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In Surprise Move, Supreme Court Will Examine Key Part of Affordable Care Act

Health care controversy continues

Once again, the Supreme Court will decide whether the Patient Protection and Affordable Care Act (PPACA) lives or dies.

Defying expectations, the court has announced that it will hear –– during this term –– a case that challenges the heart of the law: subsidies to help people pay their insurance premiums. In about three dozen states, the federal government runs the online marketplaces where individuals can find health plans.

At issue is a phrase in the law stipulating that subsidies to help those with incomes under 400% of the poverty level are available only in “exchanges established by a state.” The law’s authors argue that the rest of the statute makes it clear that subsidies are available not only in state-run exchanges, but in those where the federal government is doing the work of the state.

When the law was written, most people expected that states would want to run their own exchanges. It was a surprise when most opted to let the federal government do it instead.

A decision to strike down the subsidies in federally run exchange states could end up making insurance unaffordable for millions of people and could threaten the viability of the PPACA’s entire health insurance program.

In a rare Friday afternoon notice following their closed-door conference, the justices voted with no further comment that they have agreed to hear King v. Burwell. That is the case in which a three-judge Appeals Court panel in Richmond, Virginia, ruled unanimously that Congress did intend to allow subsidies to be available nationwide.

That same day, a panel in the District of Columbia Court of Appeals ruled 2 to 1 the opposite way. But that case, Halbig v. Burwell, was vacated when the full court agreed to re-hear the case. That is scheduled for December. Because there are not yet contradictory decisions by appeals courts, most observers thought the Supreme Court would at least wait until the lower courts were finished considering the case before weighing in.

Those who argue that the federal subsidies are illegal say time is of the essence.

“In King there is a serious argument that it would be better to resolve the underlying question of statutory interpretation sooner rather than later,” Jonathan Adler, a law professor at Case Western University, wrote in the Washington Post last week. “The resolution of this litigation will alter the calculus for many political and private actors considering how to respond to the PPACA, and the statute contains various deadlines and time frames that may become harder to navigate the longer this litigation drags on.”

The White House said in a statement that the lawsuits challenging the language would not stand in the way of the law’s implementation. “This lawsuit reflects just another partisan attempt to undermine the Affordable Care Act and to strip millions of American families of tax credits that Congress intended for them to have,” the White House statement said.

Source: Kaiser Health News; November 7, 2014.

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