June 5, 2015

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Leading the Way
King Case: A Hearing, a Proposal and a Bill
Up, Up They Go! Where They’ll Wind Up Nobody Knows!
New Rule on ACOs
Hit Parade
HUPAC Roundup
What We’re Reading
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King Case: A Hearing, a Proposal and a Bill

Also of note on Capitol Hill this week was a hearing led by Senator Ted Cruz (R-TX) to investigate the Administration’s rulemaking process used when the IRS allowed for the federal exchange to be a mechanism for access to the health insurance premium tax credits, a new PPACA “replace” bill released by the Republican Study Committee (RSC) for Congress to consider as a possible means to respond to a potential plaintiff victory in the King v. Burwell case pending before the Supreme Court, and a bill introduced by Representative Tom Price (R-GA) to provide health insurance tax credits should the Court strike the law’s subsidies.

Last week we mentioned that Senator Cruz wrote a letter to the Department of Treasury requesting that three administration officials appear before a congressional hearing to testify about their decision making relative to health insurance premium tax credits. This week, even though the Treasury sent their regrets ahead of time, Cruz used the first part of the hearing to highlight the non-attendance of Obama Administration representatives, calling it the height of arrogance. In response, Senator Chris Coons (D-DE) called the Treasury officials’ non-attendance unremarkable, given that the decision in the King case is expected within the coming weeks. The second part of the hearing included a rounded list of panelists, including: the chief lawyer for the plaintiffs in the King case, Michael Carvin; the Cato Institute’s chief health wonk Michael Cannon, who is often credited for being the first to argue that the law doesn’t provide for subsidies in federal marketplace states; Law Professor Andy Grewal; Chief Counsel for the Constitutional Accountability Center Elizabeth Wydra; and Robert Weiner from the DC law firm Arnold & Porter.

Cruz largely used the hearing as a form of mock oral arguments on the case, often turning to Carvin to restate the plaintiff’s position while hammering the Administration for their political involvement in issuing policy decisions. Democrats on the committee made statements about the consumer protection benefits of the law, increased accessibility and argued that the law is working. While the purpose of the hearing was to investigate the Administration’s rulemaking process in issuing their regulations, the overarching theme of the hearing was more focused on whether the law’s key term, “exchange established by the state,” should be interpreted in context with the rest of the law as Democrats argued, or whether it should be a strict literal interpretation as the right has argued.

In addition to the hearing yesterday, RSC, a House Republican caucus, under the leadership of Representative Phil Roe (R-TN) released their replacement plan for health reform, much of it in line with their previous version last released in 2013. The plan would become effective on January 1 and would eliminate the employer exclusion and provide for a standard individual deduction of health insurance, worth $7,500 for individuals and $20,500 for families. As with other similar proposals, key provisions include a number of circa 2004 health policy ideas, including permitting the sale of insurance across state lines, medical malpractice reform and an expansion of federal support for state high risk pools instead of requiring guarantee issue for insurers.

The RSC plan was accompanied by legislation introduced by Representative Tom Price, the chairman of the House Budget Committee. Price’s bill, dubbed the RESCUE America’s Health Care Act, is designed to assist consumers in federally facilitated exchange states that would lose their subsidies should the Supreme Court strike them while also giving states with state-based exchanges the ability to terminate their exchange and opt for his new federal approach. It is premised on refundable tax credits for purchasing insurance coverage and establishing health pools for individuals and small employers. It would repeal much of the PPACA, including market reforms under Title I, but it would keep in place the guarantee issue provisions of the law for pre-existing conditions with the condition that the individual must have been insured continuously for the previous 18 months.

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