the affordable care act: how and where it’s going california purchasers health care coalition mark...
TRANSCRIPT
The Affordable Care Act:How and Where It’s Going
California Purchasers Health Care Coalition
Mark C. NielsenJanuary 15, 2015
Agenda Update on Exchanges/Marketplaces
Enrollment Data Implications
Employer Mandate Issues Enforcement and Litigation Risks
2
HI
RI
MA
CT
NJ
MD
DC
DE
State Marketplaces
State-operated Marketplace
Partnership Marketplace
Federally-operated Marketplace
CA
OR
WA
ID
NV
UT
AZ
MT
WY
CO
NM
ND
SD
NE
KS
OK
TX
MN
IA
MO
AR
LA
WI
IL
MI
INOH
KY
TN
MSAL
PA
NY
VTNH
ME
GA
FL
SC
NC
VAWV
AK
Marketplace Process
Medicaid & CHIP
$Premium Subsidy
Select and Enroll in
Health Plan
Direct Purchase
Apply for Coverage
• Employer coverage tool
• Income verification
Marketplace Enrollment Figures (as of 1/31/2014)
→ Total Enrollment (Federal and State): 6.41 million → New Enrollments
Federal: 3.416 million State: 633,000 California: 144,178
→ Plan Selection Bronze: 21% Silver: 68% Gold: 8% Platinum: 3%
→ Financial Assistance 87% of Federal Marketplace enrollees qualify for federal
subsidies*“Enrollment” means that a plan has been selected, but does not mean that the premium has been paid. Source: HHS Assistant Secretary for Planning and Evaluation Issue Brief (December 30, 2014)
Federal Marketplace Enrollment
→Demographics Female: 56% Male: 44%
Age Breakdown 24% of enrollees between 18-34 nationally 30% age 55 and over nationally 51% age 45+ nationally
0-18: 9% 18-25: 10% 26-34: 14% 35-44: 15% 45-54: 21% 55-64: 30%
Marketplace v. Employer Plans
• Marketplace QHPs– AV between 60-90%– $4656: avg. premium for
coverage similar to employer
– Average premium lower than employer coverage across board at every AV level
– Premium subsidies available for those under 400% FPL
– Cost-sharing reductions for those under 250% of FPL
– Must cover all EHBs– Narrower networks
Source: PwC’s Health Research Institute White
Paper
→ Employer-Sponsored Plans– AV averages 85%– $6119: avg. 2014 premium
for single coverage
– Average premiums for employer plans higher than Marketplace plans
– No federal premium subsidy for ER coverage
– No cost-sharing subsidies, but ERs may have lower OOP costs
– Flexibility re: covered services
– More expansive networks
Implications for Employers→ Most individuals who are eligible for employer-sponsored
coverage will not be eligible to receive premium assistance—unless:
• Employer offers a low value plan (less than 60% minimum value); or
• The employer’s plan is unaffordable (employee-only contribution is greater than 9.5% of income)
→ But, if trend of Marketplace premiums remain lower than costs of employer-provided coverage, employers may find Marketplace plans attractive But will premiums remain lower? Will employees accept narrower networks and higher OOP
costs?→ Special Populations
Retirees Part-Time Employees
8
Employer Mandate Employer shared responsibility is key element of ACA’s
2014 reforms together with individual mandate, Exchanges, tax subsidies and Medicaid expansion.
Final Rules were issued under § 4980H on February 12, 2014.
Rules are complex and include additional information for employers that do not wish to use the “look-back” method for identifying full-time employees.
Note: any analysis of possible application of or liability under the rule is fact-specific.
9
10
Employer Shared Responsibility
“Large” employers that do not offer qualifying health insurance coverage to full-time employees and their dependents may be penalized
Employers with 50 or more full-time employees (or full-time equivalents) in the previous calendar year
“Large Employers”
“Full-Time” Employees
Effective Date
Full-time employees are those who work an average of at least 30 hours a week
2015 – employers with 100 or more full-time employees must offer to at least 70% FTEs2016 – employers with more than 50 full-time employees must offer to 95% of FTEs
Employer Shared ResponsibilityGeneral Rule
11
Did at least one full-time employee receive a premium tax credit
for exchange coverage?
Shared Responsibility Applicability Chart
“Large” employer?
Offer coverage to employees?
No
Yes
Yes Employer may be liable for a shared responsibility penalty
No
Provide minimum value? (60% of covered
expenses?)
Affordable? (Employees contribution 9.5% or more
of their income?)
No
No
No
Yes
Employer is not liable for a penalty
“Large” Employer “Large” means more than 50 full-time employees (including full-time equivalents) on business days during the prior calendar year
To calculate the number of FTEs for purposes of determining whether an employer is “large,” add the total number of hours of service for that month for part-time employees (but not more than 120 hours of service for any employee) divided by 120. Fractions are taken into account.
12
13
Possible Employer Shared Responsibility Penalties
Penalty = $2,000 x (number of full-time employees -
30)
Employer Does Not Offer Coverage
Penalty = $3,000 x (number of full-time employees
receiving premium
subsidies)
Penalty = $2,000 x (number of full-time employees -
30)
the lesser of
Coverage offered is “unaffordable” or does not provide “minimum value”
4980H(a): “The Big Penalty”• If employer does not offer coverage to
substantially all full-time employees (and their dependents) and at least one full-time employee receives assistance under Exchange:
Must pay annual fee of $2,000 for each full-time employee minus first 30 employees.
For example, if employer has 100 full-time employees and one is eligible for premium assistance under the Exchange, employer must pay $2,000 times 70 or $140,000.
14
4980H(b): “The Lesser Penalty”
If employer does offer “minimum essential coverage” to full-time employees (and their dependents) and a full-time employee receives assistance under Exchange, employer must pay fee if either test is not met:
Employer coverage not affordable – cost of self-only coverage is more than 9.5% of household income
Plan does not provide 60% actuarial value of benefits.
For up to 5% of full-time employees not offered coverage
Annual fee is the lesser of: $3,000 for each full-time employee receiving premium assistance; or $2,000 for each full-time employee, minus first 30 employees.
15
Full-Time Employee Status “Employee” means common law definition of employee “Full-Time” means an average of at least 30 hours of
service/week or 130 hours of service/calendar month and includes: Each hour for which an employee is paid, or entitled
to payment, for performance of duties for any member of employer’s controlled group
Paid leave for vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence – no limit to hours in these categories
Hours of service generally will not include hours of service worked outside of the U.S.
16
Monthly Measurement Method NEW in the final rules Adds new monthly measurement method for employers
not using look-back method FT status determined on monthly basis – Count hours
during a particular month Special rule for employee first eligible for coverage
3 month rule – No penalty if offers coverage by 1st day of 4th full calendar month after employee otherwise eligible
“Weekly rule” to accommodate payroll periods 4-week period: FT if 120 hours of service 5-week period: FT if 150 hours of service
17
Optional Safe Harbor For Determining “Full-Time”
Ongoing Employees Standard Measurement Period (3-12 months) Standard Stability Period (same as standard
measurement period but at least 6 months if full-time during measurement period)
Optional Administrative Period (90 days) New Employees
Full-Time Employees (coverage within 3 months) Variable Hour/Seasonal Employees
Initial Measurement Period (3-12 months/Can start on 1st of month following hire date)
Initial Stability Period Optional Administrative Period (90 days)
18
Look-Back Method NEW! Specifies factors to determine if variable hour
employee (1) Is employee replacing FT employee or non-FT employee? (2) Have ongoing employees in same/comparable position varied
above/below average of 30 hours of service per week? (3) Was job advertised, communicated, or documented as
requiring hours of service that would average 30 or more/less? NEW! Defines seasonal employee
Employee in position for which customary annual employment is 6 months or less (and begins in same part of year, e.g. winter or summer).
NEW! New category of part-time employee New employee who is reasonably expected at his/her start date to
not be full-time and not variable hour or seasonal Rules that apply to variable hour and seasonal apply
19
Measurement/Stability Safe Harbor
Standard Measurement Period
Standard Administrative
Period
Standard Stability Period
Ongoing variable hour/seasonal employees
• Look-back at hours worked by variable hour employee to determine eligibility for coverage
• Employer choose length from 3 to 12 months
• Coverage remains available regardless of hours worked during stability period
• Full time employees
• Cannot be shorter than the standard measurement period
• Must be at least 6 months
• Non full time employees
• Stability period cannot be longer than the standard measurement period
• Count hours, offer & enroll in coverage
• Maximum length of 90 days
• Cannot reduce or lengthen the measurement or stability period
• Overlaps with prior stability period
Measurement Methods NEW! Must use same method for all
employees in same category Salaried v. hourly Employees working in different states Collectively bargained v. not Each group of collectively bargained covered by
separate CBA Cannot use look-back method for variable
hour/seasonal v. monthly measurement for employees with more predictable hours
NEW! Rules for transferring between types of measurement methods
21
22
Litigation Risks Overview of ACA Enforcement Structure
Federal vs. State Public vs. Private
Causes of Action Existing Federal and State claims ACA created claims
Areas of Particular Exposure Workforce Realignment/Section 510 Claims Whistleblower Claims Provider Nondiscrimination
Defenses
23
ACA’s Enforcement Scheme Public Enforcement (Federal and State)
State Insurance regulators (against insurers) HHS (against insurers and non-federal governmental
plans) DOL (against group health plans) IRS (against group health plans and church plans)
Private Litigation Class actions by individual and group policyholder
subscribers Individual lawsuits by individual and group policyholders
(including employers as plan fiduciaries) Associations of providers and advocacy groups (see
MHPAEA cases)
24
State - Insurance Department/AGIndividual and Group Market
States may enforce the ACA’s market reforms against insurers if the state has adopted the reforms as state law.
Enforcement mechanism: Imposing fines for non-compliance with state law Suing to enforce compliance with state law Conducting market conduct exams (with exposure to
civil or criminal penalties) States generally cannot enforce federal laws not
adopted as state law. But states could take other action to indirectly enforce, such as threatening to not approve -- or to revoke – a policy form offered in the state, or pursuing a market conduct exam.
States certify, decertify and may have civil penalty authority for State Exchanges
25
Federal - HHSIndividual, Group and Exchange
HHS enforces insurance market reforms against insurers if it finds that a state has failed to substantially enforce (Alabama, Missouri, Oklahoma, Texas and Wyoming)
HHS enforces against non-federal governmental plans Enforcement mechanism:
May impose civil monetary penalties of up to $100 per day, per violation, per affected individual.
Penalty assessments subject to administrative and judicial review.
HHS’s enforcement strategy is currently voluntary compliance driven
HHS will be focusing initial enforcement efforts on large, multi-state carriers
HHS certifies, decertifies and can levy civil penalties for Federally-facilitated Exchange
26
Federal – DOL and IRSGroup Market Only
ACA’s insurance market reforms incorporated by reference into ERISA and the Internal Revenue Code (“Code”).
DOL enforces the insurance market reforms against ERISA-covered group health plans
Enforcement mechanism: Investigations (broad subpoena authority under ERISA § 504)
or litigation against plan fiduciaries. DOL cannot assess monetary penalties against group health
plans or insurers But note: DOL investigates both the plan and its insurer
IRS has authority to enforce ACA’s reforms against group health plans (including church plans).
Enforcement mechanism: Excise tax of $100 per day of noncompliance/per affected
individual. Group health and church plans must self-report non-
compliance to IRS, on Form 8928
27
Private Litigation:Group Market
Suits to enforce group market rules are likely to be ERISA cases that are brought in federal court
Actions could be brought as either individual or class actions, depending on alleged violation
Proper defendants are typically “plans” and “fiduciaries” (not always issuers)
TPAs as defendants? See NYS Psychiatric Association v. United Health Group, 980 F. Supp.2d 527 (SDNY 2013), on appeal to Second Circuit
ERISA Remedies: Injunction to compel compliance with federal insurance market
reforms Obtain benefits due under ERISA § 502(a)(1)(B) Attorney fees and court costs under ERISA § 502(g) Restore plan losses, if any, under ERISA § 502(a)(2) Award of “other equitable relief” under ERISA § 502(a)(3)—which
the Supreme Court now interprets broadly
State suits preempted (except for governmental and church plans)
28
Private Litigation:Individual Market
Individual policyholders may sue issuers in state court to enforce insurance market reforms.
Actions could be brought as either individual or class actions Suits may arise under insurance contract, tort, or statutory provisions.
Remedies: Compel compliance with state law (e.g., payment of benefit) State law may authorize additional penalties for insurer non-
compliance Potential contract remedies (e.g., consequential damages) or tort
remedies (e.g., punitive damages) If state has not adopted the ACA’s market reforms, individual or class
may not be able to enforce under state law. But a court could order reformation of the insurance contract, to
“read in” the federal ACA requirements. No mechanism under primary federal law (PHSA) for individual to
enforce ACA market reforms, but some new remedies
29
Wellness Programs and the Americans with Disabilities Act
Prohibits an employer from requiring medical examinations and making disability-related inquiries unless the examination is job-related and consistent with business necessity. 42 U.S.C. §12112(d)(4)(A).
Exception for voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. 42 U.S.C. §12112(d)(4)(B).
30
Equal Employment Opportunity Commission v. Flambeau, Inc.
Complaint filed Sept. 30, 2014 in the Western District of Wisconsin Facts
The company's wellness program required employees to (1) complete biometric testing and (2) a health risk assessment (HRA). The biometric testing involved blood work and measurements and the HRA required that employees self-disclose their medical history.
Employee was unable to complete the biometric testing and HRA on the day appointed by the employer because he was on medical leave.
After returning from medical leave, he tried to complete the biometric testing and HRA and his requests were denied.
Company then informed employee that his coverage was being terminated because he had not completed the company’s requirements, including the biometric testing and HRA.
He was told he could apply for COBRA (and pay the COBRA premium). EEOC Allegation - Wellness Program Not Voluntary
EEOC asserts program is not voluntary because employee was subjected to termination of his health insurance and a financial penalty of having to pay the entire premium cost under COBRA to obtain reinstated coverage.
Employee was told that participation in the program was “mandatory” to be on the company’s health insurance.
Employees were told that they would be subject to disciplinary action for failing to attend the testing.
31
Equal Employment Opportunity Commission v. Orion Energy Systems, Inc.
Complaint filed Aug. 20, 2014 in the Eastern District of Wisconsin Facts
As a part of a wellness program employees were required to (1) complete a HRA; (2) use a Range of Motion Machine in the company’s physical fitness room; and (3) undergo blood work and complete a medical history form.
Company covered 100% of the cost of coverage for employees who participate in the wellness program.
Employees who decline to participate must pay entire premium cost for coverage plus a $50 penalty.
Employee refused to participate and questioned whether the HRA was voluntary and whether medical information was going to remain confidential.
EEOC allegations Wellness Program Not Voluntary:
Employee was fired for refusing to participate in the wellness program and alleges the program was not voluntary.
Points to the fact that she was subjected to a financial penalty and subsequently fired for not participating.
Retaliation against employee because of her good faith objection and decision not to participate in the wellness program.
Interference, coercion and intimidation against employee for exercising her rights under the ADA not to be subject to unlawful, disability-related inquiries and medical exams.
32
EEOC v. Honeywell Complaint filed 10/27/2014 in D. Minn., seeking TRO and PI. Facts:
Honeywell tests plan participants and spouses for blood pressure, HDL and total cholesterol, glucose, and BMI
$2500 (max) “surcharge” on premiums assessed for those refusing testing. Honeywell also withholds $1500 in annual HSA contributions.
EEOC Allegations Wellness Program Not Voluntary
Penalties so large that participants do not have ability to refuse testing Asks court to disregard Seff v. Broward County, 691 F.3d 1221 (11th Cir.
2012) (holding that plan’s wellness program fell w/in ADA safe harbor) Wellness Program Violates Genetic Information Nondiscrimination Act
(GINA) GINA prohibits financial incentives to obtain medical histories in
connection with wellness programs. The HSA contributions and the avoidance of the surcharges are
impermissible financial incentives.
Managing The Workforce Popular press reporting on employers that are taking steps to
avoid the penalty Cutting hours Terminating employees
ERISA 510 – employers may not “discharge, fine, suspend, expel, discipline or discriminate against a participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan ...”
Also other ACA provisions prohibiting discrimination (e.g., Code 105(h)/PHSA 2716; PHSA 2705; ACA 1557)
33
ERISA 510 ERISA section 510 prohibits an employer from
discharging, suspending, expelling, disciplining or discriminating against a participant or beneficiary
"for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan."
To win a section 510 claim, the plaintiff must (1) prove an adverse workplace action of the type covered by the
statute, and
(2) prove that the employer took that adverse workplace action "for the purpose of interfering" with the plaintiff's benefit rights.
34
ERISA 510 “Adverse employment actions” include discharging,
suspending, expelling, disciplining or discriminating against a participant or beneficiary
However, in general, courts have found ERISA section 510 should be interpreted broadly to include adverse employment actions that are not included in the statute
“Although an adverse employment action is generally one that affects the terms, privileges, duration or conditions of a plaintiff’s employment, reprisals less flagrant than a job termination or reduced wages can constitute adverse employment actions that warrant statutory protection.” Kreinik v. Showbran Photo, Inc., 2003 WL 22339268 at *6 (SDNY Oct. 14, 2003)
For example, “reclassifying” employees may also be the basis of a 510 action. Seaman v. Arvida Realty Sales, 985 F.2d 543 (11th Cir. 1993).
ERISA 510 "For the purpose of interfering" means that a plaintiff must
prove that the employer had the "specific intent" to interfere with his or her ERISA plan rights. See, e.g., Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir. 1988).
"Specific intent“: interference with ERISA plan rights was a "motivating factor" – but not necessarily the only factor – in the employer's decision. See, e.g., Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 523 (3d Cir. 1997).
"Motivating factor“: a factor which had "a determinative influence on the outcome" of an employer's decision. See, e.g., Koons v. Aventis Pharmaceuticals, Inc., 367 F.3d 768, 777 (8th Cir. 2004).
36
ERISA 510 Most ERISA section 510 cases employ a burden-shifting framework developed by
the courts. Dewitt, 106 F.3d at 523.
At the prima facie stage, plaintiff must present sufficient evidence from which an employer's specific intent to interfere with benefits can be inferred, although courts have characterized "[t]he nature of the plaintiff's burden of proof at the prima facie stage [as] de minimis." Dister, 859 F.2d at 1114.
Under some court analyses, the adverse action must have been individual or personal, rather than a general policy. See, e.g., Andes v. Ford Motor Co., 70 F3d 1332, 1337-38 (D.C. Cir. 1995) (reasoning that the prohibitions in ERISA section 510 "typically refer[] to an action targeted at an individual employee " not "basic organizational decisions" like closing down an operation).
But see, e.g., Pickering v. USX Corp., 809 F. Supp. 1501 (D. Utah 1992) (employees established prima facie case of discrimination when company considered pension expenses in decision to idle plant).
37
ERISA 510 If the plaintiff establishes a prima facie case, a presumption arises that
the employer engaged in unlawful discrimination, and
burden then shifts to employer to articulate (but not prove) a legitimate and nondiscriminatory reason – i.e., one unrelated to plaintiff's entitlement to benefits – for its action toward plaintiff. See, e.g., Barbour v. Dynamics Research Corp., 63 F.3d 32, 38 (1st Cir. 1995).
Legitimate, nondiscriminatory reasons for terminating or reclassifying an employee approved in the case law include, but are not limited to,
individual performance issues,
company-wide reductions in force,
changes in corporate business models, and
other corporate reorganizations.
38
ERISA 510 If the employer articulates a legitimate, nondiscriminatory reason for
its action,
the presumption of unlawful discrimination disappears, and the burden then shifts back to the plaintiff to prove, by a preponderance of the evidence, that the employer's proffered reason for taking the challenged employment action was a pretext for unlawful discrimination. See, e.g., Thygeson v. U.S. Bancorp, 2004 WL 2066746 (D. Or. Sept. 15, 2004).
A plaintiff may prove pretext either directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the employer's proffered explanation is
unworthy of credence.
39
ACA “Whistleblower”/Anti-Retaliation Claims
ACA section 1558 amends the FLSA to prohibit employer retaliation against an employee who: Receives a tax credit or subsidy through an
Exchange; Provides information to an employer or government
agency regarding an ACA violation; Testifies about an ACA violation; Assists or participates in a proceeding about an ACA
violation Objects to, or refuses to participate in, an activity
reasonably believed to be in violation of the ACA Regulations issued at 29 CFR Part 1984 (78 Fed. Reg.
13222 (Feb. 27, 2013)
40
Causes of Action - “Whistleblower”
Taking adverse employment action against an employee who receives a tax credit or subsidy may lead to claims that the action was prohibited retaliation
Expansive definition of “prohibited acts”—includes termination of employment, “disciplining,” and “threats” to terms and conditions of employment (29 CFR § 1984.102)
Query: Could the ACA’s whistleblower provision be used in cases where an employer reduces hours in anticipation of a worker receiving a subsidy?
Governed by OSHA - Complaints by employees must first be filed with OSHA within 180 days from when the retaliatory decision was both made and communicated to the employee
OSHA procedure Employee may also proceed directly to U.S. District Court if OSHA
does not issue a decision on complaint within 210 days of its filing. District court has authority to award “compensation for any special
damages sustained as a result of the discharge or discrimination”
41
42
Causes of Action - Nondiscrimination
ACA section 1557 prohibits discrimination based on race, color, national origin, sex,
age, or disability under “any health program or activity, any part of which is receiving Federal financial assistance … or under any program or activity that is administered by an Executive agency or any entity established under [Title I of the ACA].”
Insurers receipt of premium tax credits and cost-sharing subsidies for Exchange products broad enough to subject issuers to potential liability
No regulations yet. Appears to allow private rights of action and complaints with HHS’s Office of Civil Rights (“OCR”)
Example - complaint filed May 29, 2014 with OCR against Coventry and others in Florida regarding the copayments and coinsurance for HIV/AIDS medications
National Women's Law Center complaints against employers re: denial of pregnancy coverage for dependent children
OCR guidance re: transgendered benefits, and impact on state insurance law
43
Areas of Potential Exposure:Provider Nondiscrimination / Network Adequacy
Section 2706 of the PHSA prohibits discrimination against a provider acting within the scope of his license or certification
Guidance says “to the extent an item or service is a covered benefit under the plan or coverage, and consistent with reasonable medical management techniques … a plan or issuer shall not discriminate based on a provider’s license or certification …”
Vehicle to require plans contract with certain providers? E.g., Boeing class action (C.S. v. The Boeing Company Master
Welfare Plan, et al) – brought under ERISA, alleging that the Plan covers applied behavioral therapy, but excludes from network all providers that offer ABA therapy
Vehicle to require equal reimbursement of different types of providers performing same service?
Suits by providers (such as chiropractors and hospitals) likely E.g., Seattle Children’s Hospital action against DOI (In re: Seattle
Children’s Hospital Appeal of OIC’s Approvals of HBE Plan Filings)- caused change in network adequacy standards
44
Areas of Potential Exposure:Associations / PEOs
Key issue: is an association or PEO a single group health plan – and thus likely a large group plan?
Or does it comprise a number of plans that may be small group or individual plans, to which “look thru” rules for rate review, MLR, etc. apply?
If look thru applies, plan subject to: Community rating Premium rate review 80 percent MLR standard EHB package Single risk pool
DOL and states have increased scrutiny of association plans (Oregon and New Hampshire)
Private claims by employers or individuals who were underwritten or did not get ACA benefits. See, e.g., Fossen v. BCBS of Montana, 774 F. Supp. 2d 1096 (D. Mont. 2010), aff’d 660 F.3d 1102 (9th Cir. 2011)
New criminal penalties relating to MEWAs
45
Areas of Potential Exposure:Medical Loss Ratio
Complex calculation process opens door to enforcement actions or private litigation (potentially ERISA or state law). Current HHS priority.
Susceptible to claims that insurer: Manipulated methodology to avoid rebates Failed to timely pay rebates Failed to properly allocate rebates between employer and
employees (or is vicariously liable for employer’s failure to do so) Avoided payment of rebates by manipulating surplus
Violations will often cut across similar groups of contract holders, suggesting possible class action litigation
Remedies could be significant: amount of unpaid rebates plus interest and attorney fees, and exposure to double payment
Potential administrative penalties by HHS or state Potential criminal liability due to required attestations?
DOJ has prosecuted health insurance company executives for falsifying MLR data in context of Medicaid program (US v. Fahra)
46
Some Thoughts on Private Litigation Defenses
Standard ERISA defenses continue to apply for group health plans: preemption, exhaustion, standing, failure to sue the right party, no monetary relief under ERISA
PHSA has no private enforcement scheme, no implied right of action
Failure to adopt federal requirements under state law could be an effective defense to claims under state law (by insurance departments or individuals) seeking to enforce ACA requirement
Generally no preemption of state law for individual insurance (ACA preserves state regulation for insurance)
Possible conflicts preemption?
Typical state law defenses to state law claims
