New Questions on Health Law as Rulings on Subsidies Differ
By ROBERT PEAR
JULY 22, 2014 - New York Times
WASHINGTON — Two federal appeals
court panels issued conflicting rulings Tuesday on whether the government could
subsidize health insurance premiums for millions of Americans, raising yet more
questions about the future of the health care law four years after it was signed
by President Obama.
The contradictory rulings will
apparently have no immediate impact on consumers. But they could inject
uncertainty, confusion and turmoil into health insurance markets as the
administration firms up plans for another open enrollment season starting in
November.
By a vote of 2 to 1, a panel of the
United States Court of Appeals for the District of Columbia Circuit struck down
a regulation issued by the Internal Revenue Service that authorizes the payment
of premium subsidies in states that rely on the federal insurance exchange.
If it stands, the ruling could cut
off financial assistance for more than 4.5 million people who were found
eligible for subsidized insurance in the federal exchange, or marketplace. It
could also undercut enforcement of the requirement for most Americans to have
insurance and the requirement for larger employers to offer it to their
full-time employees.
The Justice Department said the
government would continue paying subsidies to insurance companies on behalf of
consumers in the 36 states that use the federal exchange, pending further review
of the issue by federal courts.
Critics of the law, who said the
ruling in Washington vindicated their opposition to it, did not have much time
to celebrate. Within hours, a unanimous three-judge panel of the United States
Court of Appeals for the Fourth Circuit, in Richmond, Va., issued a ruling that
came to the opposite conclusion.
The Fourth Circuit panel upheld
the subsidies, saying the I.R.S. rule was ga permissible exercise of the
agencyfs discretion.h
The language of the Affordable
Care Act on this point is gambiguous and subject to multiple interpretations,h
the Fourth Circuit panel said, so it gave deference to the tax agency.
In a separate case, the Justice
Department informed a federal appeals court in Denver on Tuesday that the Obama
administration would issue new rules within a month revising a compromise on
contraceptive coverage under the health care law in response to a recent Supreme
Court ruling.
The court ruled this month that
Wheaton College, a Christian college in Illinois, did not have to fill out
certain forms that would result in birth control being provided by insurers. The
administration is studying options for ensuring that women still receive the
coverage. The court suggested that Wheaton could notify the government of its
religious objections rather than send the opt-out forms to insurers.
Subsidies, in the form of tax
credits, are a major element of the health care law. Without them, many more
consumers would be unable to afford coverage and could be exempted from the
gindividual mandateh to have insurance.
The employer mandate is enforced
through penalties imposed on employers if any of their workers receive
subsidies, so it could become meaningless in states where subsidies were
unavailable.
The White House rejected the
ruling of the appeals court panel in Washington and indicated that the Justice
Department would ask the full court to review it. The Obama administration has
consistently underestimated court challenges to the health care law, including
one decided in 2012 by the Supreme Court, which upheld the individual
mandate.
At least two other cases on
subsidies are pending in federal district courts, in Oklahoma and Indiana.
In the case decided in Washington
on Tuesday, Halbig
v. Burwell, the appeals court panel said that the Affordable Care Act made
subsidies available only to people who obtained insurance through exchanges
established by states.
The law gdoes not authorize the
I.R.S. to provide tax credits for insurance purchased on federal exchanges,h the
panel said. The law, it said, gplainly makes subsidies available only on
exchanges established by states.h
Aides to Mr. Obama said the ruling
seemed to fly in the face of common sense.
gYou donft need a fancy legal
degree to understand that Congress intended for every eligible American to have
access to tax credits that would lower their health care costs, regardless of
whether it was state officials or federal officials who were running the
marketplace,h said Josh Earnest, the White House press secretary. gI think that
is a pretty clear intent of the congressional law.h
Reacting to the ruling, a Justice
Department spokeswoman, Emily Pierce, said, gWe believe that this decision is
incorrect, inconsistent with congressional intent, different from previous
rulings and at odds with the goal of the law.h
Under this ruling, many people
could see their share of premiums increase sharply. Subsidies reduced the
average premium to $82 a month from $346, according to the
administration.
The majority opinion in the case
here was written by Judge Thomas B. Griffith, who was appointed by President
George W. Bush, with a concurring opinion by Judge A. Raymond Randolph, a senior
circuit judge, who was appointed by the elder President George Bush.
gOur ruling will likely have
significant consequences both for the millions of individuals receiving tax
credits through federal exchanges and for health insurance markets more
broadly,h Judge Griffith said. gBut, high as those stakes are, the principle of
legislative supremacy that guides us is higher still.h
Another member of the appeals
court panel, Judge Harry T. Edwards, a senior circuit judge appointed by
President Jimmy Carter, filed a dissent in which he described the lawsuit as an
gattempt to guth the law. The majority opinion, he said, gdefies the will of
Congress.h He said that the Obama administrationfs reading of the law was
gpermissible and reasonable, and, therefore, entitled to deference.h
A similar approach was taken by
the Fourth Circuit panel in its case, King
v. Burwell. Judge Roger L. Gregory, who received a recess appointment from
President Bill Clinton and a permanent appointment from President George W.
Bush, said that the rival interpretations of the law by the plaintiffs and by
the Obama administration appeared to be gequally plausible.h
But, Judge Gregory said, the
administrationfs position helps achieve gthe broad policy goalsh of the
Affordable Care Act. gThe economic framework supporting the act would crumble if
the credits were unavailable on federal exchanges,h he said.
In a concurring opinion, Judge
Andre M. Davis, a senior judge on the appeals court, said the plaintiffsf
argument gwould effectively destroy the statute.h It would, he said, gdeny to
millions of Americans desperately needed health insurance through a tortured,
nonsensical constructionh of the law. Judge Davis and the other judge on the
panel, Stephanie D. Thacker, were appointed by Mr. Obama.
The health law authorized
subsidies specifically for insurance bought gthrough an exchange established by
the state.h
When the law was adopted, Mr.
Obama and congressional Democrats assumed that states would set up their own
exchanges. But many Republican governors and state legislators balked, and
opposition to the law became a rallying cry for the party.
The lawsuit in Washington,
championed by conservative and libertarian groups, was filed by people in states
that use the federal exchange: Tennessee, Texas, Virginia and West Virginia.
They objected to being required to buy insurance, even with subsidies to help
defray the cost.
One of the plaintiffs, David
Klemencic, who has a carpet store in Ellenboro, W.Va., said: gIf I have to start
paying out for health insurance, it will put me out of business. As Americans,
we should be able to make our own decisions in matters like this.h
Democrats said the Fourth Circuit
ruling validated the law, which they passed in 2010 without any Republican
votes. Representative Nancy Pelosi of California, the House Democratic leader,
said the plaintiffsf reading of the law was gobviously false.h
By contrast, Speaker John A.
Boehner praised the ruling of the appeals court panel in Washington. It showed,
he said, that gPresident Obamafs health care law is completely
unworkable.h