United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED April 20, 2022

No. 20-50963 Lyle W. Cayce Clerk

Vista Health Plan, Incorporated; Vista Service Corporation,

Plaintiffs—Appellants,

versus

United States Department of Health and Human Services; Xavier Becerra, Secretary, U.S. Department of Health and Human Services; Centers for Medicare and Medicaid Services; Seema Verma, Administrator of the Centers for Medicare and Medicaid Services,

Defendants—Appellees.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:18-CV-824

Before Higginbotham, Stewart, and Wilson, Circuit Judges. Cory T. Wilson, Circuit Judge: Our prior panel opinion, Vista Health Plan, Inc. v. United States Department of Health and Human Services, 29 F.4th 210 (5th Cir. 2022), is WITHDRAWN and the following opinion is SUBSTITUTED therefor. Case: 20-50963 Document: 00516287344 Page: 2 Date Filed: 04/20/2022

No. 20-50963

The United States Department of Health and Human Services (HHS) implements a risk-adjustment program under the Patient Protection and Affordable Care Act (ACA) in states that choose not to implement the program themselves. Vista Health Plan, Inc., a small health insurance company in Texas, was assessed risk-adjustment fees that exceeded its premium revenue, causing the company to cease operations. The company and its parent, Vista Service Corporation, (collectively, Vista) sued HHS, HHS Secretary Alex Azar, the Centers for Medicare and Medicaid Services (CMS), and CMS Administrator Seema Verma (collectively, the HHS Defendants), challenging the risk-adjustment program and two rules promulgated pursuant to the program. The district court granted summary judgment for the HHS Defendants on eight of nine claims asserted by Vista and remanded the only remaining claim to HHS. Because the district court partially remanded the case to HHS for further proceedings, we conclude that there was no appealable final judgment disposing of all Vista’s claims. Thus, we dismiss the appeal for lack of jurisdiction. I. A. The underlying facts are undisputed. Among other provisions, the ACA prohibits insurers from denying coverage or charging higher premiums based on health status. See generally King v. Burwell, 576 U.S. 473, 479–84 (2015) (summarizing the background and purpose of the ACA). Because sicker individuals generally incur higher costs for insurers, insurers are disincentivized from enrolling such individuals without charging higher premiums. To counteract this, Congress enacted 42 U.S.C. § 18063, which directs HHS to establish a risk-adjustment program. Under the risk-adjustment program, fees are assessed against plans with healthier-than-average enrollees in a given state, and then payments are

2 Case: 20-50963 Document: 00516287344 Page: 3 Date Filed: 04/20/2022

No. 20-50963

made to plans with sicker-than-average enrollees in that state