N. Arapaho Tribe v. Burwell, Case No. 14–CV–247–SWS

• Court: United States District Courts. 10th Circuit. District of Wyoming
• Writing for the Court: Scott W. Skavdahl, United States District Judge
• Citation: 118 F.Supp.3d 1264
• Parties: Northern Arapaho Tribe, on its own behalf and on behalf of its members, Plaintiff, v. Sylvia Burwell, Secretary of the United States Department of Health & Human Services; and Jacob J. Lew, Secretary of the United States Department of Treasury, Defendants.
• Decision Date: 02 July 2015
• Docket Number: Case No. 14–CV–247–SWS

118 F.Supp.3d 1264

Northern Arapaho Tribe, on its own behalf and on behalf of its members, Plaintiff,
v.
Sylvia Burwell, Secretary of the United States Department of Health & Human Services; and Jacob J. Lew, Secretary of the United States Department of Treasury, Defendants.

Case No. 14–CV–247–SWS

United States District Court, D. Wyoming.

Signed July 2, 2015

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Andrew W. Baldwin, Berthenia S. Crocker, Janet E. Millard, Kelly A. Rudd, Mandi Anne Vuinovich, Baldwin Crocker & Rudd, Lander, WY, for Plaintiff.

Alice S. Lacour, Jacek Pruski, Steven A. Myers, United States Department of Justice, Washington, DC, Nicholas Vassallo, U.S. Attorney's Office, Cheyenne, WY, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS¹

Scott W. Skavdahl, United States District Judge

This matter comes before the Court on the Defendants' Motion to Dismiss (Doc, 26) and supporting brief (Doc. 27). The Northern Arapaho Tribe filed an opposition to the motion (Doc. 38), and Defendant' replied (Doc. 39). Having considered the parties' briefs, the record herein, and being otherwise fully advised, the Court finds and concludes the motion should be granted.

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BACKGROUND

This case asks whether the Northern Arapaho Tribe (the "Tribe"), a federally-recognized Indian tribe, is exempted from the "large employer mandate" of the Patient Protection and Affordable Care Act of 2010 (the "ACA"). The large employer mandate is found at 26 U.S.C. § 4980H and, in short, requires a large employer to sponsor a health insurance plan meeting certain minimum requirements for its full-time employees or face an "assessable payment" if it fails to do so. As relevant to this case, § 4980H(c)(2) defines a "large employer" as employing an average of at least 50 full-time employees on business days.

The Tribe operates several economic enterprises on the Wind River Indian Reservation in Wyoming, including a casino, a convenience store, a gas station, a grocery store, and other businesses. The Tribe employs over 900 people in its economic enterprises and governmental agencies. (Conrad Decl. ¶¶ 2, 4.) Nonetheless, the Tribe argues it should not be subject to the large employer mandate.

After the ACA was passed, the Tribe discovered its employees could buy health insurance plans on the federal health insurance exchange that offered superior coverage at a lower price than any other plan previously available in the insurance market. The Tribe encouraged and assisted its members in purchasing individual health insurance plans through the federal exchange, including paying up to 80% of the premiums for its tribal members.

As of January 1, 2015, the ACA's large employer mandate became effective. The Tribe alleges the health insurance plan it would offer as a large employer would be more expensive for its employees and offer less coverage than the individual plans available on the federal exchange. The Tribe believes the individual health insurance plans purchased through the federal exchange are superior to any employer-sponsored insurance plan it could provide under the large employer mandate, primarily because most of the Tribe's members qualify for income-based tax credits and cost-sharing exemptions under the individual plans that would be unavailable within an employer-sponsored plan.

The Tribe has filed this lawsuit against the Secretary of the United States Department of Health and Human Services and the Secretary of the United States Department of Treasury (collectively, "Defendants"). The Tribe seeks to be exempted from the large employer mandate and asserts its members should be permitted to continue to obtain individual health insurance plans on the federal exchange. The Tribe challenges three final regulations (federal tax regulations) promulgated and finalized by the Department of Treasury. The final regulations, discussed in detail later, expressly subject Indian tribes that employ 50 or more full-time employees to the ACA's large employer mandate and its reporting requirements. In short, the Tribe asserts the Department of Treasury erred by including Indian tribes as large employers in these three final regulations.

DENIAL OF PRELIMINARY INJUNCTION

Shortly after filing suit, the Tribe moved for a preliminary injunction, seeking to be exempted from the large employer mandate during the pendency of the case. (Doc. 8.) Following briefing and oral arguments on the matter, the Court denied the Tribe's request for preliminary injunction for several reasons. (Doc. 21.) The Court concluded "this action is barred by the Anti–Injunction Act and the Tribe's arguments were waived during the rulemaking process." (Doc. 21 at p. 28.) The Court further determined that "[a]ssuming arguendo that those threshold issues did not

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preclude the Tribe's motion for preliminary injunction, the Court finds the factors weigh against issuing a preliminary injunction." (Id. )

RELEVANT LAW

The ACA "aims to increase the number of Americans covered by health insurance and decrease the cost of health care." Nat'l Fed'n of Indep. Bus. v. Sebelius, ––– U.S. ––––, 132 S.Ct. 2566, 2580, 183 L.Ed.2d 450 (2012). The ACA was codified in scattered sections of Title 26 and Title 42 of the United States Code. Title 26 is the Internal Revenue Code.

1. The Individual Mandate

The so-called "individual mandate" became enforceable in 2014 and it requires most individuals to maintain a minimum level of health insurance coverage or be subject to a monetary tax "penalty." 26 U.S.C. § 5000A. Members of Indian tribes, including the members of the Plaintiff Tribe here, are subject to the mandate but nonetheless exempt from any tax penalty. Id. § 5000A(d)(1), (e)(3) ; Nat'l Fed'n, 132 S.Ct. at 2580.

To assist with meeting the individual mandate, the ACA provided for the creation of health insurance exchanges whereby individuals can obtain health insurance coverage. 42 U.S.C. §§ 18031 –18044. Each plan offered through an exchange must provide a minimum level of coverage, as defined by Congress. Id. § 18021. Wyoming opted not to set up its own state exchange. Consequently, qualifying Wyoming citizens may obtain an individual health insurance plan through the federally-facilitated exchange. See 42 U.S.C. § 18041(c)(1) (requiring the Department of Health and Human Services to "establish and operate" an exchange within a state that opts out of setting up its own).

The ACA also enacted new tax credits and cost-sharing reductions in an attempt to make health insurance coverage on the exchanges more affordable for low- and middle-income individuals.² For taxpayers whose household income is between 100% and 400% of the poverty line, the ACA establishes premium tax credits. 26 U.S.C. § 3B.³ These premium tax credits are intended to reduce a qualifying tax payer's net cost of insurance, and they are advanceable and refundable so that individuals with little or no income tax liability can still benefit from them. See 42 U.S.C. § 18082.

In addition to the premium tax credits, the ACA also provides for federal payments to insurers to help cover certain individuals' cost-sharing expenses for insurance obtained through an exchange. 42 U.S.C. § 18071.⁴ These cost-sharing subsidies are intended to reduce a qualifying individual's out-of-pocket expenses, such as deductibles, copayments, and coinsurance. Normally, to qualify for these cost-sharing subsidies, the individual's household income must fall between 100% and 400% of the poverty line. Id. § 18071(b)(2), (c)(1)(A). Specific to this case, though, members of an Indian tribe qualify for these cost-sharing subsidies if the member's household income is 300% or less of the poverty line, and under subsection (d)(1)(B), the plan issuer "shall eliminate any cost-sharing under the plan" for the qualifying Indian, which effectively reduces that insured's out-of-pocket expense

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to zero. "The ACA eliminates all cost-sharing for Indians under 300 percent of the federal poverty level...." Alex Dyste, Note, It's Hard Out Here for an American Indian: Implications of the Patient Protection and Affordable Care Act for the American Indian Population, 32 Law & Ineq. 95, 119 (2014).

These two incentives (premium tax credits and reduced or eliminated cost-sharing) are only available as part of an individual health insurance plan obtained through an exchange. See 26 U.S.C. § 36B(c)(2)(B) (premium tax credit is unavailable during months when the individual is eligible for sufficient coverage outside of the exchange market); 42 U.S.C. § 18071(f)(2) (cost-sharing reduction is not allowed during months when the individual does not qualify for a premium tax credit). In short, these two incentives are only available to those obtaining individual health insurance plans through an exchange, and individual plans are only available through an exchange when alternative coverage (e.g., insurance through an employer) is unavailable. Thus...