The IRS Tax Credit Revisited -A Quick Rundown of the Circuit Court Split and What to Know Moving Forward

By Hillary Cook, DePaul University College of Law

In July 2014, two United States Circuit Court of Appeals ruled on the issue of whether the tax credit promulgated by the Internal Revenue Service (“IRS”) within the Patient Protection and Affordable Care Act (“ACA”) is applicable to health insurance purchased by individuals on federally-facilitated health insurance exchanges established in the absence of state run health insurance exchanges. The United States Court of Appeals for the District of Columbia held health insurance purchased on a federally-facilitated exchange established in the absence of a state run exchange is ineligible for the IRS tax credits pursuant to ACA. Hours after the decision from the D.C. Circuit Court of Appeals, the Fourth Circuit Court of Appeals ruled in the reverse, affirming the lower court’s decision to uphold the IRS rule authorizing tax credits to individuals who enroll in health insurance programs on both state-run and federally-facilitated health benefit exchanges valid.

The petitioners from the Fourth Circuit decision filed a petition for a writ of certiorari in the United States Supreme Court urging the Court to immediately hear the issue because of the Circuit Court split. On September 4, 2014 the D.C. Circuit Court granted a petition for the case to be heard en banc with oral arguments beginning December 17, 2014 and vacated the July 2014 decision invalidating the tax credit.

In addition to the circuit court decisions regarding the IRS tax credit two Federal district courts have ruled on the issue. In Oklahoma ex. rel. Pruitt v. Burwell, the State of Oklahoma alleged that the IRS tax credit is contrary to the express statutory language of PPACA. The Court held the IRS tax credit rule invalid upholding a strict interpretation of ACA as it was written. In Indiana v. IRS, the Court dismissed and granted certain motions in the case on August 12, 2014, and scheduled oral arguments October 9, 2014 as to the merits of the case.

The issue at hand arises from the IRS rule promulgated to extend the PPACA tax subsidy to enrollees in both state run and federally-facilitated health benefit exchanges. To increase the number of Americans covered by health insurance PPACA regulated for the creation of health benefit exchanges. The purpose of health benefit exchanges was to organize a marketplace for individuals to shop for affordable coverage. PPACA legislates in the absence of a state establishing a Health Benefit Exchange by January 1, 2014, the Secretary of Health and Human Services shall establish and operate a federally-facilitated health benefit exchange in the state; however, Section 1311 only allows for an available tax credit to enrollees in an exchange established by one of the fifty states or the District of Columbia. In contrast, the IRS permitted individuals who purchase insurance on state-run or federally-facilitated exchanges to be eligible for tax credits for enrolling in, “one or more qualified health plans through an Exchange,” regardless of how the exchange is operated. With a split on how to apply the tax credits, it is not far fetched for the Supreme Court to intervene.

A United States Supreme Court ruling could have a mild or a detrimental effect on enrollees in federally-facilitated exchanges receiving a tax subsidy because those individuals will be ineligible for the tax subsidy. Without the tax credit permitted by the IRS, individuals will lose the federal subsidy, and will most likely forfeit enrollment in a health insurance exchange at the risk of not being able to afford health insurance.

The King Court reasoned the tax credit promulgated by the IRS was a reasonable interpretation of ACA, and further advanced one of the main purposes of ACA in providing more affordable healthcare to Americans. The Court concluded even though the IRS regulation deviated from a literal interpretation of PPACA the tax credit was providing an economic framework to provide tax credits to insurance purchased on a federally-facilitated exchange in the absence of a state-run exchange. Lastly, the Court concluded the IRS regulation must stand to prevent Congress from enforcing a tax penalty on Americans it never envisioned imposing.

Distinguishably, the IRS tax credit can be invalidated because the language of Section 1311 in ACA does not expressly allow for the IRS tax credit to apply to insurance purchased on federally-facilitated exchanges. The D.C. Circuit Court and the District Court in Oklahoma both articulated their reluctance to attempt to rewrite legislation to expand rule-making authority to agencies where the statute has remained silent.   Both Courts concluded PPACA is not to mean anything other than what the statute expresses and upheld a strict interpretation of ACA regarding agency rule-making.

Moving forward, the decision for the Supreme Court to reconsider taking the case will be a waiting game; the Supreme Court initially denied review of the case on November 3, 2014. Specifically, the en banc hearing in the D.C. Circuit Court will determine if the IRS tax issue has been resolved at the Circuit Court level. The increased need for a high court ruling has become more pressing with the Circuit Court split, the vacated D.C. Circuit Court decision, the District Court decisions, and the awaited en banc hearing in the D.C. Circuit Court.*

*Wolters Kluwer Editorial Note: at the time of publishing, the Supreme Court had granted cert in King v Burwell and the D.C. Circuit has held the Halbig case in abeyance pending the Supreme Court’s ruling in King.

Hillary Cook is a second year law student at DePaul University College of Law. She graduated magna cum laude from the University of Dayton in 2013. She is a member of DePaul’s Health Law Institute.

To Expand or Not to Expand: Medicaid Under the Affordable Care Act

By Jaime Whitt, University of Kansas School of Law-

Famed US Supreme Court Justice Louis Brandeis wrote, in his dissent to the majority opinion in New State Ice Co v. Liebmann, 285 U.S. 262 (1932), that “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” With these words Justice Brandeis generated one of the most prominent analogies of US Federalism—one that still holds true today: the States as the “laboratories of democracy.” This concept has seemingly come to life with the implementation of the ACA (P.L. 111-148) and its provisions. Though it is federal health care reform, there is considerable leeway for each State to individualize the legislation’s impact. From the choice between utilizing or creating its own state-based health insurance Exchange, to regulation of the health care Navigators and other ACA outreach programs, to whether or not to expand Medicaid and how, each State has several opportunities to either fully roll out the ACA and its initiatives or stifle the bill’s impact.

One of the mostly hotly debated issues of the ACA has been Medicaid Expansion. With 2012’s National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, the Supreme Court invalidated the federal Medicaid Expansion mandate as unlawfully coercive and left the Medicaid decision to the states. Since then, contentious arguments in favor of and against expansion abound. To exhaust the minutia surrounding this hotbed topic would arguably be fruitless in this context, but even a cursory review of the myriad issues involved reveals that the expansion decision is a complicated one.

To Expand

On the side in favor of Medicaid Expansion, the arguments typically stem from the vantage point of viewing expansion as a moral and fiscal imperative. States who choose to expand Medicaid get considerable financial support from the federal government in the form of 100% funding for the cost of newly enrolled Medicaid beneficiaries. In a December 2013 study of how states stand to gain or lose under Medicaid Expansion, the Commonwealth Fund found that expansion dollars would represent a major source of federal revenue to state enterprises—nearly 2.5 times the value of highly sought-after federal highway funds in some cases. These dollars are necessary, the argument often goes, to strengthen and protect state health care providers against uncompensated care and to expand health coverage and financial protection to a state’s neediest constituents. The Oregon Health Insurance Experiment (OHIE), which conducted a randomized clinical trial of the effects of expanded Medicaid coverage, found that expansion resulted in improvements in mental and physical well-being as well as protection from catastrophic medical expenses for those who previously had no such resources.

Not to Expand

On the other hand, many states have been leery that the federal government, whose ACA expansion funds match the states at 100% until 2019 when the rate levels out at 90%, will take back that funding, leaving state budgets strapped and on-the-hook to find a way to continue coverage. Recently, this argument has come under fire, as more states consider expansion and research into the history of federal Medicaid funding has revealed that once such funds become entrenched, they are rarely reversed. To that same point, however, many economic and health policy analysts have expressed concern that this massive expansion of public funds will further contribute to the already currently unsustainable growth of national health care expenditures. In support of this argument, results from the aforementioned Oregon study, as well as trends seen in Massachusetts after its 2006 health care reform, indicate that an (expensive) increase in ER utilization is a likely consequence of status-quo Medicaid expansion.


It seems clear, even after just a merely skin-deep examination of this issue and its many interrelated and dependent corollaries, that this debate may indeed be appropriate. Our federal government has the right and responsibility, many argue, to ensure health coverage and financial protection for its citizens to the extent that it can. Likewise, the States each have the right and responsibility to be concerned about their financial welfare when state budgets directly impact state citizens. This is US Federalism at its core.

And the debate is far from over. Certainly, the Republican routing in the November mid-term elections, given that party’s distaste for all things Obamacare, does not forecast a favorable future for the initiative. Having said that, it is no secret that Medicaid funds are generated by and distributed from general federal tax revenues. This means that even states that choose not to expand Medicaid are paying for it. How long will citizens in states that choose not to expand, such as Texas, be complacent with the denial of additional federal revenue, all the while knowing that their federal tax dollars are paying for benefits enjoyed by other states? Only time will tell.

Which brings me back to Justice Brandeis’ historic dissenting admonition. The States are the laboratories of democracy. No one would or could legitimately argue that either the Federal or State governments do not want to provide for and protect their citizens. The question comes down to who should do it and how. Overall, whether states choose new innovations designed to privatize and control Medicaid Expansion funds or choose to use increased funding to focus locally on educating beneficiaries on what resources are available and how to more efficiently use the system, choosing not to participate at all seems like a loser here. The States know their citizens and circumstances better than the Federal government and changes need to be made to the status-quo. The fallout is certainly not clear, but the “courageous” state that Brandeis highlighted will take the money and see what positive progress it can make.

Jaime Whitt is her fourth and final year of a joint-degree program at KU.  She will graduate in May 2015 with a Masters in Health Services Administration from the University of Kansas School of Medicine and a J.D. from the University of Kansas School of Law, with a focus in Healthcare and Health Law.  When she is not in school, Jaime is a Law Clerk at Simpson Logback Lynch Norris, P.A. in Overland Park, KS and is a Graduate Research Assistant in the Department of Health Policy & Management at the University of Kansas School of Medicine studying health policy and health reform.

Highlight on California: Courts Side with Providers in Golden State Data Breaches, For Now

Two recent cases decided by two California appellate courts shed some light on what one source describes as “judicial reluctance” to award damages to individuals whose information was potentially leaked in a security breach. At least this was the result in these matters where the plaintiffs could not prove anything beyond minimal harm stemming from the breaches. Considering these decisions as well as the sharp increase of reports of breaches of security information in California and across the country, the question is raised, to what extent will these precedents be followed in other jurisdictions? Moreover, will the results change if the plaintiffs are able to prove more than minimal harm and what does that entail?

Data Breaches in California

In October, the California Attorney General’s Office released a report that, according to the California Attorney General, Kamala D. Harris, “sheds light on the threat that data breaches pose to California consumers and businesses, including an analysis of the information the Attorney General’s office collected on data breaches in California in 2013.” Describing the state as uniquely subject to developments in the security of sensitive information as it is both “the birthplace of the digital revolution” and the location of the world’s eighth largest economy, the report revealed that in 2013 the number of reported breaches grew by 28 percent over the number in 2012. The report disclosed that the number of Californians whose data was affected in 2013  increased by 600 percent, which was, as the report stated, “due largely to two massive retailer breaches, one of which, the Target breach, involved the payment card data of 41 million individuals, including 7.5 million Californians.”

With respect to health records, the report stated that in this industry, “breaches affected more records than in other industry sectors, with the exception of retail since the two mega breaches of 2013.” Because the majority of health care sector’s breaches (70 percent of breaches in this industry reported in the last two years) were due to stolen or lost hardware that contained unencrypted personal information, the report concluded that the “strategic use of encryption” with regard to information technology in this industry could make a large difference. Moreover, the report referenced other studies that have revealed the rise of criminal activity targeting personal health information, which is exacerbated by health care employees’ use of unsecured portable devices. The report summarized its findings and recommendations as follows: “The need to use encryption is a lesson that must be learned by the health care industry and we recommend that it be applied not only to laptops and portable media, but also to many computers in offices.”

Recent California Cases

Both recent cases were brought by individuals whose health records were subject to unauthorized data breaches in the state of California. Each suit was brought against the provider and keeper of those records pursuant to the California Confidentiality of Medical Information Act (CMIA). CMIA bars providers from unauthorized disclosures of patient information and provides for remedies at law and imposes nominal damages against providers that negligently release unauthorized information.

In Sutter Health v Superior Court (Atkins), after the California Supreme Court denied review of the case, a California appellate court’s ruling that the provider was not liable for the nominal $1,000 in damages to each of the members of the class action suit, which totaled $4.24 billion, stood. In this matter, the class of individuals brought charges against the provider after a thief broke into the provider’s office and stole a computer that contained the health records of over four million patients. Therefore, according to a report on the Sutter decision, “in California a health care provider is not liable for the nominal damages set forth in [the CMIA] when password-protected but unencrypted information is stored on a computer, and the device is stolen, absent evidence the data was actually viewed.”

Similarly, in a matter brought against Eisenhower Medical Center, a data breach was caused by the theft of a computer which contained a password-protected but not encrypted “index of over 500,000 patients’ names, medical record numbers, ages, dates of birth, and Social Security numbers.” In Eisenhower Medical Center v Superior Court (Riverside), a California appellate court found that the CMIA did not apply in situations that lacked a breach of information relevant to history of treatment, diagnosis, or care. “The mere fact that a person was a patient of the provider at some time, the court concluded, was insufficient to impose liability under CMIA,” according to commentary on the decision.

Questions Remain

While some sources note that these rulings indicate that, despite the adoption of CMIA, “it could be difficult for patients to successfully sue California health care facilities over data breaches,” it is unclear how these matters would proceed given a different fact pattern regarding the details of the breach. While the California courts seemed to have carved out some exceptions or caveats to the prohibition of disclosure of unauthorized information under CMIA, how far do these exemptions go and to what extent will this trend be mirrored in other jurisdictions where data breaches are also on the rise?

Don’t Apply Wartime Extensions of Limitations to Qui Tam: PhRMA, AHA, AMA

Three major players in health care litigation have urged the Supreme Court to reverse a Fourth Circuit decision that would extend the deadlines to bring whistleblower suits under the False Claims Act (31 USC sec. 3729 et seq.) when the United States is involved in armed conflict. The Pharmaceutical Research and Manufacturers Association (PhRMA), the American Hospital Association (AHA), and the American Medical Association (AMA) joined with the national Chamber of Commerce and the Clearing House Association, an organization of banks, to file an amicus curiae brief in Kellogg Brown & Root Services, Inc. v United States ex rel. Carter. The United States Supreme Court granted certiorari on July 1, 2014.

The Wartime Suspension of Limitations Act

Congress enacted the Wartime Suspension of Limitations Act (18 U.S.C. sec. 3287) in 1942 in order to preserve the options of federal prosecutors to bring criminal charges against perpetrators of fraud against the federal government during wartime until three years after the war was over. Before a 2008 amendment, it provided that the running of any statute of limitations applicable to any offense involving fraud committed against the United States was suspended “while the United States is at war.” In 2008, the Wartime Enforcement of Fraud Act (P.L. 110-417) amended the law to apply when Congress has enacted specific authorization for the use of military force, until there is either a presidential proclamation or concurrent resolution of congress declaring that hostilities have ended. The law originally applied only to criminal prosecutions, but the words “now indictable” were deleted in 1944, and courts have accepted the government’s position that the law applies to civil actions as well.

Application to Qui Tam Actions

The case before the Supreme Court involves allegations of fraud by government contractors billing for their work in Iraq. The relator was an employee of one of the contractors; the United States declined to intervene. The contractors raised the statute of limitations as a defense, and the relator argued that the WSLA tolled the statute of limitations. The trial court dismissed the complaint, ruling that the WSLA applied only when the government was a party to the litigation.

The Fourth Circuit Ruling

The Court of Appeals reversed, ruling that the WSLA applied to all matters involving alleged fraud against the United States government. In addition, it held that the “first to file” rule did not bar the relator’s claims because the earlier lawsuits had been dismissed.

Amici Concerns About the WSLA

Although the particular case involved government contractors doing work for the military, the court’s ruling was not limited to defense contractors. Thus, the decision would suspend the statute of limitations in all actions under the False Claims Act, including those involving alleged health care fraud, anti-kickback violations, or other matters completely unrelated to activities of the military. The amici contend that business generally, and health care-related businesses in particular, would be unable to plan when the country is involved in military operations. The United States’ intervention in Afghanistan, for example, has lasted more than 10 years and is ongoing. Neither the President nor Congress has any obligation or incentive to declare that hostilities have ended.

The amici argue first that the law was intended to apply only to criminal prosecutions. They do not address the argument that Congress was aware that courts had applied the law to civil litigation and chose not to address the question when it amended the statute in 2008. Their main point is that the lack of a definitive deadline to bring an action will encourage relators to delay filing in order to increase their awards, according to amici. The level of uncertainty is intolerable for business. The amici also argue that there is no need to extend the limitations period to qui tam actions once the government has decided not to participate, as the government has decided it has no interest to protect. They note that only about 10 percent of the cases the government declines ever result in a payment; the rest are dismissed. The need to preserve scarce government resources does not apply to private parties.

First-to-File Rule

Although 31 U.S.C. sec. 3730(b)(5) provides that no party other than the government may sue under the False Claims Act when there already is another action pending on a related claim, the Fourth Circuit ruled that the provision no longer applies if the previous litigation has been dismissed. The amici contend that this interpretation allows relators to dismiss and re-file, adding to the uncertainty that potential claims may never die. Indeed, the relator had dismissed and re-filed after earlier litigation was dismissed; it did not matter that the same litigation was pending when he originally filed.

Oral argument has not been scheduled. The respondents’ brief is due October 14, 2014.