On December 20, 2016, two beneficiaries of reduced cost sharing under the Affordable Care Act (ACA) asked the D.C. Circuit court of appeals to allow them to intervene in House v. Burwell. The lower court had ruled in this case brought by the House of Representatives that the Obama administration could not legally reimburse health insurers for reducing cost sharing because Congress had not appropriated money for the reimbursement. The Obama administration had been vigorously pursuing an appeal of this decision, but with the election of Donald Trump the House had asked the court to put the case on hold pending a possible settlement. Two beneficiaries asked to intervene, asserting that their interests would be seriously injured if the appellate court allowed the lower court’s decision for the House to go into effect, and that the Trump administration did not adequately represent their interests.
The court asked the House and the Obama administration to respond to the intervention motion. Both filed responses on January 6, 2017. The Obama administration acknowledged the truth of the interveners’ claims that allowing the injunction to go into effect would cause major disruption in insurance markets, but claimed that the position of the Trump administration was still not clear and asked that the motion be held until the litigation resumed or, alternatively, be denied for now pending further litigation steps.
The House, by contrast, filed a lengthy brief contesting every element of the interveners’ petition. Any injury to the interveners from their insurers losing billions of dollars of reimbursement for reducing the cost sharing of consumers was merely speculative. Whether or not the House and the Trump administration would come to an agreement to stop the payments, as the House had asserted they might in its motion for delay, was also purely speculative. Moreover, the Trump administration could cut off the cost-sharing payments independent of the litigation and if it chose to do so through a settlement, the interveners could not stop it. Finally, the motion to intervene had not been filed in time and the interveners could not assert an interest independent of the government.
The interveners’ reply brief asked incredulously how the House could deny that recipients of cost-sharing reduction payments would not be harmed if the CSR payments suddenly ceased. The insurers would not idly stand by reducing cost sharing for low-income consumers and absorb a $7 billion loss. Moreover how could the House claim that the incoming Trump administration would adequately represent the interests of low-income consumers when the House had asserted in its motion to stay the litigation that the incoming administration might settle the litigation? The reply further contended that the application to intervene had been timely and that all other requirements had been met.
On January 12, 2017, the D.C. Circuit denied the motion to intervene in a one paragraph unsigned order stating that the requirements for intervening on appeal had not been met, with no further explanation. This litigation is now in the hands of the Trump administration and the House. It is clear that a settlement that would immediately terminate the cost-sharing reduction payments would very quickly unravel the individual insurance markets. Insurers would in all likelihood withdraw from the marketplaces, and from the entire individual market, as quickly as they could and as many as 20 million Americans would be left without coverage. Those who will lose their coverage will now not be represented in court to plead for the court’s protection.
from Health Affairs BlogHealth Affairs Blog http://ift.tt/2j8aXPh
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