On April 25 at 11 AM, the U.S. Supreme Court will hear oral argument in Empire HealthChoice Assurance Co. v. McVeigh, No. O5-200, on review from the U.S. Court of Appeals for the Second Circuit. This is the first Federal Employees Health Benefits (FEHB) Act interpretation case ever to reach the Supreme Court.

The Supreme Court will consider whether federal question jurisdiction (28 U.S.C. § 1331) exists over a suit by a federal government contract / FEHB plan carrier (in this case Empire) to enforce, on behalf of the United States, a FEHB plan provision, specifically in this case the reimbursement/subrogation provision, that is part of a government contract established pursuant to the FEHB Act, 5 U.S.C. § 8901 et seq. The principal merits briefs are available here.

Anthony Shelley from Miller & Chevalier will argue the case for Empire, and he will split his 30 minutes of argument time with the Solicitor General, who has filed an amicus brief in support of Empire’s position that the plan can sue in federal court to enforce its reimbursement/subrogation provision. That’s a self-evident proposition to me, and I trust that the Supreme Court has taken the case in order to reverse the Second Circuit, which reached a contrary result. The Second Circuit opinion is the outlier here. For example, the Seventh Circuit in the Cruz case reached the result that Blue Cross is advocating before the Supreme Court. I know that Tony will make a great argument, and I wish him well.

Dr. David Brailer, who has served as the Nation’s first health information technology czar (technically HHS National Coordinator for Health Information Technology under Executive Order 13335) has resigned after about two years in the position. According to the HHS Press Release, Dr. Brailer now will serve as Vice-Chair of the American Health Information Community , a HHS commission tasked with aiding in the creation of an interoperable health care technology system. Interestingly, Dr. Brailer recently stated that “You can’t impose government solutions on a technically evolving and complex system” like IT, said Brailer, who was participating in a health IT panel. “You can’t legislate good will, more efficient practices or better outcomes” (AHA News, 4/18).

The FEHB contracting year always kicks off with the U.S. Office of Personnel Management call letter which was released this year on April 4. The call letter seeks benefit and rate proposals from FEHB plan carriers. The carriers must submit the proposals by the end of May. Ensuing contract negotiations are concluded by mid-August, and then the carriers prepare for the annual Open Season from mid-November to mid-December.

Many of the press reports that I have read about the newly enacted Massachusetts health care reform plan have focused on the individual mandate to purchase health insurance. A Heritage Foundation report, Edmund F. Haislmaier points out that the key component of the reform plan is a “Connector” which will allow consumers a choice of health insurance plans. Small businesses (50 employees or less) would be able to designate the Connector as its group insurance plan. This is very similar to the structure of the Federal Employees Health Benefits Program. In the FEHBP, OPM contracts with health plan carriers that offer their benefit arrangements to federal employees and annuitants. In another Heritage Foundation report, Prof. Regina Herzlinger favorably contrasts the Massachusetts reform with Maryland’s Walmart play or pay mandate.