Here is the beginning of a post by W&L Law Professor Tim Jost at the Health Affairs Blog regarding the Obama Administration’s recent announcement of a delay in implementation of the Affordable Care Act’s employer mandate:
Late in the day on July 2, 2013, Mark Mazur, Assistant Secretary for Tax Policy at the Department of the Treasury, announced in a memorandum ironically entitled “Continuing to Implement the ACA in a Careful, Thoughtful Manner” that implementation of the Affordable Care Act’s employer mandate would not be implemented on time, but rather delayed until 2015. Valerie Jarrett released a similar statement from the White House.
The Administration has been under tremendous pressure from the business community to delay implementation of ACA provisions affecting employers; it had already delayed the implementation of statutory provisions prohibiting insured employers from discriminating in favor of highly-compensated employees and requiring large employers to automatically enroll new full-time employees in a health insurance plan, subject to the employee opting out. The Administration has now accommodated business one more time.
The reason given for the delay this time was difficulty in implementing ACA provisions requiring insurers and self-insured health plans to report information regarding individuals whom they cover and requiring large employers to report coverage offered to their full-time employees. The administration asserts that an additional year will give employers and insurers the time they need to adapt to the reporting requirements and give the Departments time to simplify the reporting requirement.
Without reporting, however, enforcing the employer mandate will be impractical, so it is put off for a year. The Administration promises guidance within the next week on how this will work and proposed rules this summer to implement the reporting requirement.
You can read the rest of the post by visiting the Health Affairs Blog.
W&L Law Professor Timothy Jost has published the Seventh Edition of Health Law: Cases, Materials, and Problems with the West Publishing Company. The Health Law casebook has been widely used throughout the United States for teaching health law since the first edition was published in 1987, and is credited as having defined the modern health law discipline. The book, which is over 1800 pages long, is also being published in an abridged (900 page) edition and as three separate “spin-off” books covering bioethics, health care organization and financing, and liability and quality. All books will be available this summer for classes in the fall. Professor Jost wrote chapters dealing with health care cost and access issues, private health insurance regulation, the Affordable Care Act, ERISA, Medicare, Medicaid, and the Children’s Health Insurance Program. These chapters have been extensively rewritten since the sixth edition because of changes made by the Affordable Care Act.
Washington and Lee law professor Timothy Jost has published “The Affordable Care Act and the Constitution: Beyond National Federation of Independent Business v. Sebelius” in The Health Care Case: The Supreme Court’s Decision and its Implications, published by Oxford University Press. The book features well-respected and ideologically diverse authors, some of whom participated in ACA litigation. It is among the first scholarly books to address the healthcare decision, perhaps the most significant decision of the Roberts Court to date, with major implications for constitutional law, the Roberts Court itself, and healthcare. Below is excerpt from Professor Jost’s chapter:
In National Federation of Independent Business v. Sebelius (NFIB), the Supreme Court concluded that Congress had acted within its constitutional authority in adopting the Affordable Care Act (ACA)’s individual responsibility provision (although as an exercise of its taxing power, not its commerce power) but that the ACA’s Medicaid expansion was unconstitutional as written. The chapters in this book address the NFIB decision, its history, meaning, and ramifications for the future.
But the ACA and its implementation raise many other constitutional issues not settled by the NFIB case; issues that have been and continue to be litigated in the federal courts. While these challenges have not attracted the attention the NFIB case garnered, and most have either failed or are likely to fail, they are significant politically. Like the NFIB litigation, most of these other cases have been driven by political considerations. They have given support and encouragement to the ACA’s enemies, offering state officials politically opposed to the ACA reasons to refuse to cooperate in its implementation and opponents in Congress ammunition to call for its repeal. On the other hand, the tables could have been turned had an administration come to power in Washington opposed to ACA implementation, with the ACA’s supporters then resorting to litigation to salvage health reform. This chapter considers a number of constitutional issues presented by the ACA that were not raised in NFIB. Some of these issues have been decided by the courts, while others continue to be litigated with no decision yet, and others could have been raised had President Barack Obama not been reelected in November 2012, and might still be relevant as ACA implementation moves forward.
The book is available now from the Oxford Press website.
Washington and Lee Law Professor Tim Jost has published a new article in the Journal of Health Economics, Policy and Law, published by Cambridge University Press. The article, titled “The Affordable Care Act and the Supreme Court: American health care reform inches forward despite dysfunctional political institutions and politics,” discusses the political landscape of that enabled the ACA to become law. Beginning with the law’s passage in early 2010, Jost examines the various challenges and court decisions that occurred over the next 2.5 years, evaluating the legal arguments and developments during the run-up to the decision by the U.S. Supreme Court upholdng the law.
The article is available from the Cambridge Press Website.
Washington and Lee law professor Tim Jost has been named a contributing editor for Health Affairs, the nation’s leading health policy journal. Jost has been a regular contributor to the Health Affairs blog this year, authoring over thirty posts on the Affordable Care Act covering implementation issues and legal challenges.
Jost’s look at the 2012 election and the implementation of the Affordable Care Act in its aftermath topped the list of most-read Health Affairs Blog posts for November 2012. His posts previously captured three spots on Health Affairs 2011 Most Read List. An archive of Jost’s posts can be found here: http://healthaffairs.org/blog/author/jost/.
In addition, a perspective column Jost wrote on the litigation challenging the Affordable Care Act requirement that insurers and group health plans cover contraception was published recently in the New England Journal of Medicine. That column can be found here: http://www.nejm.org/doi/full/10.1056/NEJMp1214605?query=featured_home
Here is a story from The Los Angeles Times in which W&L Professor Tim Jost–a leading expert on health care law–is quoted:
The Supreme Court rectified an oversight Monday and gave a Christian university in Virginia a chance to argue in a lower court two claims that were not considered in June when the justices upheld President Obama’s healthcare law.
Lawyers for Liberty University say the law violates the Constitution by requiring large employers to pay a tax if they do not provide health insurance to their full-time workers.
No one has seriously disputed that the federal government has broad power to regulate employers, and the justices did not even consider this claim earlier this year. Instead, they debated whether Congress could require an individual to buy insurance or pay a tax, the so-called individual mandate. The court upheld that requirement in a 5-4 decision.
Liberty’s lawyers also say “forced funding of abortion” under the law violates the school’s right to religious liberty. Obama administration officials say the law does not require funding of abortions, and district judges have rejected the claim.
Nonetheless, because Liberty University’s claims had not been heard or decided, the justices issued a one-paragraph order allowing the university to raise these claims before the U.S. 4th Circuit Court of Appeals in Richmond, Va.
Last month, the Obama administration told the justices it had no objection to such an order. The high court’s move does not suggest, however, that the justices are reconsidering the issue.
“It’s a frivolous argument. Congress had regulated wages and benefits issues under the commerce clause for decades,” said Timothy Jost, a health law expert at Washington and Lee University in Virginia.
Employers with more than 50 full-time employees will be required, starting in 2014, to offer health insurance that meets new minimum standards of coverage.
Jost holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law.
W&L Law Professor Timothy Jost gave the Roy Ray lecture at the SMU Dedman School of Law on September 13. His talk was entitled “The American Health Care System: Three Histories and Three Possible Futures.” In the talk, Professor Jost analyzed the contested narrative of the American health care system’s past and how we should build a future on the successful elements of our present system.
Professor Jost also recently participated in a symposium on the Supreme Court’s recent decision on the Affordable Care Act at Columbia Law School. The symposium, entitled The Health Care Case: The Supreme Court’s Decision and Its Implications, took place on September 28 and featured a discussion of the impact of the decision–NFIB v. Sebelius–by Professor Jost.
Timothy Jost, a nationally-recognized expert in health care law, holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. He is a co-author of a casebook, Health Law, used widely throughout the United States in teaching health law, and of a treatise and hornbook by the same name. He is also the author of Health Care Coverage Determinations: An International Comparative Study;Disentitlement? The Threats Facing our Public Health Care Programs and a Rights-Based Response; and Readings in Comparative Health Law and Bioethics, the second edition of which appeared this spring.
Professor Timothy S. Jost, the Robert L. Willett Family Professor of Law, recently had his article,Employers and the Exchanges Under the Small Business Health Options Program: Examining the Potential and the Pitfalls, 31 Health Affairs 267 (2012), published in the Health Affairs Journal.
The article discusses the Small Business Health Options Program (SHOP), which was created as part of the Affordable Care Act, and is intended to create a marketplace for small, and perhaps eventually large, employers to purchase health insurance for their employees. The paper introduces a collection of articles that illuminate the need for small-business exchanges and discuss how they will function. It also describes the difficulties these exchanges will face, as well as the opportunities they will offer to states, employers, and individuals. The success or failure of small-business exchanges may well hinge on how states choose to address these challenges.
Professor Timothy S. Jost, the Robert L. Willett Family Professor of Law, recently had his article, Is Medicaid Constitutional? posted on the New England Journal of Medicine’s Perspective Blog.
The article discusses the expansion of Medicaid by the Affordable Care Act (ACA). Under the ACA, Medicaid coverage was brought to cover all adults under 65 who have an income below 138% of the federal poverty level. Through 2016, the federal government will pay 100% of this expansion but will phase down to 90% by 2020. The part under question is the requirement that states cover the newly eligible population to receive any federal Medicaid funding. The 26 states bring the lawsuit argue that this requirement is paramount to coercion that turns mere pressure into compulsion. Prof. Jost discusses the potential ramifications should the Court find the Medicaid expansion too coercive and the impact may very well expand beyond the health care arena.
Every year, the faculty at W&L Law convene to share current scholarship and provide feedback to one another. Last week, seven faculty presented their papers and invited discussions, criticism, and suggestions for improvement. The presenters were as follows:
- Josh Fairfield: “Virtual Currency: How to Print Money for Fun and Profit”
- Aaron Haas: “The Marginalization of Religious Persecution in U.S. Asylum Law”
- James Moliterno: “Lawyer Regulation and Innovation”
- Robin Wilson: “Calculus of Accomodation”
- Doug Rendleman: “The Last Tour of Calabresi and Melamed’s Cathedral You Need to Take”
- Michelle Drumbl: “Decoupling Marriage and Taxes: Beyond Innocence and Income Splitting”
- Tim Jost: “The Affordable Care Act Litigation”