Trump’s path on health care law in­ter­sects with a law­suit

Oba­macare into a free-fall?

Kuwait Times - - HEALTH & SCIENCE -

WASH­ING­TON: Pres­i­dent-elect Don­ald Trump says he wants to pre­serve health in­sur­ance cov­er­age even as he pur­sues re­peal of the Oba­maera over­haul that pro­vided it to mil­lions of unin­sured peo­ple.

How his ad­min­is­tra­tion han­dles a pend­ing law­suit over bil­lions of dol­lars in in­sur­ance sub­si­dies will re­veal whether Trump wants an or­derly tran­si­tion to a Repub­li­can-de­signed sys­tem or if he’d push “Oba­macare” over a cliff. Strip­ping away the sub­si­dies at is­sue in the case would put the pro­gram into a free-fall.

The ques­tion in the House v. Bur­well case couldn’t be more tech­ni­cal: whether the Af­ford­able Care Act specif­i­cally states in its hun­dreds of pages that the govern­ment can pay money to help re­duce out-of-pocket costs for low-in­come con­sumers on Health­Care.gov and state in­sur­ance mar­kets.

Those sub­si­dies for de­ductibles and co­pay­ments are paid di­rectly to in­sur­ers, on top of the law’s tax cred­its that re­duce pre­mi­ums for con­sumers. Since the ACA’s ba­sic cov­er­age is fairly skimpy, the cost-shar­ing sub­si­dies make it work for mil­lions of peo­ple when they seek treat­ment. For ex­am­ple, sub­si­dies can bring a $1,500 hos­pi­tal co­pay­ment down to $100.

Repub­li­cans and Oba­macare

House Repub­li­cans have taken the Obama ad­min­is­tra­tion to court. They ar­gue that the law lacks a spe­cific con­gres­sional “ap­pro­pri­a­tion” for the sub­si­dies, es­ti­mated to to­tal $9 bil­lion next year. A fed­eral dis­trict judge in Wash­ing­ton, DC, agreed with the House and the case is now on ap­peal. The Obama ad­min­is­tra­tion has ar­gued that the spend­ing is au­to­mat­i­cally ap­proved, or “ap­pro­pri­ated,” un­der the law. Other­wise law­mak­ers would have de­signed a sys­tem that they knew wasn’t vi­able. More than half of health law cus­tomers are cur­rently re­ceiv­ing cost-shar­ing sub­si­dies.

The White House says the courts are not the place to try to set­tle funding dis­putes. The govern­ment’s fi­nal brief in the case is due on Jan. 19, the day be­fore Trump is to be in­au­gu­rated.

Trump, who has vowed to start tak­ing apart the health care law on the first day of his ad­min­is­tra­tion, has a tai­lor-made op­por­tu­nity: His ad­min­is­tra­tion could sim­ply agree with the House that the pay­ments are un­con­sti­tu­tional, and stop con­test­ing the law­suit.

“The Trump ad­min­is­tra­tion could im­me­di­ately turn off the tap for mak­ing cost-shar­ing pay­ments,” said Mark Re­gan, le­gal di­rec­tor of the Dis­abil­ity Law Cen­ter of Alaska in An­chor­age, and a de­fender of the law. “Turn­ing the pay­ments off would come close to de­stroy­ing the mar­ket.” In­sur­ers could be stuck with mas­sive losses be­cause they would still have a le­gal obli­ga­tion to cover pa­tients’ out-of-pocket costs, but would get no re­im­burse­ment from the govern­ment.

An­other ap­proach might in­volve set­ting a dead­line. “What Trump should do is on Day 1 say, ‘We are not go­ing to fight that law­suit - those pay­ments end at the end of cal­en­dar year 2017’,” said Michael Can­non, health pol­icy di­rec­tor at the lib­er­tar­ian Cato In­sti­tute think tank. Can­non was one of the main pro­po­nents of an ear­lier le­gal chal­lenge to the law’s pre­mium sub­si­dies in cer­tain states. That case was de­cided by the Supreme Court in fa­vor of the ad­min­is­tra­tion.

A dead­line would give con­sumers and in­sur­ers some time to ad­just, and help fo­cus Congress on the need to pass leg­is­la­tion to re­place the ACA. But legally that could get com­pli­cated. If the Trump ad­min­is­tra­tion were to agree with the House that the sub­si­dies are un­con­sti­tu­tional, how could it con­tinue to make any pay­ments at all? Congress would have to pro­vide some sort of stop­gap author­ity.

House Speaker Paul Ryan, R-Wis., is re­view­ing the is­sue. “We are in con­tact with the Trump tran­si­tion team as we con­sider the House’s op­tions,” said spokes­woman Ash­lee Strong. In­sur­ers are wor­ried. In a brief filed with the ap­peals court, they warned of $1,000 pre­mium in­creases and a mar­ket ex­o­dus by con­sumers and in­sur­ers. “A seis­mic shift,” they called it.

— AP

NEW YORK: In this Nov. 9, 2016, file photo, Pres­i­dent-elect Don­ald Trump speaks dur­ing a rally.

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