House GOP ACA law­suit heats up in ap­peals court

Modern Healthcare - - THE WEEK AHEAD - —Erica Te­ichert

The Obama ad­min­is­tra­tion on Mon­day will fire its first mis­sive in fed­eral ap­peals court de­fend­ing the ap­pro­pri­a­tions used to fund por­tions of the Af­ford­able Care Act.

A fed­eral judge sided with House Repub­li­cans in May, rul­ing that the ad­min­is­tra­tion il­le­gally fun­neled money to sup­port the ACA’s cost-shar­ing sub­si­dies, which can be used to cover out-of-pocket costs, even though Congress never ap­pro­pri­ated the funds.

Over the sum­mer, the fed­eral govern­ment appealed the decision to the U.S. Court of Ap­peals for the District of Columbia Cir­cuit. Ex­perts say there will be a fierce bat­tle over the con­tro­ver­sial pro­vi­sions that may ul­ti­mately end up in the U.S. Supreme Court.

In the lower court pro­ceed­ings, the ad­min­is­tra­tion al­leged the pro­vi­sions were linked to con­gres­sion­ally ap­proved tax cred­its, a move U.S. District Judge Rose­mary Col­lyer called “most cu­ri­ous and con­vo­luted.”

It is likely the ad­min­is­tra­tion will ask the D.C. Cir­cuit to de­ter­mine if House Repub­li­cans even had stand­ing to bring the law­suit. The U.S. Supreme Court in 2015 up­held pre­mium sub­si­dies in King v. Bur­well.

Ac­cord­ing to the CMS, ap­prox­i­mately 56% of Amer­i­cans re­ceiv­ing in­surance cov­er­age via the ACA ex­changes re­ceived cost-shar­ing re­duc­tions as of June 2015.

Col­lyer’s decision won’t go into ef­fect un­til the D.C. Cir­cuit rules on the ap­peal. It’s un­clear how much the rul­ing could dam­age the law if it’s up­held by the D.C. Cir­cuit or Supreme Court, but le­gal ex­perts say it’s un­likely it would doom the law as a whole.

Oral ar­gu­ments have not been sched­uled, and the par­ties will de­velop the case in briefs through early De­cem­ber.

Obama’s sig­na­ture leg­isla­tive suc­cess faces a le­gal test.

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