Law Commons^™

How King V. Burwell Creates Tax Problems For Consumers And What The Treasury Can Do About It, Andy Grewal

Andy Grewal

Commentators have expressed concern that a government loss in King v. Burwell, which addresses whether taxpayers can enjoy tax credits for policies purchased on federal health care exchanges, will lead to a "death spiral" during future enrollment seasons.

However, this discussion threatens to mask the potential tax problems facing persons who purchase policies this enrollment season. As this short article explains, purchasers may be faced with a surprising tax bill when they complete their 2015 tax returns. Additionally, the government has argued that it can protect customers from surprise tax bills, but it's authority to do so is far from …

Anomalies In The Affordable Care Act That Arise From Reading The Phrase “Exchange Established By The State” Out Of Context, Timothy Stoltzfus Jost, James Engstrand

Timothy S. Jost

The Supreme Court is currently considering in King v. Burwell whether residents of all States can receive premium tax credits under the Patient Protection and Affordable Care Act (ACA). The Plaintiffs-Petitioners brought this litigation as a challenge to the validity of a Treasury Department rule allowing all ACA health insurance Exchanges or marketplaces, including federally facilitated Exchanges (FFEs), to support and grant the credits. They invite the Court to focus solely on four words in two subsections of Section 36B of the Internal Revenue Code that they interpret as limiting tax credits to individuals who can use a State-operated Exchange …

King V Burwell: Subsidizing Us Health Insurance For Low- And Middle-Income Individuals, Lawrence O. Gostin, Mary C. Debartolo, Daniel Hougendobler

Georgetown Law Faculty Publications and Other Works

In King v. Burwell, the U.S. Supreme Court once again saved the Affordable Care Act (ACA) by upholding subsidies (tax credits) offered to low- and middle-income individuals for insurance bought on federal exchanges. A contrary opinion would have put at risk health insurance for 6.4 million Americans and threatened to destabilize insurance markets for millions more.

The ACA is supported by four interlocking reforms, each of which are necessary to realize its promise of expanding health care coverage: (1) guaranteed issue (prohibiting discrimination based on pre-existing conditions), (2) community rating (barring insurers from imposing higher premiums based on health …

The Effect Of Health Insurance On Workers' Compensation Filing: Evidence From The Affordable Care Act's Age-Based Threshold For Dependent Coverage, Marcus O. Dillender

Upjohn Institute Working Papers

This paper identifies the effect of health insurance on workers' compensation (WC) filing for young adults by implementing a regression discontinuity design using WC medical claims data from Texas. The results suggest health insurance factors into the decision to have WC pay for discretionary care. The implied instrumental variables estimates suggest a 10 percentage point decrease in health insurance coverage increases WC bills by 15.3 percent. Despite the large impact of health insurance on the number of WC bills, the additional cost to WC at age 26 appears to be small as most of the increase comes from small bills.

Scaling Cost-Sharing To Wages: How Employers Can Reduce Health Spending And Provide Greater Economic Security, Christopher Robertson

Faculty Scholarship

In the employer-sponsored insurance market that covers most Americans many workers are “underinsured.” The evidence shows onerous out-of-pocket payments causing them to forgo needed care, miss work, and fall into bankruptcies and foreclosures. Nonetheless, many higher-paid workers are “overinsured”: the evidence shows that in this domain, surplus insurance stimulates spending and price inflation without improving health. Employers can solve these problems together by scaling cost-sharing to wages. This reform would make insurance better protect against risk and guarantee access to care, while maintaining or even reducing insurance premiums.

Yet, there are legal obstacles to scaled cost-sharing. The group-based nature of …

Realsim Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts' Opinion Upholding The Individual Mandate, Wilson Huhn

Akron Law Review

In National Federation of Independent Business v. Sebelius, Chief Justice John Roberts cast the deciding vote to uphold the individual mandate of the Affordable Care Act. Speaking for the Court in Part IIIC of his opinion, Roberts found that the individual mandate was properly enacted pursuant to the General Welfare Clause. Two aspects of his opinion in particular drove this result. In deciding whether the individual mandate constitutes a “tax” within the meaning of the Constitution, the Chief Justice engaged in realistic analysis rather than legal formalism. In addition, Roberts reasoned that, if fairly possible, the statute had to be …

The American Health Care System, Health Care Reform, And The Effects Of The Affordable Care Act, Adam Becker

Honors Theses

Through the lens of access, quality, and cost I will present and outline the various historical approaches to health care reform, how they have contributed to the formation of our current system, and a preliminary evaluation of the Affordable Care Act. Specifically, I will be analyzing these major reforms in relation to, and their impact, on healthcare payers and providers. By understanding prior health care reform, it will provide the necessary foundation to properly investigate the prospects of success for the ACA. In order to address these questions, I investigated the evolution of the medical professional and modern hospitals, the …

The Affordable Care Act Dependent Health Insurance Mandate's Effect On The Life Satisfaction Of Young Adults, Kirti Chakote

Honors Theses

On September 23, 2010, the dependent health insurance mandate of the Affordable Care Act (ACA) increased the family health insurance coverage of young adults up to age 26. The present study principally examined the effect of this mandate on life satisfaction of young adults, in addition to health care access, self-reported health, preventative care, and labor market outcomes. Through health insurance coverage, it is hypothesized that the ACA mandate will lead to a higher life satisfaction in young adults. Using the Behavior Risk Factor Surveillance System data of 2005 through 2013 to assess the effect of the ACA mandate, this …

Anomalies In The Affordable Care Act That Arise From Reading The Phrase “Exchange Established By The State” Out Of Context, Timothy Stoltzfus Jost, James Engstrand

University of Miami Business Law Review

The Supreme Court is currently considering in King v. Burwell whether residents of all States can receive premium tax credits under the Patient Protection and Affordable Care Act (ACA). The Plaintiffs-Petitioners brought this litigation as a challenge to the validity of a Treasury Department rule allowing all ACA health insurance Exchanges or marketplaces, including federally facilitated Exchanges (FFEs), to support and grant the credits. They invite the Court to focus solely on four words in two subsections of Section 36B of the Internal Revenue Code that they interpret as limiting tax credits to individuals who can use a State-operated Exchange …

King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda

University of Miami Business Law Review

The Patient Protection and Affordable Care Act—popularly called either the “ACA,” or “Obamacare” by opponents, proponents, and even the White House—is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never …

Unfair Coercion, Or Greater Deference? Two New Sides Of King V. Burwell, Tom Miller

University of Miami Business Law Review

Litigation challenging the legality of an Internal Revenue Service rule that became final on May 2012 has traveled a long, winding, and contentious path. The IRS rule authorized the distribution of federal premium assistance tax credits in all health benefits exchanges under the Patient Protection and Affordable Care Act of 2010 (the “ACA”). However, potential legal problems with reconciling various sections of the final legislation involving those tax credits were identified as early as December 6, 2010. On September 19, 2012, the first of four different legal challenges to the IRS rule was filed in federal district court in Oklahoma. …

The Subsidy Question In King V. Burwell—A Federalist Response To Crony Capitalism, Antonio F. Perez

University of Miami Business Law Review

On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the “State,” in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the “State” be understood to refer to the federal market (i.e., exchanges) as well as “State” markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a “federal” exchange and failed to do so–would seem to be sufficient to supply a result. It would …

From The New Deal To The New Healthcare: A New Deal Perspective On King V. Burwell And The Crusade Against The Affordable Care Act, Sarah Helene Duggin

University of Miami Business Law Review

Americans describe the new healthcare system established by the Patient Protection and Affordable Care Act (“ACA”) as both a blessing and a nightmare. For millions of low and middle income Americans, the ACA offers access to health insurance they could not otherwise afford. The ACA’s opponents, however, view the new healthcare system as a threat to economic prosperity, an intrusion on personal liberty and a violation of the principles of federalism at the heart of our system of government. These same kinds of arguments were made more than eighty years ago in response to President Franklin Delano Roosevelt’s New Deal. …

Time To Lift The Veil Of Inequality In Health Care Coverage: Using Corporate Law To Defend The Affordable Care Act, Seema Mohapatra

Faculty Scholarship

No abstract provided.

The Patient Protection And Affordable Care Act: The Latest Obstacle In The Path To Receiving Complementary And Alternative Health Care?, Chelsea Stanley

Indiana Law Journal

Part I of this Note outlines a variety of medical techniques that are considered to be complementary and alternative practices, and it presents evidence of CAM’s growing influence in the United States. Part I also provides a concise summary of some of the most important features of the ACA. Part II analyzes the potential impact of the ACA on CAM. Part II focuses first on those provisions of the ACA that are believed to be supportive of CAM; however, Part II then proposes potential counterarguments ignored or overlooked by those who believe that the ACA will favorably impact CAM. Part …

An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld, Jessica L. Roberts

Law Faculty Scholarly Articles

This Essay begins to explore how Medicaid, after the Patient Protection and Affordable Care Act, metamorphoses from exclusion and limitations in access and benefits to a form of social insurance that implicates theories of social justice. The social justice aspect of universality provides an important lens for understanding these numbers, both in terms of the states that are expanding and the states that are opting out. States that refuse to expand their Medicaid programs are denying millions of Americans the benefit of a precious legal entitlement. It is essential that the states understand the power—and the potential—of this evolving social …

An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld

Faculty Scholarship

This paper is a contribution to the symposium entitled Scalpel to Gavel: Exploring the Modern State of Health Law. This essay quantifies and explores the central role Medicaid now plays in our health insurance system. For its first forty-nine years, Medicaid covered less than half of the nation’s poor. Today, one in five Americans have Medicaid coverage during the course of a year, and that number soon will increase to one in four given the insurance expansions enacted through the Patient Protection and Affordable Care Act. Medicaid now effectively functions as social insurance for many of its enrollees. In this …

When Condoms Fail: Making Room Under The Aca Blanket For Prep Hiv Prevention, Jason Potter Burda

San Diego Law Review

Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, the United States needs a new approach to HIV prevention. One such approach, HIV pre-exposure prophylaxis, commonly known as “PrEP,” has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada®—an antiretroviral drug that suppresses the virus in HIV-positive individuals—for daily use by high-risk HIV-negative individuals to prevent infection. Despite an efficacy above ninety percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement. This Article addresses the social, legal, and policy challenges that …

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Michael C. Dorf, Neil S. Siegel

Michael C. Dorf

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has mostly turned on the fraught and complex question of whether the ACA’s exaction for being …

When Condoms Fail: Making Room Under The Aca Blanket For Prep Hiv Prevention, Jason Potter Burda

Faculty Publications

Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, we need a new approach to HIV prevention in the United States. One such approach, HIV Pre-Exposure Prophylaxis (commonly known as “PrEP”), has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada® — an antiretroviral drug that suppresses the virus in HIV-positive individuals — for daily use by high-risk HIV-negative individuals to prevent infection. Despite an effectiveness above ninety percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement. In this Article, I …

Overvaluing Employer-Sponsored Health Insurance, Lauren R. Roth

Scholarly Works

Although positive and negative assessments of tying health insurance to employment abound, most scholars and policymakers have acknowledged that our long history in this area predicts our future. What they have largely ignored, however, is the extent to which individual attachment to employment-based insurance is at the root of our inability to make broader health reforms. The attachment (1) harms exchange-based insurance and (2) denies employers the ability to use Health Reimbursement Arrangements (“HRAs”) to subsidize the purchase of insurance by their employees on the exchanges.

This Article advocates reducing or eliminating workers’ overvaluation of their health insurance and increasing …

The Struggle To Bury Pre-Existing Condition Consideration, Sallie Thieme Sanford Sanfords@Uw.Edu

Articles

As of January 1, 2014, applicants for comprehensive health insurance do not face questions about their health history. The ACA prohibits health insurers from considering an individual’s health history in determining whether to sell that person a comprehensive health insurance policy, the policy’s price, or its coverage terms. Pre-existing condition (PEC) consideration is, in this crucial context, dead. Few will mourn its passing. This legislative milestone marks a significant step towards the goal of a healthier population. While celebrating this achievement, however, in this article I argue that we ought to recall the context of PEC consideration, its practical application, …

Snap To Healthier Eating: A Comprehensive Look Into How The Supplemental Nutrition Assistance Program (Snap) Can Reduce Health Care Costs, Rictrell L. Pirtle

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Medicaid At 50: No Longer Limited To The "Deserving" Poor?, David Orentlicher

Scholarly Works

Professor David Orentlicher considers the significance of the passage of the Affordable Care Act on the Medicaid program. He discusses the expansion of the program's recipients from merely children, pregnant women, single caretakers of children, and disabled persons to all persons up to 138% of the federal poverty level. Professor Orentlicher argues that the Medicaid expansion reflects concerns about the high costs of health care rather than an evolution in societal thinking about the "deserving" poor. As a result, the expansion may not provide a stable source of health care coverage for the expansion population.

The Universality Of Medicaid At Fifty, Nicole Huberfeld

Law Faculty Scholarly Articles

This essay explores how the law of Medicaid after fifty years creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). To that end, this Essay first will study the legislative reformation that led to universality and its quantifiable effects. The Essay then will assess and evaluate Medicaid’s new universality across four dimensions, …

The Universality Of Medicaid At Fifty, Nicole Huberfeld

Faculty Scholarship

This essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA's legislative reformation, which led to universality, and its quantifiable effects. The …