Trump DOJ Announces It Will No Longer Defend the ACA in Court

Faced with a challenge by 20 attorneys general in a federal court in Texas, the Affordable Care Act (ACA) is going to trial with no defense from the Trump administration’s Department of Justice (DOJ).

justice-department-won't-defend-the-acaThe case rests on the constitutionality — or unconstitutionality — of the health care act now that the individual mandate has been withdrawn as a penalty for those lacking insurance.

The argument is built upon the fact that the ACA survived its Supreme Court constitutionality test only after Chief Justice John Roberts concluded the mandate was really a tax and thus Congress had the power to pass the legislation. His four conservative fellow justices wholeheartedly disagreed.

While the government “does not have the power to order people to buy health insurance,” the chief justice wrote for the majority, it “does have the power to impose a tax on those without health insurance.”

The Trump DOJ, in announcing it would not defend the act in court, evidently agrees with those four dissenters — and not with John Roberts — because it is now calling the individual mandate unconstitutional. It filed a brief so declaring this stance with the Texas federal court where the case will be heard. The DOJ also sent a letter to the House and Senate declaring its position.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OMB to Disclose Plans for Restructuring of HHS, USDA

The White House Office of Management and Budget (OMB) is expected to unveil plans this month to move several welfare-related functions from the Department of Agriculture (USDA) to the Department of Health and Human Services (HHS).

Specifically, the restructuring would relocate the $70 billion food stamp program from Agriculture to HHS, and it would also transfer the school nutrition program over to HHS as well.

The thinking, originally developed by the conservative Heritage Foundation, is that HHS is already responsible for entitlement programs like Medicare and Medicaid and also for the Temporary Assistance for Need Families (TANF) cash assistance program, so transferring the programs would be a natural fit.

“The USDA has veered off of its mission by working extensively on issues unrelated to agriculture,” Heritage wrote. “This is mostly due to the nutrition programs. By moving this welfare function to HHS, the USDA will be better able to work on agricultural issues impacting all Americans.”

The White House also desires to change the name of Health and Human Services, which used to be the Department of Health, Education and Welfare before the Department of Education was created in 1979. The new name may reincorporate the word “welfare.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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HHS Creates DRIVe Initiative to End Infectious Disease Threats

The Department of Health and Human Services (HHS) has opened a new office known as the Division for Research, Innovation and Ventures (DRIVe), which has been tasked with creating public-private partnerships to detect and battle infectious diseases before they become epidemics.

hhs-creates-drive-initiative“It takes too long to recognize when a disease, virus or biological threat has entered a community, to understand the scope of the problem, and to provide enough medicines and healthcare in the right place, at the right time, to mitigate the damage,” HHS announced in a statement.

The DRIVe office is forging a network of private partners, known as accelerators, who will help develop new technologies and treatments that can alert people when they have been infected with a bacteria or virus even before they begin to feel sick.

“This approach will help startups and other businesses shape the next generation of lifesaving technology and transform health security,” Deputy Secretary Eric Hargan said in a statement.” That innovation is crucial to protecting Americans and saving lives.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Republican Cabal Keeps EEOC in Democrats’ Hands

Four Republicans, led by Sen. Mike Lee of Utah, have effectively kept the Obama Equal Employment Opportunity Commission (EEOC) intact by refusing to allow a vote on President Trump’s renomination of Commissioner Chai Feldblum, citing faith-based objections.

chai-feldblum-renominated-for-eeoc

Chai Feldblum

Since Democrats say they won’t vote on the president’s other two nominations — Janet Dhillon and Daniel Gade — unless they are packaged with Feldblum, the EEOC currently retains a 2-to-1 Democrat majority. The lone Republican, Victoria Lipnic, is chair of the commission but outnumbered and unable to set a new agenda.

Another consequence is that the sexual harassment guidance crafted by the EEOC in 2017 is on hold at the White House Office of Management and Budget (OMB) pending approval of the two Republicans. When and if that happens, Dhillon will replace Lipnic as chair, and the GOP will have its first majority since 2008.

Senate Majority Leader Mitch McConnell is unwilling to devote 30 hours of floor debate on each nominee as a workaround for the stalemate. But Sen. Lee says he won’t budge, calling Feldblum a “radical” unqualified for the commission.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Joint Employer Rulemaking Definitely on NLRB Agenda, Chairman Says

Responding to criticism from three liberal Senators, National Labor Relations Board (NLRB) Chairman John Ring has affirmed that the agency will issue a Notice of Proposed Rulemking (NPRM) on defining joint employer relationships “as soon as possible, but certainly by this summer.”

john-ring-new-nlrb-chair

John Ring, new NLRB Chair

The board’s intention to use rulemaking on the joint employer issue was first announced in its spring regulatory agenda, prompting a May 29 letter from Sens. Kristen Gillibrand, Elizabeth Warren and Bernie Sanders questioning the ethics of such rulemaking and accusing Ring of pre-determining the rule before public commentary is undertaken.

Ring responded yesterday with a written reply, arguing that  since “any rule developed will apply prospectively only, its application will not affect any case pending before the Board or one of its regional offices on the effective date of the final rule, and thus it will not affect any parties to pending cases.”

He also said he has “an open mind and will consider all comments we receive from interested parties,” but he “will not pretend that I am devoid of opinions on the subject.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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CMS Releases State-by-State Medicaid Scorecard

The Centers for Medicare and Medicaid Services (CMS) has released what is being called a “Medicaid & CHIP Scorecard” that attempts to compare the timeliness and quality of medical care of the two programs state by state, but a major problem is that reporting by the states is mostly voluntary.

cms-releases-medicaid-scorecard“Despite providing health coverage to more than 75 million Americans at a taxpayer cost of more than $558 billion a year, we have lacked transparency in the performance and outcomes of this critical program.” said CMS Administrator Seema Verma.

“The Scorecard will be used to track and display progress being made throughout and across the Medicaid and CHIP programs, so others can learn from the successes of high performing states. By using meaningful data and fostering transparency, we will see the development of best practices that lead to positive health outcomes for our most vulnerable populations.”

The scorecard spans several web pages and covers three main areas: State Health System Performance, State Administrative Accountability, and Federal Administrative Accountability. The report is also broken down into 17 comparison categories, but not one category includes results from all 50 states.

As The Washington Post points out, the statistics are also skewed because those states that reported often used different standards. Some states reported only results from patients who are on managed care; other states reported only results from patients on traditional fee-for-service Medicaid.

When asked if CMS would make the reporting mandatory, Verma said: “I think over time we’re going to review that.  It’s possible in the future we may change that policy — as we evolve and as we see how things are going, that might be something we would consider.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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New Jersey Institutes Statewide Obamacare Individual Mandate

New Jersey has become the second state to legislate an individual Obamacare-like health care mandate following the lead of Massachusetts, which instituted its mandate in 2006 when it passed Romneycare. The New Jersey mandate replaces the financial penalty for not having health insurance that Republicans in Congress repealed in December.

new-jersey-adopts-individual-mandateIn 2015 some 189,000 New Jersey residents paid $93 million in Affordable Care Act (ACA) fines for declining to obtain health insurance, according to the state’s Office of Legislative Services.

The funds collected under the new mandate, which takes effect Jan. 1, will go toward a state reinsurance fund to help lower premiums for residents.

“Protecting the viability of the individual mandate is needed to maintain a foundation for the insurance market and to allow the success of the ACA to continue,” Sen. Joe Vitale (D.-Middlesex), a sponsor of the bill, said in a statement. “New Jersey has benefited from the health care law, and we want to see that those benefits continue. It has made health care more affordable and more accessible, especially for those in need.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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All FMLA Forms Expire Tonight, But They’re Still Good

The seven forms and notices published by the Department of Labor (DOL) for the Family and Medical Leave Act (FMLA) expire tonight (May 31) at midnight, but a spokesperson says the documents are still good while permission for issuing newly dated versions is being obtained.

tax-act-includes-credit-for-paid-PMLA-leaveAccording to a spokesperson, a request to reissue the forms without any changes but with a new expiration date was sent to the Office of Management and Budget (OMB) earlier this year.

According to the federal Paperwork Reduction Act, all government forms expire after three years, at which time they can be dropped, revised and reprinted, or just left as is but with a new three-year lease on life.

According to the DOL, the current forms will be re-dated every month until OMB gives the green light for a three-year renewal. In other words, if you download a form tomorrow, it should have an expiration day of June 30, 2018 (instead of May 31).

POSTSCRIPT: I just checked, and they’ve already been re-dated.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DHS Proposes Ending Entrepreneur Rule for U.S. Entry

The Department of Homeland Security (DHS) is proposing a rule to end a program that allows certain foreign entrepreneurs to be considered for parole to temporarily come to the United States to develop and build start-up businesses here, known as the International Entrepreneur Rule (IE Final Rule).

USCIS-implements-entrepreneur-entry-ruleIn July 2017, DHS published a final rule to delay the implementation date of the IE Final Rule to March 14, 2018, to give the department time to draft a rescission of the IE Final Rule. However, in December 2017, a federal court vacated the delay rule, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE Final Rule.

DHS is now proposing to eliminate the IE Final Rule because the department believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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HHS Seeks to Modify Disclosure Rule, Establish Means to Share HIPAA Fines with Victims

Following comments made in March by Roger Severino, director of the Office for Civil Rights (OCR), the Department of Health and Human Services (HHS) recently published two Notices of Proposed Rulemaking (NPRMs), seeking comments on revising the disclosure rule covering protected health information (PHI) and on sharing HIPAA Privacy Rule violation fines with victims of breaches.

HIPAA-breach-notifications-are-dueThe current disclosure rule, established in 2011 as part of the then-recently enacted Health Information Technology for Economic and Clinical Health (“HITECH”) Act, is being withdrawn.

OCR’s Severino in his remarks in March offered the example of parents who had no idea their adult children were on opioids — until it was too late and they had overdosed. Therefore, he wants to add a “good faith” component to medical disclosures so that health care professionals can use their own better judgment when something needs to be disclosed to immediate family.

On the other point — sharing monies from breach penalties with victims — he told his audience:

OCR is interested in hearing from industry advocates and patients about what would be the proper approach for … creating a system though regulation in providing compensation to those hurt by breaches and HIPAA violations. A lot of breaches do end up causing significant stress, trauma and anxiety to people.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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