Obamacare Cases on Life Support After Republican Rout


Insurers suing the government for money they say they’re owed under Affordable Care Act programs might be out of luck, after an election in which Republicans won the White House and majorities in Congress.

President-elect Donald Trump made it clear he wants to kill Obamacare, and Republican lawmakers are more than willing to go along. People in the know are predicting Republicans will chip away at the ACA’s revenue and payment provisions through the budget reconciliation process, but don’t have the votes in the Senate to mount a full-scale repeal of the health-reform law.

A de facto appeal could follow those budget changes, however. It’s uncertain whether insurers could survive if programs are cut that help them absorb losses from doing things like offering plans to people with pre-existing conditions.

Trump administration agencies, too, may be able to undo policies their predecessors adopted to implement the law. If so, then lawsuits challenging the policies could go away as well.

One likely casualty is U.S. House of Representatives v. Burwell. A federal trial court ruled the Health and Human Services Department illegally paid insurers to supplement losses suffered when they stopped requiring cost-sharing measures from plan members. Congress didn’t appropriate the money, so the HHS had no funds to legally pay the insurers, the court said.

The Obama Justice Department appealed, asking the D.C. Circuit to overrule the decision. A Trump DOJ may simply drop the appeal, health-policy scholars told me. Insurers and plan members then could sue the government, like the insurers in ACA risk corridor cases, but the Trump Department of Justice would “vigorously” fight those suits, they said.

Speaking of risk corridor litigation: Insurers can hope for an Obama administration settlement before Trump takes office Jan. 20, 2017, but people I spoke to didn’t think it likely the Court of Federal Claims, in which the suits are pending, could approve a settlement in that time frame. Again, Trump’s DOJ probably would pose an obstacle to payment.

Cases testing other Obamacare measures, like the contraceptive mandate and anti-discrimination rule, also may be quickly resolved. The Trump administration likely will give nonprofit religious groups the exemption from the contraceptive mandate they’ve been asking for, relieving the groups and the government of trying to design a compromise.

An injunction against the “transgender mandate” probably will be granted in the U.S. District Court for the Northern District of Texas and affirmed by the U.S. Court of Appeals for the Fifth Circuit. If the case progresses quickly, its first round could be before the Supreme Court before a Trump justice could be confirmed, an ACLU attorney told me. The civil rights attorney told me the ACLU has other tools to use against health-care industry discrimination against transgender people if it loses this fight.

Read my story at http://www.bna.com/obamacare-cases-limbo-n57982082602/.

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