health care reform: the grand design

HEALTH CARE REFORM

Robert R. Pohls Pohls & Associates Walnut Creek, California

2011 Eastern Claims Conference Waldorf=Astoria Hotel · New York City

February 27, 2011 - March 1, 2011

The Grand Design

Bryan D. Bolton Funk & Bolton Baltimore, Maryland

Gary Schuman Combined Insurance Company of America Glenview, Illinois

HEALTH CARE REFORM 2011 Eastern Claims Conference Waldorf=Astoria Hotel · New York City

February 27, 2011 - March 1, 2011 The Grand Design

“. . . 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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March 23, 2010 Patient Protection and Affordable Care Act

March 30, 2010 Health Care and Education Reconciliation Act of 2010

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· High-risk pool established to provide coverage to people with pre- existing conditions. · Provide dependent coverage for adult children to age 26. · Require minimum coverage without cost-sharing for preventive services, including recommended immunizations, rated A or B by the U.S. Preventive Services Task Force. · HHS and states begin annual review of unreasonable increases in health insurance coverage premiums. A health insurer cannot implement any unreasonable premium increase without prior justification to HHS and the relevant state.

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· Require guarantee issue and renewal, and allow rating variation based only on age, premium rating area, family composition and tobacco use. Limits out-of-pocket deductibles based on IRC.

· Limits waiting period for coverage to 90 days.

· Prohibits Annual or Lifetime limits on essential benefits.

· No pre-existing condition exclusion permitted.

· Create state-based Health Insurance Exchanges.

· Requires OPM to contract with insurers to offer at least two multi- state plans in each exchange.

· Create Essential Benefits Package providing comprehensive services and must cover at least 60% of actuarial value of covered benefits and limit cost-sharing.

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· Minimum essential benefits consists of the following: ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance abuse services, prescription drugs, rehabilitative and habilitative services and devices, laboratory services, preventive and wellness services, and pediatric, including oral and vision care. · HHS is required to establish the complete list of essential benefits. · Essential benefit plans can differ by levels of coverage.

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· Bronze (Basic) Level Coverage – equals 60% of full actuarial

value of the benefits provided by plan.

· Silver (Enhanced) Level Coverage – equals 70% of full

actuarial value of the benefits provided by plan.

· Gold (Premium) Level Coverage – equals 80% of full

actuarial value of benefits provided by plan.

· Platinum (Premium Plus) Level Coverage – equals 90% of

full actuarial value of the benefits provided by plan. Not

required to offer Platinum coverage.

· All plans must offer mental health parity. 7



A “qualified health plan” means a health plan that:

(A) has a certification that such plan meets the requirements of each Exchange through which the plan is issued;

(B) provides the essential health benefits plan package;

(C) is offered by a licensed health insurer that:

(i) is licensed and in good standing to offer health insurance in each State where coverage is offered;

(ii) agrees to offer at least one qualified health plan in silver and gold levels in each such Exchange;

(iii) agrees to same premium rates inside and outside of Exchange; and

(iv) complies with regulations. 8



· By 2014, States must establish exchanges to facilitate purchase of qualified health plans and are charged with enforcing standards. · States must establish Small Business Health Options Program (SHOP) Exchange to assist small employers in the process of enrolling employees in qualified health plans offered in the small group market. · Regulations will establish criteria for certification of health plans as qualified health plans, but minimum criteria are defined in statute. · Only qualified health plans may be offered through an exchange, but a health insurer can offer plans outside of exchanges.

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An exchange will:

· (1) establish procedures for certification and decertification of qualified health plans;

· (2) offer a toll free number;

· (3) maintain internet site for standardized comparison of information on plans;

· (4) assign a rating to each QHBP;

· (5) utilize standard format for presenting plan options;

· (6) inform individuals about eligibility for Medicaid CHIP;

· (7) establish a calculator to determine actual cost of coverage after any premium credit or cost-subsidy; and

· (8) provide procedures for certification for exemption from individual excise tax. 10



· Office of Personnel Management (OPM) shall contract with health insurers to offer at least two multi-state qualified health plans through the exchanges to provide individual and small group coverage.

· Medical loss ratios, profit margins, premiums and other terms and conditions shall be implemented in a manner similar to FEHBA Program.

· States may offer additional benefits, but cannot add to Federal cost.

· Small Employers (100 or fewer employees) may elect to make all full-time employees eligible for plans through the Exchange.

· In 2017, Large Employers can participate in the Exchange 11



· Insurer must offer at least one silver and one gold level plan in the Exchange and charge same plan premium offered inside and outside of the Exchange.

· Agents and brokers are permitted to serve as “Navigators” and may enroll individuals in plans offered through the Exchange.

· Health insurers cannot serve as navigators and navigators cannot receive consideration from insurer in connection with participation or enrollment of individuals or employees.

· HHS will establish standards for navigators by regulation.

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· Employers offering minimum essential coverage through employer- sponsored plan must offer free-choice vouchers to employees to purchase coverage through the Exchange. Voucher amount is determined by the most generous amount the employer would have contributed for coverage under employer’s plan.

· If employer contributes less than 60% of costs of employer plan or premiums exceed 9.8 percent of employee’s income, then employee is not considered to have minimum essential coverage and is eligible for premium assistance.

· Employers with more than 200 employees must automatically enroll new full-time employees in coverage with the opportunity to opt out.

· Individuals are required to maintain minimum essential coverage beginning in 2014.

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· HHS will award grants to states to establish or expand health insurance consumer assistance or a health insurance ombudsman.

· A state office of health insurance consumer assistant or health insurance ombudsman shall: 1) assist with filing and complaints and appeals; 2) collect, track and quantify problems encountered by consumers; 3) educate consumers on their rights and responsibilities; 4) assist consumers with enrollment; 5) resolve problems with premium tax credits.

· Coverage cannot be rescinded except in the case of fraud or intentional misrepresentation of a material fact.

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· A group health plan or health insurance issuer must give at least 60 days notice if it makes any material modification in the terms of the plan or coverage.

· Increases wellness incentive limit currently codified in HIPAA, but increases incentive from 20-30%.

· Wellness incentive may be increased by regulation up to 50%.

· Cannot require pre-authorization for emergency care in hospital or for female participants for OB/GYN care.

· Cannot impose conditions for participation in clinical trial.

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· Within 24 months of enactment, health plans must use HHS standards for provision of summary of benefits and coverage explanation. HHS will work with NAIC to develop standards.

· Standards shall ensure that outline of coverage is: presented in uniform format, not more than 4 pages in length and in 12-point or larger font; in a manner understandable to average enrollee; includes definitions of standard terms; includes coverage limitations or exceptions, cost-sharing provisions, renewability and continuation provisions, examples of common benefit scenarios, a statement the outline is a summary and a web link to the actual coverage policy or group certificate.

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Certain provisions become Effective for calendar year Plans: • Coverage for adult children • No lifetime caps • Restriction on annual caps • No pre-existing conditions for children under age 19

Reinsurance Program for

Retirees becomes operative

• 0.9% additional Medicare tax becomes effective • 3.8% Medicare ta on unearned income becomes effective • Medicare Part D subsidiaries effectively become taxable • $2,500 limitation on health FSAs becomes effective

Patient Protection and

Act signed into law

“Cadillac” plan tax becomes

effective

• Exchanges become operative • Individual mandate provisions apply • Employer responsibility obligations apply

6/21/2010

3/23/2010 2011

2013

2014 2018

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· The Act grandfathers plans in effect on March 23, 2010

· A grandfathered plan may provide that individuals who are covered on March 23, 2010 can continue coverage under the plan generally without regard to the requirements of the Act

· Family members may enroll in the grandfathered plan in the future if family coverage was permitted under the terms of the plan as in effect on March 23, 2010

· New employees may join the grandfathered plan in the future if the plan permitted new employees to join on March 23, 2010 18



Even though existing plans are grandfathered, certain interim requirements still apply:

· No lifetime limits (2011)

· Restrictions on annual limits (2011)

· Restrictions on coverage rescissions (2011)

· Extension of dependent coverage to adult children (2011)

· Advance notice of material modifications (2011)

· Uniform summary of benefits (2011-2012)

· No pre-existing condition exclusions for enrollees under the age of 19 (2011)

· No pre-existing condition exclusions for enrollees of any age (2014)

· Maximum waiting period is 90 days (2014) 19



· Coverage requirements for preventive care services

· Coverage requirements for emergency services

· Non-discrimination rules that apply to insured plans

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· The interim requirements first became effective for plan

years beginning on or after September 23, 2010 (6 months

after the law was enacted)

· For calendar years plans, the interim requirements began

to apply on January 1, 2011

· For October, November and December fiscal year plans, the

interim requirements applied on the first day of the

plan year in 2010

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· No lifetime limits · Restricted Annual Limits · $750,000 (current) · $1,250,000 (Sept. 23, 2011) · $2,000,000 (2012) · States granted waivers permit health plans to provide much lower annual limits on coverage. · Mini-med plans · Limited benefit plans · Without these waivers, hundreds of thousands of people would have lost insurance or experienced a reduction in benefits

· Waivers/Exemptions automatically expire in 2014. 22



To the extent that a plan offers specific benefits that are not considered “minimum essential benefits” under the Act, the plan may impose annual or lifetime limits on such specific benefits that are otherwise permissible under federal law.

Note: The Act does not define the specific benefits covered by this exception.

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A plan cannot rescind coverage unless the participant or beneficiary has engaged in fraud of intentional misrepresentation of material fact as prohibited by the terms of the plan.

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· Adult children must continue to be eligible to be covered until they turn age 26

· Adult children may be covered as dependents tax-free until the year they turn age 27

· IRS has clarified that the tax-free status of this coverage runs from March 30, 2010, and that in 2010 cafeteria plans can permit adult children to be covered pre-tax mid-year (and make or change h health care FSA contributions) as if their becoming eligible was a change in family status (IRS Notice 2010-38, 4/27/10)

· Child is defined as a son, daughter, stepson, stepdaughter, eligible foster child, adopted child legally placed with the participant for adoption 25



· Up to age 26

· Need not live with their parents

· Need not be financially dependent on their parents

· Need not be enrolled in school

· Will not cover spouse or dependent of the child

· For grandfathered plans prior to 2014, an adult child is only required to be offered coverage if such adult child is not eligible to enroll in another eligible employer-sponsored health plan

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Notice of material modifications to plan benefits must be provided at least 60 days before the modifications become effective.

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A plan may not impose pre-existing condition limitations on enrollees who are under the age of 19.

Note: This requirement expands to apply to all enrollees beginning in 2014.

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Participants may use emergency room services without the need for prior authorization. In addition, a plan may not impose any additional co-payment or co-insurance requirements if the emergency facility is not part of the plan’s network.

Note: Grandfathered plans are not

required to include this provision.

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· Colonoscopies

· Cholesterol

· Blood pressure

· Adult and children vaccines

· Children developmental screening and lead tests

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· Administration has granted broad waivers:

· Florida · Ohio · New Jersey · Tennessee

· Temporary waivers granted to four states and more than 900 health plans covering 2.4 million people.

· These waivers allow health insurers to continue offering less generous benefits than they would otherwise be required to provide this year under new federal health care law.

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· Many other states, insurers and employers most likely will seek similar exemptions.

· To receive a waiver, a state, employer or an insurer must show compliance with the federal requirements would cause “a significant increase in premiums or a decrease in access to benefits.”

· Under the current law and rules, health plans this year must generally provide at least $750,000 in coverage for essential benefits like hospital care, doctor’s services and prescription drugs.

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Participants may use emergency room services without the need for prior authorization. In addition, a plan may not impose any additional co-payment or co-insurance requirements if the emergency facility is not part of the plan’s network.

Note: Grandfathered plans are not

required to include this provision.

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· Individuals will be required to maintain health insurance (known as “minimum essential coverage”).

· Individuals who do not maintain such coverage will be required to pay a penalty equal to the grater of $695 or 2.5% of the individual’s income.

· Families that do not maintain such coverage will be required to pay a penalty equal to the greater of $695 for each non-covered family member (capped at $2,085) or 2.5% of the family’s income.

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· Plans may not impose any pre-existing condition limitation.

· As noted above, beginning in 2011, plans may not impose any pre-existing condition limitations on children under the age of 19.

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Plans may not impose waiting periods that exceed 90 days.

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Plans may not impose coverage rules based on any health status related factor.

Note: For employers, it is not clear how (or if) this requirement differs from the existing

HIPAA non-discrimination rules that are applicable to employer-sponsored plans.

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Wellness programs that do not depend on health status factors: · Program must be made available to all similarly situated individuals

· Can reimburse all or a part of the cost for membership in a fitness center

· Diagnostic testing program that provides rewards for participation, not outcomes

· Encourages preventive care related to a health condition

· Reimbursements for costs of smoking cessation programs regardless of outcomes

· Rewards for attending periodic health education seminars

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Wellness programs currently in existence under existing regulations may continue to follow those regulations as long as those regulations remain in effect.

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Insurers required to spend at least $.80 out of every dollar they collect in premiums on patient welfare. · A critical Issue for the insurance industry's bottom line. · What does this mean precisely ?

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• Include the cost of verifying the credentials of doctors in its networks

• Ferreting out fraud by identifying doctors performing unnecessary operations

• Typical business expenses such as insurance commissions to agents/brokers and taxes paid on investments

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Medical-loss ratio is important because law requires a refund to consumers if too much is spent on administrative costs.

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· Insurance industry wants to "water down" the law by including too many administrative costs under the guise of patient care · If six largest for-profit insurers had been required to meet these new standards last year, they would have been required to refund $1.9 billion.

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Interim Final Rules For Group Health Plans And Health Insurance Issues Relating To Coverage Of Preventive Services Under PPACA Promulgated By

· Department of Treasury, 26 CFR Part 54;

· Department of Labor, 29 CFR Part 2590; and

· Department of Health and Human Services, 29 CFR Part 147.

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· Interim Final Regulations apply to group health plans and group health insurance issuers for plan years beginning on or after September 23, 2010; and · These interim regulations generally apply to individual health insurance issuers for policy years beginning on or after September 23, 2010.

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Identifies three reasons for current under-utilization of preventive services:

· Turnover in health insurance market offers no incentive for insurers to cover preventive services;

· Preventive services often offer no immediate benefit, making it easy to postpone in the face of immediate cost; and

· Some benefits of preventive services accrue to society as a whole and are not factored into individual decisions.

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Require A Group Health Plan and Health Insurance Issuer Offering Group Or Individual Health Insurance Coverage To Provide Benefits For And Prohibits Imposition Of Cost Sharing With Respect To: · Evidence-based items or services that have in effect a rating of A or B in the current recommendations of the United States Preventive Services Task Force (Task Force); · Immunizations for routine use in children, adolescents, and adults that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention (Advisory Committee);

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Require A Group Health Plan and Health Insurance Issuer Offering Group Or Individual Health Insurance Coverage To Provide Benefits For And Prohibits Imposition Of Cost Sharing With Respect To:

· With respect to infants, children, and adolescents, evidence informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration (HRSA); and

· With respect to women, evidence-informed preventive care and screening provided for in comprehensive guidelines supported by HRSA (not otherwise addressed by the recommendations of the Task Force).

Complete list of recommendations and guidelines that are required to be covered under the interim final regulations can be found at: http://www.HealthCare.gov/center/regulations/prevention.html

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· Individuals will experience improved health as a result of reduced transmission, prevention of delayed onset, and earlier treatment of Disease;

· Healthier workers and children will be more productive with fewer missed days of work or school;

· Some of the recommended preventive services will result in savings due to lower health costs; and

· The costs of preventive services will be distributed more equitably.

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Projection of Lives Saved From Increasing Utilization of Selected Preventive Services To 90 Percent

Preventive service

Population group

Percent utilizing

preventive

service in

2005

Lives saved annually if percent utilizing preventive service

increased to

90 percent

Regular aspirin use ……………………..

Smoking cessation advice and help to quit ……….……………………..

Colorectal cancer screening ………..

Influenza vaccination …………………

Cervical cancer screening in the past 3 years …………………..……………

Cholesterol Screening……………………

Breast cancer screening in the past 2 years ……………………..…………………

Chlamydia screening……………………

Men 40+ and women 50+ …………

All adult smokers …………………....

Adults 50+ …………………………………

Women 18-64 …………………….......

Men 35+ and women 45+………….

Women 40+ …………………………….

Women 16-25 …………………………..

40

28

48

37

83

79

67

40

45,000

42,000

14,000

12,000

620

2,450

3,700

30,000

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The Departments used BC/BS FEHBA standard plan for comparative purposes:

· BC/BS covers most of preventive services listed in the Task Force and Advisory Committee recommendations;

· The Departments estimated that adding coverage for genetic screening and depression screening would increase benefits an estimated .10 percent;

· Adding lead testing, autism testing and oral health screening would increase insurance benefits by an estimated .02 percent; and

· This results in a total average increase in insurance benefits for these services of .12 percent, or just over $4 per insured person.

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· Interim final regulations make clear that a plan or issuer is not required to provide coverage or waive cost-sharing requirements for any item or service that has ceased to be a recommended preventive service. · Other requirements of Federal or State law may apply in connection with ceasing to provide coverage or changing cost- sharing requirements for any such item or service. For example, PHS Act section 2715(d)(4) requires a plan or issuer to give 60 days advance notice to an enrollee before any material modification will become effective.

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· On June 14, 2010, the Department of Health and Human Services (“HHS”), the Department of Labor (“DOL”), and the Internal Revenue Service (“IRS”), jointly released an “Interim Final Rule for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Plan under the Patient Protection and Affordable Care Act” (the “Rule”). · The Rule addresses the changes an insurer or plan sponsor may make to health insurance coverage or a group health plan without loss of its “grandfather” status under PPACA and what administrative steps a plan must take to maintain “grandfather” status.

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· To be a grandfathered plan, the policy or group health plan must have had at least one individual enrolled in coverage on March 23, 2010, and the policy or plan must have continuously covered someone since March 23, 2010 (even if not the same individuals). Any new policy, certificate, or contract of insurance (versus renewal) issued after March 23, 2010 is not grandfathered.

· If a plan moves from Insurer A to Insurer B (for insured benefits) after March 23, 2010 – the Plan is no longer grandfathered.

· Grandfathered status applies separately to each benefit package offered under a policy or plan.

· If a plan offers three options: Option A (self-funded), Option B (insured), Option C (insured). The Plan replaces the insurer for Option C. Option C is no longer grandfathered, but Option A and B still are grandfathered (subject to other grandfather rules).

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The Rule provides the following changes will cause a policy or plan to lose its grandfathered status:

· Elimination of Particular Benefit: A policy or plan will lose its grandfathered status if it eliminates all or substantially all benefits to diagnose or treat a particular condition (including a necessary element to diagnose or treat a condition).

· Increase in Coinsurance: A policy or plan will lose grandfather status if it increases its coinsurance percentage by any amount above the level at which it was set on 3/23/10.

· Increase in Copayment: A policy or plan will lose its grandfather status if it increases a copayment for any service by more than the greater of: (1) $5 (adjusted for medical inflation), or (2) medical inflation plus 15%, as measured from 3/23/10. The rule contains a complex formula and examples that illustrate how to apply this requirement.

· Decease in Employer Contribution: A policy or plan will lose grandfather status if an employer (or employee association) decreases its contribution rate toward the cost of any tier of coverage (e.g., self or family) by more than 5 percent below the contribution rate on

March 23, 2010. 56



The Rule provides the following changes will cause a policy or plan to lose its grandfathered status:

· No Previous Limits: A policy or plan that did not impose an overall annual or lifetime limit on the dollar amount of all benefits on March 23, 2010, will lose grandfather status if the policy or plan thereafter imposes an overall annual limit on the dollar value of benefits.

· Previous Lifetime Limits: A policy or plan that imposed an overall lifetime limit on the dollar amount of all benefits, but no annual limit, will lose grandfather status if the policy or plan thereafter imposes an overall annual limit on the dollar value of benefits that is lower than the dollar value of the lifetime limit on March 23, 2010.

· Previous Annual Limits: A policy or plan that imposed an overall annual limit on the dollar amount of all benefits will lose grandfather status if the policy or plan thereafter decreases the dollar value of the annual limit, regardless of whether the plan also imposed a lifetime limit on March 23, 2010. 57



· An insurer or plan may add new employees (whether newly hired or newly enrolled) after March 23, 2010, without loss of grandfather status. Employees, for example, may move between benefit options at annual enrollment without affecting the grandfather status of either option. · Plans also may transfer employees from one plan to another plan without impacting grandfather status, as long as there is a bona fide employment – based reason for the transfer. Changing the terms or cost of coverage is not a bona fide employment-based reason. Specifically with respect to mergers and acquisitions, the Rule states that if the “principal purpose” of a merger, acquisition, or restructuring is to cover new individuals under a grandfathered plan, the plan will lose its grandfathered status.

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· The Rule provides that in order to maintain grandfathered status, insurers and plans must maintain records documenting policy or plan terms that were in effect on March 23, 2010, and any other documents necessary to verify, explain, or clarify its status as grandfathered plan. The insurer or plan must make records available upon request. Participants, beneficiaries, subscribers, or state or federal agencies must be able to inspect such documents to verify the plan’s status as a grandfathered plan.

· To maintain grandfathered status, an insurer or plan must include a statement, in any plan materials provided to participants that describe benefits, that the insurer or plan “believes” it is grandfathered under PPACA. Additionally, the insurer or plan must provide contact information for questions and complaints. The plan administrator’s contact information must be provided, along with information for the DOL (in the case of an ERISA plan) or HHS (for individual or nonfederal government plan). The Rule provides model language that insurers and plans may use to satisfy this disclosure obligation.

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The Rule also includes some transition rules for plans that already made changes prior to publication of the regulation.

· Changes Adopted Prior to March 23, 2010: the Rule provides that a policy or plan will not lose grandfather status based on changes that would otherwise cause a loss of such status, if such changes were adopted before March 23, 2010 (even if they take effect after March 23, 2010) so long as such changes were adopted pursuant to a legally binding contract, insurance filing, or written plan amendment.

· Good Faith Compliance: the Preamble to the Rule states that for plan changes adopted after March 23, 2010, but before issuance of the Rule, which “only modestly exceed” the parameters established by the Rule, the agencies will “take into account good-faith efforts to comply with a reasonable interpretation of [PPACA]” in deciding whether such changes have caused the policy to lose grandfathered status.

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The Rule also includes some transition rules for plans that already made changes prior to publication of the regulation.

· Grace Period: For more significant changes to policy or plan adopted after March 23, 2010, but before the Rule’s issuance, which contravene the parameters established by the Rule, the insurer or plan sponsor may revoke such change by the first plan year beginning on or after September 23, 2010, and not lose grandfather status. If such changes are not revoked or modified, then the plan will lose grandfathered status.

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3/23/2010 PPACA Passed

Florida v. DHHS Virginia v. Sebelius Liberty University, Inc. v. Geithner Thomas More 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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3/30/2010 Reconciliation Act Passed 4/2/2010 Walters v. Holder 4/7/2010 Calvey v. Obama 4/8/2010 Shreeve v. Obama 4/12/2010 Goudy-Bachman v. DHHS 4/22/2010 Fountain Hills Tea Party Patriots, Inc. v. Sebelius 4/27/2010 Burlsworth v. Holder 5/4/2010 Peterson v. Obama 5/12/2010 U.S. Citizens Association v. Obama

5/14/2010 Baldwin v. Sebelius 6/3/2010 Physicians Hospitals of America v. Sebelius 6/9/2010 Mead v. Holder 7/7/2010 Kinder v. Dept. of Treasury 7/26/2010 Sissel v. DHHS 8/12/2010 Coons v. Geithner 8/31/2010 Independent American Party of Nevada Eagle Forum v. Obama 9/20/2010 Purpura v. Obama 1/25/2011 Pruitt v. Sebelius

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Plaintiffs

29 States (AL; AK; AZ; CO; FL; GA; IA; ID; IN; KS; LA; ME; MI; MO; MS; ND; NE; NV; OH; OK; PA; SC; SD; TX; UT; VA; WA; WI; WY)

49 Individuals (plus 2 putative classes)

9 Trade Associations / Public Interest Groups

3 Physician Groups

3 U.S. Representatives

29 State Legislators

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Defendants

Barack Obama, U.S. President

Eric Holder, U.S. Attorney General

Timothy Geithner, U.S. Dept. of Treasury

Kathleen Sebelius, U.S. Dept. of Health and Human Services

Hilda Solis, U.S. Dept. of Labor

Harry Reid, Senate Majority Leader

Nancy Pelosi, Speaker of the House (former)

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Procedural: Tax Bill Must Originate in House

“All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

U.S. Constitution, Art. I, Sec. 7

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Procedural: House and Senate Must Pass Same Bill

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall ... proceed to reconsider it.”


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Procedural: President Must be Natural Born Citizen

“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President...”

U.S. Constitution, Art. II, Sec. 1

68



Powers of Congress: General Welfare Clause

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises to pay the Debts and provide for the common Defence and general Welfare of the United States...”


69



Powers of Congress: Commerce Clause

“The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”


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Powers of Congress: Direct Taxation Clause

“No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”


“...all Duties, Imposts and Excises shall be uniform throughout the United States.”


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Individual Freedoms: Freedom of Religion

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”

U.S. Constitution, First Amendment

72



Individual Freedoms: Freedom of Speech

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech...”


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Individual Freedoms: Freedom of Association

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech...or the right of the people to peaceably assemble...”


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Individual Freedoms: Privacy

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

U.S. Constitution, Fourth Amendment

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

U.S. Constitution, Ninth Amendment

“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

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Individual Freedoms: Due Process

“No person shall be . . . Deprived of life, liberty, or property, without due process of law.”

U.S. Constitution, Fifth Amendment

“Nor shall any State deprive any person of life, liberty, or property, without due process of law.”

U.S. Constitution, Fourteenth Amendment

76



Individual Freedoms: Takings Clause

“. . . nor shall private property be taken for public use, without just compensation.”

U.S. Constitution, Fifth Amendment

77



Individual Freedoms: Equal Protection

“No state shall . . . Deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Constitution, Fourteenth Amendment

78



Individual Freedoms: Involuntary Servitude

“1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction...”

U.S. Constitution, Thirteenth Amendment

79



State Rights: Uniformity

“...all Duties, Imposts and Excises shall be uniform throughout the United States.”


“No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another...”


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State Rights: Federalism

“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

81



Trial Court Decisions: PPACA is Constitutional

Liberty University, Inc. v. Geithner W.D. Virginia, Case No. 6:10-cv-00015

“Congress acted in accordance with its constitutionally delegated powers under the Commerce Clause when it passed the individual and employer coverage provisions of the Act.”

“The penalty provisions, as ‘mere incident[s] of the regulation of commerce, ... are not considered taxes.”

“Congress could have rationally believed that the religious conscience objection to the requirement to purchase individual health care coverage would alleviate interference with religious adherents’ ability to exercise their faith.”

Appeal (4th Circuit)

82



Trial Court Decisions: Cases Dismissed (Appeal Pending)

New Jersey Physicians, Inc. v. Obama District of New Jersey, Case No. 2:10-cv-01489

Liberty University, Inc. v. Geithner W.D. Virginia, Case No. 6:10-cv-00015

Thomas More Law Center v. Obama E.D. Michigan, Case No. 2:10-cv-11156

Baldwin v. Sebelius S.D. California, Case No. 3:10-cv-01033



Appeal (3rd Circuit)


83



Trial Court Decisions: Cases Dismissed (No Appeal Pending)

McKenzie v. Shaheen D. New Hampshire, Case No. 1:10-cv-00167

Anderson v. Obama E.D. Michigan, Case No. 2:10-cv-11156

Shreeve v. Obama E.D. Tennessee, Case No. 1:10-CV-71

U.S. Citizens Association v. Sebelius E.D. Ohio, Case No. 5:10 CV 1065

Bryant v. Holder S.D. Mississippi, Case No. 2:10-CV-76-KS-MTP

Speech/Association/Privacy Claims Dismissed 11/22/2010

Injunction Denied 7/28/2010 (Appeal Dismissed 9/8/2010)

Case Dismissed 2/3/2011



84



Trial Court Decisions: Cases Dismissed Voluntarily

Sollars v. Reid N.D. Indiana, Case No. 1:09-CV-361

Burlsworth v. Holder E.D. Arkansas, Case No. 4:10-CV-258

Trial Court Decisions: Dismissal Forthcoming

Physician Hospitals Association v. Sebelius E.D. Texas, Case No. No. 6:10-cv-277

Dismissed 8/8/2010

Dismissed 4/2/2010

85



Trial Court Decisions: PPACA is Unconstitutional

Virginia v. Sebelius E.D. Virginia, Case No. 3:10-cv-00188

“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.”


86




Virginia v. Sebelius E.D. Virginia, Case No. 3:10-cv-00188

“...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. ... [¶] Accordingly, the Court will sever only [the individual mandate] and directly-dependent provisions.”


87




Florida v. DHSS N.D. Florida, Case No. 3:10-cv-00091

“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 --- as was done in the Act --- that compelling the actual transaction is itself ‘commercial and economic in nature, and substantially affects interstate commerce’ [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted.”

Appeal to 11th Circuit (Expected)

88




Florida v. DHSS N.D. Florida, Case No. 3:10-cv-00091

“Congress’ failure to include a severability clause in the Act (or, more accurately, its decision to not include one that had been included earlier) can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.”

“Moreover, the [government] ha[s] conceded that the Act’s health insurance reforms cannot survive without the individual mandate.”

Appeal to 11th Circuit (Expected)

89

HEALTH CARE REFORM

Robert R. Pohls Pohls & Associates Walnut Creek, California

2011 Eastern Claims Conference Waldorf=Astoria Hotel · New York City

February 27, 2011 - March 1, 2011

Questions?

Bryan D. Bolton Funk & Bolton Baltimore, Maryland

Gary Schuman Combined Insurance Company of America Glenview, Illinois

health care reform: the grand design

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