After a long road of legal challenges and in a much-anticipated ruling, moments ago, the United States Supreme Court blocked the COVID-19 Vaccine Mandate.

In the final blow to the sweeping requirements set to impact over 80 million workers across the nation and their employers, SCOTUS found that the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) exceeded the power given to them by Congress. This means that the requirements for employers with 100+ employees to implement policies that required employees to receive the COVID vaccine or wear masks and test weekly is dead in the water.

"Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly," the court's majority said. "Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category."

Further, the court ruled that OSHA lacked the authority to impose such a mandate because the law that created OSHA "empowers the Secretary to set workplace safety standards, not broad public health measures."

"Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most," the Court ruled. "COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases."

Alongside the ruling on the OSHA ETS case, the U.S. Supreme Court will allow a portion of the CMS mandate impacting an estimated 10 million health care workers to be enforced. The allowable portion of the CMS mandate requires vaccinations for health care workers who treat Medicare and Medicaid patients at facilities that receive federal funding.

In this ruling, the Court noted that "healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare, not simply sound accounting."

Please check back with us as we work to source additional information and resources, particularly next steps for employers who may have already implemented requirements for their workforce, and taking the necessary steps to ensure you continue to meet your state requirements in your workplace.

SCOTUS Decision On Vaccine Mandate: How it Works

At 12 a.m. on January 13th, SCOTUS published a post that they would be live blogging as the court released opinions in one or more argued cases from the current term. Many experts quickly jumped to the conclusion that there was a high likelihood that the ruling on both the OSHA and CMS cases may be the highlight only to be very quickly disappointed. This early speculation led to a frustrating letdown today as SCOTUS did not release an opinion on the vaccine mandate.

If like many, you are watching the play-by-play in the news and just want a direct line to the ruling when it comes, here is some information, resources, and quick tips that may help you!

Decision Day

With SCOTUS decisions, it is not as simple as saying we will be able to tune in for X decision on X date. The U.S. Supreme Court does not set dates for releasing opinions but rather posts digitally to a public calendar when opinions will be released without noting what opinions will be included in that release. For example, SCOTUS updated its calendar yesterday for the remainder of January including the note that one new opinion would be released today. Of course, speculation began to fly as to whether the opinion released would be that on the OSHA/ETS cases.

SCOTUS Opinion Releases: How It Works

SCOTUS opinions are often accompanied by a public reading of at least part of the final decision read aloud by the Justice that authored the majority opinion. Opinions are often available for public consumption either via the live SCOTUS blog and/or a live stream (audio and/or video) on the SCOTUS website homepage. Opinion days are posted to the SCOTUS calendar and released at 10am EST on the posted calendar date. If you are watching the releases live there are a couple of good things to know:

  1. How do I know they have finished releasing opinions for a given day? Opinions are released with an associated number. These are the numbers that correspond to opinions in the left-most column on the court's opinion page. When the court releases multiple opinions on a single day, the R numbers don't appear until the court has released its final opinion of the day. So when an R number DOES appear (as it did for Babcock today), we can be sure the court is done for the day.
  2. Are there any exceptions? White flags of impatience were being raised across the SCOTUS blog this morning with many expecting and not getting the decision for the OSHA/CMS cases. Given that there are no additional opinion issuance dates on the SCOTUS calendar for the month of January, questions and frustrations began to fly. However, just because you don't see it on the calendar now, doesn't mean a decision is not imminent. 
    1. Opinion issuance days tend to only be scheduled a few days out. And with the opinion announcements purely electronic, we could theoretically get them even when the justices are theoretically on their winter recess -- a change from non-pandemic times.   
    2. Emergency applications are different: Rulings on the vaccine cases could technically come at any time (because they are on the emergency docket, so the court might not announce in advance when they are coming). 

Resources to Stay Up-To-Date with SCOTUS

SCOTUS Live Audio Feed

SCOTUS Official Opinions

SCOTUS Live Blog

SCOTUSBlog on Twitter

What Employers Should Do While Mandate Is In Limbo?

Make no mistake that both the OSHA ETS and the CMS Healthcare Mandate already have compliance obligations in effect, and you can’t wait until the Court decides in order to act.

While some employers are taking a more conservative approach opting to 'slow roll' plans, policies and issuance of guidance for employees, other employers are moving forward with full compliance anticipating the ETS surviving the Supreme Court. No matter which camp you are in, one of the most vital things needed is consistent and clear communications to your employees on what they can expect in the coming days and where the company stands in regard to implementation and requirements for Vax-or-Test policies.

Currently, OSHA is looking for good faith efforts that employers are beginning to take steps towards compliance with full implementation of the requirements beginning February 1, 2022. To better understand the implications of OSHA's timeline and the definition of 'good faith', please take a look at our more detailed post better outlining what employers need to know.

Vaccine Mandate Status: Mid-Week Update

Here we are mid-week, and employers across the nation impatiently await word from the U.S. Supreme Court as to whether they will allow the OSHA ETS requiring employers with 100 or more employees to implement vaccinate-or-test policies in the workplace.

Here's What We Know

The Supreme Court's decision is pending. Since hearing the oral arguments on Friday, January 7th, there has been plenty of speculation regarding where the ruling may land, or if the court will issue a brief administrative stay until a decision can be made. In the meantime, the first compliance deadline of the ETS is here, so what does that mean for employers awaiting this decision?

What Employers Need to Know

OSHA's initial deadline of January 10th is based upon good-faith efforts being made by employers. So, what is considered 'good-faith efforts'?

  • Employers should show that they are beginning to make efforts to comply with the mandate.
  • Company leadership should be communicating a clear approach to how they plan to comply with this new policy.
  • OSHA-covered employers must begin moving forward with a Vax-or-Test policy by
    • Determining the vaccination status of all its employees by obtaining acceptable proof of vaccination,
    • Maintain a roster of employee vaccination status,
    • Unvaccinated employees should be wearing face coverings,
    • Instate a policy for paid time off for vaccination and vaccination side effects,
    • Provide guidance on how employees should provide (prompt) notice of a positive COVID-19 test or diagnosis,
    • Ensure you are in compliance with not only the OSHA ETS, but also any state laws or mandates regarding testing, masking, vaccination, and PTO.

U.S. Supreme Court Hears Oral Arguments on OSHA ETS

OSHA ETS: Where are we now and what do we know

The United States Supreme Court heard oral arguments today on the legality of the ETS issued by the Occupational and Safety Administration in early November. Since the ETS release, legal challenges have been making their way through the legal system taking employers nationwide on a bit of a see-saw ride on whether the ETS will or will not be instituted come Monday.

Previous to the oral arguments today, on December 17th, a three-judge panel from the 6th Circuit Court of the United States lifted the latest stay and revived the ETS with immediate effect. Within hours of the ruling, an appeal was filed to the US Supreme Court by its challengers and OSHA made announcements on a timeline for enforcement.

Latest ‘Need to Know’ for Employers

Pending any overarching changes that may come from a Supreme Court ruling after oral arguments today, the ETS will take immediate effect on Monday, January 10th. OSHA has announced that it will not issue citations for noncompliance with any requirements of the ETS before January 10th, nor will it issue citations for noncompliance with the standard’s testing requirements before February 9th so long as an employer is exercising reasonable good faith efforts to come into compliance with the standard. Given that these dates are basically upon us, what next steps should an employer be focused on now?

  1. Determine if you are indeed covered by the ETS. To do so you need to answer the following:
    1. Is your workplace normally covered by OSHA?
    2. Do you have more than 100 employees nationwide?
    3. Are you exempt because you are covered by another ETS or mandate (i.e. Healthcare COVID-19 ETS or Federal Contractor mandate)?
  2. Gather vaccine status on your workforce.
    1. Develop the required vaccination roster for employees. Note whether the employee is fully vaccinated (as defined by the ETS).
    2. Determine if you will mandate vaccines or conduct testing.
  3. .Develop your vaccine-or-test policy.
    1. Create the required mandatory vaccine and/or testing/masking policies required under the ETS.
    2. Be prepared to implement said policy should the OSHA ETS move forward to enforcement or if the Supreme Court ruling does not change the current ETS status.
  4. Conduct compliance training & educate the workforce.
    1. Ready communications to inform and educate your workforce about your new policies, including posting necessary notices.
    2. Offer training for your managers to aid them in proper communication and enforcement of the said policy.
  5. Prepare a process/procedure for unvaccinated employee testing.
    1. Keep a roster of unvaccinated employees, as well as documentation of weekly test and test result.
    2. Provide a clear policy/procedure for testing and submitting test results.
    3. Keep negative/positive test results documented per employee as employees testing positive within the immediately preceding 90 days do not have to comply with a testing requirement.
    4. Provide clear policies for employees (vaccinated or unvaccinated) who may test positive for COVID-19.
  6. Handling exemptions:
    1. Federal law requires that you still need to consider and possibly accommodate valid medical and religious accommodation requests to a vaccination requirement.
    2. Ensure your policies provide provisions explaining how employees can request exemptions, including providing access to necessary paperwork, timelines for submission, and any additional policies or procedures that may impact exempt employees (such as remote work requirements, etc).

What’s Next?

Again, we wait to see what the justice system concludes. While many assumptions and predictions are being made, we simply don’t know what we don’t know. The only facts currently are, as of today (January 7, 2022):

  • The OSHA ETS is due to take effect on Monday, January 10, 2022
  • The oral arguments to both the employer mandate and the CMS rule have concluded. The US Supreme Court is expected to either institute a stay to allow additional time to review the arguments and make a ruling or, and less likely, issue an immediate ruling on the legality of the OSHA ETS and its implementation. Should a stay be issued by the high court, it is widely expected to be announced sometime over the weekend before the ETS can take effect on Monday.

Stay Tuned next week for more details as we monitor this developing situation. 


supreme court

Supreme Court to Rule Next Year on the ACA's Validity

With the Affordable Care Act (ACA) being questioned on whether it is in-whole or in-part constitutional, the U.S. Supreme Court has decided to rule on this matter again. The ruling regarding the validity of the ACA is expected by June of 2021. Continue reading this blog post to learn more.

The U.S. Supreme Court will again rule on whether the Affordable Care Act (ACA) is constitutional, in whole or in part, during its term beginning this October, the court announced on March 2. A ruling is expected before the term ends in June next year.

In 2019, Congress eliminated the ACA's penalty on individuals who lack health coverage—the so-called individual mandate. In the aftermath, several Republican state attorneys general filed a lawsuit claiming the ACA itself was no longer constitutional, while Democratic states and the House of Representatives, controlled by Democrats, stepped in to defend the statute.

Back in 2012, the U.S. Supreme Court upheld the constitutionality of the ACA's individual mandate as a justifiable exercise of Congress's power to tax. But without an existing tax penalty, ACA critics charge that the health care statute itself, or at least the parts of the act closely linked to the individual mandate, are no longer constitutionally valid.

In December 2018, a Texas district court struck down the ACA but stayed its ruling pending appeal, concluding that the individual mandate is so connected to the law that Congress would not have passed the ACA without it. On appeal, in Texas v. United States, a split panel of the 5th Circuit instructed the district court to rehear the matter and "to employ a finer-toothed comb on remand and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate."

Now that the Supreme Court has agreed to hear the case, it will not go back to the district court judge for that analysis, leaving the high court free to uphold the entire ACA, uphold the statute but void provisions linked to the individual mandate, or strike down the law in full, although that draconian option is viewed as exceedingly unlikely by legal analysts. The same five justices that upheld the ACA in 2012 remain on the court.

The health law remains fully in effect during the litigation, including all employer coverage obligations and reporting requirements.

The Supreme Court's Packed Schedule

The Supreme Court has placed five cases—including Texas v. United States—on the 2020 docket. This suggests that the hearing could be held in early or mid-October 2020, right before the 2020 election, although we may not know the oral argument schedule until later this spring or summer. In any event, a decision in Texas v. United States would not be expected until 2021 (and presumably not until June 2021).

It is worth noting that the Court will hear a separate ACA-related challenge on the final day of oral argument during its current term. On April 29, 2020, the Court will hear one hour of oral argument in the consolidated cases of Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania. These cases focus on the validity of two Trump-era rules that created broad exemptions to the ACA's contraceptive mandate for religious or moral reasons. And we are still waiting on a decision from the Court over whether insurers are owed more than $12 billion in unpaid risk corridor payments; oral argument was held in that challenge in December 2019 and a decision could be issued at any time.
(Health Affairs)

Lawsuit Stoked Confusion

America's Health Insurance Plans (AHIP), the insurance industry's leading lobbying group, applauded the justices' decision to hear the lawsuit. "We are confident that the Supreme Court will agree that the district court's original decision to invalidate the entire ACA was misguided and wrong," said AHIP President Matt Eyles in a statement.

Association for Community Affiliated Plans (ACAP), a group that represents more than 70 safety-net plans, noted that the lawsuit "has cast a pall of uncertainty over the future of the individual insurance market," according to ACAP CEO Margaret A. Murray.
(Fierce Healthcare)

5th Circuit Highlighted Suspect ACA Provisions

When the 5th Circuit instructed the district court to rehear the matter and to focus on those ACA provisions that Congress intended to be "inseverable from the individual mandate," this suggested, legal analysts said, that the appellate court was unlikely to overturn the ACA in full. However, the appellate court might have struck down those parts of the law directly related to the individual mandate, such as the 5:1 ratio age band, under which insurers can't charge seniors premiums more than five times what younger patients pay, and community rating, which prevents insurers from varying premiums within a geographic area based on age, gender, health status or other factors.

The increase in revenue to insurers from the individual mandate was meant to offset the decrease from these restrictions. It's unclear whether the U.S. Supreme Court will take a similar approach when it hears the case.
(SHRM Online)

SOURCE: Miller, S. (03 March 2020) "Supreme Court to Rule Next Year on the ACA's Validity" (Web Blog Post). Retrieved from

The Supreme Court gives employee's more room to sue you

The Supreme Court’s latest ruling isn’t going to make a lot of employers happy. 

The High Court just made it easier for employees to sue, claiming they were constructively discharged.

Constructive discharge occurs when an employer makes a person’s working conditions so intolerable — via some underhanded actions, like harassment or discrimination — that the person felt compelled to resign.

Federal law says private sector employees must file a charge of harassment, discrimination or constructive discharge with the EEOC within 180 days from the day the illegal act took place if they want to press charges in federal court. The deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination or harassment on the same basis.

Federal employees have just 45 days to contact an Equal Employment Opportunity (EEO) counselor to be able to file a charge.

The real issue

The question that was posed to the Supreme Court: In constructive discharge cases, what constitutes the last act of discrimination or harassment — i.e., when does the statute of limitations clock start running?

The High Court’s answer: The date the employee resigns (even if it’s not the person’s last day of work).

What happened?

The issue came up in a case in which former postal worker Marvin Green sued the U.S. Postal Service (USPS), claiming constructive discharge.

In late 2009, Green complained to USPS management that he’d been denied a promotion because he was African-American. From there, his relationship with the USPS entered a downward spiral that eventually led to his supervisors accusing him of deliberately delaying the mail (a federal offense).

Then, on Dec. 16, 2009, both parties signed an agreement in which the USPS agreed not to pursue criminal charges in exchange for Green either retiring or accepting a position in a remote location for far less pay. Green elected to retire and submitted his resignation on Feb. 9, 2010 (effective March 31).

On March 22, Green contacted an EEO counselor and alleged that he was constructively discharged. He then filed suit in federal district court, which dismissed his charges on the basis that it was untimely because he failed to contact an EEO counselor within 45 days of Dec. 16, the date he signed the agreement.

Green appealed, and the case made it all the way to the Supreme Court, which ruled in Green’s favor when it came to the start of the 45-day limitations period.

It said the period begins on the date an employee resigns.

The reasoning

The court said in cases in which an employee claims to have been fired for discriminatory reasons, the matter alleged to be discriminatory includes the discharge itself. Therefore, the 45-day limitations period begins when the employee is discharged.

The justices applied that same line of thinking to constructive discharge cases — saying that the matter alleged to be discriminatory includes the employee’s resignation.

Two reasons it did this:

  • It said a resignation is part of the elements of a constructive discharge claim. So without a resignation, the claim can’t even exist, and
  • It said requiring that a complaint be filed before resignation occurs would ignore that an employee may not be in a position to leave his job immediately.

Far-reaching effect

While this case dealt with a federal employee’s obligation to report to an EEO counselor within 45 days, it indicated that lower courts could apply the same reasoning to the 180/300-day periods imposed upon private sector employees.

One could even surmise that the ruling could also apply to state anti-discrimination and anti-harassment laws as well.

Cite: Green v. Brennan (Postmaster General)

Originally Posted by

Limited Employer Impact Likely from Gay Marriage Ruling

Originally posted by Joanne Deschenaux on June 26, 2015 on

All 50 states must issue marriage licenses to same-sex couples and must recognize same-sex marriages legally performed out of state, the U.S. Supreme Court ruled June 26, 2015, in a historic victory for gay civil rights (Obergefell v. Hodges, No. 14–556).

“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Justice Anthony Kennedy wrote for the majority. He was joined by the court’s liberal justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Each of the four conservative justices who dissented from the opinion—Chief Justice John Roberts and justices Antonin Scalia, Clarence Thomas and Samuel Alito—wrote a separate opinion, saying that the court had usurped a power that belongs to the people.

Implications for Employers

The impact of this decision on many employers will be limited, Scott D. Schneider, an attorney in Fisher & Phillips’ New Orleans office, told SHRM Online.

In states where same-sex marriage is currently legal, this ruling will have no effect, he said. But in other states, “employers should sit down and ask, ‘Where do we stand in light of this ruling?’ ”

One area that may be impacted is the granting of leave under the Family and Medical Leave Act (FMLA), Schneider said. “Someone who enters into a same-sex marriage may be entitled to FMLA leave.”

Similarly, employers in states that have not allowed same-sex marriage to date should examine their medical insurance and retirement plans. Same-sex spouses may qualify as beneficiaries under these plans now, where previously they might have been legally excluded from participating.

“The bottom line is that all employer policies related to spouses should apply to same-sex marriages,” according to Nonnie Shivers, an attorney in the Ogletree Deakins Phoenix office. In addition, employers should require the same level and type of proof of a same-sex marriage as they would of any other marriage, she said.

In some ways, this will make things easier for employers, she noted. “They won’t have to try to figure out whether they need to recognize someone’s same-sex marriage performed in another state. Anyone who has entered into a same-sex marriage is protected as a spouse.”

But, as a practical matter, employers should be aware that in states that have not previously allowed same-sex marriage, things are not going to change overnight, Shivers added. “Some county clerks—the ones who issue marriage licenses—have said that they are going to wait to hear about changes from the attorney general,” she said. This means that employers should be somewhat cautious about changing certain policies. For example, if an employer has policies in place regarding domestic partnerships, it may not want to change those policies immediately, she suggested.

And she cautioned that just because the legality of same-sex marriage is now a settled issue, that doesn’t mean that it won’t sometimes be a “hot-button" issue in the workplace. Employers need to be prepared to deal with possible employee reactions—whether based on religious beliefs or other factors—to gay and lesbian employees in the workplace, she said.

Court Finds 14th Amendment Protection

Kentucky, Michigan, Ohio and Tennessee are four of the states that have defined marriage as a union between one man and one woman. Fourteen same-sex couples and two men whose same-sex partners are deceased had filed suits in federal district courts in their home states, claiming that state officials violated the 14th Amendment of the U.S. Constitution by denying them the right to marry or to have their marriages that were lawfully performed in another state given full recognition in their home state. Each district court ruled in the plaintiffs’ favor, but the 6th U.S. Circuit Court of Appeals consolidated the cases and reversed, ruling in favor of the states.

In reversing the 6th Circuit decision, the high court first examined the history of marriage as a union between two persons of the opposite sex, noting that while state officials arguing against same-sex marriage claimed that “it would demean a timeless institution if marriage were extended to same-sex couples,” the plaintiffs “far from seeking to devalue marriage, seek it for themselves because of their respect—and need—for its privileges and responsibilities.”

The court then noted the changes over time in the nature of marriage—such as the decline of arranged marriages and the abandonment of the laws that declared a wife the property of her husband—noting that these changes “have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential.” These new insights “have strengthened, not weakened, the institution,” the court said.

The opinion next discussed the country’s experience with gay and lesbian rights. Well into the 20th century, many states condemned same-sex intimacy as immoral, the court noted, and homosexuality was treated as an illness. Later in the century, public attitudes shifted, allowing same-sex couples to lead more open lives. Then, questions about the legal treatments of gays and lesbians began reaching the courts, with numerous same-sex marriage cases reaching the federal courts and state supreme courts.

The Supreme Court’s majority opinion now sets forth its holding that the U.S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a same-sex marriage performed out of state.

The court has long held that the right to marry is protected by the 14th Amendment, the opinion noted, and the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. “The right to personal choice regarding marriage is inherent in the concept of individual autonomy. This is true for all persons, whatever their sexual orientation.”


Supreme Court debates future of Affordable Care Act

Originally posted on March 5, 2015 by Ariane de Vogue on

WASHINGTON (CNN) — The future of health care in America is on the table — and in serious jeopardy — Wednesday morning in the Supreme Court.

After more than an hour of arguments, the Supreme Court seemed divided in a case concerning what Congress meant in one very specific four-word clause of the Affordable Care Act with respect to who is eligible for subsidies provided by the federal government to help people buy health insurance.

If the Court ultimately rules against the Obama administration, more than 5 million individuals will no longer be eligible for the subsidies, shaking up the insurance market and potentially dealing the law a fatal blow. A decision likely will not be announced by the Supreme Court until May or June.

All eyes were on Chief Justice John Roberts — who surprised many in 2012 when he voted to uphold the law — he said next to nothing, in a clear strategy not to tip his hand either way.

“Roberts, who’s usually a very active participant in oral arguments, said almost nothing for an hour and a half,” said CNN’s Supreme Court analyst Jeffrey Toobin, who attended the arguments. “(Roberts) was so much a focus of attention because of his vote in the first Obamacare case in 2012 that he somehow didn’t want to give people a preview of how he was thinking in this case. … He said barely a word.”

The liberal justices came out of the gate with tough questions for Michael Carvin, the lawyer challenging the Obama administration’s interpretation of the law, which is that in states that choose not to set up their own insurance exchanges, the federal government can step in, run the exchanges and distribute subsidies.

Carvin argued it was clear from the text of the law that Congress authorized subsidies for middle and low income individuals living only in exchanges “established by the states.” Just 16 states have established their own exchanges, but millions of Americans living in the 34 states are receiving subsidies through federally facilitated exchanges.

But Justice Elena Kagan, suggested the law should be interpreted in its “whole context” and not in the one snippet of the law that is the focus of the challengers.

“We look at the whole text. We don’t look at four words,” she said. Kagan also referred to the legal challenges to the law as the “never-ending saga.”

Justice Sonia Sotomayor was concerned that in the states where the individuals may not be able to receive subsidies, “We’re going to have the death spiral that this system was created to avoid.”

And Sotomayor wondered why the four words that so bother the challengers did not appear more prominently in the law. She said it was like hiding “a huge thing in a mousetrap.”

“Do you really believe that states fully understood?” she asked, Carvin, that those with federally run exchanges “were not going to get subsidies?”

Justice Ruth Bader Ginsburg suggested the four words at issue were buried and “not in the body of the legislation where you would expect to find” them.

Justice Anthony Kennedy asked questions that could be interpreted for both sides, but he was clearly concerned with the federalism aspects of the case.

“Let me say that from the standpoint of the dynamics of Federalism,” he said to Carvin. “It does seem to me that there is something very powerful to the point that if your argument is accepted, the states are being told either create your own exchange, or we’ll send your insurance market into a death spiral.”

He grilled Carvin on the “serious” consequences for those states that had set up federally-facilitated exchanges.

“It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there’s a serious constitutional problem if we adopt your argument,” Kennedy said.

The IRS — which is charged with implementing the law — interprets the subsidies as being available for all eligible individuals in the health exchanges nationwide, in both exchanges set up by the states and the federal government. In Court , Solicitor General Donald B. Verrilli, Jr. defended that position. He ridiculed the challengers argument saying it “revokes the promise of affordable care for millions of Americans — that cannot be the statute that Congress intended.”

But he was immediately challenged by Justice Antonin Scalia.

“It may not mean the statute they intended, the question is whether it’s the statute they wrote,” he said.

Although as usual, Justice Clarence Thomas said nothing, Justice Samuel Alito was also critical of Verrilli’s argument. He said if it were true that some of the states were caught off guard that the subsidies were only available to those in state run exchanges, why didn’t more of them sign amicus briefs. And he refuted the notion that the sky might fall if the challengers were to prevail by saying the Court could stay any decision until the end of the tax season.

On that point Scalia suggested Congress could act.

“You really think Congress is just going to sit there while all of these disastrous consequences ensue?” he asked.

Verrilli paused and to laughter said, “Well, this Congress? ”

Kennedy did ask Verrilli a question that could go to the heart of the case wondering if it was reasonable that the IRS would have been charged with interpreting a part of the law concerning “billions of dollars” in subsidies.

Only Ginsburg brought up the issue of standing — whether those bringing the lawsuit have the legal right to be in Court which suggested that the Court will almost certainly reach the mandates of the case.

President Barack Obama has expressed confidence in the legal underpinning of the law in recent days.

“There is, in our view, not a plausible legal basis for striking it down,” he told Reuters this week.

Wednesday’s hearing marks the third time that parts of the health care law have been challenged at the Supreme Court.

In this case — King v. Burwell — the challengers say that Congress always meant to limit the subsidies to encourage states to set up their own exchanges. But when only 16 states acted, they argue the IRS tried to move in and interpret the law differently.

Republican critics of the law, such as Texas Sen. Ted Cruz, filed briefs warning that the executive was encroaching on Congress’ “law-making function” and that the IRS interpretation “opens the door to hundreds of billions of dollars of additional government spending.”

In a recent Washington Post op-ed, Orrin Hatch, R-Utah, and two other Republicans in Congress said that if the Court rules in their favor, “Republicans have a plan to protect Americans harmed by the administration’s actions.”

Hatch said Republicans would work with the states and give them the “freedom and flexibility to create better, more competitive health insurance markets offering more options and different choices.”

In Court, Verrilli stressed that four words — “established by the state” — found in one section of the law were a term of art meant to include both state run and federally facilitated exchanges.

He argued the justices need only read the entire statute to understand Congress meant to issue subsidies to all eligible individuals enrolled in all of the exchanges.

Democratic congressmen involved in the crafting of the legislation filed briefs on behalf of the government arguing that Congress’ intent was to provide insurance to as many people as possible and that the challengers’ position is not consistent with the text and history of the statute.

Last week, Health and Human Services Secretary Sylvia Mathews Burwell warned that if the government loses it has prepared no back up plan to “undo the massive damage.”

PPACA survives another SCOTUS challenge

Originally posted January 13, 2015 by Dan Cook on Life Health Pro. 

The Patient Protection and Affordable Care Act survived yet another legal attack Monday when the U.S. Supreme Court declined to hear a challenge targeting the requirement that adult Americans enroll for coverage or pay a fine.

The challenge had been brought by two medical provider groups: the Alliance for Natural health USA and the Association of American Physicians. It was three strikes and out for the plaintiffs, whose arguments were turned down at the district and federal appellate level prior to filing for a SCOTUS review.

While Republicans have mounted a steady stream of legal challenges to PPACA, so far the Supreme Court has held in favor of the law. But another major thrust is just around the corner.

In March, the court is set to hear oral arguments in a case challenging the tax credit subsidies that some states have provided to those who meet certain income criteria. The subsidies have allowed millions to “purchase” health coverage through the state exchanges at no cost, or at greatly reduced premiums.

Meantime, the GOP is busily hacking away at PPACA in Congress. The House passed a bill that would redefine the workweek for purposes of the act as 40 hours. PPACA had defined a full work week as one with 30 hours for purposes of certain coverage requirements. The Senate has yet to act on a companion bill, and the White House said it would probably veto any bill that came its way.


HHS Shaming Power Has Little Effect on Health Plans

By Lisa V. Gillespie

Last September, after the Patient Protection and Affordable Care Act gave the Department of Health and Human Services authority to review premium rates in states that didn't have strong enough review programs, the agency began handing down decrees of "unreasonable" premium rates for insurers that proposed increasing rates by an average of 10% or more - meaning HHS can publically shame an insurer.

"HHS and states are really coming down hard on just about any carrier, which is creating a lot of angst at the carrier level and hand wringing. HHS seems very proud of it; so, this is a hot topic [among] insurance carriers and state-level bureaucrats," says Alan Cohen, chief strategy officer and co-founder of Liazon, a private health insurance exchange that serves mainly small employers. "But, in another realm where benefits managers live, this is a nonevent; they're not paying attention. Maybe they read it in the newspaper, but what matters to them is what the effect will be to their renewal." Cohen says that, depending on the size of the employer, rate increases may differ. Even if an employer is going with one insurer who is increasing rates, the company may not be any better off with another carrier.


Reviews politically motivated

Others experts think that the HHS reviews are politically motivated.

"Benefits managers don't pay attention to regulatory squabbles as rates are filed and improved," says Mike Turpin, executive vice president of USI, an insurance and financial services broker. "And I think they're getting conditioned [to] health care reform politics. They're not as enraged; they're kind of numb to it."

Further, employers may empathize with insurers, says Steven Friedman, chair of the employee benefits practice at Littler Mendelson. More than 13.5 million people now have health savings accounts complementing high-deductible health plans, according to the 2012 HSA Census by America's Health Insurance Plans.

"Employers often see themselves on the same side of the insurance companies in terms of trying to limit costs for participants covered under health plans," Friedman says. "The increases in annual premiums are viewed as industry wide phenomena, and employers will annually bid for the best coverage that is the most cost-efficient. I'm not sure the insurers are being tarred by the employers, because health care costs seem to rise universally."


Rate review offers transparency

PPACA requires states to report on trends in premium increases and recommend whether certain plans should be excluded from health insurance exchanges beginning in 2014, based on unjustified premium increases. HHS also may make that decision in states where rate review programs lack sufficient strength. Small employers in public exchanges will be able to see upfront which companies have been flagged for "unreasonable" hikes and be able to go to another insurer.

"[PPACA's] rate review policies bring an unprecedented level of scrutiny and transparency to health insurance rate increases. They ensure that, in every state, every proposed increase of 10% or more is evaluated by independent experts to assess whether they are based on reasonable assumptions and sound data," a CMS spokesperson tells EBN. "Rate review is expected to help moderate premium increases and provide consumers and employers with greater value for their premium dollar. Additionally, health insurance companies must provide easy-to-understand information to their customers about their reasons for significant rate increases, as well as publicly justify and post on their website any unreasonable rate increases. These protections allow consumers and employers in every state to learn more about their insurance premiums. All of this information is available at"

"Thanks to the Affordable Care Act, consumers are no longer in the dark about their health insurance premiums," said HHS Secretary Sebelius in a press release earlier this year. "It's time for these companies to immediately rescind these unreasonable rate hikes, issue refunds to consumers or publicly explain their refusal to do so."

However, industry groups say that it's not premium hikes that are driving up costs, but underlying medical and administrative costs. "New medical technologies that have high costs associated, new benefit mandates - all of those will drive up the cost, which is where the focus should be," says Robert Zirkelbach, press secretary for AHIP. He says the focus should be on providers, as opposed to insurers. "You saw this during reform, when [the debate] focus was on premiums and largely ignored cost drivers. If you want to bring down the cost, then that's where they lie."