<nobr>Jan 4, 2006</nobr>

Erie Update: AARP Submits Brief to Third Circuit

December 29, 2005
AARP Files Brief To The Third Circuit (AARP v. EEOC)

Today, AARP filed their brief in the latest round of appeals for the AARP v. EEOC litigation, which is enclosed with this email. The Department of Justice, on behalf of the EEOC, is scheduled to submit their brief by January 18th, and amicus briefs are due by the 25th. Below, you may find a brief background of the litigation. If you have any questions, please contact ERIC's health policy staff at (202) 789-1400.

Background
Judge Brody's September 27th order vacating her March 30th order was caused by the recent Supreme Court's decision in National Cable and Telecommunications Association v. Brand X Internet Services that held deference should be given to the Executive Branch in its interpretation of laws. Therefore, Judge Brody held that deference should be given to the EEOC in their interpretation of the ADEA. This reversal of the original decision now grants summary judgment to the EEOC and will permit the agency to release its formal exemption permitting coordination of employee health benefits with Medicare. EEOC, however, may not finalize its exemption until all appeals are exhausted. As stated above, AARP appealed the decision to the Third Circuit, the same court that wrote the initial Erie County decision regarding age discrimination.

ERIC has made this matter a leadership issue and has been active in pursuing a positive outcome for employers. ERIC, The Equal Employment Advisory Council, and a coalition of other business groups filed an amicus brief in February 2005 urging the court to uphold the EEOC's authority to exempt coordination of health benefits from the ADEA.

ERIC asserted that the EEOC's rule is lawful and necessary to ensure that employers can continue to provide retiree health benefits to the extent that their resources will allow and that the exemption was sound policy contemplated by congress. Without the rule, employers will likely be forced to comply with the ADEA by curtailing retiree and/or active employee health benefits they currently provide.

In June, ERIC Health Policy Committee members met with David Certner, Director of Federal Affairs, of the AARP to share perspectives. In late 2004 and early 2005, ERIC worked to ensure the exemption received approval from OMB, HHS and DOL. ERIC has continued to work with Congressional staff on coordination of benefits.

Please contact Edwina Rogers at 202-789-1400 or erogers@eric.org with any questions or comments.

Text Files:

58A800000014.filename.AARP--Brief-for-Appellant_%26_App_TOC_12-29-05.pdf

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