Midweek update

At today's Senate Health, Education, Labor, and Pensions Committee meeting, the Committee approved by a 20-3 vote a further revised version of S. 1895, a bill to lower healthcare costs, for full Senate consideration.  The Chairman Sen. Lamar Alexander ( TN) expects additional bipartisan bills from the Senate Finance Committee and other committees to be included in the bill before a Senate vote is held before the August recess.  The FEHBlog  listened to the hearing and hoo boy there was an entertaining combination of bipartisanship and hyperbole. The FEHBlog is looking forward to finding and reviewing a current version of the bill, which as they say on the Hill has legs.

Also today, the House of Representatives approved HR 3351, the Fiscal Year 2020 Financial Services and General Government appropriations by a 224-196 vote. As discussed in this Federal News Network article, the bill, which now goes to the Senate, includes a 3.1% 2020 pay raise for federal employees and clamps down on Trump Administration efforts to dismantle OPM.

Tomorrow, the U.S. Supreme Court will hold its last decision day for the October 2019 term. Today the Supreme Court issued its decision in Kisor v. Wilkie, an Administrative Procedure Act case that the FEHBlog had been following. The decision is too complicated for full FEHBlog treatment. Suffice it to say that the Supreme Court did not reach the outcome that the FEHBlog hoped to read. But it's not the end of the legal world either.

In other judicial news, a three judge panel of the U.S. Court of Appeals for the 5th Circuit, which on July 9 will hear the Texas v. United States case concerning the ACA's constitutionality, asked the parties for supplemental briefing on the following topics:

(1) Whether or not the state intervenors and the U.S. House of Representatives have standing to intervene in this appeal, see, e.g., Va. House of Delegates v. Bethune-Hill, No. 18-281 (U.S. June 17, 2019), and whether the interventions were timely as to all issues, including whether the U.S. House of Representatives’ intervention was timely as to both orders of the district court;
(2) Whether or not, if none of the intervenors have standing, there is a live case or controversy between the plaintiffs and the federal defendants given their positions on appeal, see United States v. Windsor, 570 U.S. 744 (2013); and
(3) What the appropriate conclusion is if the federal defendants’ change in position has mooted the controversy and no other defendant has standing to appeal. See, e.g. U.S. Bancorp Mort. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994); United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

As you can see from item 1, the panel's action was triggered by a very recent U.S. Supreme Court decision. The FEHBlog's sense is that if the Court finds that the intervening defendants lack standing, then the whole case, including the district court decision, would collapse like a house of cards. But we shall see. The FEHBlog firmly expects the Fifth Circuit or the Supreme Court to reverse the district court decision holding the ACA constitutional if the courts get to the merits.

Also today, the HHS Office for Civil Rights, which enforces the HIPAA Privacy and Security Rules, issued frequently asked questions on permissible uses and disclosures of protected health information for coordination / continuity of care purposes. Check the out.