In a potentially crippling blow to Obamacare, a top federal appeals court Tuesday said that billions of dollars worth of government subsidies that helped nearly 5 million people buy insurance on HealthCare.gov are illegal.
A judicial panel in a 2-1 ruling said such subsidies can be granted only to those people who bought insurance in an Obamacare exchange run by an individual state or the District of Columbia — not on the federally run exchange HealthCare.gov.
The decision threatens to unleash a cascade of effects that could seriously compromise Obamacare’s goals of compelling people to get health insurance, and helping them afford it.
The Obama Administration is certain to seek a reversal of the decision by the U.S. Court of Appeals for the District of Columbia Circuit, which does not immediately have the effect of law.
The ruling endorsed a controversial interpretation of the Affordable Care Act that argues that the HealthCare.gov subsidies are illegal because ACA does not explicitly empower a federal exchange to offer subsidized coverage, as it does in the case of state-created exchanges. Subsidies for more than 2 million people who bought coverage on state exchanges would not be affected by Tuesday’s ruling if it is upheld.
HealthCare.gov serves residents of the 36 states that did not create their own health insurance marketplace. About 4.7 million people, or 86 percent of all HealthCare.gov enrollees, qualified for a subsidy to offset the cost of their coverage this year because they had low or moderate incomes.
If upheld, the ruling could lead many, if not most of those subsidized customers to abandon their health plans sold on HealthCare.gov because they no longer would find them affordable without the often-lucrative tax credits. And if that coverage then is not affordable for them as defined by the Obamacare law, those people will no longer be bound by the law’s mandate to have health insurance by this year or pay a fine next year.
If there were to be a large exodus of subsidized customers from the HealthCare.gov plans, it would in turn likely lead to much higher premium rates for non-subsidized people who would remain in those plans, who are apt as a group to be in worse health than all original enrollees.
The ruling also threatens, in the same 36 states, to gut the Obamacare rule starting next year that all employers with 50 or more full-time workers offer affordable insurance to them or face fines. That’s because the rule only kicks in if one of such an employers’ workers buy subsidized covered on HealthCare.gov.
The decision by the three-judge panel in DC federal appeals circuit is the most serious challenge to the underpinnings of the Affordable Care Act since a challenge to that law’s constitutionality was heard by US Supreme Court. The high court in 2012 upheld most of the ACA, including the mandate that most people must get insurance or pay a fine.
Friday’s bombshell ruling by the appeals court is expected to be met by Obama Administration asking for a panel made up of all the judges in the same circuit to review the ruling.
If it fails at that level, the administration can ask the Supreme Court to reverse the ruling.
A high court review is early guaranteed if another federal appeals court circuit rules against plaintiffs in a similar case challenging the subsidies. And the only other circuit currently considering such a a case, the Fourth Circuit, is expected to rule against plaintiffs there in a decision that is believed to be imminent.
Tuesday’s ruling in DC focused on the plaintiffs’ claim that the ACA, in several of its sections, says that subsidies from the federal government, in the form of tax credits, can be issued through an exchange established by a state.
The law also says that if a state chooses not to set up its own exchange, the federal government can establish its own marketplace to sell insurance in such states.
However, the ACA does not explicitly say, as it does in the case of state-run exchanges, that subsidies can be given to people who buy insurance on a federal exchange.
The plaintiffs’ claim has been met with derision by Obamacare supporters, who argue that it relies on a narrow reading, or even misreading of the law. Those supporters said the claim ignores they say is its overarching intent: to provide affordable insurance to millions of people who were previously uninsured.
Supporters argue that the legality of the subsidies to HealthCare.gov enrollee derives from the fact that the law explicitly anticipated the potential need to create an exchange in the event that a state chose not to.
When the ACA was passed into law, most supporters believed that the vast majority of states would create their own exchange. But the opposition to Obamacare of many Republican governors and state legislators lead to most states refusing to build their own marketplaces, setting the stage for the challenges to the subsidies issued for HealthCare.gov plans.
Two separate federal district court judges — one in DC, the other in Virginia — have rejected plaintiffs’ challenge to the subsidies. Those denials lead to the appeals in the DC federal circuit and in the Fourth Circuit.
Out of the more than 8 million Obamacare enrollees this year, less than 2.6 million signed up in plans sold via an exchange run by a state or the District of Columbia. Of those people, 82 percent, or about 2.1 million people, qualified for subsidies.
The subsidies are available to people whose incomes are between 100 percent and 400 percent of the federal poverty level. For a family of four, that’s between about $24,000 and $95,400 annually.
In a report issued Thursday, the consultancy Avalere Health said that if those subsidies were removed this year from the 4.7 million people who received them in HealthCare.gov states, their premiums would have been an average of 76 percent higher in price than what they are paying now.
Another report by the Robert Wood Johnson Foundation and the Urban Institute estimated that by 2016, about 7.3 million enrollees who would have qualified for financial assistance will be lose access to about $36.1 billion in subsidies if those court challenges succeed.