Transgender Health Regs Trigger Texas Suit

August 23, 2016
By David Lee
WICHITA FALLS, Texas (CN) — In Texas’ latest salvo in its fight over national transgender policies, the state says the Obama administration cannot change the determination of gender from “biological fact” to a “state of mind” and force physicians to perform sex-reassignment surgeries.
Texas, four other states and three physicians associations sued the U.S. Department of Health and Human Services on Tuesday in Federal Court, claiming the new Affordable Care Act rule is an example of “regulatory overreach that is invading the coffers” of the state and violating the “medical judgment and conscience rights” of physicians.
“On pain of significant financial liability, the regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex — including the sex of children,” the 79-page complaint states.
“Under the new regulation, a doctor must perform these procedures even when they are contrary to the doctor’s medical judgment and could result in significant, long-term medical harm. Thus, the regulation represents a radical invasion of the federal bureaucracy into a doctor’s medical judgment”
Texas argues that Congress has consistently defined the term “sex” for several decades and across several federal laws as meaning a patient’s biological sex at birth.
“Thus, with a single stroke of the pen, Health and Human Services has created a massive new liability for thousands of health care professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures,” the complaint states. “And Health and Human Services has done this despite the fact that Congress has repeatedly rejected similar attempts to redefine ‘sex’ through legislation, and federal courts have repeatedly rejected attempts to accomplish the same goal through litigation.”
Texas Attorney General Ken Paxton said Tuesday morning that President Barack Obama “does not have the power to rewrite law.” He said Obama is trying to rewrite the definition of “sex” as a person’s “internal sense of gender which may be male, female, neither, or a combination” of both genders.
“The federal government has no right to force Texans to pay for medical procedures designed to change a person’s sex,” Paxton said in a written statement. “I am disappointed in the Obama administration’s lack of consideration for medical professionals who believe that engaging in such procedures or treatment violates their Hippocratic Oath, their conscience, or their personal religious beliefs, which are protected by the Constitution and federal law.”
Paxton noted that this is the 13th lawsuit he has filed against the federal government for alleged constitutional violations.
He sued the Obama administration last month over its directive that all schools that receive federal money must classify students based on gender identity, not what is listed on their birth certificates. A Dallas federal judge ruled for Texas last week, entering a preliminary injunction barring the directive from taking effect.
The other states joining Texas in the lawsuit include Wisconsin, Nebraska, Kentucky and Kansas. The physicians’ groups include Franciscan Alliance, Specialty Physicians of Illinois and Christian Medical and Dental Associations.

From Courthouse News.

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USA Wants Texas’ Obamacare Suit Dismissed

January 29, 2016
By David Lee
DALLAS (CN) – The United States on Wednesday fired back at Texas, Kansas and Louisiana, claiming the states have no standing to challenge an Obamacare health insurance provider’s fee as an unconstitutional tax.
The three states sued the United States in Wichita Falls Federal Court in October last year. They claim they were notified of the fee in March 2015 and have paid it, but that the “new regulatory framework poses myriad statutory and constitutional” issues.
“The statute and regulations governing the health insurance provider’s fee include no specific language excluding the activities of for-profit managed care organizations providing Medicaid or CHIP services from being included in the fee,” the complaint stated.
Managed-care organizations provided Medicaid services to 87 percent of Texas’ full-benefit population in 2015 and will receive $16.6 billion for health care services – 17 percent of Texas’ budget, according to the complaint.
Texas paid $86 million in 2013 and $140 million a year since.
The United States responded Wednesday, filing a 34-page brief in support of its motion to dismiss. It says the plaintiffs lack standing to request a refund under federal law.
“The code expressly permits refund requests by third parties in only limited circumstances, and plaintiffs fit within none of these exceptions,” the brief states. “To the extent that third-party challenges are permitted beyond what is expressly listed in the code, the Supreme Court has limited such challenges to persons who paid the tax directly to the IRS. … Here, the HIPF is assessed against and paid by certain insurers, not the states or any other health insurance customers. Section 1346(a)(1)’s limited waiver of sovereign immunity therefore does not extend to plaintiffs.”
The United States says the states failed to state a constitutional claim, that their coercion claims fail because paying the fee is “not a condition on receiving federal Medicaid funds,” and the states can avoid the fee’s effects.
“The states need not contract with managed-care organizations at all; they are free to use the fee-for-service model that has been part of Medicaid since its inception and continues to be used to varying extents by each of the plaintiff states,” the brief states. “And to the extent they choose to use a managed-care model, they can opt to contract with qualifying nonprofits that are exempt from the HIPF or even establish a government-run MCO.”
States have “significant leverage” in negotiating capitation rates, can use their bargaining power to minimize rate increases and are “in control of any effect” from the fee, the United States says.
In conclusion, the government says: “This Court cannot adjudicate the merits of this dispute. Plaintiffs lack standing to challenge the HIPF and the actuarial-soundness requirement, and federal statutes make clear this Court is without jurisdiction to award a remedy. Additionally, the States have operated under the 2002 actuarial-soundness requirement for over a decade, so their challenge to 42 U.S.C. § 1396b(m)(2)(A)(iii) and 42 C.F.R. § 438.6(c)(1)(i)(C) is time-barred. But even if the Court reaches the merits, Plaintiffs’ arguments amount to nothing more than a complaint that its costs for managed care might increase as a result of the Affordable Care Act. This does not state a cognizable claim for relief. The Court should therefore dismiss the Complaint in its entirety.”

From Courthouse News.

States Sue Feds Over Hidden Obamacare Fee

October 22, 2015
By David Lee
DALLAS (CN) – Obamacare regulations that force states to pay a health insurance providers fee or risk losing Medicaid funding impose a coercive and unconstitutional tax, three states claim in Federal Court.
Texas, Kansas and Louisiana sued the federal government in Wichita Falls Federal Court on Thursday. They say they were first notified of the fee in March and have paid it, but argue the “new regulatory framework poses a myriad of statutory and constitutional” issues.
“Nothing in the language of the Affordable Care Act provides clear notice to the states that a condition of the federal funding for their Medicaid and Child Health Insurance Program (CHIP) managed care organizations was paying the health insurance providers fee and associated costs to the managed care organizations to pay to the federal government,” the 20-page complaint states.
“This notice was not even provided by rule but was ultimately provided by a private entity wielding legislative authority. The statute and regulations governing the health insurance providers fee include no specific language excluding the activities of for-profit managed care organizations providing Medicaid or CHIP services from being included in the fee.”
Managed-care organizations play a crucial role in Medicaid and CHIP in the plaintiff states. They will provide Medicaid services to 87 percent of Texas’ full-benefit population this year and will receive $16.6 billion for health care services – 17 percent of Texas’ budget, according to the complaint.
The states say that under the new regulations, actuarial standards of practice determined by the private Actuarial Standards Board and adopted by the Centers for Medicare and Medicaid Services requires states to pay managed-care organizations “an amount sufficient to cover the health insurance providers fee and any amount of additional taxes that the managed-care organizations incur as a result of” Medicaid and CHIP payments.
They disagree with this standard, citing earlier U.S. Supreme Court and D.C. Circuit rulings that ban federal lawmakers from delegating regulatory authority to private entities, that it is “legislative delegation in its most obnoxious form,” according to the complaint.
Without an actuary certifying a managed-care organization’s contract, it will not be eligible to participate in Medicaid or CHIP, the states say.
“In the next decade, the health insurance providers fee is projected to allow the federal government to collect between $13 and $15 billion from the states,” the complaint states. “By functionally requiring that the plaintiff states reimburse managed care organizations for payment of tax liabilities, the United States has imposed those taxes on the states.”
Texas Attorney General Ken Paxton said Tuesday the regulation “coercively threatens” to cut off Medicaid funding for millions of Texans and over 350,000 children.
“This threat to cut Medicaid funding to Texans unless the state continues to pay hundreds of millions in taxes to Washington amounts to the very ‘gun to the head’ the Supreme Court warned about in earlier rulings on Obamacare,” Paxton said in a statement. “Not only is the federal government threatening the health care needs of millions of Texans, but it is doing so using Texans’ own money, collected from them through taxes. This represents yet another huge overstep of authority for this administration, which once again has demonstrated their willingness to circumvent the Constitution in order to achieve their policy goals.”
Paxton said the adoption of the Actuarial Standards Board’s unconstitutional tax on the states funds “the insolvent Obamacare mandate” and “robs the tax coffers” of citizens.
Texas paid $86 million in 2013 and $140 million a year since.
The states seek an injunction and declaration that the fee is unconstitutional, arbitrary, capricious, coercive and in violation of the Administrative Procedure Act.
They are represented by Texas Assistant Attorney General Thomas A. Albright in Austin.

From Courthouse News.

Satanists Seek Hobby Lobby Exemption

July 29, 2014
By David Lee
OKLAHOMA CITY (CN) – A group of Satanists claims their followers are exempt from informed-consent abortion laws, citing the Supreme Court’s Hobby Lobby ruling that frees closely held companies from funding insurance for contraceptives due to the owners’ religious objections.
The New York-based Satanic Temple claims that state laws that require abortion providers to give patients materials about the procedures are biased to dissuade women against the procedure.
“Such materials have included claims of a link between abortion and breast cancer, as well as claims regarding a depressive ‘post­abortion syndrome’, both of which The Satanic Temple view as ‘scientifically unfounded’ and ‘medically invalid’ and therefore an affront to their religious beliefs,” the group said in a statement Monday.
“While The Satanic Temple (TST) are not the first organization to criticize the state-mandated abortion materials as false and/or biased, they are the first to offer an exemption from such materials on religious grounds.”
Satanic Temple followers believe “the body is inviolable – subject to one’s own will alone” and that they “strive to make all decisions regarding personal health based on the best scientific understanding of the world, regardless of the religious or political beliefs of others.”
The Hobby Lobby ruling bolsters the group’s cause, TST spokesman Lucien Greaves said in the statement.
“While we feel we have a strong case for an exemption regardless of the Hobby Lobby ruling, the Supreme Court has decided that religious beliefs are so sacrosanct that they can even trump scientific fact. This was made clear when they allowed Hobby Lobby to claim certain contraceptives were abortifacients, when in fact they are not. Because of the respect the court has given to religious beliefs, and the fact that our beliefs are based on best available knowledge, we expect that our belief in the illegitimacy of state­-mandated ‘informational’ material is enough to exempt us, and those who hold our beliefs from having to receive them.”
The Satanic Temple made headlines in January when it asked the Oklahoma Capitol Preservation Commission for permission to erect a 7-foot-tall statute of a goat-headed Satan near the state capitol.
The group pointed out that the Oklahoma City Council had erected a Ten Commandments monument nearby.
The Satanic Temple’s design depicts Satan as Baphomet – a goat-headed figure with horns, wings and a beard – sitting on a pentagram throne with two smiling children standing beside him.
“The monument has been designed to reflect the views of Satanists in Oklahoma City and beyond,” Greaves said at the time.
He added: “The statue will also have a functional purpose as a chair where people of all ages may sit on the lap of Satan for inspiration and contemplation.”
The temple claimed that the Oklahoma Legislature’s approval of the privately funded Ten Commandments monument opened the door for it to erect its statue.

From Courthouse News.

Obamacare Injunction May Await Hobby Lobby, 10th Circuit Rules

Byron White Courthouse, Denver, CO by writRHET, on Flickr
Creative Commons Creative Commons Attribution-Noncommercial-Share Alike 2.0 Generic License   Byron White Courthouse,  writRHET 

June 28, 2013
By David Lee
DENVER (CN) – Christian-owned retailers may deserve an injunction from a provision of health care reform that requires them to cover contraception for their employees, the 10th Circuit ruled.
Though a federal judge in Oklahoma City had refused such relief to arts-and-crafts retailer Hobby Lobby and Christian-themed retailer Mardel, the Denver-based federal appeals court reversed in a divided en banc decision Thursday.
Finding that Hobby Lobby and Mardel have standing to sue over the Patient Protection and Affordable Care Act, the majority ordered the lower court to address the two remaining preliminary injunction factors and then assess whether to grant such relief.
Both retailers belong to the Green family, who joined in the September 2012 lawsuit against the Obama administration under the Religious Freedom Restoration Act and free exercise clause of the First Amendment. They said the mandate forces them to violate their religious faith, as they believe they would be forced to fund abortion-causing drugs, including the morning-after pill.
The Greens argued that religiously motivated business owners, such as themselves, would be forced to violate their faith under threat of $1.3 million in fines per day. The fines would have started accruing on July 1.
“The Green family believes they are obligated to run their businesses in accordance with their faith,” the complaint stated. “Commitment to Jesus Christ and to Biblical principals is what gives their business endeavors meaning and purpose.”
President Barack Obama’s health care mandate “runs roughshod” over those beliefs, the Greens claims.
Write for the 10th Circuit’s five-member majority, Judge Timothy Tymkovich said “sincerely religious persons” could find a connection between the exercise of religion and the pursuit of profit.
“We see no reason why one must orient one’s business toward a religious community to preserve Free Exercise protections,” the 67-page opinion states. “A religious individual may enter the for-profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values. As a court, we do not see how we can distinguish this form of evangelism from any other.”
The Greens may be able to prove that the mandate creates a burden on them and is not just another form of compensation for employees.
“Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or devices they consider to induce abortions, and it is not for us to question whether the line is reasonable,” the opinion states. “It is not the employees’ health care decisions that burden the corporations’ religious beliefs, but the government’s demand that Hobby Lobby and Mardel enable access to contraceptives that Hobby Lobby and Mardel deem morally problematic.”
In a concurring opinion, Judge Harris Hartz said the civil liberties of an organization are distinct from those of a particular member.
“No one suggests that organizations, in contrast to their members, have souls,” Hartz wrote. “But it does not follow that people must sacrifice their souls to engage in group activities through an organization. Working with others through an organization can often be advantageous in many respects. Of course, one who acts through a group loses a measure of personal autonomy and privacy.”
Concurring in part and dissenting in part, Judge Scott Matheson agreed with the lower court that the corporate plaintiffs failed to show how the RFRA applied to them.
“Their briefs lack adequate supporting precedent, and the record lacks evidence of how Hobby Lobby and Mardel hold and exercise religious beliefs in conflict with the Regulation,” Matheson wrote. “Also, I am thus far unconvinced that for-profit, secular corporations can so easily seize upon the religious beliefs of their owners to demonstrate a corporate religious conviction. The structural barriers of corporate law give me pause about whether the plaintiffs can have their corporate veil and pierce it too.”
Matheson declined to say once and for all whether the RFRA or free establishment clause protects a for-profit business, particularly at this “early stage” of the suit.
Disagreeing with the court’s ruling, the American Civil Liberties Union said businesses like Hobby Lobby “cannot use religion to discriminate by denying women coverage for contraception.”
“Religious liberty is a fundamental freedom,” ACLU deputy legal director Louise Melling said in a statement. “We are all entitled to our religious beliefs but not to impose those beliefs on others.”
Hobby Lobby founder and CEO David Green found the court’s ruling encouraging.
“My family and I believe very strongly in our conviction that life begins at conception, and the emergency contraceptives that we would be forced to provide in our employee health plan under this mandate are contrary to that conviction,” Green said in a statement. “We believe that business owners should not have to be forced to choose between following their faith and following the law.”
Sixty other suits opposing the contraception mandate have been filed nationwide, according to the Becket Fund for Religious Liberty. The group says it represents several of the plaintiffs, including Hobby Lobby, Wheaton College, East Texas Baptist University, Houston Baptist University, Colorado Christian University, the Eternal Word Television Network, Ave Maria University, and Belmont Abbey College.

From Courthouse News.

Congress Joins Hobby Lobby’s Protest to Obamacare Birth Control Mandate

United States Capitol Building, The Nati by Jeffrey, on Flickr
Creative Commons Creative Commons Attribution 2.0 Generic License   U.S. Capitol Building,  Jeffrey 

February 21, 2013
By David Lee
WASHINGTON (CN) – Eleven members of Congress are among those who urged the 10th Circuit to exempt a family-owned retailer from the contraception mandate in health care reform.
Hobby Lobby, the Christian-themed retailer Mardel and five members of the Green family that founded the Oklahoma City-based crafts retailer sued the government in September.
They alleged that a provision of the Patient Protection and Affordable Care Act unfairly forces religious-minded business owners, such as themselves, to violate their faith under threat of millions of dollars in fines.
In rejecting their demands for an injunction several months ago, U.S. District Judge Joe Heaton in Oklahoma City found that the retailers are not “persons,” under the Religious Freedom Restoration Act (RFRA).
The U.S. Supreme Court declined to hear an emergency appeal, and the case proceeded to the Denver-based federal appeals court. On Tuesday, the 10th Circuit received an amicus brief on their behalf from Sens. Orrin Hatch, Daniel Coats, Thad Cochran, Mike Crapo, Charles Grassley, James Inhofe, Mitch McConnell, Pat Roberts and Richard Shelby, as well as Reps. Lamar Smith and Frank Wolf.
“Congress plainly wrote RFRA to include corporations,” the 29-page brief states.
The congressmen argued that Obama administration has “created a three-tier categorization of religiously objecting employers and have subjected plaintiffs to third-class treatment in the lowest tier.”
“This contravenes the design of RFRA,” they added. “Congress knew that a healthy respect for religious freedom as exercised by a variety of actors would call for various government responses appropriate to the circumstances.”
Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, says the brief “leaves no doubt” that Congress intended to protect the religious freedoms of those like Hobby Lobby and the Greens against the mandate.
“While any brief by sitting members of Congress is significant, this one comes from members who originally supported the federal civil rights law – the Religious Freedom Restoration Act of 1993 – which is at the heart of the mandate challenges,” Duncan said in a statement.
In a separate brief, Oklahoma Attorney General Scott Pruitt said religious faith is “more than a mere belief” and that Judge Heaton recognized the Greens’ faith as more than a “mere intellectual exercise.”
“Operation of the Green Family’s corporations in a manner consistent with the Green Family’s religious faith is no less worthy of respect and protection than is the religious faith practiced by church members through a church also organized as a corporation under Oklahoma General Corporation Act,” the 31-page brief states. “In short, if any corporations organized under the Oklahoma General Corporation Act are deserving of religious liberty, these corporations are.”
Pruitt says the mandate “substantially burdens” the religious faith of citizens who are otherwise fully protected by the Constitution and state laws.
“Any regulation that requires an employer to violate their lawful religious beliefs and practices goes directly against the ideals that our Founding Fathers set in place to protect Americans from an overbearing and intrusive government,” Pruitt said in a statement. “It conflicts with the most basic elements of freedom provided to all Americans to practice their lawful religion wherever, whenever and however they choose.”
Other briefs in support of Hobby Lobby were filed by the Archdiocese of Oklahoma City, the Liberty, Life and Law Foundation, The United States Justice Foundation, WyWatch Familiy Action Inc., the American Center for Law & Justice and the Association of American Physicians & Surgeons, among others.
In January, a Texas state legislator proposed giving tax breaks to employers who face fines by the federal government if they refuse to comply with the mandate, including Hobby Lobby.
House Bill 649, by state Rep. Jonathan Stickland, R-Bedford, would indemnify employers from all state taxes if they invoke religious reasons.
“It is simply appalling that any business owner should have to choose between violating their religious convictions and watching their business be strangled by the strong arm of federal mandates and taxation,” Strickland said at the time.
If passed, the bill would require a business to provide employees with a health insurance plan, must refuse to cover emergency contraception under Obamacare, must have been fined after Jan. 1, 2013, for failure to comply and must have paid the fine.

From Courthouse News.

Tax Breaks Proposed in Texas for Religious Businesses in Wake of Hobby Lobby

January 28, 2013
By David Lee
AUSTIN (CN) – Employers that invoke religion to refuse to provide health insurance covering emergency contraception would get tax breaks from Texas to offset federal fines under Obamacare, if a proposed bill passes.
House Bill 649, by state Rep. Jonathan Stickland, R-Bedford, would indemnify employers such as arts-and-crafts store Hobby Lobby, which unsuccessfully sued the federal government last year, seeking exclusions from the federal law.
Hobby Lobby and its owners, the Green family, lost their claim in Oklahoma City Federal Court.
The U.S. Supreme Court declined to hear an emergency appeal.
The Hobby Lobby owners claimed that the 2010 Patient Protection and Affordable Care Act forced them to violate tenets of their religion, under threat of millions of dollars in fines: up to $100 per employee per day.
Stickland defended H.B. 649 in a statement: “The First Amendment to the Constitution protects individuals from having their religious consciences violated by the federal government,” Stickland said. “But the Obama Administration’s mandate and their threats to bury Hobby Lobby with up to $1.3 million per day in tax penalties aren’t just unconstitutional, they’re unconscionable. …
“It is simply appalling that any business owner should have to choose between violating their religious convictions and watching their business be strangled by the strong arm of federal mandates and taxation.”
HB 649 would exempt businesses that invoke religious reasons from all state taxes if they are forced to pay punitive fines for violating the contraception mandate.
To qualify for the exemption, a business must provide employees with a health insurance plan, must refuse to cover emergency contraception under Obamacare, must have been fined after Jan. 1, 2013, for failure to comply and must have paid the fine.
“Exempting them from state taxes is the least we can do to help them weather this storm,” Stickland said in his statement. “I hope other states follow suit and I hope the courts step up to protect religious liberty and strike down this unconstitutional mandate.”
U.S. District Judge Joe Heaton ruled against Hobby Lobby in November.
“The question of whether plaintiffs are likely to prevail on their constitutional claims requires a threshold determination of whether the particular plaintiffs have constitutional ‘free exercise’ rights subject to being violated,” Heaton wrote. “As to the Greens, the answer to that is obviously yes. However, as to the corporations – Hobby Lobby and Mardel – the court concludes otherwise.”
Heaton found that though companies have constitutional rights in some circumstances, they are not available to the same extent that they are to people. He noted differences between protections given to businesses and to churches.
Religious exercise is a “purely personal” matter that is not a part of a general business corporation, Heaton wrote.
“The Greens have not established that compliance with the preventive care coverage regulations would ‘substantially burden’ their religious exercise, as the term ‘substantially burdened’ is used in the statute,” Heaton found.
Stickland identifies himself as “a conservative Christian Republican” on his state website. He has a G.E.D. and “spent time at” two community colleges, then went to work for Truly Nolen Pest Control, according to his website.
Stickland, 29, was elected to his first term in November. He has no previous political experience, according to Votesmart.org.

From Courthouse News.