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Court of Federal Claims Grants Summary Judgment in Affordable Care Act "Reinsurance" Litigation

Client Alert | 1 min read | 10.08.19

In Conway v. United States (October 3, 2019), the U.S. Court of Federal Claims granted summary judgment in favor of C&M client Colorado HealthOp, in a case of first impression relating to Reinsurance payments owed pursuant to §1341 of the ACA, which HHS had offset against other ACA payments it claimed Colorado HealthOp owed to HHS. The Court decided on the merits that: (i) Section 1341 of the ACA is money-mandating, (ii) Colorado insurance liquidation law applies to prohibit HHS’ unilateral offset of Reinsurance payments to Colorado HealthOp; and (iii) HHS’ “Netting Rule” does not preempt Colorado law. Importantly, the Court held that HHS’s Netting Rule, which explains the method by which HHS would aggregate and offset monies owed by or to different insures under various ACA payment programs, lacks statutory authority and therefore does not preempt state law, and as a result, HHS does not have an offset right in an insurance liquidation proceeding. Analyzing the ACA, the McCarran-Ferguson Act, Colorado insurance liquidation statute, and Colorado Supreme Court case law, the Court agreed with Colorado HealthOp that HHS cannot leap-frog claimants with higher priority under the liquidation priority scheme by effectuating an offset. The Court noted that the federal policy expressed by the McCarran-Ferguson Act and its application to priority schemes that protect policyholders’ commercial expectations weigh against displacing Colorado’s policyholder-protecting priority scheme with a uniform federal rule of administrative efficiency. The Colorado HealthOp decision is a significant decision regarding the ACA’s Reinsurance program, and the most recent in a string of ACA-related decisions involving C&M (previously discussed here and here).

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Client Alert | 1 min read | 11.04.24

OFCCP Invites Federal Contractors to Object to Production of their “Type 2 EEO-1 Reports” in Response to New FOIA Request

On October 29, 2024, the Office of Federal Contract Compliance Programs (“ ”) published a notice in the Federal Register that it received two requests under the Freedom of Information Act (“ ”) for 2021 Type 2 EEO-1 Reports filed by federal contractors. The two requests came from the University of Utah and a non-profit organization named “As You Sow.” The notified federal contractors that the information might be protected from disclosure under Exemption 4, which protects disclosure of confidential commercial information, and requested that any entities that filed these reports and object to their disclosure submit objections by December 9, 2024. Objectors are strongly encouraged to use the portal. Alternatively, contractors may also submit written objections via email at OFCCPSubmitterResponse@dol.gov, or by mail. ...