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PPACA: Federal Judge Rejects Individual Mandate

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WASHINGTON BUREAU — U.S. District Judge Henry Hudson today ruled that a provision of the Patient Protection and Affordable Care Act (PPACA) that would require many individuals to own health coverage is unconstitutional.

Hudson, a judge in the U.S. District Court in Richmond, Va., says the individual health insurance ownership mandate, PPACA Section 1501, violates the U.S. Constitution because Congress PPACA Court Caselacks the authority to compel an individual to involuntarily engage in a private commercial transaction.

PPACA is a component of the Affordable Care Act, a legislative package signed into law in March. PPACA Section 1501, the “Minimum Essential Coverage Provision,” would require many people with incomes above a certain level to buy a minimum level of health coverage starting in 2014 or else pay a penalty. The provision provides for exceptions for individuals with religious objections to owning health coverage and individuals who cannot find affordable health coverage.

Supporters of the provision, including America’s Health Insurance Plans, Washington, have argued that any universal health coverage system must include a health coverage ownership mandate, to avoid encouraging individuals to do without health insurance, then count on the generosity of government programs and society in general to provide a basic level of medical care, even though those individuals have made no serious effort to pay for care or health insurance themselves.

But the individual health insurance ownership provision “is neither within the letter nor the spirit of the Constitution,” Hudson writes in a 42-page opinion explaining the decision in connection with the case, Cuccinelli vs. Sebelius, (Civil Action Number 3:10CV188-HEH).

Virginia Attorney General Kenneth Cuccinelli II has asked the court to throw out PPACA or to impose an injunction barring implementation of the other parts of the law.

Hudson declined to vacate PPACA or impose an injunction.

“Without the benefit of extensive expert testimony and significant supplementation of the record, this court cannot determine, what, if any, portion of the bill would not be able to survive independently,” Hudson says.

Hudson called the insurance purchase mandate “an unprecedented expansion of

federal power to regulate interstate trade.”

“Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” Hudson says. “In doing so, enactment of the minimum essential coverage provision exceeds the Commerce Clause powers vested in Congress” under Article 1 of the Constitution.

Hudson’s district comes under the jurisdiction of the 4th Circuit U.S. Court of Appeals.

The U.S. Justice Department issued a statement expressing disappointment about the ruling.

Judges in Michigan and Michigan have found Section 1501 to be constitutional, and the Justice Department continues to believe that it ultimately will prevail in defending PPACA Section 1501, department representative Tracy Schmaler says.

“There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law and we are confident that we will ultimately prevail,” Schmaler says.

Healthcare for America Now, Washington, a group that supports the Affordable Care Act, says 14 federal district court judges have rejected lawsuits seeking to invalidate the act.

Appeals of other PPACA district court rulings are pending or expected in the 3rd, 4th, 6th and 9th circuits, HCAN says.

A high-profile Florida case joined by 20 Republican attorneys general and governors will be argued in Pensacola on Thursday, and regardless of the outcome, the ruling in that case certainly will be appealed to the 11th Circuit, HCAN says.

“While the Virginia case is important and has drawn strong media interest, it is no more important than the many other rulings by judges of equal rank who have determined that the law is constitutional or have issued dismissals on procedural grounds,” HCAN says.

George Patton Jr., an appellate lawyer in the Washington office of Bose, McKinney & Evans L.L.P., says he believes three other U.S. District Court opinions that uphold the act appear to be better reasoned than the Hudson opinion.



Subtitle F–Shared Responsibility for Health Care PART I–INDIVIDUAL RESPONSIBILITY SEC. 1501. <<NOTE: 42 USC 18091.>> REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE. (a) Findings.–Congress makes the following findings: (1) In general.–The individual responsibility requirement provided for in this section (in this subsection referred to as the “requirement”) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2). [Page 124 STAT. 243] (2) Effects on the national economy and interstate commerce.–The effects described in this paragraph are the following: (A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased. (B) Health insurance and health care services are a significant part of the national economy. National health spending is projected to increase from $2,500,000,000,000, or 17.6 percent of the economy, in 2009 to $4,700,000,000,000 in 2019. Private health insurance spending is projected to be $854,000,000,000 in 2009, and pays for medical supplies, drugs, and equipment that are shipped in interstate commerce. Since most health insurance is sold by national or regional health insurance companies, health insurance is sold in interstate commerce and claims payments flow through interstate commerce. (C) The requirement, together with the other provisions of this Act, will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services. According to the Congressional Budget Office, the requirement will increase the number and share of Americans who are insured. (D) The requirement achieves near-universal coverage by building upon and strengthening the private employer- based health insurance system, which covers 176,000,000 Americans nationwide. In Massachusetts, a similar requirement has strengthened private employer-based coverage: despite the economic downturn, the number of workers offered employer-based coverage has actually increased. (E) Half of all personal bankruptcies are caused in part by medical expenses. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will improve financial security for families. (F) Under the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal Government has a significant role in regulating health insurance which is in interstate commerce. (G) Under sections 2704 and 2705 of the Public Health Service Act (as added by section 1201 of this Act), if there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold. (H) Administrative costs for private health insurance, which were $90,000,000,000 in 2006, are 26 to 30 percent of premiums in the current individual and small group

markets. By significantly increasing health insurance coverage and the size of purchasing pools, which will increase economies of scale, the requirement, together with the other provisions of this Act, will significantly reduce administrative costs and lower health insurance premiums. The requirement is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs. (3) Supreme court ruling.–In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation. (b) In General.–Subtitle D of the Internal Revenue Code of 1986 is amended by adding at the end the following new chapter: “CHAPTER 48–MAINTENANCE OF MINIMUM ESSENTIAL COVERAGE “Sec. 5000A. Requirement to maintain minimum essential coverage. “SEC. 5000A. <<NOTE: 26 USC 5000A.>> REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE. “(a) Requirement To Maintain Minimum Essential Coverage.–An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month. “(b) Shared Responsibility Payment.– “(1) In general.– If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c). “(2) Inclusion with return.–Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month. “(3) Payment of penalty.–If an individual with respect to whom a penalty is imposed by this section for any month– “(A) is a dependent (as defined in section 152) of another taxpayer for the other taxpayer’s taxable year including such month, such other taxpayer shall be liable for such penalty, or “(B) files a joint return for the taxable year including such month, such individual and the spouse of such individual shall be jointly liable for such penalty. “(c) Amount of Penalty.– “(1) In general.–The penalty determined under this subsection for any month with respect to any individual is an amount equal to 1/12 of the applicable dollar amount for the calendar year. “(2) Dollar limitation.–The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount (determined without regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends. “(3) Applicable dollar amount.–For purposes of paragraph (1)– “(A) In general.–Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750. “(B) Phase in.–The applicable dollar amount is $95 for 2014 and $350 for 2015. “(C) Special rule for individuals under age 18.–If an applicable individual has not attained the age of 18 as of the beginning of a month, the applicable dollar amount with respect to such individual for the month shall be equal to one-half of the applicable dollar amount for the calendar year in which the month occurs. “(D) Indexing of amount.–In the case of any calendar year beginning after 2016, the applicable dollar amount shall be equal to $750, increased by an amount equal to– “(i) $750, multiplied by “(ii) the cost-of-living adjustment determined under section 1(f)(3) for the calendar year, determined by substituting `calendar year 2015′ for `calendar year 1992′ in subparagraph (B) thereof. If the amount of any increase under clause (i) is not a multiple of $50, such increase shall be rounded to the next lowest multiple of $50. “(4) Terms relating to income and families.–For purposes of this section– “(A) Family size.–The family size involved with respect to any taxpayer shall be equal to the number of individuals for whom the taxpayer is allowed a deduction under section 151 (relating to allowance of deduction for personal exemptions) for the taxable year. “(B) Household income.–The term `household income’ means, with respect to any taxpayer for any taxable year, an amount equal to the sum of– “(i) the modified gross income of the taxpayer, plus “(ii) the aggregate modified gross incomes of all other individuals who– “(I) were taken into account in determining the taxpayer’s family size under paragraph (1), and “(II) were required to file a return of tax imposed by section 1 for the taxable year. “(C) Modified gross income.–The term `modified gross income’ means gross income– “(i) decreased by the amount of any deduction allowable under paragraph (1), (3), (4), or (10) of section 62(a), “(ii) increased by the amount of interest received or accrued during the taxable year which is exempt from tax imposed by this chapter, and “(iii) determined without regard to sections 911, 931, and 933. “(D) Poverty line.– “(i) In general.–The term `poverty line’ has the meaning given that term in section 2110(c)(5) of the Social Security Act (42 U.S.C. 1397jj(c)(5)). “(ii) Poverty line used.–In the case of any taxable year ending with or within a calendar year, the poverty line used shall be the most recently published poverty line as of the 1st day of such calendar year. “(d) Applicable Individual.–For purposes of this section– “(1) In general.–The term `applicable individual’ means, with respect to any month, an individual other than an individual described in paragraph (2), (3), or (4). “(2) Religious exemptions.– “(A) Religious conscience exemption.–Such term shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is a member of a recognized religious sect or division thereof described in section 1402(g)(1) and an adherent of established tenets or teachings of such sect or division as described in such section. “(B) Health care sharing ministry.– “(i) In general.–Such term shall not include any individual for any month if such individual is a member of a health care sharing ministry for the month. “(ii) Health care sharing ministry.–The term `health care sharing ministry’ means an organization– “(I) which is described in section 501(c)(3) and is exempt from taxation under section 501(a), “(II) members of which share a common set of ethical or religious beliefs and share medical expenses among members in accordance with those beliefs and without regard to the State in which a member resides or is employed, “(III) members of which retain membership even after they develop a medical condition, “(IV) which (or a predecessor of which) has been in existence at all times since December 31, 1999, and medical expenses of its members have been shared continuously and without interruption since at least December 31, 1999, and “(V) which conducts an annual audit which is performed by an independent certified public accounting firm in accordance with generally accepted accounting principles and which is made available to the public upon request. “(3) Individuals not lawfully present.–Such term shall not include an individual for any month if for the month the individual is not a citizen or national of the United States or an alien lawfully present in the United States. “(4) Incarcerated individuals.–Such term shall not include an individual for any month if for the month the individual is incarcerated, other than incarceration pending the disposition of charges. “(e) Exemptions.–No penalty shall be imposed under subsection (a) with respect to– “(1) Individuals who cannot afford coverage.– “(A) In general.–Any applicable individual for any month if the applicable individual’s required contribution (determined on an annual basis) for coverage for the month exceeds 8 percent of such individual’s household income for the taxable year described in section 1412(b)(1)(B) of the Patient Protection and Affordable Care Act. For purposes of applying this subparagraph, the taxpayer’s household income shall be increased by any exclusion from gross income for any portion of the required contribution made through a salary reduction arrangement. “(B) <<NOTE: Definition.>> Required contribution.–For purposes of this paragraph, the term `required contribution’ means– “(i) in the case of an individual eligible to purchase minimum essential coverage consisting of coverage through an eligible-employer-sponsored plan, the portion of the annual premium which would be paid by the individual (without regard to whether paid through salary reduction or otherwise) for self-only coverage, or “(ii) in the case of an individual eligible only to purchase minimum essential coverage described in subsection (f)(1)(C), the annual premium for the lowest cost bronze plan available in the individual market through the Exchange in the State in the rating area in which the individual resides (without regard to whether the individual purchased a qualified health plan through the Exchange), reduced by the amount of the credit allowable under section 36B for the taxable year (determined as if the individual was covered by a qualified health plan offered through the Exchange for the entire taxable year). “(C) Special rules for individuals related to employees.–For purposes of subparagraph (B)(i), if an applicable individual is eligible for minimum essential coverage through an employer by reason of a relationship to an employee, the determination shall be made by reference to the affordability of the coverage to the employee. “(D) <<NOTE: Applicability. Determination.>> Indexing.–In the case of plan years beginning in any calendar year after 2014, subparagraph (A) shall be applied by substituting for `8 percent’ the percentage the Secretary of Health and Human Services determines reflects the excess of the rate of premium growth between the preceding calendar year and 2013 over the rate of income growth for such period. “(2) Taxpayers with income under 100 percent of poverty line.–Any applicable individual for any month during a calendar year if the individual’s household income for the taxable year described in section 1412(b)(1)(B) of the Patient Protection and Affordable Care Act is less than 100 percent of the poverty line for the size of the family involved (determined in the same manner as under subsection (b)(4)). “(3) Members of indian tribes.–Any applicable individual for any month during which the individual is a member of an Indian tribe (as defined in section 45A(c)(6)). “(4) Months during short coverage gaps.– “(A) In general.–Any month the last day of which occurred during a period in which the applicable individual [Page 124 STAT. 248] was not covered by minimum essential coverage for a continuous period of less than 3 months. “(B) <<NOTE: Applicability.>> Special rules.–For purposes of applying this paragraph– “(i) the length of a continuous period shall be determined without regard to the calendar years in which months in such period occur, “(ii) if a continuous period is greater than the period allowed under subparagraph (A), no exception shall be provided under this paragraph for any month in the period, and “(iii) if there is more than 1 continuous period described in subparagraph (A) covering months in a calendar year, the exception provided by this paragraph shall only apply to months in the first of such periods. The Secretary shall prescribe rules for the collection of the penalty imposed by this section in cases where continuous periods include months in more than 1 taxable year. “(5) Hardships.–Any applicable individual who for any month is determined by the Secretary of Health and Human Services under section 1311(d)(4)(H) to have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan. “(f) Minimum Essential Coverage.–For purposes of this section– “(1) <<NOTE: Definition.>> In general.–The term `minimum essential coverage’ means any of the following: “(A) Government sponsored programs.–Coverage under– “(i) the Medicare program under part A of title XVIII of the Social Security Act, “(ii) the Medicaid program under title XIX of the Social Security Act, “(iii) the CHIP program under title XXI of the Social Security Act, “(iv) the TRICARE for Life program, “(v) the veteran’s health care program under chapter 17 of title 38, United States Code, or “(vi) a health plan under section 2504(e) of title 22, United States Code (relating to Peace Corps volunteers). “(B) Employer-sponsored plan.–Coverage under an eligible employer-sponsored plan. “(C) Plans in the individual market.–Coverage under a health plan offered in the individual market within a State. “(D) Grandfathered health plan.–Coverage under a grandfathered health plan. “(E) Other coverage.–Such other health benefits coverage, such as a State health benefits risk pool, as the Secretary of Health and Human Services, in coordination with the Secretary, recognizes for purposes of this subsection. “(2) Eligible employer-sponsored plan.–The term `eligible employer-sponsored plan’ means, with respect to any [Page 124 STAT. 249] employee, a group health plan or group health insurance coverage offered by an employer to the employee which is– “(A) a governmental plan (within the meaning of section 2791(d)(8) of the Public Health Service Act), or “(B) any other plan or coverage offered in the small or large group market within a State. Such term shall include a grandfathered health plan described in paragraph (1)(D) offered in a group market. “(3) Excepted benefits not treated as minimum essential coverage.–The term `minimum essential coverage’ shall not include health insurance coverage which consists of coverage of excepted benefits– “(A) described in paragraph (1) of subsection (c) of section 2791 of the Public Health Service Act; or “(B) described in paragraph (2), (3), or (4) of such subsection if the benefits are provided under a separate policy, certificate, or contract of insurance. “(4) Individuals residing outside united states or residents of territories.–Any applicable individual shall be treated as having minimum essential coverage for any month– “(A) if such month occurs during any period described in subparagraph (A) or (B) of section 911(d)(1) which is applicable to the individual, or “(B) if such individual is a bona fide resident of any possession of the United States (as determined under section 937(a)) for such month. “(5) Insurance-related terms.–Any term used in this section which is also used in title I of the Patient Protection and Affordable Care Act shall have the same meaning as when used in such title. “(g) Administration and Procedure.– “(1) In general.–The penalty provided by this section shall be paid upon notice and demand by the Secretary, and except as provided in paragraph (2), shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68. “(2) Special rules.–Notwithstanding any other provision of law– “(A) Waiver of criminal penalties.–In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure. “(B) Limitations on liens and levies.–The Secretary shall not– “(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or “(ii) levy on any such property with respect to such failure.”. (c) Clerical Amendment.–The table of chapters for subtitle D of the Internal Revenue Code of 1986 is amended by inserting after the item relating to chapter 47 the following new item: “Chapter 48–Maintenance of Minimum Essential Coverage.”. (d) <<NOTE: 26 USC 5000A note.>> Effective Date.–The amendments made by this section shall apply to taxable years ending after December 31, 2013.


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