In the past few years, the major Patient Protection and Affordable Care Act (PPACA) court battles have involved constitutional battles.
Does Congress have the constitutional authority to make individuals pay for broccoli or else pay a “penalty” to the Internal Revenue Service?
Does the U.S. Department of Health and Human Services (HHS) have the authority to interpret PPACA to mean that employers have to cover birth control costs, or at least tell HHS that they have opted out of covering birth control?
This year, one of the closely watched health law cases, Central United Life et al. vs. Burwell et al. (Case Number 15-5310), has to do with PPACA nuts and bolts: how HHS applies a provision that exempts “excepted benefits,” or supplemental health insurance products, from the PPACA major medical health insurance medical underwriting restrictions and benefits mandates.
In May 2014, HHS tried to impose restrictions to ensure that insurers would sell one type of supplemental product, fixed indemnity health insurance, only to consumers who were using the products to supplement the kind of major medical coverage that HHS classifies as “minimum essential coverage” (MEC), not as a substitute for MEC.
HHS said that it would not require sellers of indemnity products to verify whether consumers had MEC, but that it would require the consumers buying the supplemental products to attest that they had MEC.
Central United Life Insurance Company and Senior Security Benefits Inc. sued the HHS secretary, HHS, the Centers for Medicare & Medicaid Services (CMS), and the head of CMS over the indemnity health insurance attestation requirement in a U.S. District Court in Texas in 2014.
Royce Lamberth, a U.S. senior district judge, ruled in favor of the plaintiffs in September 2015. He issued a permanent injunction prohibiting HHS from putting the attestation requirement into effect.
HHS filed an appeal with the U.S. District Court for the District of Columbia in November 2015. The court has scheduled oral argument for April 15. Quin Sorenson and other lawyers at Sidley Austin LLP are representing the insurers.
Alisa Klein, a lawyer at the U.S. Department of Justice, is at the top of the list of lawyers representing HHS and CMS.
For more about the battle, read on.
1. HHS says it needs the flexibility to interpret a vague provision of the law.
Congress never gave a definition of “fixed indemnity insurance,” and PPACA drafters clearly would have wanted HHS to keep consumers from using the product as an inadequate substitute for health insurance, HHS says in a court filing.
The HHS regulation “addresses an interstitial matter that falls within the agency’s expertise,” the department says.