March 1 update: Challenge to Congress’ participation in DC SHOP exchange turned back. On February 25, 2015, Judge Herbert Dixon of the District of Columbia Superior Court dismissed plaintiff Kirby Vining’s complaint charging the D.C. exchange had illegally permitted members of Congress to purchase coverage in the D.C. SHOP exchange; the plaintiff argued that Congress, with 12,359 employees, is not a small business.
The court held that the plaintiff had no standing to challenge the D.C. Code provision allowing members of Congress to purchase coverage through the SHOP exchange. It went on to hold, however, that the ACA is ambiguous about whether members of Congress should purchase coverage through the individual or SHOP exchange and that the interpretation of the law by the Office of Personnel Management and HHS was permissible. Judge Dixon therefore upheld the D.C. Code provision, which was consistent with the HHS and OPM rules.
February 25 update: King v. Burwell what ifs. As has been widely noted, a Supreme Court decision to invalidate the Internal Revenue Service rule that permits consumers to access advance premium tax credits and cost-sharing reduction payments through the federally facilitated marketplaces would have a devastating impact on lower- and moderate-income Americans who receive those benefits, on state individual insurance markets, and on health care providers. As the March 4, Supreme Court oral arguments draw near, the search for a Plan B should the Court decide against the government becomes more urgent.
On January 28, 2015, the Republican leadership of the House Energy and Commerce Committee wrote to Health and Human Services Secretary Burwell asking whether HHS was developing contingency plans in the event the Court ruled against it. Specifically the letter asked:
1) What actions, analysis, and/or contingency planning has HHS undertaken in advance of the Supreme Court’s King v. Burwell decision? Please include a description of:
- All scenarios considered or evaluated;
- Any attempts or efforts to anticipate or access the possible permutations and/or practical consequences of the Court’s coming decision;
- Any options, proposals, and/or recommendations that have been considered, adopted, or rejected, or which are currently under consideration; and
- Any related memoranda or analyses produced in connection with, or as a result of, efforts to anticipate, ameliorate, or otherwise address the impact of the coming King v. Burwell decision.
2) Please describe the authorities that would be implicated to implement the measures, options, proposals, or recommendations referenced in item No. 1.
3) Please describe any other federal agencies with which HHS is coordinating or planning possible responses to the Court’s ruling in King v. Burwell;
4) Please provide any documents that your department has prepared or relied upon in conducting any review or analysis described in Items No. 1-3 above.
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