1. Update on Legal Challenges to Reform
State of Reform Washington
January 8, 2015
Eric J. Neiman
Partner
Williams Kastner
Stephen D. Rose
Partner
Garvey Shubert Barer
Sallie Thieme Sanford
Associate Professor
UW School of Law

2. Will the Supreme Court Upend the ACA?
Sallie Thieme Sanford
Associate Professor, UW School of Law

3. 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

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

5. 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

6. 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

7. 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?

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

9. 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

10. 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”)

11. 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

12. 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.

13. 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.

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

15. 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

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

17. 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.”

18. 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

19. 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?

20. Questions? Comments? Predictions?
Eric J. Neiman
Partner
Williams Kastner
Stephen D. Rose
Partner
Garvey Shubert Barer
Sallie Thieme Sanford
Associate Professor
UW School of Law