Update on Legal Challenges to Reform State of Reform Washington January 8, 2015 Eric J. Neiman Partner Williams Kastner eneiman@williamskastner.com Stephen D. Rose Partner Garvey Shubert Barer srose@gsblaw.com Sallie Thieme Sanford Associate Professor UW School of Law sanfords@uw.edu

Will the Supreme Court Upend the ACA? Sallie Thieme Sanford Associate Professor, UW School of Law sanfords@uw.edu

The Federally Facilitated Exchange More than 30 states not running exchanges 2014: 80%+ purchasers received a premium subsidy (tax credit); average subsidy $240 per month; 4 million+ people received subsidies via the federally facilitated Exchange

Cases Challenge Tax Subsidies Halbig v. Burwell, 758 F. 3d 390 (D.C. Cir.), vacated en banc, 2014 WL 4627181 (D.C. Cir. 2014). King v. Burwell, 759 F. 3d 358 (4th Cir.), cert. granted, 135 S. Ct. 475 (2014).

ACA Provisions at Issue §1401: “through an Exchange established by the State” §1311: Establishes State-run exchanges §1321: Or HHS shall “establish and operate such Exchange” Other provisions interrelate Individual Mandate; Employer Mandate implications

Legal Theories at Issue Is statutory language clear, unambiguous? Plain language, literal reading Textualism, context within the statute Legislative intent If ambiguous, highly deferential to agency

If the IRS Rule is Invalidated: Who will be harmed? What markets will see “death spirals”? When could states create exchanges? Where might Congress take action? Why is U.S. universal coverage so hard?

WILL THE COURTS KILL THE “DEATH PANELS” Stephen D. Rose, J.D., M.B.A. GARVEY SCHUBERT BARER srose@gsblaw.com

Coons v. Lew 762 F.3d 891 (9th Cir. 2014) Plaintiffs Defendants Nick Coons Eric N. Novak, M.D. Defendants Jacob L. Lew, Secretary of the Department of Treasury Kathleen Sebelius, Secretary of HHS Eric H. Holder, Attorney General Barack Obama, President

Challenges Brought By Plaintiffs Facial Constitutional Challenges Challenge to the “Individual Mandate” Challenge to the Independent Payment Advisory Board (“IPAB”) aka “Death Panel” Arizona Health Care Freedom Act Sought ruling that the Arizona Health Care Freedom Act was not preempted by the Affordable Care Act (“ACA”)

Ninth Circuit Decision Challenge to the Individual Mandate: Part dismissed based on National Federation of Independent Business part dismissed as not being a denial of Due Process claims, and part dismissed as not ripe. Challenge to the IPAB: Dismissed as not being ripe for decision Arizona Health Care Freedom Act: Preempted by the ACA

IPAB—The Death Panel 15 member administrative board. Monitor growth of Medicare spending. If actual growth exceeds projected growth, panel will make recommendations to reduce growth rate. HHS must implement the recommendations unless overruled by Congressional vote.

Ninth Circuit Dismisses All Claims Article I Non-Delegation Challenge to IPAB Dismissed for lack of jurisdiction due to not being ripe for decision. Substantive Due Process and the Individual Mandate Medical Autonomy—join 6th Circuit denying claim. Informational Privacy—issue not ripe. Preemption Arizona Constitutional Amendment preempted by the ACA.

Are Courts Remaking Washington’s Mental Health System? Eric J. Neiman Williams Kastner

In the Matter of the Detention of DW -- Washington Supreme Court   Effective: 12/26/14 Trueblood v. DSHS -- U.S. District Court, W.D. Washington Trial: 3/16/15

Increasing Need/Decreasing Funding Washington State 2000-2010 +14.1% -36% Washington State Population ITA-Certified Beds

In the Matter of the Detention of DW “We affirm the trial judge’s ruling that the ITA does not authorize psychiatric boarding as a method to avoid overcrowding certified evaluation and treatment facilities.”

Trueblood v. DSHS “… And you're asking me, and I may not be unwilling to do this, to take over the mental health system in this state and essentially enter orders that have far-reaching impact….” Hon. Marsha J. Pechman October 8, 2014

Questions about Court Actions Are courts overstepping their role? Is the true solution more funding for community mental health? If the solution is more money, where should it come from? Where is the federal government in all this? What can we learn from TR?

Questions? Comments? Predictions? Eric J. Neiman Partner Williams Kastner eneiman@williamskastner.com Stephen D. Rose Partner Garvey Shubert Barer srose@gsblaw.com Sallie Thieme Sanford Associate Professor UW School of Law sanfords@uw.edu