The Affordable Care Act, otherwise known as ObamaCare, sometimes gives employers an incentive to reduce the work hours of employees so that they will not meet eligibility thresholds for costly health insurance. Lawyers for employees have responded by arguing that this reduction of hours constitutes “retaliation” under ERISA and is itself unlawful. Now a Southern District of New York federal court seems to have bought the theory, at least to the extent to denying a defense motion to dismiss. [R. Pepper Crutcher, Balch & Bingham on Marin v. Dave & Buster’s, Inc.]
- FDA and other agencies launch crackdown on more than 100 dietary supplement companies [Orange County Register editorial, thanks for quoting]
- 14 years ago Sally Satel warned that political correctness was getting into medical schools in a big way. How prescient was that? [Yale Daily News via Dave Huber/The College Fix on Yale med-school dean’s capitulation to demands for “anti-oppressive” curriculum reform, video of Satel on C-SPAN “Book Notes” with Brian Lamb discussing “P.C., M.D.“]
- Unexpectedly! “Insurer cutbacks squeeze patients out of high-end care” [Houston Chronicle]
- “Deflate Drug Prices by Reforming the FDA” [Richard Morrison, CEI, thanks for quote]
- Penny wise: Obama plan would penalize doctors who recommend routine prostate cancer tests for older men [WSJ, Betsy McCaughey/New York Post]
- “Clearly, it would take an extraordinarily overbearing [British] state to move [sugar] consumption anywhere close to this target.” [Christopher Snowdon]
- Widely asserted ethical prohibition on paying organ donors comes at more than a monetary price [Alex Tabarrok](link fixed)
The Obamacare/FDA calorie-label provision, which we’ve met before, “requires chain restaurants with 20 or more locations to list calorie information for ‘standard menu items,’ including each available beer, on menus and menu boards by December 2016. Testing the nutritional content of a single beer could cost as much as $1,000, according to the Beer Institute, a trade association representing brewers.” For craft brewers, the costs of testing every variant small-run flavor can add up fast. And unless a brewer is willing to pre-emptively shell out for testing in advance at its own risk, it may miss out on the chance to make the jump into chain distribution: “Restaurants interested in carrying a craft beer may not want to wait for testing to be done and will move on to beers that already have nutritional information.” [Michelle Minton, Real Clear Policy]
- Study of Type I, Type II error finds FDA much too conservative in drug approval [Vahid Montazerhodjat and Andrew Lo via Tabarrok]
- Behind push to license/regulate personal trainers in Washington, DC and elsewhere: ACA opened spigot of publicly channeled wellness money [Aaron Davis/Washington Post via Tyler Cowen, Peter Suderman]
- “Medical lending”: financiers “invest in operations to remove pelvic implants, [reap] payouts when cases settle” [Alison Frankel and Jessica Dye, Reuters]
- War on Some Drugs again collides with cancer therapy: “Psilocybin, it appears, targets this existential and spiritual distress.” [Ann Althouse]
- Citing First Amendment, federal court enjoins FDA from prohibiting truthful speech by drugmakers about off-label uses [WSJ, Alex Tabarrok (in recent years, federal government “has extracted billions of dollars in settlements from pharmaceutical firms for engaging in what appears to be constitutionally protected speech”), Beck and Sullivan, Drug & Device Law on Amarin v. FDA]
- SEIU 1199: “The union that rules New York” [Daniel DiSalvo/Stephen Eide, Daily Beast and City Journal]
- Controversial therapist who is also anti-vaccine expert witness loses court challenge to Maryland medical license revocation [Beck, Drug and Device Law]
With three decision days remaining — today, tomorrow, and next Monday — Ilya Shapiro outlines the remaining seven cases and their importance, including Texas Dept. of Housing v. Inclusive Communities Project (are defendants liable under “disparate impact” theories in housing discrimination law?) and King v. Burwell (interpreting Congress’s language on Obamacare subsidies).
Update: Both of those cases were decided this morning. In King v. Burwell, the Court broke 6-3 for the administration to uphold the IRS’s rewrite of ObamaCare subsidies. The Court keeps on hand a supply of what one observer called Get Out Of Bad Drafting Free cards, but as Justice Scalia noted in his “SCOTUScare” dissent, awards them only for certain laws. And the housing case was a big win for the left as Justice Anthony Kennedy joined the four liberals to uphold housing suits based on “disparate impact” theories. His opinion throws a sop or two about how disparate impact shouldn’t imply quotas, which I suspect will mean about as much as similar sops the Court has thrown over the years in employment and education, i.e., not much. (P.S. As one reader rightly objects, the problem in Burwell wasn’t so much bad drafting as drafting that failed of its intended coercive effect and therefore needed to be revised if there was to be a Plan B. More on King v. Burwell: Roger Pilon and Ilya Shapiro at Cato)
- “Courts remind EEOC again: Background checks don’t equal racism” [Todd Lebowitz, The Hill; my take on EEOC v. Freeman]
- Another lesson of Old Dominion (boozing truck driver) verdict: employers’ “open door” grievance policies may harbor potential liabilities [Jon Hyman]
- Caseloads: “Three Observations about the New EEOC Statistics” [Daniel Schwartz]
- “Employers seek to halt EEOC’s efforts to drum up plaintiffs for its ‘Onionhead’ lawsuit” [Hyman]
- Reform bills in House hopper include HR 548 (protects employer use of credit or criminal records), HR 549 (requires vote of commission to approve litigation against multiple defendants or over systemic/pattern-and-practice discrimination), HR 550 (requires disclosure of results of litigation that have reached judgment; requires certification that pre-filing conciliation has reached impasse, and allows judicial review of EEOC conduct during conciliation) More: Hearing Monday on these three and H.R. 1189, “Preserving Employee Wellness Programs Act”;
- “EEOC’s Strange War Against ObamaCare And Employer Wellness Plans” [Eric Dreiband]
- Equal Employment Opportunity Commission has “invited the public to comment on ‘significant existing EEOC regulations to determine whether they should be modified, streamlined, expanded or repealed,'” comments period ends April 20 [Insurance Journal; address to Public.Comments.RegulatoryReview @ eeoc.gov]
Above is an introductory video on King v. Burwell, the ObamaCare exchange subsidy challenge, from my Cato colleagues Michael Cannon and Trevor Burrus, introduced by Caleb Brown. Tomorrow you can stream this Cato reaction panel on the Court’s arguments featuring Oklahoma Attorney General Scott Pruitt, Simon Lazarus of the Constitutional Accountability Center, Jonathan Cohn of the Huffington Post; and Michael Cannon, moderated by Ilya Shapiro of Cato.
While I’ve mostly left the analysis of King v. Burwell to others at Cato (aside from gathering links to others’ work here at Overlawyered) I did respond when New York Times columnist Paul Krugman employed what I called “remarkably ugly and truculent” terms to assail the challenge, saying it could succeed only in a “corrupt” Supreme Court.
P.S. While the lawprof amicus brief on behalf of the Obama administration garbs itself in the wolf pelt of severe textualism, Jonathan Adler spies the fluffy sheep beneath.
And: an after-the-argument statement by Ilya Shapiro (“If the government wins here, then not only will Obamacare continue to be rewritten by the IRS, but any executive agency – and any future president – will be able to rewrite any law.”).
- King v. Burwell: next ObamaCare showdown at Supreme Court [Ilya Shapiro and Josh Blackman, David Bernstein on Cato brief, Adler v. Bagley Federalist video, Michael Greve with theory of Justice Kennedy riding off to Colorado with Dagny, earlier]
- “J&J says women being illegally solicited to join in mesh lawsuits” [Jessica Dye/Reuters, same on lawyers’ response, more on which]
- Invoking ACA, feds regulate non-profit hospitals to require periodic community needs assessment, limit collection methods [Treasury]
- Unless judges are vigilant, lawyers will take advantage of mass tort joinder to evade CAFA limits on forum-shopping [Steven Boranian, Drug & Device Law]
- Popular literature on IRBs/consent of research subjects can employ dubious definitions of “coercion” [Simon Whitney via Zachary Schrag]
- Qui tam lawyers vs. pharmaceutical companies, some empirical findings [Bill of Health]
- So that’s what “anatomical theatre” means: researcher checks into ostensible open-source medical journals and finds many “had suspicious addresses; one was actually inside a strip club.” [Fast Company on report finding that fake paper was accepted for publication by 17 journals]
- A student of David Henderson’s recalls the state of medicine under the Soviets: assignment to providers based on place of residence; the role of gifts, favors, and clout; how idealistic doctors became cynics; the black market as a safety valve. [EconLog]