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Supreme Court Gets Ready

Supreme Court Gets Ready

The Temptations may have sung about getting ready first, but the Supremes are actually doing it, at least as far as the constitutional challenge to PPACA is concerned. Since announcing last week that the court will hear NFIB v. Sebelius, the case being brought by both the National Federation of Independent Businesses and 26 states to challenge the health reform law, during 2012, the U.S. Supreme Court has taken a few key steps to prepare.
On Friday, November 18, the court announced the appointment of two attorneys independent from all parties to the case to argue two specific points in the case. H. Bartow Farr was asked to provide oral arguments in support of the 11th Circuit Court of Appeals' ruling that the individual mandate provisions of PPACA can be completely severed from the rest of the law. A second attorney, Robert A. Long, was appointed by the Supreme Court to make the case during oral arguments that the federal Anti-Injunction Act, a tax law that prevents legal action on a tax prior to its effective date, would prevent the court from ruling on the individual mandate’s constitutionality before it goes into effect, since the individual mandate penalties have been construed by some as a tax.
The court has also announced that the unprecedented five and half hours of oral arguments on the case will take place over two consecutive days. Normally, only one hour of oral arguments is allowed on Supreme Court appeal cases. While a timeframe for the oral arguments has not been released, many speculate that they will be heard at the end of March 2012. 
Meanwhile, both sides in this debate have ramped up their calls for Justices Kagan and Thomas to recuse themselves in the case. Conservative activists have been arguing that Kagan should recuse herself for months, since she previously served as President Obama’s Solicitor General. However, Kagan and the Justice Department have long maintained that Kagan was never involved in the development and defense of this case. PPACA supporters have encouraged Justice Thomas to recuse himself, since his wife has lobbied for entities that have opposed the law, and some groups feel this alleged conflict of interest was not disclosed. House Democrats wrote to the U.S. Judicial Conference on Friday urging that the U.S. Attorney General Eric Holder investigate Supreme Court Justice Clarence Thomas in this matter. Meanwhile, Senate Republican leaders sent a letter to Attorney General Holder questioning his assertions about Kagan’s previous involvement in the health law case. 
Not to be outdone, health policy nerds are also preparing for the case. The fine folks at Kaiser Health News have prepared this exciting chart that outlines all of the possible options for the health law, depending on how the Supreme Court rules on the variety of overlapping legal questions raised by the case. The folks at Politico describe it as a “choose your own adventure for health wonks,” and we would have to agree.  
 

http://www.kaiserhealthnews.org/Stories/2011/November/18/supreme-court-health-law-chart-2012.aspx

  

NAIC Approves Resolution Calling for an MLR Fix for Brokers

NAIC Approves Resolution Calling for an MLR Fix for Brokers

The National Association of Insurance Commissioners (NAIC) approved aresolution on November 22 calling on Congress and the Department of Health and Human Services to use their respective authorities to preserve consumer access to insurance agents and brokers by adjusting the Patient Protection and Affordable Care Act medical loss ratio requirements to accommodate agents and broker compensation. Following the vote, NAIC President and Iowa Insurance Commissioner Susan Voss released a statement and NAHU issued a press release. The resolution was approved by a vote of 26-20-5 during a teleconference meeting of the NAIC’s Plenary Committee, which consists of the insurance commissioners from all 50 states, the District of Columbia and the U.S. territories. The conference call lasted more than 90 minutes and was, at times, quite contentious, with several moves by various dissenting commissioners to modify the resolution and delay the effort. However, the supporters of the measure stood firm and voted to oppose both a proposed amendment to substantially weaken the resolution and a call to send the matter back to the NAIC’s Executive Committee for further study. The vocal proponents -- who included the resolution’s original author, Florida Insurance Commissioner  and NAIC President-Elect Kevin McCarty, North Carolina Insurance Commissioner Wayne Goodwin, who made the motion for consideration of the resolution, Louisiana Insurance Commissioner and NAIC Vice President Jim Donelon and Georgia Insurance Commission Ralph Hudgens, who ultimately moved for the vote on the resolution -- cited  the more than a year of debate on this issue and the urgency of MLR relief for both health insurance agents and brokers and health insurance consumers nationwide as reasons why immediate NAIC action was imperative. The role call vote of commissioners to approve the resolution was as follows: Voting to approve: Alabama, Alaska, Arkansas, Delaware, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Wyoming and American Samoan Islands. Opposed: Arizona, California, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Kansas, Maryland, Massachusetts, Minnesota, Missouri, New York, Oregon, Rhode Island, Vermont, Washington, West Virginia, the Northern Mariana Islands and Puerto Rico. Abstentions: Maine, Montana, South Dakota, Texas and Virginia. Not present or not voting were Iowa (for procedural reasons), Guam, New Mexico, the U.S. Virgin Islands and Wisconsin. NAHU is profoundly grateful for the NAIC’s support of agents, brokers and health insurance consumers that comes with the adoption of this resolution. We strongly encourage all members to thank their insurance commissioners who voted to stand with the agent and broker community on this issue. Now that the vote is finished, many members have asked what it means for association’s ongoing work to fix the MLR requirements. The resolution is merely a policy statement from the NAIC, so it will have no immediate impact. However, PPACA established a role for the NAIC with regard to the development of the MLR requirements and has accept virtually all of its counsel on both MLR specifically and PPACA generally to date. As HHS works to develop the final MLR requirements, this resolution will hopefully serve as the additional push needed to spur the Department to fix this problem through regulatory channels. In addition, the measure is expected to give additional interest and credibility to H.R. 1206, the bipartisan legislation to remove agent and broker compensation from the MLR calculation. The House Small Business Committee plans to hold a hearing on the impact of the MLR requirements on American health care consumers next month, and we expect that the NAIC resolution will factor into that hearing. H.R. 1206 currently has 138 bipartisan cosponsors, and more are always appreciated. Please encourage your representative to sign onto this measure today.