House and Senate to Consider Additional Health Legislation

The Senate is also scheduled to take up H.R. 3979, the House-passed legislation that would exempt volunteer firefighters and other emergency responders from being counted as employees under the PPACA’s employer mandate. The House will also take up another PPACA-related bill, H.R. 2575—the “Save American Workers Act of 2014,” that would redefine “full-time employee” for purposes of the law’s employer mandate as an employee who is employed on average at least 40 hours of service a week, thus changing the current 30 hours of service a week rule. In addition, the House Budget Committee is scheduled to meet and consider a budget resolution for FY 2015 that is expected to conform to the overall $1.014 trillion spending level contained in the Bipartisan Budget Act of 2013 for health and other defense and non-defense discretionary programs.

Administration Allows PPACA Exceptions and Touts Last Minute Enrollment

CMS issued new guidance under the PPACA last week that expands a hardship exemption which will allow individuals who faced “exceptional circumstances” while attempting to enroll via the law’s exchanges to “enroll” by April 30th and pay their premiums without becoming subject to the law’s penalty for failure to obtain minimum essential health coverage. Among the exceptional circumstances are those faced by abused spouses who file separate IRS tax returns and who the IRS announced will now be allowed to apply separately for individual tax credits. CMS will also continue to process paper applications received by April 7th for individuals previously “in line” to enroll before the March 31st deadline. The ruling came despite statements by HHS Secretary Kathleen Sebelius before the House Ways and Means Committee that the Administration would not extend the March 31st deadline. House Speaker John Boehner (R-OH) lamented the Administration’s extensions, calling them one in a long list of actions “manipulating the law for its own convenience.” The latest actions took effect despite the Administration’s own statements that “enrollment” had already reached 6 million; a figure that House Republicans said overstated the number of individuals who have actually paid their premiums and become eligible for health insurance coverage. Several Senate Democrats who remain concerned about the problems experienced during the rollout of Obamacare, including Senators Mark Begich (D-AK), Heidi Heitkamp (D-ND), Mary Landrieu (D-LA), Joe Manchin (D-WV) and Mark Warner (D-VA), are supporting PPACA amelioration legislation that would, among other things: raise the employer mandate threshold from 50 to 100 employees; add a high-deductible, copper-level plan to the current range of exchange plans; increase the law’s small business tax credit threshold from 25 to 50 employees; require state insurance regulators to develop models for marketing insurance across state lines to test whether the strategy would boost insurer competition and consumer choice; and restore the funding for not-for-profit health insurance cooperatives.

PPACA Provisions Contested in Court

The U.S. Supreme Court heard arguments last week in the Hobby Lobby Stores/Conestoga Wood Specialties cases in which the closely-held private employers are contesting the PPACA’s women’s preventive services provision requiring employer coverage to include contraceptive drugs and devices at no cost to employees. The plaintiffs argue that the provision impinges on their right to exercise their religious-based objections which they say is in violation of the Religious Freedom Restoration Act (RFRA). The U.S. Department of Justice (DOJ) argued that secular, for-profit corporations have never been accorded such a right to exercise religion. Of note, in a similar case brought by the Roman Catholic Archdiocese of Atlanta, the U.S. District Court for the Northern District of Georgia rendered an opinion in favor of the plaintiffs which permanently enjoins the federal government from enforcing the PPACA provisions requiring the organization to facilitate employee health plan coverage of contraceptive drugs and devices, sterilizations and related counseling. The U.S. Court of Appeals for the District of Columbia also heard arguments in Halbig v. Sebelius in which the plaintiffs contend that individual subsidies can only be made available in health insurance exchanges established by “a state”, as the law specifically says, and not in the federally established exchange which serves as the default exchange for individuals in states that do not set up their own exchanges. The defense argument centered on the “intent” of the law to provide subsidies in both cases and a former Senate Finance Committee staffer testified to that effect. However, as reported, two of the three judges expressed skepticism that the plain language should be read more broadly than it actually does.

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