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Annual Meeting 2014: Two years after landmark ruling, uncertainty still surrounds health care law


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Annual Meeting 2014: Two years after landmark ruling, uncertainty still surrounds health care law

By John Glynn

The U.S. Supreme Court decision in 2012 narrowly upholding the Affordable Care Act cleared the way for millions of low- and moderate-income Americans to get lower cost health insurance for the first time.

The Affordable Care Act: Current and Anticipated Growing Pains” 
8-9:15 a.m. Friday, Aug. 8
Room 103, Hynes Convention Center

But since then, the road for the highly controversial law has been anything but certain, as two conflicting decisions on July 22 reflect. Coupled with implications of the high court’s ruling in the Hobby Lobby case three weeks earlier, ACA legal maneuvering should be around for a while.

On Friday, Aug. 8, a panel of legal experts at the American Bar Association Annual Meeting in Boston will sort through the act’s continuing uncertainty, confusion and turmoil. “The Affordable Care Act: Current and Anticipated Growing Pains” will be at 8 a.m. at the Hynes Convention Center, Room 103, on the Plaza Level. The program is sponsored by the ABA Section of Labor and Employment Law.

The conflicting decisions by three-judge panels of two appeals courts — one in Washington, D.C., and the other in Richmond, Virginia — could put in jeopardy tax credits under the ACA for individuals in those states with federally facilitated exchanges or marketplaces. Both rulings could be appealed to the full appeals courts by the losing parties. The challenges to the premium tax credits could ultimately be resolved by the Supreme Court, which upheld the ACA’s individual mandate provisions in 5-4 votes on June 28, 2012.

At issue now is what legal observers say is the ambiguous language in the 2010 health law that provides for subsidies to consumers to buy insurance on an exchange “established by the state.” Because only 14 states and the District of Columbia have set up such exchanges, it is thought that around 4.5 million enrollees in exchanges established by the federal government in 36 states could lose their financial assistance if the Obama administration fails to prevail.

In its 2-1 decision, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled the Internal Revenue Service exceeded its authority in approving federal tax-credit subsidies in states that had federal insurance exchanges. On the same day, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit unanimously said the IRS rule was “a permissible exercise of the agency’s discretion.”

“You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who were running the marketplace,” White House spokesman Josh Earnest was quoted as saying after the appeals courts rendered their conflicting decisions.

In the Hobby Lobby case, the court spilt 5-4 in ruling that certain for-profit companies could opt-out of providing contraceptive coverage in their health insurance policies. In a preview of the Aug. 8 panel discussion, lawyer and speaker Ellen M. Doyle of Feinstein Doyle Payne & Kravec LLC in Pittsburgh observed the high court’s 5-4 decision “opens the door for any privately held employer to decline to provide coverage for any FDA-approved methods of contraception, if contraception offends the owners’ religious beliefs.

“Although the majority characterized the relief provided to the employers as limited, the case significantly expands the potential use of RFRA (Religious Freedom Restoration Act of 1993) to strike down government programs and actions,” Doyle wrote.

A number of other potential ACA litigation issues will be discussed at the panel. Others on the program are Mary Ellen Signorille, AARP Foundation Litigation in Washington, moderator; and speakers J. Martin Shanahan, U.S. Department of Labor in Boston; Howard Shapiro, Proskauer Rose LLP in New Orleans, and Erin M. Sweeney, Dickstein Shapiro LLP in Washington.