This document provides an overview of the key legal challenges that health insurance litigators may face in 2012 and beyond related to the Affordable Care Act. It summarizes the pending Supreme Court case challenging the constitutionality of the individual mandate provision. The document outlines the four questions that will be addressed by the Supreme Court related to whether the individual mandate is a tax, if it exceeds Congress' powers under the Commerce Clause, and whether it is severable from the rest of the Act if found unconstitutional. It provides background on the Commerce Clause and relevant case law informing each question.
The Supreme Court upheld most of the Affordable Care Act, including the individual mandate requiring the purchase of health insurance. However, it ruled that the federal government cannot withhold all existing Medicaid funding from states that do not participate in the ACA's Medicaid expansion. As a result, states now have the choice to opt into the Medicaid expansion or not without losing other Medicaid funds. The ruling maintains most of the ACA but provides more flexibility to states regarding the Medicaid provisions.
Broad Application of Medicare’s Mandatory Insurer Reporting Requirements to N...NationalUnderwriter
Broad Application of Medicare’s Mandatory Insurer Reporting Requirements to Non-U.S. Property & Casualty Carriers Flouts Supreme Court Limitations on Extraterritorial Reach of U.S. Law By Richard L. McConnell and Kathryn Bucher
This article attempts to demystify some of the issues regarding possible extraterritorial application of the
requirements under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007, comments on
claim situations that frequently may confront non-U.S. insurers, and alerts readers to the need to evaluate the potential Section 111 ramifications of claim payments to Medicare beneficiaries.
This presentation was given on 12/14/21 to help professional and lay caregivers understand how to help seniors in issues involving public benefits, including Social Security, SSI, Medicare, Institutional Medicaid and Medicare Savings Programs.
This document provides information on various consumer issues that are important for seniors and caregivers to be aware of, including saving important paperwork, credit issues, debt collection, medical debt, debt relief services, bankruptcy, co-signing loans, payday loans, and ambulance bills. It discusses key rights and protections under laws like the Fair Credit Reporting Act, Fair Debt Collection Practices Act, and issues to consider when dealing with debts, creditors, and collection agencies.
Critical Illness Insurance provides a lump sum cash benefit if an insured person is diagnosed with a covered serious illness such as cancer, heart attack, or stroke. The payment can be used for treatment costs, lost wages, or everyday living expenses. The insurance is provided by three companies that are part of The IHC Group and offers renewable coverage up to age 75 for illnesses including cancer, heart conditions, organ failure, and stroke.
Presentation from INTEGRATED's Chuck Gooder, senior advisor, and Blake Sternard, the business analyst. The presentation focuses on the ways to identify the major changes of healthcare, with specific attention to the potential challenges posed to enrollees, physicians, hospitals, and healthcare organizations associated with the implementation of Obamacare.
The document discusses the complexities and opportunities presented by public health insurance exchanges established under the Affordable Care Act. It finds that states have underestimated the costs and complexity of creating these exchanges. While new opportunities may emerge around health insurance distribution, significant challenges around technology, funding, and long-term sustainability complicate establishing exchanges that meet their goals.
The Supreme Court upheld most of the Affordable Care Act, including the individual mandate requiring the purchase of health insurance. However, it ruled that the federal government cannot withhold all existing Medicaid funding from states that do not participate in the ACA's Medicaid expansion. As a result, states now have the choice to opt into the Medicaid expansion or not without losing other Medicaid funds. The ruling maintains most of the ACA but provides more flexibility to states regarding the Medicaid provisions.
Broad Application of Medicare’s Mandatory Insurer Reporting Requirements to N...NationalUnderwriter
Broad Application of Medicare’s Mandatory Insurer Reporting Requirements to Non-U.S. Property & Casualty Carriers Flouts Supreme Court Limitations on Extraterritorial Reach of U.S. Law By Richard L. McConnell and Kathryn Bucher
This article attempts to demystify some of the issues regarding possible extraterritorial application of the
requirements under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007, comments on
claim situations that frequently may confront non-U.S. insurers, and alerts readers to the need to evaluate the potential Section 111 ramifications of claim payments to Medicare beneficiaries.
This presentation was given on 12/14/21 to help professional and lay caregivers understand how to help seniors in issues involving public benefits, including Social Security, SSI, Medicare, Institutional Medicaid and Medicare Savings Programs.
This document provides information on various consumer issues that are important for seniors and caregivers to be aware of, including saving important paperwork, credit issues, debt collection, medical debt, debt relief services, bankruptcy, co-signing loans, payday loans, and ambulance bills. It discusses key rights and protections under laws like the Fair Credit Reporting Act, Fair Debt Collection Practices Act, and issues to consider when dealing with debts, creditors, and collection agencies.
Critical Illness Insurance provides a lump sum cash benefit if an insured person is diagnosed with a covered serious illness such as cancer, heart attack, or stroke. The payment can be used for treatment costs, lost wages, or everyday living expenses. The insurance is provided by three companies that are part of The IHC Group and offers renewable coverage up to age 75 for illnesses including cancer, heart conditions, organ failure, and stroke.
Presentation from INTEGRATED's Chuck Gooder, senior advisor, and Blake Sternard, the business analyst. The presentation focuses on the ways to identify the major changes of healthcare, with specific attention to the potential challenges posed to enrollees, physicians, hospitals, and healthcare organizations associated with the implementation of Obamacare.
The document discusses the complexities and opportunities presented by public health insurance exchanges established under the Affordable Care Act. It finds that states have underestimated the costs and complexity of creating these exchanges. While new opportunities may emerge around health insurance distribution, significant challenges around technology, funding, and long-term sustainability complicate establishing exchanges that meet their goals.
This document discusses integrating long-term care planning into estate planning. It notes that long-term care costs can deplete estates if not planned for. The document provides an overview of long-term care services, costs of care, sources of payment for care, and options for insuring long-term care costs such as long-term care insurance and VA benefits. It also discusses programs that can help fund long-term care at home.
This document discusses the importance of life and disability insurance. It begins by noting that many employees are underinsured or lack insurance, leaving them vulnerable if the primary wage earner dies or becomes disabled. Specifically, only around half of workers have short or long-term disability coverage, and 41% of adults lack any life insurance. It then examines reasons for this, such as financial priorities, lack of knowledge, and procrastination. The document emphasizes that disability is more common than most people assume, with a 33% chance of a 6-month disability, and that disabilities usually stem from common illnesses not covered by workers' compensation. Finally, it notes the high financial toll of disabilities, with costs potentially totaling around $1 million
The Affordable Care Act: Taking a New Approach to DamagesRachel Hamilton
Presented at ACI's 13th Annual Advanced Forum on Obstetric Malpractice Claims by Caryn L. Lilling Mauro Lilling Naparty LLP and Thomas R. Shimmel Kitch Drutchas Wagner Valitutti & Sherbrook.
This document provides a historical overview of healthcare policy and programs in the United States from the 1930s to present day. It discusses the establishment of key programs like Social Security in 1935, Medicare and Medicaid in 1965, the Children's Health Insurance Program (CHIP) in 1997, and the Affordable Care Act in 2010. The document also outlines the goals and funding mechanisms of these major policies, and describes optional and mandatory benefits covered by programs like Medicaid. It analyzes factors that necessitated healthcare reform over time and how policies have attempted to address issues like the growing uninsured population.
The Social Security Administration announced a 1.7% cost-of-living adjustment for 2013 benefits, one of the lowest increases since 1975. This will increase the average monthly retirement benefit from $1,240 to $1,261. The maximum taxable earnings also increased slightly. Involving an attorney early in the disability claims process can improve chances of approval, as initial claims have around a 63% denial rate. Common medical conditions like musculoskeletal disorders and mental illnesses are most likely to be awarded disability benefits.
The document provides an overview and summary of a presentation on Medicaid, health care reform, and opportunities for advocacy. It begins with introductions and a poll of attendees' backgrounds. It then provides a Medicaid and health reform "pop quiz". The bulk of the document outlines how Medicaid can help address homelessness by helping people obtain and maintain housing, preventing homelessness, redirecting housing funds, and saving money. It discusses opportunities created by the Affordable Care Act, including Medicaid eligibility expansion. The document concludes by discussing long-term care opportunities under health reform.
Ada social security impacts with disability(spring lyecum fair 2009) (2)NWCLS-CONSULTANTS
The American Disability Act protects people with disabilities from discrimination. It prohibits discrimination in employment, public services, transportation, and public accommodations. The original ADA signed in 1990 contained five titles addressing these areas. It has since been amended to expand protections after some Supreme Court rulings narrowed the definition of disability. The amendment clarified that disabilities should be interpreted broadly and that people cannot be fired if they become disabled on the job. Over 48 million Americans receive Social Security benefits or Supplemental Security Income (SSI) due to disabilities or as dependents of disabled individuals. The disability determination and appeals process can take 1.5-3 years to complete as an individual must prove the extent of their disabilities.
This document discusses various legal issues related to caregiving, including identifying dementia, authority to act for another, documents to prepare for disability and death, durable power of attorney, and do not resuscitate orders. It provides an overview of critical legal documents like powers of attorney, healthcare directives, living wills, and certifications of healthcare decision surrogates. It also discusses capacity requirements, practical considerations, and other authority granting arrangements caregivers should be aware of.
Part of a live Facebook Event provided 08/21/20 by South Central Alabama Development Commission, these slides explain the Older Americans Act Legal Assistance Program provided by that agency.
These slides were part of a South Central Alabama Development Commission Facebook live training 08/21/20 describing the State Health Insurance Services provided by that agency.
The document provides an overview of various federal, state, and local benefits programs available to individuals with disabilities or low incomes. It summarizes the eligibility requirements and services provided by key programs like Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), Medicare, Medicaid, housing assistance, food stamps, and fuel assistance at both the federal and Vermont state levels. Contact information is provided for learning more about various Vermont health programs.
This report examines guardianships in Missouri, including the need for research on both public and private guardianships. It discusses the development of the Commission on Disabilities & Guardianships and the efforts of MO WINGS to erode and eliminate guardianships. The report identifies different types of guardianships in Missouri and issues within state departments. It notes concerns about public administrator guardianships and the exclusion of stakeholder voices. The report arises from concerns about MO WINGS' agenda and the failures of legislators and courts. It references reports on abuse and deaths of those with disabilities in state programs.
Galen Benshoof, Robert Wood Johnson Foundation, presented on Realizing the Promise of the ACA: Implementation of State Health Reform at the State Legislative Conference on November 6, 2015.
Health-Care Reform: Replacing Myths with FactsDolf Dunn
The document summarizes myths and facts about the Patient Protection and Affordable Care Act (ACA). It addresses several common myths, including that the ACA cuts Medicare benefits (it expands them), requires giving up private insurance (grandfathered plans can be kept), and provides subsidies to undocumented immigrants (subsidies are only for citizens and lawful residents). The document aims to separate myths from facts about the ACA.
This document discusses the Supreme Court decision on the Affordable Care Act. The Court upheld the individual mandate as a tax, but struck down the requirement that states expand Medicaid or lose existing funding. The decision was split along partisan lines. The document also notes that the Affordable Care Act shares similarities with RomneyCare, and discusses some uncertainties in implementing healthcare reform at the state level.
This document summarizes a meeting that discussed the Affordable Care Act and the Supreme Court's review of its constitutionality. It provides an overview of key provisions of the ACA, such as the individual mandate, essential health benefits, preventative care coverage, and state health insurance exchanges. It also reviews statistics on health care spending, the uninsured population in the US and New Jersey, and the impact of rising costs on New Jersey employers and residents. The document concludes with a discussion of the various outcomes possible from the Supreme Court's review and a panel discussion on the Affordable Care Act.
This presentation discusses the history and key aspects of universal healthcare in the United States. It covers major healthcare programs and reforms over time like Medicare, Medicaid, and the Affordable Care Act. Key points of the ACA are explained, such as the individual mandate, health insurance exchanges, Medicaid expansion, and new regulations for insurance companies. The presentation also addresses criticisms around the cost of universal coverage and impacts on taxpayers, employers, and immigrants.
This document discusses integrating long-term care planning into estate planning. It notes that long-term care costs can deplete estates if not planned for. The document provides an overview of long-term care services, costs of care, sources of payment for care, and options for insuring long-term care costs such as long-term care insurance and VA benefits. It also discusses programs that can help fund long-term care at home.
This document discusses the importance of life and disability insurance. It begins by noting that many employees are underinsured or lack insurance, leaving them vulnerable if the primary wage earner dies or becomes disabled. Specifically, only around half of workers have short or long-term disability coverage, and 41% of adults lack any life insurance. It then examines reasons for this, such as financial priorities, lack of knowledge, and procrastination. The document emphasizes that disability is more common than most people assume, with a 33% chance of a 6-month disability, and that disabilities usually stem from common illnesses not covered by workers' compensation. Finally, it notes the high financial toll of disabilities, with costs potentially totaling around $1 million
The Affordable Care Act: Taking a New Approach to DamagesRachel Hamilton
Presented at ACI's 13th Annual Advanced Forum on Obstetric Malpractice Claims by Caryn L. Lilling Mauro Lilling Naparty LLP and Thomas R. Shimmel Kitch Drutchas Wagner Valitutti & Sherbrook.
This document provides a historical overview of healthcare policy and programs in the United States from the 1930s to present day. It discusses the establishment of key programs like Social Security in 1935, Medicare and Medicaid in 1965, the Children's Health Insurance Program (CHIP) in 1997, and the Affordable Care Act in 2010. The document also outlines the goals and funding mechanisms of these major policies, and describes optional and mandatory benefits covered by programs like Medicaid. It analyzes factors that necessitated healthcare reform over time and how policies have attempted to address issues like the growing uninsured population.
The Social Security Administration announced a 1.7% cost-of-living adjustment for 2013 benefits, one of the lowest increases since 1975. This will increase the average monthly retirement benefit from $1,240 to $1,261. The maximum taxable earnings also increased slightly. Involving an attorney early in the disability claims process can improve chances of approval, as initial claims have around a 63% denial rate. Common medical conditions like musculoskeletal disorders and mental illnesses are most likely to be awarded disability benefits.
The document provides an overview and summary of a presentation on Medicaid, health care reform, and opportunities for advocacy. It begins with introductions and a poll of attendees' backgrounds. It then provides a Medicaid and health reform "pop quiz". The bulk of the document outlines how Medicaid can help address homelessness by helping people obtain and maintain housing, preventing homelessness, redirecting housing funds, and saving money. It discusses opportunities created by the Affordable Care Act, including Medicaid eligibility expansion. The document concludes by discussing long-term care opportunities under health reform.
Ada social security impacts with disability(spring lyecum fair 2009) (2)NWCLS-CONSULTANTS
The American Disability Act protects people with disabilities from discrimination. It prohibits discrimination in employment, public services, transportation, and public accommodations. The original ADA signed in 1990 contained five titles addressing these areas. It has since been amended to expand protections after some Supreme Court rulings narrowed the definition of disability. The amendment clarified that disabilities should be interpreted broadly and that people cannot be fired if they become disabled on the job. Over 48 million Americans receive Social Security benefits or Supplemental Security Income (SSI) due to disabilities or as dependents of disabled individuals. The disability determination and appeals process can take 1.5-3 years to complete as an individual must prove the extent of their disabilities.
This document discusses various legal issues related to caregiving, including identifying dementia, authority to act for another, documents to prepare for disability and death, durable power of attorney, and do not resuscitate orders. It provides an overview of critical legal documents like powers of attorney, healthcare directives, living wills, and certifications of healthcare decision surrogates. It also discusses capacity requirements, practical considerations, and other authority granting arrangements caregivers should be aware of.
Part of a live Facebook Event provided 08/21/20 by South Central Alabama Development Commission, these slides explain the Older Americans Act Legal Assistance Program provided by that agency.
These slides were part of a South Central Alabama Development Commission Facebook live training 08/21/20 describing the State Health Insurance Services provided by that agency.
The document provides an overview of various federal, state, and local benefits programs available to individuals with disabilities or low incomes. It summarizes the eligibility requirements and services provided by key programs like Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), Medicare, Medicaid, housing assistance, food stamps, and fuel assistance at both the federal and Vermont state levels. Contact information is provided for learning more about various Vermont health programs.
This report examines guardianships in Missouri, including the need for research on both public and private guardianships. It discusses the development of the Commission on Disabilities & Guardianships and the efforts of MO WINGS to erode and eliminate guardianships. The report identifies different types of guardianships in Missouri and issues within state departments. It notes concerns about public administrator guardianships and the exclusion of stakeholder voices. The report arises from concerns about MO WINGS' agenda and the failures of legislators and courts. It references reports on abuse and deaths of those with disabilities in state programs.
Galen Benshoof, Robert Wood Johnson Foundation, presented on Realizing the Promise of the ACA: Implementation of State Health Reform at the State Legislative Conference on November 6, 2015.
Health-Care Reform: Replacing Myths with FactsDolf Dunn
The document summarizes myths and facts about the Patient Protection and Affordable Care Act (ACA). It addresses several common myths, including that the ACA cuts Medicare benefits (it expands them), requires giving up private insurance (grandfathered plans can be kept), and provides subsidies to undocumented immigrants (subsidies are only for citizens and lawful residents). The document aims to separate myths from facts about the ACA.
This document discusses the Supreme Court decision on the Affordable Care Act. The Court upheld the individual mandate as a tax, but struck down the requirement that states expand Medicaid or lose existing funding. The decision was split along partisan lines. The document also notes that the Affordable Care Act shares similarities with RomneyCare, and discusses some uncertainties in implementing healthcare reform at the state level.
This document summarizes a meeting that discussed the Affordable Care Act and the Supreme Court's review of its constitutionality. It provides an overview of key provisions of the ACA, such as the individual mandate, essential health benefits, preventative care coverage, and state health insurance exchanges. It also reviews statistics on health care spending, the uninsured population in the US and New Jersey, and the impact of rising costs on New Jersey employers and residents. The document concludes with a discussion of the various outcomes possible from the Supreme Court's review and a panel discussion on the Affordable Care Act.
This presentation discusses the history and key aspects of universal healthcare in the United States. It covers major healthcare programs and reforms over time like Medicare, Medicaid, and the Affordable Care Act. Key points of the ACA are explained, such as the individual mandate, health insurance exchanges, Medicaid expansion, and new regulations for insurance companies. The presentation also addresses criticisms around the cost of universal coverage and impacts on taxpayers, employers, and immigrants.
Running head HOW FLORIDA STATE IS ENACTED THE AFFORTABLE CARE ACT.docxwlynn1
Running head: HOW FLORIDA STATE IS ENACTED THE AFFORTABLE CARE ACT 1
HOW FLORIDA STATE IS ENACTING THE AFFORTABLE CARE ACT 2
How Florida State Is Enacting the Affordable Care Act (ACA)
Rose Sejour
Purdue Global University
06/17/2019
The Strengths of the Affordable Care Act in Florida
There has been an introduction of subsidies in healthcare in Florida, and this is courtesy of the Affordable Care Act. Subsidies in the field basically makes buying of health insurance less expensive for people who live in Florida who are eligible for the subsidies. (The United States Supreme Court also ordered for the implementation of 80/20 rule in all the states, including Florida. The ruling implies the 80 percent of the premium dollars and individual from Florida spend on healthcare instead of spending on the administrative costs. Another strength of Obamacare is that Medicaid is at the moment more inclusive for many citizens in the state. Medicaid coverage currently comprises of uninsured Americans under 138% of the poverty level.) NEED CITATION SINCE YOU ARE USING FACT. Comment by McLean, Terry: Read carefully to find errors such as this field Comment by McLean, Terry: You can write out numbers over 10 as numerals
The state has also made it easier for the dependents to stay longer under their parents’ healthcare plan. Some of the youths may be under the medical cover of their parents up to the age of 26 years old. Lastly, Florida state has also implemented the act such that there are no preexisting denials or surprise cancellations of a plan in the healthcare system. Insurance firms lacks the mandate of cancelling the policy due to an applicant’s mistake during the application process (Rozensky, 2014).
The Weaknesses of the Affordable Care Act in Florida
Despite the fact that the Affordable Care Act has had a lot of strengths in Florida, there are also some weaknesses experienced. The healthcare cost has not decreased for every individual. A number of private plans had to be cancelled since they did not comply with the requirements of Obamacare in the state (Barakat et al., 2017). Those individuals that were negatively affected (from this mess were (The tone is not academic) forced to stop and adopt a new health insurance making them to pay more for a plan which includes benefits like maternity care that may not be their preference. Secondly, shopping for coverage might be complicated to some level. With some confusion that surrounds the rollout of the Obamacare and the market place, more alternatives to decide on, difficulties with the websites and limited enrollment periods, shopping for health coverage may be complicated to some level. Comment by McLean, Terry: The tone is not academic.
Moreover, those citizens who are not insured might be faced with huge tax penalties. It is quite unfortunate that Florida dwellers are only able to see these huge amounts of tax .
Political Parties in TexasParty PlatformBoth parties develop .docxharrisonhoward80223
Political Parties in Texas/Party Platform
Both parties develop party platforms. These platforms may sound great but often do not go into the details needed to effect the actual policy. We will look at one policy position, health and examine the developments since this platform was written in 2012.
Start with the descriptions of Health Care from the respective parties on page 147.
Your book states the Democratic parties support universal health- care plan as permitted under the Affordable Care Act.
Your book states that the Republicans believe that health care decision should be between a patient and health care professionals and should be protected from government intrusion. It also states that the Republican Party demands the immediate repeal of the patient Protection and Affordable Care Act but does not state the replacement of the particular health care policy.
Background information:
An alternative to universal care through the Affordable Care Act are Health Savings Accounts (HSAs).
Proponents of Health Savings Accounts believe it encourages people to be value-conscious shoppers in the health care marketplace. For example, a 2012 study from the Rand Corporation, a policy research institute, found that families with consumer-directed health coverage, like HSA plans, spent an average of 21 percent less the first year after switching from traditional coverage. And that if half of those with employer-sponsored coverage were in such plans, health care costs would fall by $57 billion.
Defenders of ObamaCare—including New York Times economist Paul Krugman—do not believe people can make value-conscious health care decisions. Their preferred option is to insulate patients from almost all costs of care—otherwise known as national health insurance— and then control costs by imposing price controls. ObamaCare doesn’t get them all the way there, but it’s a big step in that direction.
However, if individuals and businesses have access to HSA plans, that might help offset the health care spending explosion that ObamaCare creates. Even now health insurers are warning of quickly rising premiums under ObamaCare. So HSA plans may be the only “affordable” option.
The real question is whether health insurers will offer HSA options at a reasonable price. One of the dirty little secrets is that health insurers offer an HSA plan, but price it so high that the more expensive, comprehensive coverage looks like a better deal. The insurance companies approved of ObamaCare in exchange for the anticipated extra patients signing up. This however, does nothing to decrease the cost or increase the ability of the individual to make decisions outside of the insurance company. Recently we have seen the insurance companies asking to be bailed out
because not enough younger people have signed up to compensate for the elderly on the plan. In fact ,both Aetna and United Health Care have threatened to pull out of the health market in 2016/2017.
2016: What's Next for.
The Affordable Care Act (ACA) is comprehensive healthcare reform legislation that was signed into law in 2010. It expanded access to health insurance coverage in three primary ways: by expanding Medicaid eligibility; creating health insurance exchanges; and preventing insurance companies from denying coverage due to pre-existing conditions. The ACA was intended to provide more affordable health insurance options for millions of uninsured Americans and supports innovative healthcare delivery methods. It established different metal-tiered health insurance plan options that vary in out-of-pocket costs and premiums.
What is the current health insurance status of Coloradans? What are the characteristics of the state’s private health insurance market? How will these change as a result of recent state and federal health reforms?
These questions and others were addressed at a special health policy roundtable for legislators and their staff.
Presented to: 2011 Healthcare Roundtables for Legislators
SECTION VIII GOVERNMENT LIABILITYBeginning point Sovereig.docxzenobiakeeney
SECTION VIII: GOVERNMENT LIABILITY
Beginning point: Sovereign immunity
- based on historical notion that “the king can do no wrong”
- in practice: you cannot sue the government without its permission
PS 480, Liability, Sec VIII
1
SECTION VIII: GOVERNMENT LIABILITY
Key liability issues in administrative law:
1) exceptions to sovereign immunity, usually created by statute
2) whether and how immunity applies to individuals
PS 480, Liability, Sec VIII
2
SECTION VIII: GOVERNMENT LIABILITY
Most cases are “torts”
Tort: “legal wrong done to another person”
Typically people seek correction of, and compensation for, the injury
Liability in these cases is typically a matter of common law, state by state, until preempted by statutes
PS 480, Liability, Sec VIII
3
GOVERNMENT LIABILITY
Intentional tort: on purpose: defamation, destruction incidental to legal searches, loss of business due to rules enforcement
- Generally government has immunity against such suits but not when they involve a battery or false imprisonment
Unintentional tort: injury incidental to other activities or decisions
- Generally negligence of some sort
PS 480, Liability, Sec VIII
4
SECTION VIII: GOVERNMENT LIABILITY
Negligence: injury which could have been avoided with reasonable care
- most common unintentional tort
- often centers on notion of unfulfilled duty
PS 480, Liability, Sec VIII
5
GOVERNMENT LIABILITY
Successful negligence suit requires proof of:
- failure to exercise reasonable care
- failure was proximate cause of injury
failure resulted in specific amount of injury
BUT NOTHING HAPPENS UNLESS SOVEREIGN IMMUNITY IS WAIVED ….
PS 480, Liability, Sec VIII
6
SECTION VIII: GOVERNMENT LIABILITY
Federal Torts Claims Act (1946):
Allows suits against federal government under some conditions
- Some elements are determined by state torts claims acts: extent or limits of liability (ex $200,000 in Florida)
PS 480, Liability, Sec VIII
7
GOVERNMENT LIABILITY
Exceptions to FTCA:
Executive Functions: specific executive functions and claims in foreign states are excepted
Intentional Torts
Discretionary Functions: When government actor makes a policy choice
Scope of Employment: state by state, basically liability occurs only when government official is acting outside of proper job requirements
Public Duty: liability only occurs where government action or inaction is not owed to specific individual. Harm to private parties that is not targeted is not liable, and failure to act responsibly only liable when specific obligation has been created for particular party
- general public cannot sue
PS 480, Liability, Sec VIII
8
FTCA: Exemptions – areas where government is still immune
Intentional torts: harms that arise because of deliberate actions (as opposed to accidents)
Harms to property incident to serving warrant
Harms to reputation due to publication of arrest
Generally remain immune, but exceptions in cases of assault, battery.
SECTION VIII GOVERNMENT LIABILITYBeginning point Sovereig.docxjeffreye3
SECTION VIII: GOVERNMENT LIABILITY
Beginning point: Sovereign immunity
- based on historical notion that “the king can do no wrong”
- in practice: you cannot sue the government without its permission
PS 480, Liability, Sec VIII
1
SECTION VIII: GOVERNMENT LIABILITY
Key liability issues in administrative law:
1) exceptions to sovereign immunity, usually created by statute
2) whether and how immunity applies to individuals
PS 480, Liability, Sec VIII
2
SECTION VIII: GOVERNMENT LIABILITY
Most cases are “torts”
Tort: “legal wrong done to another person”
Typically people seek correction of, and compensation for, the injury
Liability in these cases is typically a matter of common law, state by state, until preempted by statutes
PS 480, Liability, Sec VIII
3
GOVERNMENT LIABILITY
Intentional tort: on purpose: defamation, destruction incidental to legal searches, loss of business due to rules enforcement
- Generally government has immunity against such suits but not when they involve a battery or false imprisonment
Unintentional tort: injury incidental to other activities or decisions
- Generally negligence of some sort
PS 480, Liability, Sec VIII
4
SECTION VIII: GOVERNMENT LIABILITY
Negligence: injury which could have been avoided with reasonable care
- most common unintentional tort
- often centers on notion of unfulfilled duty
PS 480, Liability, Sec VIII
5
GOVERNMENT LIABILITY
Successful negligence suit requires proof of:
- failure to exercise reasonable care
- failure was proximate cause of injury
failure resulted in specific amount of injury
BUT NOTHING HAPPENS UNLESS SOVEREIGN IMMUNITY IS WAIVED ….
PS 480, Liability, Sec VIII
6
SECTION VIII: GOVERNMENT LIABILITY
Federal Torts Claims Act (1946):
Allows suits against federal government under some conditions
- Some elements are determined by state torts claims acts: extent or limits of liability (ex $200,000 in Florida)
PS 480, Liability, Sec VIII
7
GOVERNMENT LIABILITY
Exceptions to FTCA:
Executive Functions: specific executive functions and claims in foreign states are excepted
Intentional Torts
Discretionary Functions: When government actor makes a policy choice
Scope of Employment: state by state, basically liability occurs only when government official is acting outside of proper job requirements
Public Duty: liability only occurs where government action or inaction is not owed to specific individual. Harm to private parties that is not targeted is not liable, and failure to act responsibly only liable when specific obligation has been created for particular party
- general public cannot sue
PS 480, Liability, Sec VIII
8
FTCA: Exemptions – areas where government is still immune
Intentional torts: harms that arise because of deliberate actions (as opposed to accidents)
Harms to property incident to serving warrant
Harms to reputation due to publication of arrest
Generally remain immune, but exceptions in cases of assault, battery.
Review pages 109–110 of Essentials of Health Policy and Law as wel.docxjoellemurphey
Review pages 109–110 of Essentials of Health Policy and Law as well as the following legislation:
Examination and Treatment for Emergency Medical Conditions and Women in Labor
You are a consultant specializing in policy analysis. Based on theExamination and Treatment for Emergency Medical Conditions and Women in Labor legislation, as well as the situation that follows, you will complete a policy analysis with 3–5 options for your client, Congresswoman Moody, to consider.
Congresswoman Moody represents a state that borders Mexico. She is up for re election next year, and she will seek another term in office.
There are many undocumented workers that reside in her district. Congresswoman Moody is vocal about the need to provide health care to all that need it, but she also believes in fiscal restraint and does not support bail-outs for private facilities. She is well aware that her state’s Medicaid budget is almost exhausted for this year, and the state’s unemployment rate remains stubbornly high.
Apart from the voters, other affected constituents include three private regional medical centers trauma units that receive referrals from five or more small facilities that have emergency departments with lesser trauma status. Also, the largest health care corporation that owns two of the three medical centers in her catchment area, and which supported her in her last bid for election with campaign funds at the allowable limit, is threatening to refuse Medicare and Medicaid patients to ensure survival in the bad economy. An increase in unfunded mandates for urgent care may push this corporation into private payer only, and Congresswoman Moody is aware that there are enough affluent families in the area to support two facilities providing only designer medicine and concierge services.
All options must:
· Be within the power of Congresswoman Moody to do
· Be consistent with Congresswoman Moody’s values, and
· Address the issue identified in the problem statement
You will:
1. Identify 3–5 options for Congresswoman Moody’s consideration
2. Identify criteria that will be used to evaluate the options
3. Identify pros and cons for each option
4. Use a side-by-side table (MS® Excel® would be appropriate for this) to assist in analyzing the options.
Submitting Your Assignment
Prepare your written Assignment in a Word and/or Excel document and save it in a location and with a name you will remember, using the following naming convention: username-assignment-unit#.doc.
Page number 109
In terms of national constitutions, a 2004 survey reported that some two-thirds of constitutions worldwide address health or health care, and that almost all of these do so in universal terms, rather than being limited to certain populations.13 For example, consider the health-related constitutional aspects of four politically and culturally diverse countries—Italy, the Netherlands, South Africa, and Poland—that have some type of “right to health”: Italy’s Constitution guarantees a ...
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LEARNING OBJECTIVES By the end of this chapter, you will b.docxsmile790243
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Medical Malpractice Law In The United States Reportlegal5
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The document discusses how the Affordable Care Act (ACA) may be necessary to prevent the US healthcare system from bankrupting the country by 2050. It will be up to managed care organizations and providers to implement the ACA successfully by ensuring access to services like vaccinations and care for pre-existing conditions. So far the ACA has insured 32 million Americans and reduced the federal deficit by $100 billion in its first year. If effectively implemented, the ACA could save $600 billion in healthcare expenditures by 2020 and reduce the federal deficit by $1 trillion.
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What Do Health Insurance Litigators Face in 2012 and Beyond?
1. What Do Health
Insurance Litigators
Face in 2012 and Beyond?
Bryan D. Bolton Eric B. Myers Robert R. Pohls
Funk & Bolton Aetna Inc. Pohls & Associates
Baltimore, MD Philadelphia, PA Walnut Creek, CA
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2. What Do Health Insurance Litigators Face in 2012 and Beyond?
Agenda
1. Judicial Challenges to the Affordable Care Act
2. Interim Final Regulation
3. Medical Loss Ratios
4. Questions and Answers
2
3. What Do Health Insurance Litigators Face in 2012 and Beyond?
A History of Health Care Reform in America
“. . . the hazards of sickness, accident,
invalidism, involuntary unemployment, and old
age should be provided for through insurance.
This should be a charge in whole or in part upon
the industries, the employer, the employee, and
perhaps the people at large. “
Teddy Roosevelt (August 1912)
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4. What Do Health Insurance Litigators Face in 2012 and Beyond?
A History of Health Care Reform in America
March 23, 2010 Patient Protection and Affordable Care Act
March 30, 2010 Health Care and Education
Reconciliation Act of 2010
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5. What Do Health Insurance Litigators Face in 2012 and Beyond?
Affordable Care Act -- Overview
· Alters rules for private insurers
· Creates health benefit exchanges
· Imposes new requirements on employers
· Mandates individual coverage
· Changes Medicare and Medicaid
· Commits $350 million to fighting waste, fraud and abuse
· Creates incentives for improving the quality of care
· Reforms the health care delivery system
· Modifies the tax code
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6. What Do Health Insurance Litigators Face in 2012 and Beyond?
Judicial Challenges -- Timeline
3/23/2010 (Affordable Care Act Passed)
Florida v. DHHS
Virginia v. Sebelius
Liberty University, Inc. v. Geithner
Thomas More Law Center v. Obama
3/24/2010 Bellow v. Sebelius
New Jersey Physicians, Inc. v. Obama
3/25/2010 Taitz v. Obama
3/26/2010 Assoc. of American Physicians and Surgeons,
Inc. v. Sebelius
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7. What Do Health Insurance Litigators Face in 2012 and Beyond?
Judicial Challenges -- Timeline
3/30/2010 (Reconciliation Act Passed) 5/14/2010 Baldwin v. Sebelius
4/2/2010 Walters v. Holder 6/3/2010 Physicians Hospitals of America
4/7/2010 Calvey v. Obama v. Sebelius
4/8/2010 Shreeve v. Obama 6/9/2010 Mead v. Holder
4/12/2010 Goudy-Bachman v. DHHS 7/7/2010 Kinder v. Dept. of Treasury
4/22/2010 Fountain Hills Tea Party 7/26/2010 Sissel v. DHHS
Patriots, Inc. v. Sebelius 8/12/2010 Coons v. Geithner
4/27/2010 Burlsworth v. Holder 8/31/2010 Independent American Party of
5/4/2010 Peterson v. Obama Nevada Eagle Forum v. Obama
5/12/2010 U.S. Citizens Association 9/20/2010 Purpura v. Obama
v. Obama 1/25/2011 Pruitt v. Sebelius
http://www.justice.gov/healthcare/
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8. What Do Health Insurance Litigators Face in 2012 and Beyond?
Judicial Challenges – Pending Cases
Petitions for Certiorari Filed:
Thomas More Law Center v. Obama (No. 11-117)
Virginia v. Sebelius (11-420)
Liberty University v. Geithner (No. 11-438)
Petitions for Certiorari Granted:
National Fed. of Ind. Business v. Sebelius (No. 11-393)
HHS v. Florida (No. 11-398)
Florida v. HHS (No. 11-400)
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9. What Do Health Insurance Litigators Face in 2012 and Beyond?
Judicial Challenges – Key Provisions
The “Individual Mandate”
· All individuals must obtain and maintain “minimal
essential coverage” by January 2014 (unless exempt).
· Anyone without minimum essential coverage will be
required to make a “shared responsibility payment.”
· Tax Year 2014: $95 or 1% of household income
· Tax Year 2015: $325 or 2% of household income
· Tax Year 2016: $695 or 2.5% of household income
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10. What Do Health Insurance Litigators Face in 2012 and Beyond?
Judicial Challenges – Key Provisions
Expansion of Medicaid
· Under the Affordable Care Act, Medicaid is a
cornerstone for expanded health care coverage.
· From 2014 to 2016, the federal government will pay
100% of the fees associated with the increased Medicaid
eligibility
· The federal government’s percentage will then drop
gradually each year until reaching 90% in 2020.
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11. What Do Health Insurance Litigators Face in 2012 and Beyond?
Supreme Court – Process and Schedule
Oral Arguments: March 2012
Allotted Time: 5 and ½ hours
Issues: 4 specific questions
Decision(s): June 2012 (estimated)
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12. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 1: Is the shared responsibility
payment a tax?
· The Tax Anti-Injunction Act generally prohibits any suit
which is filed to restrain the assessment or collection of
a tax. 26 U.S.C. §7421(a)
· If the Court concludes the share responsibility payment
is a tax, it could decide that constitutional challenges to
the individual mandate can be considered only as part of
a suit for a tax refund. 26 U.S.C. §6532; 26 U.S.C. §7422(a)
28 U.S.C. §1346(a); 11 U.S.C. §505(a)(2)
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13. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 1: Is the shared responsibility
payment a tax?
Thomas More Law Center
v. Obama (6th Circuit): No
Florida v. HHS (11th Circuit) No
Liberty University
v. Geithner (4th Circuit) Yes
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14. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
Congress has “broad implied powers” under the
Commerce Clause.
McCulloch v. Maryland, 17 U.S. 316, 421 (1819)
Congress has authority under the Necessary and Proper
Clause to regulate local non-economic activities when the
regulation “is a necessary part of a more general
regulation of interstate commerce.”
Gonzales v. Raich, 545 U.S. 1, 16-17 (2005)
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15. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“The powers of the legislature are defined and limited;
and those limits may not be mistaken or forgotten.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)
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16. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
The exercise of Congress’ power under the Commerce
Clause has been limited to three subjects:
· channels of interstate commerce;
· instrumentalities of interstate commerce; and
· activities that “substantially affect” interstate commerce.
United States v. Lopez, 514 U.S. 549 (1995)
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17. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“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.”
Virginia v. Sebelius
728 F.Supp.2d 768 (E.D. Va. 2010)
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18. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“The Secretary relies on what is commonly referred to as
an aggregation theory, which is conceptually based on the
hypothesis that the sum of individual decisions to
participate or not in the health insurance market has a
critical collective effect on interstate commerce.”
Virginia v. Sebelius
728 F.Supp.2d 768 (E.D. Va. 2010)
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19. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“The power of Congress to regulate a class of activities
that in the aggregate has a substantial and direct effect on
interstate commerce is well settled. . . . But these
regulatory powers are triggered by some type of self-
initiated action.”
Virginia v. Sebelius
728 F.Supp.2d 768 (E.D. Va. 2010)
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20. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“It would be a radical departure from existing case law to hold that
Congress can regulate inactivity under the Commerce Clause. If it
has the power to compel an otherwise passive individual into a
commercial transaction with a third party merely by asserting . . .
that compelling the actual transaction is itself ‘commercial and
economic in nature, and substantially affects interstate commerce,’
it is not hyperbolizing to suggest that Congress could do almost
anything it wanted.”
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
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21. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
The Affordable Care Act recites Congress’ findings that
health care and health insurance:
· affect the nation’s economy;
· are commercial and economic in nature; and
· substantially affect interstate commerce.
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22. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
The mere fact that Congress asserts a particular activity
substantially affects interstate commerce “does not
necessarily make it so.”
United States v. Morrison, 529 U.S. 598, 614 (2000)
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23. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
Under the Commerce Clause, the Supreme Court
traditionally examines two issues:
· Did Congress have a rational basis for finding that the
regulated activity affects interstate commerce?
· Is the means selected to regulate the activity
reasonable and appropriate?
United States v. Morrison, 529 U.S. 598, 614 (2000)
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24. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“Congress’s insurance industry reforms . . . will encourage
individuals to delay purchasing private insurance until an
acute medical need arises.”
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
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25. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“. . . unless the individual mandate forces individuals into
the private insurance pool before they get sick or injured,
Congress’ insurance industry reforms will be unsustainable
by the private insurance companies.”
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
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26. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“. . . without full market participation, the financial
foundation supporting the health care system will fail, in
effect causing the entire health care regime to ‘implode’.”
Virginia v. Sebelius
728 F.Supp.2d 768 (E.D. Va. 2010)
26
27. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“. . . the provision regulates economic activity that
Congress had a rational basis to believe has substantial
effects on interstate commerce.”
“Congress had a rational basis to believe that the provision
was essential to its larger economic scheme reforming the
interstate markets in health care and health insurance.”
Thomas More Law Center v. Obama
651 F.3d 529 (6th Cir. 2011)
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28. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“. . . the conduct regulated by the individual mandate – an
individual’s decision not to purchase health insurance and
the concomitant absence of a commercial transaction – in
no way ‘burdens’ or ‘obstructs’ Congress’s ability to enforce
its regulation of the insurance industry.”
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
28
29. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“At best, the individual mandate is designed not to enable
the execution of the Act’s regulations, but to counteract
the significant regulatory costs on insurance companies
and adverse consequences stemming from the fully
executed reform.”
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
29
30. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 2: Does the individual mandate
exceed Congress’ powers under
Article I of the Constitution?
“That may be a relevant political consideration, but it does
not convert an unconstitutional regulation . . . into a
constitutional means to ameliorate adverse cost
consequences on private insurance companies engendered
by Congress’s broader regulatory reform of their health
insurance products.”
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
30
31. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 3: Is the individual mandate
severable from the rest of the Act?
“Unless it is evident that the Legislature would not have
enacted those provisions which are within its power,
independently of that which is not, the invalid part may be
dropped if what is left is fully operative as a law.”
Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987)
31
32. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 3: Is the individual mandate
severable from the rest of the Act?
Given the vagaries of the legislative process, “this inquiry
can sometimes be ‘elusive’.”
Virginia v. Sebelius, 728 F.Supp.2d 768 (E.D. Va. 2010)
“. . . it is reasonably ‘evident’ . . . that the individual mandate
was an essential and indispensable part of the health reform
efforts, and that Congress did not believe other parts of the
Act could (or it would want them to) survive independently.”
Florida v. HHS, 780 F.Supp.2d 1286 (N.D. Fla. 2011)
32
33. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 3: Is the individual mandate
severable from the rest of the Act?
“The presumption of severability is rooted in notions of
judicial restraint and respect for the separation of powers in
our constitutional system.”
“The Act’s other provisions remain legally operative after
the mandate’s excision, and the high burden needed under
Supreme Court precedent to rebut the presumption of
severability has not been met.”
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
33
34. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 4: Does the expansion of
Medicaid violate state sovereignty?
“Congress shall have power . . . to pay the Debts and provide
for the common Defence and general Welfare of the United
States.”
U.S. Constitution, Art. I, Sec. 8, Cl. 1
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35. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 4: Does the expansion of
Medicaid violate state sovereignty?
“. . . legislation enacted pursuant to the spending power is
much in the nature of a contract: in return for federal funds,
the States agree to comply with federally imposed
conditions.” Pennhurst State Sch. & Hosp. v. Halderman
451 U.S. 1, 17 (1981)
“Medicaid is a jointly financed federal-state cooperative
program, designed to help states furnish medical treatment
to their needy citizens.”
Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1235 (11th Cir. 2011)
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36. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 4: Does the expansion of
Medicaid violate state sovereignty?
Four primary restrictions on legislation under the Spending
Clause:
· must be in pursuit of the general welfare;
· must be reasonably related to the legislation’s stated goal;
· Congress’ intent to condition funds on a particular action
must be unambiguous so that states can knowingly choose
whether to participate; and
· cannot induce state activities which are unconstitutional.
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
36
37. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 4: Does the expansion of
Medicaid violate state sovereignty?
“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.”
U.S. Constitution, Tenth Amendment
Congress may not employ the spending power in such a way
as to “coerce” the states into compliance with the federal
objective
South Dakota v. Dole, 483 U.S. 203, 211 (1987)
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38. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 4: Does the expansion of
Medicaid violate state sovereignty?
“Congress cannot directly compel a state to act, nor can
Congress hinge the state’s right to regulate in an area that
the state has a constitutional right to regulate on the state’s
participation in a federal program.”
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
38
39. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 4: Does the expansion of
Medicaid violate state sovereignty?
“Congress cannot place restrictions so burdensome and
threaten the loss of funds so great and important to the
state’s integral function as a state . . . as to compel the state
to participate in the ‘optional’ legislation.”
“This is the point where ‘pressure turns into compulsion’.”
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
39
40. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 4: Does the expansion of
Medicaid violate state sovereignty?
“. . . the Act’s expansion of Medicaid is not unduly coercive.”
· Congress reserved the right to make changes
· federal government will bear nearly all of the costs
· states have plenty of notice
· no certainty that states will lose Medicaid funding if they
opt out
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
40
41. What Do Health Insurance Litigators Face in 2012 and Beyond?
Question No. 4: Does the expansion of
Medicaid violate state sovereignty?
“. . . the Act’s expansion of Medicaid is not unduly coercive.”
· Congress reserved the right to make changes
· federal government will bear nearly all of the costs
· states have plenty of notice
· no certainty that states will lose Medicaid funding if they
opt out
Florida v. HHS, 648 F.3d 1235 (11th Cir. 2011)
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42. What Do Health Insurance Litigators Face in 2012 and Beyond?
HEALTH CARE REFORM AND THE
CHANGED LITIGATION LANDSCAPE
42
43. What Do Health Insurance Litigators Face in 2012 and Beyond?
Background: The Interim Final Regulation
The IFR modified the existing DOL claims and appeals
regulations in several respects and imposed a number
of new requirements on plans and insurers.
Expanded the scope of an “adverse benefit
determination” to include rescission of coverage,
regardless of whether the rescission pertains to a
specific adverse decision.
43
44. What Do Health Insurance Litigators Face in 2012 and Beyond?
The Interim Final Regulation
Reduced the timeframe for deciding urgent care claims from a
maximum of seventy-two (72) hours, to twenty-four (24) hours after
receipt of the claim
Requiring plans and insurers to provide claimants (at no cost) with the
opportunity to review their claim file, as well as any new or additional
evidence considered, relied upon, or generated by the plan or insurer
in connection with a claim, as well as any new or additional rationale
for denial during the internal appeals process, and allow a reasonable
opportunity to respond to any new evidence or rationale
Requiring claims and appeals be adjudicated in a manner designed to
ensure independence and impartiality by the decision-maker.
44
45. What Do Health Insurance Litigators Face in 2012 and Beyond?
Notices of denial of claims or appeals must include the
following content:
a. sufficient information identifying the claim, such the date
of service, the health care provider, and claim amount;
b. diagnosis and treatment codes and their corresponding
meanings;
c. denial code and corresponding meaning, as well as a
description of any standard applied. A final adverse internal
benefit determination also must include a discussion of the
decision;
d. description of available internal appeals and external
review processes, including how to initiate; and
e. the availability of, and contact information for, an
applicable office of health insurance consumer assistance or
ombudsman
45
46. What Do Health Insurance Litigators Face in 2012 and Beyond?
If a plan or insurer fails to strictly adhere to the
requirements of the IFR, then the claimant was deemed
to have exhausted the plan or insurer’s internal claims
and appeals process
Regardless of whether the plan or insurer substantially
complied with the IFR or the violation was de minimis
Allowing the claimant to initiate any available external
review process or remedies available under ERISA or
state law
46
47. What Do Health Insurance Litigators Face in 2012 and Beyond?
Directing all insured (both individual and groups) and non-ERISA self-funded
plans, such as state and local government and church plans), are subject to
state external reviews, consistent with the protections afforded by the NAIC
Uniform Model Act, including:
(a) apply to decisions involving medical necessity, health care setting,
level of care and effectiveness;
(b) allow exceptions to exhaustion requirement consistent with appeals
rules;
(c) require the plan or insurer to pay the costs of an independent
review organization (“IRO”) for the external review;
(d) impose no minimum dollar limit on the claim;
(e) allow four (4) months for an external appeal;
(f) establish rules for the assignment and independence of the
independent reviewer;
(g) decisions on external review are binding on insurer or plan; and
(h) allow expedited review of certain claims.
47
48. What Do Health Insurance Litigators Face in 2012 and Beyond?
Changes to the Interim Final Rule
The amendment eliminates the IFR requirement that urgent care
claims be decided within twenty-four (24) hours.
The amendment retains the current rule that urgent care claims
must be decided as soon as possible, taking into account medical
exigencies, but not longer than seventy-two (72) hours.
The Preamble states a plan or insurer must defer to an attending
provider’s determination as to whether a claim is “urgent.”
The IFR’s required disclosure of diagnosis and treatment codes
was also eliminated.
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49. What Do Health Insurance Litigators Face in 2012 and Beyond?
Changes to the Interim Final Rule
• The amendment to IFR still requires disclosure of diagnosis and
treatment codes, as well as their meanings, but only if requested.
• A request for diagnosis or treatment codes is not a request for an
internal appeal or an external review.
• The amendment to the IFR also reversed the “deemed denied”
provision, which provided no exception for even a de minimis
violation of the IFR.
• The amended regulation permits the internal review process to
continue if the violation was: (a) de minimis; (b) non-prejudicial; (c)
attributable to good cause or matters beyond the plan or insurer's
control; (d) part of a good faith exchange of information between
the claimant and the plan or insurer; and (e) not indicative of a
pattern or practice of non-compliance.
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50. What Do Health Insurance Litigators Face in 2012 and Beyond?
Changes to the Interim Final Rule
If a claimant files for external or judicial review, but the
attempt at immediate review is rejected based on a de
minimis violation, then the claimant may resubmit the
claim to the plan and pursue an internal appeal.
The plan or insurer must notify the claimant of the right
to resubmit the claim for internal appeal within ten days
after rejection by the external reviewer or court.
The time for re-filing the claim begins upon the
claimant's receipt of the notice from the plan or insurer.
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51. What Do Health Insurance Litigators Face in 2012 and Beyond?
Changes to the Interim Final Rule
Federal External Review
The amendment to the IFR narrowed the scope of the
federal external appeal process for self-funded ERISA
plans, and in so doing, narrowed the scope of appeals
that are subject to external review.
The amendment suspended the requirement that “any”
adverse benefit determination (other than one involving
eligibility) was subject to external review.
During the suspension period, only claims involving
medical judgment and rescissions will be subject to the
federal external review process.
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52. What Do Health Insurance Litigators Face in 2012 and Beyond?
Changes to the Interim Final Rule
Federal External Review
The amendment also provides a definition of “medical judgment.”
“Medical judgment” is defined to include claims for: medical
necessity, appropriateness of care, health care setting, level of
care, effectiveness of a covered benefit, or determinations of
whether a treatment is experimental or investigational.
The Preamble also suggests a broad view of what constitutes a
medical judgment, including a claim denied on the basis of a
preexisting condition exclusion would be eligible for external
review.
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53. What Do Health Insurance Litigators Face in 2012 and Beyond?
Changes to the Interim Final Rule
Federal External Review
The amendment to the IFR also explains whether a claim involves
a medical judgment is to be “determined by the external
reviewer.”
The Technical Release and Preamble to the amendment further
clarify that plans must rotate external review among contracted
IROs, to minimize the risk that and IRO may become dependent on
the plan.
Careful scrutiny will be applied to any “process other than
rotational assignment” in determining whether a plan qualifies for
the non-enforcement safe-harbor.
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54. What Do Health Insurance Litigators Face in 2012 and Beyond?
THE IMPLEMENTATION AND IMPACT
OF MEDICAL LOSS RATIOS
• Insurers offering coverage in the small group or individual market
must meet a minimum MLR of eighty percent (80%). 42 U.S.C. §
300gg-18(b)(1)(A)(ii).
• Insurers offering coverage in a large group market must meet a
minimum MLR target of eighty-five percent (85%). 42 U.S.C. at §
300gg-18(b)(1)(A)(i).
• The MLR regulation adopts a threefold approach to achieving this
goal. (1) public reporting on premium dollar spending; (2) setting
standard percentages of each premium dollar that must be spent
on health claims and quality improvement expenses; (3) requiring
insurers to rebate a pro-rata portion of premium if the MLR is less
than the standard percentage.
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55. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
Insurers must pay all other expenses of transacting
business out of this remaining twenty percent (20%).
The remaining expenses insurers must bear include,
but are not limited to, overhead, commissions,
underwriting expenses, fraud prevention/detection,
employee salaries, compliance costs, as well as profit.
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56. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
Section 2718(a) requires insurers to submit a public
report detailing the MLR calculations to HHS for each
plan year.
Each insurer is required to submit an aggregate report
to HHS, on a State-by-State basis for each market.
Reports are due by June 1 of the following MLR
reporting year.
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57. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
Section 2718(a)(2) of the Act allows insurers to include
any costs spent on “activities that improve health care”
in the MLR numerator.
This could significantly increase the ability to comply
with the applicable MLR requirement.
The question, of course, is what constitutes “activities
that improve health care”?
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58. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
The four categories in § 2717 encompass activities and benefits
that:
(A) improve health outcomes through the implementation of
activities such as quality reporting, case management, care
coordination, and chronic disease management;
(B) implement activities to prevent hospital readmissions;
(C) implement activities to improve patient safety and reduce
medical errors through the appropriate use of best clinical
practices, evidence based medicine, and health information
technology; and
(D) implement wellness and health promotion activities.
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59. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
The MLR regulation directs an activity can only be classified as a
quality improvement activity if it first falls within one of the
categories provided in § 2717, and further meets all the
requirements in § 158.150.
The regulation requires any proposed quality improvement
activity be both primarily designed to improve patient care and
the effectiveness of any proposed activity must be capable of
objective measurement and produce verifiable results.
An insurer is not required to present initial evidence of
effectiveness, but must demonstrate “measurable results
stemming from the executed quality improvement activity.”
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60. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
The MLR regulation contains a specific listing of
activities that definitively are within and without the
category of quality improvement activities.
The list includes such items as blood glucose
monitoring programs and medication adherence
programs.
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61. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
An activity primarily designed to “control or contain
costs” cannot be categorized as a quality improvement
activity, even if it meets all of the category’s
requirements.
If an activity’s primary design is to improve health
outcomes, and a secondary effect is a cost savings, then
the activity can qualify as a healthcare quality
improvement activity, assuming all other requirements
are satisfied.
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62. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
Most administrative expenses were determined not related or
primarily designed to improve the quality of patient health.
Some traditional administrative expenses may qualify as a quality
improvement activity, provided they meet all other criteria for the
category.
One example is “prospective utilization review” as compared to
“concurrent” and “retrospective utilization reviews.”
Prospective utilization review is considered a quality improvement
activity because it is forward looking, rendered before care is
given and with the goal of ensuring the most appropriate medical
treatment in the most appropriate setting.
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63. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
If an insurer fails to meet the minimum MLR
requirement, then the insurer must rebate directly to
the consumers the difference between the insurer’s
actual MLR percentage for the reporting year and the
required MLR standard for that market.
The rebate must be paid directly to the each individual
enrollee in the applicable market.
The rebate must be paid by no later than August 1
following the end of the reporting year.
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64. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
An insurer has discretion to choose among a range of options
available to provide the rebate.
The rebate for a current enrollee may be given in the form of
“a premium credit, lump-sum check, or, if an enrolled paid the
premium using a credit card or direct debit, by lump-sum
reimbursement to the account used to pay the premium.”
Rebates for former enrollees must be paid in either a lump-
sum check or, in the case of electronic premium payment, a
lump-sum reimbursement to the account used to pay the
premiums.
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65. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
Fraud prevention is not a quality improvement
activity.
Insurers can offset fraud detection and recovery
expenses against actual recoveries, up to the amount
recovered, if the recovery efforts are successful.
By excluding the costs of fraud prevention and
detection from the MLR numerator, the regulations
discourage insurers from devoting resources to fraud
detection and prevention.
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66. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
The definition of “Federal Taxes” that could be excluded from the
premium revenue in the MLR denominator created some
controversy.
Chairs of the congressional committees that drafted legislation
wrote to HHS stating the intent was to only exclude “Federal taxes
and fees that relate specifically to revenue derived from the
provision of health insurance coverage that were included in the
PPACA.”
HHS disagreed, defining the exclusion for taxes broadly, to include
most Federal taxes other than taxes on investment income and
capital gains.
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67. What Do Health Insurance Litigators Face in 2012 and Beyond?
IMPACT OF MLR
Commissions are not part of the MLR calculation and
must be absorbed as non-claims related
administrative expenses.
Agents are concerned that their commissions will be
reduced and/or jobs eliminated as insurers are forced
to reduce costs to comply with the MLR.
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68. What Do Health Insurance Litigators Face in 2012 and Beyond?
Questions?
Bryan D. Bolton Eric B. Myers Robert R. Pohls
Funk & Bolton Aetna Inc. Pohls & Associates
Baltimore, MD Philadelphia, PA Walnut Creek, CA
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