2018 MIDTERM ELECTION

Time: D H M S

Coming Soon: The Return of the King... v. Burwell???

I posted about this back on July 3rd, just a week after the historic King v. Burwell Supreme Court ruling, which put the Constitutional seal of approval on the ACA's Advance Premium Tax Credits (otherwise known as the Federal Tax Subsidies) for over 6 million people across the 3 dozen Healthcare.Gov states.

The short version is that there's Yet Another lawsuit winding its way through the federal court system: House vs. Burwell. This is the one which is being brought by John Boehner and the House Republicans against the Obama administration. Here's the recap.

As I understand it, there's 3 main issues at hand:

  • They're grumpy about the Obama administration delaying implementation of the employer mandate (you know, the same employer mandate that they hate and want killed anyway).
  • They're grumpy about the Obama administration making payments to insurers who get hosed financially the first 3 years of the ACA exchanges (ie, the "risk corridors").
    (Update: Never mind this one; see update below)
  • They're grumpy about the Obama administration doling out Cost Sharing Reduction payments to those who qualify.

As I put it in July:

The "good" news here is that this case is still at the District Court level; it'll probably wind its way through the system for awhile yet, and will hopefully get tossed on it's ass before it gets to the SCOTUS. Then again, that's what everyone said about KvB, so who the heck knows? If it does make it through, I would imagine that we'll have another edge-of-your-seat adventure next summer*, which is the traditional time for huge blockbuster sequels. Call it King v. Burwell Jr., King v. Burwell Part II or The Return of the King...v. Burwell.

NOTE: I've been informed by JJ Gomez via Twitter that even if it does make it to the SCOTUS, it would likely take longer than that; the appeals process alone apparently takes over a year, so it probably wouldn't show up there until after the next President is inaugurated, so...

Without getting into the nitty-gritty of the case itself, Cost Sharing Reductions are the other type of financial subsidy available to millions of ACA exchange enrollees. CSR assistance receives far less attention than the Advance Premium Tax Credits (APTC) which were at the heart of the King v. Burwell case, which is unfortunate, because in many cases they can make as much of a difference in the actual cost of healthcare policies to low-income enrollees as the tax credits themselves do.

CSR assistance works differently than the APTC subsidies. For one thing, CSR is only available on Silver plans.

For another, unlike APTC, which is available to exchange enrollees with a household income ranging from 100-400% of the Federal Poverty Level, CSR assistance is only available to those from 100-250%...and is much more generous for those from 100-200%.

In addition, instead of being applied to your actual monthly premium, CSR assistance is intended to help cut down on your out of pocket cost for the other policy expenses: Deductibles, co-pays and so on.

Anyway, that was then, this is now; here's the latest:

A federal judge ruled on Wednesday that House Speaker John Boehner's lawsuit over the implementation of Obamacare can move forward, setting the stage for another high-stakes legal battle over President Obama's signature legislative accomplishment.

Though the judge ruled that House leaders do have legal standing and thus can sue Obama, it wasn't a complete victory for Republicans.

The lawsuit focuses on whether President Obama could delay implementation of the law's employer mandate and continue making payments to insurers through a program designed to cushion risk in the early years of the law's implementation, even though Congress refused to directly appropriate the funds.

Federal Judge Rosemary Collyer decided that the House can sue over the risk payments*  cost-sharing but not the mandate delay.

So far there's no word on the Cost Sharing Reduction part of the lawsuit,* which is the only one which really concerns me. You can't un-delay the Employer Mandate (unless you have a time machine), and I believe the "risk corridors" are only in effect for 1 more year anyway before they get phased out, so that minimizes the damage if they get cut off. The CSR payments are the big concern for me here.

Stay Tuned...

*UPDATE: OK, Philip Klein of the Washington Examiner has corrected the confusion; apparently he mixed up "Risk Corridors" (which are not part of the House vs. Burwell lawsuit) with Cost Sharing Reductions (which are):

@charles_gaba Actually, stand corrected. The lawsuit only concerned CSR, not RC, and it will go forward.

— Philip Klein (@philipaklein) September 9, 2015

In other words, yes, Cost Sharing Reductions are potentially at risk.

From Klein's corrected story:

Nick Bagley, a University of Michigan law professor, said it's not an "earth shattering surprise" that the court is allowing part of the lawsuit to go forward.

But the judge also opened a pathway to the part of the lawsuit that could be most damaging to the law, he said.

"Holding that the administration lacks the authority to cover the cost of those reductions would create a real mess on the ground," Bagley said.

"It inserts the court into the middle of a political food fight," he said.

(sigh) Here we go again...

UPDATE x2: Here's a couple of good explainer links: