health care

  • July 23, 2014
    Guest Post

    by Timothy S. Jost, the Robert L. Willett Professor of Law, Washington and Lee University School of Law

    July 23, 2014 was a momentous day in the history of the Affordable Care Act. Shortly after 10 a.m., a three-judge panel of the District of Columbia Court of Appeals issued a split 2-1 decision striking down an Internal Revenue Service rule that permits federally facilitated exchanges to issue premium tax credits.  Two hours later, the Fourth Circuit Court of Appeals in Richmond released a unanimous decision upholding the IRS rule.

    The ACA authorizes the IRS to issue premium tax credits to uninsured lower and moderate income Americans through exchanges.  The ACA requests that the states establish exchanges, and sixteen states have done so.  The ACA also, however, authorizes the federal government to establish fallback exchanges in states that fail to set up their own exchanges, and it has done so in 34 states.  The IRS regulation allows premium tax credits to be awarded to eligible individuals by both state-operated exchanges and federally facilitated exchanges.

    Two subsections of the ACA, however, seem to provide that tax credits are available for months in which an individual is enrolled in a qualified health plan “through an Exchange established by the State under 1311” of the ACA. The plaintiffs argue that federal exchanges cannot issue premium tax credits tax credits to individuals who enroll through federal, as opposed to state-operated exchanges.

    The majority of the D.C. Circuit ruled for the plaintiffs, focusing narrowly on the “established by the State” language, but finding nothing in the ACA to clearly contradict the plaintiffs’ reading of the law. The Fourth Circuit found the law ambiguous, and thus under the Supreme Court’s Chevron rule, deferred to the IRS and its interpretation of the law.

  • June 4, 2014
    Guest Post

    by Reuben A. Guttman, Director, Grant & Eisenhofer; Member, ACS Board of Directors

    Certain things in life are predictable. A kid tilts the gumball machine when the candy does not roll out.  A soda machine is kicked when the pop gets stuck. A baseball manager is fired when a team fails to make the playoffs. And, oh yes, don’t forget this one: politicians threaten to give away government functions when they do not work right. In recent days, with word of veterans waiting in line to get health care services, the big boys on Capitol Hill were once again doing their own form of “soda machine kicking” with calls for the privatization of Veterans Administration Health care services. 

    The rational for outcries to privatize are traced to the purported justification that the private sector is more efficient and works better than government. Really? Do the names Tyco, WorldCom, Enron, and, more recently, General Motors mean anything? What about the hospital chains like Hospital Corporation of America or the drug companies like Pfizer, GlaxoSmithKline, Abbott, and Amgen that over the years engaged in conduct that drew the ire of the Department of Justice? 

    Setting aside the list of bad actors that could fill a few notebooks, maybe there is something to be said about the idea that the private sector does it better. But is that really true when the private sector contracts with the government, or is a government contract merely a license to steal? Consider this: once government services are contracted out and long term civil service employees are displaced with contractors, there is—as Eddie Murphy might say—“no going back."  And some contractors have such a grip on their relationship with government agencies, it is virtually impossible for the government to keep them in line through any form of adult supervision. Take the case of Lockheed Martin Corporation. It has approximately $37 billion in government contracts currently. In other words, at the same time the United States Department of Justice is pursing Lockheed for violations of the False Claims Act, it is rewarding it with hundreds of millions of dollars in government contracts.

  • August 1, 2013
    Guest Post

    by Reuben Guttman, Director and Head of False Claims Group, Grant & Eisenhofer.

    Over the past several years, we have had the privilege of representing whistleblowers who have successfully pursued False Claims Act cases against some of the largest pharmaceutical manufacturers in the world. Cases against Pfizer, GlaxoSmithKline, Abbott Labs, Amgen, and most recently Wyeth which was acquired by Pfizer, resulted in the companies returning over $7 billion to government healthcare payors.   

    Viewed from the optics of the black letter law, these cases are about whether false or fraudulent statements cause the government to pay for drugs that doctors would not have otherwise prescribed. Yet, in human terms, these cases raise the question of whether corporate marketing goals are influencing medical decisions.           

  • February 8, 2013
    Guest Post

    by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law

    The Obama administration recently offered more accommodations to the religious employers who oppose women’s reproductive freedom and seek exemption from the Affordable Care Act’s mandate that employee insurance coverage extend to contraception and sterilization. The employers won two big victories. First, the definition of religious employer was expanded to include not only organizations where everyone shares one faith but also those that employ or provide services to individuals who are not members of the same religious community. Second, the employers will not have to provide the coverage. Instead, the insurance companies will independently contact employees and make separate contraceptive policies available to them at no charge. The insurance companies will cover the costs of this new arrangement and, presumably, pass them on to other consumers.

    The new rules are responsive to repeated and vociferous complaints about the president’s war on religion. As soon as the Secretary of Health and Human Services, Kathleen Sebelius, first announced that religious employers would be expected to provide contraceptive and sterilization coverage at no cost to employees, the nation’s Catholic bishops attacked the president for his unprecedented assault on religious freedom. Those critics ignored the fact that the idea of requiring employers to protect women’s equality by providing insurance was not new or unprecedented. Twenty-six states have similar laws, and the highest courts of New York and California upheld their women’s contraceptive equity statutes against First Amendment claims.

    With the federal act currently under challenge in 45 lawsuits, however, the administration chose to compromise rather than to press the legality of its actions on behalf of women’s equality. The strategy of compromise has been unsuccessful. Even the new accommodations have not satisfied the administration’s critics. The Catholic bishops still believethat the president should compromise even more by extending the exemption to secular, for-profit corporations run by religious individuals. And Kyle Duncan, the general counsel of the Becket Fund for Religious Liberty, which has sponsored much of the litigation against the mandate, stated that the new rules do “nothing to protect the religious freedom of millions of Americans.”

  • July 6, 2012
    Guest Post

    By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment. (Sugameli founded in 2001 and still heads the environmental community's Judging the Environment project and website on federal judicial nominations and related issues.)


     As the Austin American-Statesman’s editorial board commented in "Greenhouse gas ruling timely, right":

    Overshadowed last week by U.S. Supreme Court rulings on health care and immigration, but just as significant in its own right, was the unanimous decision by a three-judge panel of the U.S. Court of Appeals in Washington, D.C., affirming federal regulations of greenhouse gases. The three judges — one a Ronald Reagan appointee … said the Environmental Protection Agency was "unambiguously correct" to set rules to reduce greenhouse gas emissions, given global warming's potential harm to the public's health.

    The Salt Lake Tribune’s editorial, "Another health case; Appeals court rightly stands by EPA," agreed: "While most of the country was waiting for a court ruling that would affect how many Americans insure their health care, another court was handing down an order that will go a long way to ensure the health of the entire planet."

    This importance of the issues in Coalition for Responsible Regulation v. Environmental Protection Agency is augmented by synergistic factors. These include: (1) the court that decided them; (2) the judges who joined the unsigned per curiam opinion; (3) the high likelihood that their ruling is the final judicial word; (4) the very strong language the judges used; and (5) the decision’s impact in confirming the scientific facts of climate change.