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Posts from August 2014.

The recent decisions by the Fourth Circuit and the D.C. Circuit address a controversy that could have far-reaching consequences for the Patient Protection and Affordable Care Act (the “ACA”). Under the ACA, states and the District of Columbia are authorized to establish health insurance market places (“exchanges”) where each state’s citizens may purchase health insurance.  If a state does not create an exchange, the ACA mandates that the Department of Health and Human Services establish a federal exchange to operate in the state.  At this time, fourteen states and the District of Columbia have exchanges, while thirty-six states have federal exchanges.

The ACA also creates a tax credit program that subsidizes the cost of insurance for lower income Americans. The ACA’s individual mandate requires individuals to maintain “minimum essential coverage,” which, in general, is enforced through a tax penalty. However, the individual mandate only applies when an individual’s health insurance premiums (after applying the tax credit subsidy to the premiums) are less than eight percent of their projected household income. Therefore, the tax credit increases the number of Americans who must purchase insurance, and since thirty-six states have a federal exchange, a significant number of Americans receive these tax credits without participating in state exchanges.

On July 21, 2014, President Obama issued an executive order that amends Executive Orders 11478 and 11246 by adding LGBT anti-discrimination protections. President Obama took this action after Congress failed to pass the Employment Non-Discrimination Act, which would have prohibited all employers with fifteen or more employees from discriminating based on “sexual orientation” or “gender identity.”

Executive Order 11478 protects federal employees against certain types of discrimination. When President Nixon issued Executive Order 11478 in 1969, it barred discrimination “because of race, color, religion, sex, national origin, handicap, or age.”  Subsequently, President Clinton amended Executive Order 11478 to include “sexual orientation.” President Obama’s executive order, which is effective immediately, provides further protections for federal employees by prohibiting discrimination based on “gender identity.”