NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be
made before this opinion goes to press.


                                         2016 VT 122

                                         No. 2016-059

In re J.H.                                                    Supreme Court

                                                              On Appeal from
                                                              Human Services Board

                                                              September Term, 2016


Charles A. Gingo, Chair

William H. Sorrell, Attorney General, Montpelier, and Seth A. Steinzor, Assistant Attorney
 General, Waterbury, for Appellant.

Christine Speidel, Springfield, and W. David Koeninger, Bennington, Vermont Legal Aid, Inc.,
 for Amicus Curiae Office of the Health Care Advocate.


PRESENT:      Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


       ¶ 1.   REIBER, C.J. The State appeals the Human Services Board’s decision reversing

a determination by the Economic Services Division of the Department for Children and Families

(DCF) that J.H. cannot be considered for a subsidized qualified healthcare plan on the Vermont

Health Connect exchange because she has health insurance available to her through her husband’s

employer. The appeal turns on the question of whether, under controlling federal law, healthcare

insurance must be considered available to J.H. through her husband’s employer even though her

husband elected not to enroll in his employer’s plan and she herself could not enroll in the plan

unless he did. We affirm the Board’s ruling that J.H. could be considered for a subsidized
healthcare plan through Vermont Health Connect, but we do so based on a different rationale than

that given by the Board.

           ¶ 2.   Under the Patient Protection and Affordable Care Act of 2010 (Affordable Care

Act), each and every “applicable individual”1 is required to maintain “minimum essential

coverage” (MEC) for health care or pay a tax. I.R.C. § 5000A(a)-(b). Individuals may obtain

MEC through government-sponsored or employer-sponsored healthcare plans or through a state

insurance exchange such as Vermont Health Connect.2 Id. § 5000A(f)(1). Moreover, individuals

meeting certain criteria may obtain federal subsidies to help them purchase insurance on an

exchange. Those subsidies consist of credits against income tax liability, which are called

advance premium tax credits (APTC), and limits on out-of-pocket expenses for health care, which

are called cost-sharing reductions. See id. § 36B (creating tax credit for individuals with coverage

under qualified health plan); 42 U.S.C. § 18082 (establishing program for advance determination

of premium tax credits and cost-sharing reductions and for payment of such subsidies to issuers

of qualified healthcare plans on behalf of eligible individuals). To receive the cost-sharing

reductions, an individual must be eligible for APTC. 45 C.F.R. § 155.305(g)(1)(i)(B). Similar

state subsidies may also be available to those eligible for federal premium tax credits. See 33

V.S.A. § 1812 (setting forth eligibility standards for state subsidies).

       ¶ 3.       Federal regulations require state exchanges like Vermont Health Connect to

perform certain functions related to eligibility, including determining, based on federally

prescribed standards, an individual’s eligibility to purchase a qualified healthcare plan through a

state exchange and to receive APTC and cost-sharing reductions. See 45 C.F.R. § 155.200(a)


       1
          Under the Affordable Care Act, individuals with religious exemptions and individuals
who are incarcerated or who are not lawfully in the country are not “applicable individuals.” I.R.C.
§ 5000A(d). All other individuals are “applicable individuals” under the Act. Id. § 5000A(d)(1).
       2
            Vermont Health Connect is the only such exchange in the State of Vermont.

                                                 2
(requiring exchanges to perform functions set forth in specified subparts of regulation related to

determining individual eligibility); 45 C.F.R. § 155.305(f)(5) (“The Exchange must calculate

advance payments of premium tax credit in accordance with [Treas. Reg.] 1.36B-3.”); see also 33

V.S.A. § 1805(6) (listing, as one of state exchange’s duties, determining premiums and subsidies

required under federal law).        In Vermont, DCF’s Economic Services Division determines

eligibility for enrollment in qualified healthcare plans through Vermont Health Connect “in

accordance with applicable provisions of federal and state law and regulations” pursuant to its

Health Benefit Eligibility and Enrollment Rules. Health Benefit Eligibility and Enrollment Rule

2.05,      Code     of    Vermont     Rules     13       170   001   [hereinafter   HBEE      Rules],

https://www.lexisnexis.com/hottopics/codeofvtrules.

          ¶ 4.    The critical federal regulation in this case is Treasury Regulation § 1.36B-2. Under

that regulation, an applicable taxpayer—defined as “a taxpayer whose household income is at least

100 percent but not more than 400 percent of the Federal poverty line for the taxpayer’s family

size for the taxable year”—may obtain the federal subsidies if the taxpayer is enrolled in a

healthcare plan through an exchange and is not eligible for MEC other than through the exchange.

Treas. Reg. § 1.36B-2(a)-(b). In general, “an employee who may enroll in an eligible employer-

sponsored plan . . . and an individual who may enroll in the plan because of a relationship to the

employee (a related individual) are eligible for minimal essential coverage under the plan.” Id.

§ 1.36B-2(c)(3); HBEE Rule 23.01(c)(2) (same). “An employee or related individual may be

eligible for minimum essential coverage under an eligible employee-sponsored plan . . . if the

employee or related individual could have enrolled in the plan . . . during an open or special

enrollment period.” Treas. Reg. § 1.36B-2(c)(3)(iii) (emphasis added); HBEE Rule 23.01(c)(4)(i)

(same).




                                                     3
       ¶ 5.    Pursuant to these rules, if J.H. is eligible for MEC under her husband’s healthcare

plan—meaning she “could have enrolled” in the plan—she may not receive federal or state

subsidies through a Vermont Health Connect plan on the exchange.

       ¶ 6.    The salient facts in this case are undisputed. J.H. previously received Medicaid

through the Dr. Dynasaur program but aged out of the program upon turning nineteen in 2013.

The State continued to provide her with coverage under the program for two more years, however,

due to an administrative error. In October 2015, DCF notified J.H. that her Dr. Dynasaur coverage

would terminate at the end of that month but that she could apply for coverage through Vermont

Health Connect.

       ¶ 7.    The following month, J.H. applied for healthcare coverage on the exchange. She

reported that she was newly married, had a total gross household income of $36,868, and that her

husband’s employer offered healthcare insurance to him and to her as a spouse. The coverage

available under the husband’s employer-sponsored plan met the Affordable Care Act’s MEC

standards. Under the plan’s terms, J.H. could not enroll in it unless her husband also enrolled.

       ¶ 8.    J.H.’s husband, as an unadopted former foster child over the age of eighteen, is

eligible for Medicaid until he reaches the age of twenty-six. HBEE Rule 9.02(2)(e). Persons with

this status are eligible for Medicaid regardless of the amount of their household income. Id. Rule

9.03(e). The husband could have enrolled in his employer-sponsored plan, but he chose not to do

so because he had available to him premium-free Medicaid coverage.

       ¶ 9.    Based on these facts, DCF’s Economic Services Division concluded that the

husband’s employer-sponsored plan was available to both J.H. and her husband and that J.H. was

therefore ineligible to receive subsidies for insurance purchased through Vermont Health Connect.

J.H. appealed to the Human Services Board, which reversed DCF’s determination that J.H. was

ineligible to receive the subsidies.



                                                 4
       ¶ 10.   In so ruling, the Board framed the issue as whether J.H.’s husband “is liable to

enroll in his employer’s insurance when he already has Medicaid coverage that meets MEC.” The

Board then determined that a conflict exists between the HBEE rule precluding a subsidized

exchange plan for those who fail to enroll in an available employer-sponsored plan, see HBEE

Rule 12.02(b), and the HBEE rule stating that MEC is automatically met when an individual is

eligible for government-sponsored insurance such as Medicaid irrespective of whether other

insurance is available to the individual, see id. 23.01(B)(1)(ii). According to the Board, the latter

rule requires an individual such as J.H.’s husband who has MEC through a government-sponsored

plan to apply for that coverage and not seek subsidies on an exchange, while the former rule

requires the same individual to elect an employer-sponsored plan that would be superfluous in

light of the premium-free government-sponsored plan and would bar a spouse from accessing

affordable insurance. The Board declined to read the rules to require J.H.’s husband to obtain two

insurance policies, stating that requiring him to obtain a second duplicative health insurance policy

from his employer was contrary to the Affordable Care Act’s primary intent of providing

affordable health care to each individual and would deprive the husband of the special government

benefit he receives as a former foster child.

       ¶ 11.   The Board further concluded that because the husband cannot be required to enroll

in a duplicative employer-sponsored plan when he has met MEC through a government-sponsored

plan, and because J.H. cannot obtain insurance through her husband’s government-sponsored plan

and cannot enroll in his employer-sponsored plan unless he does, she is eligible for subsidies

through a Vermont Health Connect plan. Accordingly, the Board directed the Department of

Vermont Health Access, which is within the Agency of Human Services and administers Vermont

Health Connect, to award federal and state subsidies for J.H.’s purchase of healthcare insurance

through Vermont Health Connect.



                                                 5
       ¶ 12.     On appeal, the Department argues that the Board erred as a matter of law in ruling

that J.H. was eligible for subsidized insurance through Vermont Health Connect and in requiring

the Department to provide J.H. with tax subsidies for the purchase of insurance through the

exchange.      According to the Department, a plain reading of the relevant law compels the

conclusion that J.H. was not entitled to the subsidies. In the Department’s view, because both J.H.

and her husband “could have enrolled” in the husband’s employer-sponsored plan, J.H. was

eligible for MEC under the plan and thus not eligible to receive subsidies through a Vermont

Health Connect plan.

       ¶ 13.     The Department further argues that the perceived conflict between HBEE rules

cited by the Board in support of its decision does not exist because no rule or regulation requires

husband to enroll in his government-sponsored Medicaid plan. The Department notes that the rule

relied upon by the Board does not require individuals to enroll in an available government-

sponsored Medicaid plan, as the Board concluded, but rather provides only that an individual who

wants government-sponsored insurance must apply for it to receive it. See HBEE Rule 23.01(b)(2)

(“An individual who meets the eligibility criteria for government-sponsored MEC must complete

the requirements necessary to receive benefits.”); Treas. Reg. § 1.36B-2(c)(2)(ii) (same). The

Department agrees with the Board that J.H.’s husband cannot be compelled to enroll in his

employer-sponsored plan, but asserts that that fact is not relevant to the question of whether J.H.

is entitled to the tax subsidies. The Department emphasizes that it is the household’s eligibility

for employer-sponsored insurance through J.H.’s husband that controls the availability of the

subsidies to J.H. According to the Department, J.H and her husband had to decide whether it was

in their best interests for the husband to retain his government-sponsored plan and decline his

employer-sponsored plan, in which case J.H. could purchase an unsubsidized exchange plan, or

for husband to enroll in the employer-sponsored plan, either in addition to or instead of his

government-sponsored plan, in which case J.H. could also enroll in the plan.

                                                 6
       ¶ 14.   The Department further states that, given the plain meaning of the controlling law

and the absence of any conflict among the controlling rules and regulations, there is no need for

this Court to delve into the policies underlying the Affordable Care Act. In the Department’s view,

however, even if we were to do so, we would find that those policies are aimed at strengthening

our employer-based health insurance system and thus actually support reversing the Board’s

decision.

       ¶ 15.   In its amicus curiae brief filed on behalf of J.H., Vermont Legal Aid’s Office of the

Health Care Advocate (HCA) argues that because J.H.’s ability to enroll in her husband’s

employer-sponsored plan was conditioned upon her husband enrolling—a condition that was

unmet and not within her power to fulfill—she could not have enrolled in the plan and thus was

eligible for tax subsidies through a Vermont Health Connect plan.

       ¶ 16.   As noted, federal law is controlling in this case. We review de novo the Board’s

construction of federal law and of state rules implementing federal law. See Hogan v. Dep’t of

Soc. & Rehab. Servs., 168 Vt. 615, 617, 727 A.2d 1242, 1244 (1998) (mem.) (“We defer to an

administrative agency’s interpretation of its own statutes and rules but not to a state agency’s

interpretation of federal law where the state agency is charged with administering the federal

program at the local level.”); see also Dutton v. Dep’t of Soc. Welfare, 168 Vt. 281, 284, 721 A.2d

109, 111 (1998) (“[D]etermining whether the federal and state definitions are consistent is a matter

that requires statutory interpretation—the exclusive province of the courts.” (quotation omitted)).

       ¶ 17.    As explained above, the Department’s principal argument is that the plain meaning

of the most critical federal regulation at issue here, Treas. Reg. § 1.36B-2(c)(3), demonstrates that

J.H. was eligible for her husband’s employer-sponsored plan and thus could not obtain tax

subsidies through a Vermont Health Connect plan. Our primary objective in construing a statute

or regulation is to effectuate the intent of the legislative body. In re Jones, 2009 VT 113, ¶ 7, 187



                                                 7
Vt. 1, 989 A.2d 482. “Our first step in the process is to ascertain the plain meaning of the statute,

as we presume that that is the most basic expression of legislative intent.” Id.

       ¶ 18.   We conclude that the plain meaning of the regulation supports the HCA’s position

rather than that of the Department.

       ¶ 19.   Although in most instances married couples must file a joint tax return to claim

premium tax credits, see Temp. Treas. Reg. § 1.36B-2T, and household income is an eligibility

criterion for such credits, see Treas. Reg. § 1.36B-2(b)(1), eligibility for the healthcare insurance

subsidies, including APTC, is generally determined on an individual basis. See 42 U.S.C.

§ 18082(a)(3) (“[T]he Secretary of the Treasury makes advance payments of [premium tax credits]

or reductions to the issuers of qualified health plans in order to reduce the premiums payable by

individuals eligible for such credit.”).3 A tax filer who meets the filing status and income

requirements may receive premium tax credits “for any month that one or more members of the

applicable taxpayer’s family” is enrolled in an exchange health plan and is not eligible for MEC

other than coverage through an exchange. Treas. Reg. § 1.36B-2(a); HBEE Rule 12.02 (providing

that “applicable tax filer . . . is eligible for APTC for any month in which one or more individuals

for whom the tax filer expects to claim a personal exemption deduction on their tax return for the

benefit year” is eligible to enroll in qualified health plan on exchange and is not eligible for MEC

in individual market).

       ¶ 20.   Notably, the critical regulation at issue addresses employer-sponsored eligibility

for employees and for related family members separately. See Treas. Reg. § 1.36B-2(c)(3)(i)

(discussing eligibility for MEC with respect to “an employee who may enroll in an eligible


       3
          As set forth in 42 U.S.C. § 18082(a)(3), APTC are paid directly to the insurer and thus
benefit the individual healthcare recipient directly by reducing the amount of the recipient’s overall
tax burden. See Treas. Reg. § 1.36B-4(a)(1) (reconciling premium tax credit with advance credit
payments). Spouses filing a joint tax return would be directly benefitted only to the extent that
they were entitled to a tax refund, which would happen only when the premium tax credit exceeded
their APTC. See id.
                                                   8
employer-sponsored plan” and “an individual who may enroll in the plan because of a relationship

to the employee”); id. § 1.36B-2(c)(3)(iii) (discussing consequences of failure to enroll in

employer-sponsored plan by “[a]n employee or related individual . . . if the employee or related

individual could have enrolled in the plan”); id. § 1.36B-2(c)(3)(v)(A)(1)-(2) (separately

addressing affordability for employee and affordability for related individual).

       ¶ 21.   In its most relevant part, the regulation provides as follows: “An employee or

related individual may be eligible for minimal essential coverage under an eligible employer-

sponsored plan . . . if the employee or related individual could have enrolled in the plan . . . during

an open or special enrollment period.” Id. § 1.36B-2(c)(3)(iii)(A) (emphasis added). The plain

meaning of this sentence is that an employee is eligible for MEC if the employee could have

enrolled in an employer-sponsored plan, and a related individual is eligible for MEC if the related

individual could have enrolled in the employer-sponsored plan. The two scenarios are treated

separately in the regulation.

       ¶ 22.   In the instant case, J.H.’s husband could have enrolled in his employer-sponsored

plan but decided not to for apparent financial reasons—he had access to a premium-free

government-sponsored plan through Medicaid. Thus, under the regulation, he would not be

entitled to tax subsidies through an exchange plan. On the other hand, because her husband elected

not to enroll in the employer-sponsored plan, J.H. could not have enrolled in the plan independent

of him, insofar as the plan allowed family members to enroll only if the employee enrolled. We

discern no basis in law or fact to assume that J.H. could have compelled her husband to enroll in

his employer-sponsored plan.

       ¶ 23.   Nowhere does the subject regulation, or any other regulation implementing the

Affordable Care Act, indicate that an employee’s decision whether to enroll in an employer-

sponsored plan is imputed to family members or that family members are subject to the

consequences of such a decision with respect to availability of tax subsidies through an exchange

                                                  9
plan. Imputing the husband’s decision to J.H. without a specific factual or legal basis would be

inconsistent not only with the Affordable Care Act’s general determination of healthcare subsidies

on an individual basis but also with the law’s general treatment of spouses as individual persons.

See Med. Ctr. Hosp. of Vt. v. Lorrain, 165 Vt. 12, 15, 675 A.2d 1326, 1329 (1996) (“Irrespective

of their marital status, women have property and contractual rights equal to men, and thus the legal

existence of married women is no longer merged into that of their husbands.”); cf. United States

v. Craft, 535 U.S. 274, 281 (2002) (noting, in context of detailing history of tenancy by entirety,

outdated “common-law fiction that the husband and wife were one person at law”).4

       ¶ 24.   This is not a situation where the plain meaning of the pertinent regulation is

inconsistent with the regulatory scheme as a whole, the governing statute, or the legislative goals

underlying the statute. See Delta Psi Fraternity v. City of Burlington, 2008 VT 129, ¶ 7, 185 Vt.

129, 969 A.2d 54 (stating that legislative intent is derived from plain meaning of statutory language

unless literal reading is inconsistent with legislative scheme or purpose of statute). The Affordable

Care Act includes private health insurance market reforms, new tax subsidies, an expansion of the

Medicaid program, an individual requirement to maintain health insurance, and many other

provisions. See generally Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat.

119 (2010).    The Department argues that allowing J.H. to obtain tax subsidies under the

circumstances in this case would undermine the Act’s goal of strengthening the employer-based


       4
            Imputing the husband’s decision to J.H. would also appear to be inconsistent with the
Internal Revenue Service’s position that “[a] conditional offer [of health insurance coverage under
an employer-sponsored plan] generally would impact a spouse’s eligibility for the premium tax
credit . . . only if all conditions to the offer are satisfied (that is, the spouse was actually offered
the coverage and eligible for it).” See Department of the Treasury, Internal Revenue Service, Draft
Instructions for Forms 1094-C & 1095-C for tax year 2016 (emphasis added), available at
https://www.irs.gov/pub/irs-dft/i109495c--dft.pdf [https://perma.cc/GK7Y-5V7A]. It may be
highly unlikely that an insurer would offer an employer-sponsored healthcare plan that would
allow an employee’s family members to enroll in the plan without the employee enrolling;
however, because federal law does not require that family-member enrollment be conditioned on
employee enrollment, an employer’s offer of coverage to family members is, essentially, a
conditional offer.
                                                    10
insurance system. This argument is based on one of ten effects of the MEC requirement listed in

Congressional findings—which is that the requirement “achieves near-universal coverage by

building upon and strengthening the private employer-based health insurance system.” See 42

U.S.C. § 18091(2)(D). The focus of the Affordable Care Act, however, is not to bolster the

employer-based healthcare system. As the United States Supreme Court has stated, the principal

purpose of the Act is “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, 132 S. Ct. 2566, 2580

(2012). Our construction of the relevant regulation is not inconsistent with that purpose.

       Affirmed.

                                                FOR THE COURT:



                                                Chief Justice




                                                11
