Timothy Jost writes in Health Affairs:
”{T}he Circuit Court of Appeals for the District of Columbia acceded to the request of the House of Representatives and stayed further proceedings in House v. Burwell pending further motions by the parties, due by February 21, 2017. In this case, the House of Representatives claims that government payments to insurers to reimburse them for reducing cost sharing for silver plan marketplace enrollees with incomes not exceeding 250 percent of the poverty level are illegal because Congress has not appropriated the funds for those payments.
“The ACA requires insurers to reduce cost-sharing for these enrollees and the government to reimburse them. However, the House and the Obama administration have taken different positions as to whether money has in fact been appropriated for the reimbursement payments. The lower court sided with the House.”
Mr. Jost opines:
“The reasonable course for Congress at this time is to appropriate funds to cover the cost-sharing reduction payments for 2017 (and 2018 to avoid a collapse of the marketplaces at the end of 2017), and then to negotiate with the Trump administration the withdrawal of the appeal and the vacating of the district court’s order with the administration. Until Congress appropriates these funds, the Trump administration should delay the resolution of the appeal and leave the district court’s stay of its order in place. These actions will undoubtedly be difficult for some Republicans to accept, but the alternative should be far more distasteful.”
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