By Emily Mosh
People who have black-lung disease could lose an important provision if the U.S. Supreme Court strikes down the Patient Protection and Affordable Care Act.
The disease, which is commonly known as pneumoconiosis, is caused by exposure to coal dust and results in chronic respiratory problems.
“They’re suffocating to death. They can’t breathe,” said Parker Kasmer, a third-year student at Washington and Lee University School of Law who works at the school’s Black Lung Legal Clinic.
Since its opening in 1996, the clinic has helped 200 coal miners and their spouses, mainly from Virginia and West Virginia . West Virginia is the nation’s second-largest coal-producing state; Virginia is 12th. Law students working at the clinic help these people receive the financial benefits entitled to them by their diagnoses under the federal Black Lung Benefits Act, which was established in 1968.
The Affordable Care Act, enacted in 2010 and sometimes called Obamacare, has made getting these benefits easier for former miners.
Section 1556 of the act focuses on black lung benefits. The first provision states that if a coal miner worked 15 years or more in a mine and is diagnosed with a totally disabling respiratory illness, the illness is presumed to be black lung caused by coal dust. The burden is then on the coal mining company to prove otherwise.
“The companies almost never admit that anyone has pneumoconiosis,” said Chris Miller, another law student at the clinic. “They fight every step of the way.”
Arch Coal Company, the second largest coal company in the country and the owner of mines in both Virginia and West Virginia, did not respond to a request for comment on black lung benefits for miners.
The second provision applies to the spouse of a coal miner. If a miner was receiving benefits and then passes away, his widow will continue to receive benefits and won’t have to file a new widow’s claim as they had to in the past. Half of the 38 clients the clinic now represents are spouses.
“It’s a disease that affects not only the coal miner, but his family,” Kasmer said. “When they get these benefits, it goes to medical expenses and essentially it helps them maintain a lifestyle just to get by.”
The provisions for black lung in the Affordable Care Act are unrelated to the act’s mandate that all Americans eventually purchase health-care insurance.
Opponents of the act argue that it is unconstitutional to force individuals to purchase health insurance. Lower courts have been split on whether the mandate is constitutional. The Supreme Court heard oral arguments on the challenges this week and is expected to issue its decision by the end of June.
The students at the Black Lung Legal Clinic say that even if the individual mandate is found unconstitutional, the black lung provisions should stand on their own.
Overseen by Tim MacDonnell, a law professor and the clinic’s director, Kasmer and Miller wrote an amicus brief on the black lung issue to file with the Supreme Court. An amicus brief is a document submitted to the court from a party not directly involved in the case, but with an interest in the matter.
“Because we specifically just want the black lung benefits part of the PPACA to stay, it’s less important to us whether [the individual mandate] is constitutional or not,” Miller said. “What is important for us, for our clients more significantly, is that the amendments to the black lung benefit act do not get struck down.”
In their brief, Kasmer and Miller argue that even if the individual mandate is struck down by the court, the rest of the act should remain in place. This is called severability—cutting one part out and leaving the rest.
The brief also discusses the possibility that the court might rule that the individual mandate is too tied in with the rest of the act and therefore the entire act must be struck down. In this case, Kasmer and Miller argue the provisions regarding black lung benefits should be preserved, regardless of the rest of the act being declared unconstitutional.
“It’s a unique stance, especially the second part, but it’s very particular to our clients and their needs,” said Miller. “Anyone out there who is providing benefits or fighting for coal workers is really going to have a dog in this fight and is really going to want to make sure that the amendments stay.”
If the entire act is struck down without severability of the black lung amendments, Kasmer says the clinic’s clients, as well as the hundreds of other black lung sufferers in the country will feel a huge burden.
“They’d lose their benefits. We’re talking about 19 surviving spouses whose payments would stop,” Kasmer said. “Without these benefits, their houses are susceptible to foreclosure. There’s any number of other economic concerns you get without income in your pocket.”
Though no one can be certain how the Supreme Court will rule, both men say their brief represents an important part of the debate.
“What’s going to happen with the PPACA is anyone’s guess,” Miller said. “I’m confident that we’ll be heard and I’m confident that they’ll take it into account.”