“WASHINGTON — Republicans in Congress resumed their campaign against the Affordable Care Act on Wednesday with new zeal, fired up by a ruling of a federal appeals court panel that said premium subsidies paid to millions of Americans in 36 states were illegal.
Republicans pointed to the ruling as evidence of problems in the law that could not easily be solved.
“Time and time again,” said Representative Charles Boustany Jr., Republican of Louisiana, “the administration has chosen to ignore the law, and when it does implement the law, it does so incompetently.”
Mr. Boustany presided over a hearing of a House Ways and Means subcommittee on Wednesday. An official from the Government Accountability Office, an investigative arm of Congress, testified at the hearing that undercover agents had obtained insurance coverage and subsidies using fake documents and fictitious identities.”
“Today’s 2-1 decision by the DC Court of Appeals striking down federal premium subsidies, in at least the 27 states that opted for the feds to run their Obamacare insurance exchanges, has the potential to strike a devastating blow to the new health law.
The law says that individuals can get subsidies to buy health insurance in the states that set up insurance exchanges. That appears to exclude the states that do not set up exchanges––at least the 27 states that completely opted out of Obamacare. Another nine states set up partnership exchanges with the feds and the impact on those states is not clear.
The response by supporters of the law, and the IRS regulation that has enabled subsidies to be paid in the states not setting up exchanges, hinges on the argument that the language is at worst ambiguous and the Congress never intended to withhold the subsidies in the federal exchange states.
But in the DC Court ruling one of the majority judges said, “The fact is that the legislative record provides little indication one way or the other of the Congressional intent, but the statutory text does. Section 36B plainly makes subsidies only available only on Exchanges established by states.”
My own observation, having closely watched the original Obamacare Congressional debate, is that this issue never came up because about everybody believed about all of the states would establish their own exchange. I think it is fair to say about everyone also believed a few states would not establish their own exchanges. Smaller states, for example, might opt out because they just didn’t have the scale needed to make the program work. I don’t recall a single member of Congress, Republican or Democrat, who believed that if this happened those states would lose their subsidies.”
“July 22, 2014 was arguably the most important day in the history of the implementation of the Affordable Care Act since the Supreme Court issued its ruling in the National Federation of Independent Business case in June of 2012. As no doubt most readers of this blog know by now, shortly after 10 a.m. the United States Court of Appeals for the District of Columbia Circuit handed down its decision in Halbig v. Burwell. Two judges ruled over a strong dissent that an Internal Revenue Service rule allowing federally facilitated exchanges to issue premium tax credits to low and moderate income Americans is invalid.
Approximately two hours later the Fourth Circuit Court of Appeals in Richmond, Virginia, unanimously upheld the IRS rule in King v. Burwell. Combined, the cases contain five judicial opinions, three in the Halbig case and two in King. Four of the six judges voted to uphold the rule, two to strike it down.”
“The essential health benefits (EHBs) countdown is on for 2016.
That’s when this provision of the Affordable Care Act, which sets out 10 specific health services that must be covered by plans sold on the exchanges, will likely be reviewed by the Department of Health and Human Services. Business interests and consumer advocates are already making their positions clear – the former pushing for greater consciousness of premium costs and the latter looking to safeguard consumers’ coverage.
During a July 21 Capitol Hill briefing, members of the Affordable Health Benefits Coalition, a business interest group including the U.S. Chamber of Commerce and the National Retail Federation, said they would push to reshape essential benefits, arguing that current regulations have led to unaffordable hikes in insurance premiums.
Current policy requires plans cover emergency services, pre- and post-natal care, hospital and doctors’ services, and prescription drugs, among other things. The rule lets states decide how specifically to interpret those categories.”
“WASHINGTON — Contrary rulings Tuesday on a key element of the Affordable Care Act by two separate federal appeals courts raise a variety of questions.
Q: What happened?
A: The U.S. Court of Appeals for the District of Columbia Circuit decided 2-1 that tax subsidies available to help people pay for health coverage through the Affordable Care Act can only be used in the 14 states and in D.C., which run their own insurance exchanges without any help from the federal government. But in a unanimous decision on a similar case a short time later, the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled just the opposite.
Q: Who’s eligible for the tax subsidies?
A: Individuals and families who earn between 100 percent and 400 percent of the federal poverty level. For those who enrolled this year, it includes individuals earning $11,490 to $45,960, and a family of four earning from $23,550 to $94,200.
Q: Does the D.C. court’s decision mean that consumers in the 36 states that use the federal marketplace will lose their tax credits going forward?
A: No. The tax credits remain available. The federal government is appealing the decision to the full 11-member U.S. Court of Appeals for the D.C. Circuit. That ruling will supersede Tuesday’s decision.”
“The two contradictory appeals court decisions that cast the future of Obamacare into uncertainty Tuesday morning largely center on a question of intent: When the Affordable Care Act was conceived and drafted, did its creators mean to withhold health care subsidies from people living in states that refused to set up their own exchanges?.
This latest legal challenge focuses on four words in the mammoth law authorizing tax credits for individuals who buy insurance through exchanges “established by the States.” Thiry-six states declined to set up their own exchanges — far more than the law’s backers anticipated — and in those states, consumers have been shopping for health care on exchanges run instead by the federal government. Now the D.C. Circuit Court of Appeals has ruled that these consumers are not eligible for subsidies because, well, they bought their insurance on exchanges not “established by the States.”
This is a tremendously literal interpretation of a small but crucial part of the law, and it’s one that was arguably never intended by its creators. The plaintiffs in these challenges have argued that the ACA always meant to exclude noncooperative states from subsidies as a way of incentivizing those states to create their own exchanges. Supporters of the law — including the Obama Administration — counter that such intent would never have made any sense in the larger context of a law aiming to expand health insurance to as many people as possible.”
“Two U.S. Appeals Courts Tuesday reached opposite conclusions about the legality of subsidies in the Affordable Care Act, a key part of the law that brings down the cost of coverage for millions of Americans.
In Washington, a three-judge panel at the U.S. Appeals Court for the D.C. Circuit ruled that the Internal Revenue Service lacked the authority to allow subsidies to be provided in exchanges not run by the states.
That 2-1 ruling in Halbig v. Burwell could put at risk the millions of people who bought insurance in the 36 states where these online insurance marketplaces are run by the federal government. Judge Thomas Griffith, writing the majority opinion, said they concluded “that the ACA unambiguously restricts” the subsidies to “Exchanges ‘established by the state.’ ”
But within hours, a unanimous three-judge panel for the Fourth Circuit in Richmond, Va., ruled exactly the other way in King v. Burwell – that Congress always intended to allow subsidies to be provided in both state and federally run exchanges.
“It is therefore clear that widely available tax credits are essential to fulfilling the Act’s primary goals and that Congress was aware of their importance when drafting the bill,” said the decision written by Judge Roger Gregory.
The Obama administration said it will appeal the Halbig decision. The Justice Department will ask the entire appeals court panel to review it, and that panel is dominated by judges appointed by Democrats, 7-4.”
“The Halbig case could destroy Obamacare . But it won’t. The Supreme Court simply isn’t going to rip insurance from tens of millions of people in order to teach Congress a lesson about grammar.
As Adrianna McIntyre explains, the Halbig case holds that Obamacare’s subsidies are illegal in the 36 states where the federal government runs (or partly runs) the exchange. The plaintiffs rely on an unclearly worded sentence in the law to argue that Congress never intended to provide subsidies in federally-run exchanges and so the subsidies that are currently being provided in those 36 states are illegal and need to stop immediately.
The point of Obamacare is to subsidize insurance for those who can’t afford it
This is plainly ridiculous. The point of Obamacare is to subsidize insurance for those who can’t afford it. The point of the federal exchanges is to make sure the law works even in states that can’t or won’t set up an exchange.
For Congress to write a law that provides for federal exchanges but doesn’t permit money to flow through them would have been like Congress writing a transportation law that builds federal highways but doesn’t allow cars, bikes or buses to travel on them.”
“We now have two federal appeals courts that have issued conflicting rulings on a major provision of the Affordable Care Act. Those decisions are not the final word on whether residents of some states will be able to continue receiving financial assistance to buy health insurance. Here are some possible next steps:”
“The U.S. Circuit Court of Appeals has upheld the rule of law in its decision that the health law does not allow tax subsidies to be distributed through the federal government’s health insurance exchange.
The Obama administration’s Internal Revenue Service issued regulations in 2012 authorizing the flow of funds after two-thirds of the states opted not to create their own exchanges, thereby defaulting to the federal exchange.
In a 2-1 decision, the appeals court ruled that the law plainly states that tax credits to subsidize health insurance are to be available only through an “Exchange established by the State.”
Shortly after the DC Circuit decision was announced, the Richmond-based Fourth Circuit Court of Appeals ruled in a separate case that the law’s language does allow the subsidies to be distributed through the federal exchanges.
This sets up a very likely Supreme Court challenge.”