Sunday, January 25, 2015

The ACA provision that should kill King v. Burwell | xpostfactoid

The ACA provision that should kill King, updated | xpostfactoid:
by Andrew Sprung

The ACA provision discussed below, which directs the federal as well as state exchanges to report to the Treasury tax credits provided to ACA private plan buyers, is treated in full in the United States of America's Brief for Respondents.   Submitted by the Solicitor General, joined by the Solicitor of Labor, and the General Counsel of the Treasury Department and the Department of Health and Human Services, the government brief emphasizes the overall design of the Affordable Care Act, its objectives, and the care subsidies crucial role in making the mandated insurance reforms financially viable.  Remember that the key structure - mandatory coverage - requires that premiums not only be affordable but that they be sufficient for insurance companies to be able to cover the greatly increased number of insured persons - and to achieve the broader coverage and lower deductibles and co-pays afforded by the ACA's Silver and Platinum policies, as well as mandated coverages such as birth control, preventive screenings, etc. - gwc

 Ever since a three-judge panel of the D.C. Circuit Court found in Halbig v. Burwell that the ACA only authorizes subsidies to be paid for health insurance bought in state-run exchanges, not in state exchanges set up by the federal government, progressive reporters have been ransacking the record to  prove what they always knew: that the law's creators never intended to exclude federally run exchanges from the subsidy regime.  Today, Greg Sargent and Jonathan Cohn both published compelling circumstantial evidence to that effect. It seems to me, though, that such circumstantial evidence should be unnecessary. The ACA includes a provision that ought to settle the issue -- on that the majority in Halbig egregiously misread. Health law scholar Timothy Jost highlighted the dispositive provision back in September 2011, two months after the IRS issued a rule spelling out that subsidies would be available through the federal exchange (at which point the brains behind the Halbig suit, Michael Cannon and Jonathan Adler, immediately began arguing in print that the IRS rule contradicted the ACA's text). With reference to the drafting error stipulating only that subsidies be credited through an exchange "established by a state," Jost asserted:
we do not need to rely on the courts to correct this error. Congress corrected it itself. Four days after Congress passed the Patient Protection and Affordable Care Act, it enacted the Health Care and Education Reconciliation Act of 2010. Section 1004 of HCERA amended section 36B(f) of the IRC to impose on exchanges established under section 1311(f)(3)—that is, state exchanges—and under section 1321(c)—that is federal exchanges, the obligation to report to the IRS and to the taxpayer information regarding tax credits provided to individuals through the exchange. In this later-adopted legislation amending the earlier-adopted ACA, Congress demonstrated its understanding that federal exchanges would administer premium tax credits. 
In a subsequent post, Jost noted, "As a later-adopted statute, HCERA would take precedence over PPACA if there were a contradiction."
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