Col­lyer’s rul­ing could change the ex­change game

Modern Healthcare - - POLITICS - —Lisa Schencker

Health pol­icy ex­perts didn’t know U.S. District Judge Rose­mary Col­lyer’s name be­fore last year. Now they do.

The health­care in­dus­try is ner­vously await­ing the judge’s rul­ing in U.S. House of Rep­re­sen­ta­tives v. Bur­well, which many see as the most sig­nif­i­cant le­gal chal­lenge to the Af­ford­able Care Act since the U.S. Supreme Court up­held the law’s pre­mium sub­si­dies in King v. Bur­well last year.

The case was filed by House Repub­li­can lead­ers, who claim the Obama ad­min­is­tra­tion is il­le­gally spend­ing $175 bil­lion over 10 years that Congress never ap­pro­pri­ated to re­duce out-of-pocket costs for mil­lions of lower-in­come ex­change-plan en­rollees. The ACA re­quires the govern­ment to pay in­sur­ers for those cost­shar­ing re­duc­tions. If the plain­tiffs pre­vail, ex­perts say it’s pos­si­ble in­sur­ers could be forced to sig­nif­i­cantly raise pre­mi­ums to off­set the loss of the fed­eral pay­ments.

Col­lyer, who was nom­i­nated by Pres­i­dent Ge­orge W. Bush, sur­prised many le­gal ob­servers with her de­ci­sion in Septem­ber to grant the plain­tiffs le­gal stand­ing and let the law­suit pro­ceed, de­spite Supreme Court prece­dent main­tain­ing that mem­bers of Congress gen­er­ally lack stand­ing to sue the ex­ec­u­tive branch.

Dur­ing oral ar­gu­ments on stand­ing, she brushed aside the Obama ad­min­is­tra­tion at­tor­ney’s ef­fort to limit dis­cus­sion to the stand­ing is­sue. “So it is your po­si­tion that if the House of Rep­re­sen­ta­tives and the Se­nate both af­fir­ma­tively voted down a pro­posal to fund some­thing … that vote could be ig­nored by the ad­min­is­tra­tion be­cause, af­ter all, no one can sue them?” she asked him.

Col­lyer may rule in the spring. If she de­cides for the plain­tiffs, in­sur­ers may get “very ner­vous as they start think­ing about whether to par­tic­i­pate in the mar­ket­place for 2017 or what their rates are go­ing to be,” said Tim Jost, an emer­i­tus law pro­fes­sor at Wash­ing­ton and Lee Univer­sity who joined an am­i­cus brief back­ing the ad­min­is­tra­tion in the case.

Po­si­tion U.S. District Court judge for the District of Columbia

Ten­ure in job

Nom­i­nated in 2002

Pre­vi­ous po­si­tion Part­ner at Crow­ell & Mor­ing Rose­mary Col­lyer

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