act (ACA), and thus not violate ACA. Separately, an attorney also counseled that the MSP rules prohibited the plan from being a secondary payer for rehired retirees. The county fired the former retirees. They of course sued for age discrimination. The trial court rejected that argument and the Seventh Circuit affirmed. The PPACA and MSP issues were factors other than age. Carson v. Lake County, Indiana, 865 F3d 526 (7th Cir. 2017).
The COBRA Notice is in the Mail (Again): In this edition, it’s the Sixth Circuit that held that an employer established that it had sent a COBRA notice to a former employee by sound business practices. The employer produced computer records showing the dates the notice was sent, as well as affidavits from the employer’s third-party administrator (TPA) and human resources manager supporting the fact that the COBRA notice had been sent. That was enough to defeat the employee’s claim that she had not received the COBRA notice. Perkins v. Rock-Tenn Servs., Inc., 700 F. App’x 452 (6th Cir. 2017).