Attorneys for the United States House of Representatives (House), in U.S. House of Representatives v. Burwell, the case challenging certain cost-sharing subsidies in the Affordable Care Act (ACA), filed a motion asking the D.C. Circuit Court of Appeals to put a hold on the briefing in the case until after the Trump administration takes office.

As reported in our prior posts, the House filed suit asking the court to bar the federal government from issuing cost-sharing subsidies to eligible ACA policyholders unless and until Congress appropriates the funds. The ACA cost-sharing reduction program reduces co-pays, co-insurance and deductibles for individuals with incomes of up to 250% of the federal poverty line who enroll in “Silver” plans through the healthcare exchanges.

The Obama administration has argued that the House does not have legal standing to bring its suit. The administration also argued that the ACA supports payment of the cost-sharing subsidies. After the district ruled that the House had standing to bring the suit and also agreed with the House on the merits of its claim, the Obama administration appealed the rulings on both issues to the Court of Appeals for the D.C. Circuit.

On October 24, 2016, the Obama administration filed its opening brief asking the court to overturn the lower court’s decision. The House’s answer brief is due on December 23rd and the administration’s reply brief, which would complete the briefing of the case, is due on January 19th, the last day full day of the Obama administration.

In its motion filed on November 21st, the House has asked the court to pend the case until February 21st, to give the incoming Trump administration the opportunity to decide whether to amend, repeal or replace the ACA. According to the motion, representatives of the House and the Trump transition team are in discussions regarding options that could resolve the matter. The House motion notes that the Obama administration opposes the request for a hold.

The House argues that the court has the authority to manage its docket and stay the proceedings if it chooses to do so. It provides examples of other cases where courts have held proceedings in abeyance when there has been a change in administrations.

The House also says that putting the matter on hold makes sense because there is a high degree of likelihood of a meaningful change in policy in the new administration that could either obviate the need for resolution of the appeal or affect the nature and scope of the issues presented for review. According to the House, “in light of the President-Elect’s stated position, and the potential for resolution of this matter, the requested abeyance will serve to prevent the unnecessary and inefficient expenditure of valuable public resources in all three branches of the federal government that could otherwise result from unnecessary and premature briefing and judicial consideration of this appeal.”

Citing other pressing duties and a limited staff, the House asks that if the court does not hold the matter in abeyance, that it allow the House a 45-day extension of time to file its answer brief. Such an extension would, of course, accomplish the same end sought by the request for abeyance, that is, the opportunity for the next administration and the House to reconsider their positions with regard to the litigation.

The Obama administration’s response to the House motion is due on December 5, 2016. It will be interesting to see how the administration responds. Short-term extensions of time are typically uncontroversial, but in this case, with the possibility of the case being poised for a Court of Appeals decision while the Obama administration is still in office, the stakes of holding the case in abeyance or granting an extension of time are magnified.

Also, while there may be agreement between the incoming administration and the House on the advisability of the subsidies, other issues may come into play in determining the position of the new administration regarding the standing issue addressed in the case. Representatives of the new administration may have a different view than the House regarding the relative powers of the different branches of government.

Furthermore, if the court agreed with the House position, sudden elimination of the subsidies could create chaos in the insurance system, which the new administration and the Republican majority Congress may wish to avoid. On the other hand, a court decision upholding the subsidies would put the House and administration in the difficult political position of either accepting the subsidies, thus alienating ACA opponents, or removing them, and alienating those who rely on the subsidies to afford their healthcare coverage.

The preference of the House and the new administration appears to be to seek a settlement or resolution that avoids having the court resolve these questions and allows the new administration’s plans regarding the ACA to be developed and rollled out in a more controlled fashion.

We will continue to watch developments in this important case.

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Photo of David Kaufman David Kaufman

David Kaufman is a Partner at Freeborn & Peters LLP, and he serves as a key member of the Firm’s Healthcare Practice Group.

David has practiced health law for more than 25 years, representing a range of entities responsible for ensuring cost effective and equitable access to healthcare, including health insurers, physicians groups, and regulators.

David has significant experience in federal and state-level regulatory and administrative law gained through private practice as well as in the public sector, serving as General Counsel to the New Mexico State Corporation Commission, Counsel to the New Mexico Superintendent of Insurance, and an Assistant Attorney General for the State of New Mexico.

Admitted to the state bars of New Mexico, New York, California, and Illinois, David’s prior experience in private practice includes work with national law firms in Chicago and Los Angeles, working on transactional healthcare matters and labor and employment issues, as well as Medicare and Medicaid reimbursement.

Before joining Freeborn, David served most recently as General Counsel for Blue Cross and Blue Shield of Illinois, where he was responsible for advising the company on regulatory and business issues in general and on the implementation of the Affordable Care Act.

Photo of Deborah Dorman-Rodriguez Deborah Dorman-Rodriguez

Deborah Dorman-Rodriguez is a Partner at Freeborn & Peters LLP, and is the leader of the Healthcare Practice Group.

Deborah has diverse experience as a healthcare attorney representing insurers, providers, and other healthcare entities. Most recently she served as the Senior Vice President, Chief Legal Officer, and Corporate Secretary at Chicago-based Health Care Service Corporation (HCSC), which operates BlueCross and BlueShield plans in Illinois, Montana, New Mexico, Oklahoma and Texas.

At HCSC Deborah was responsible for providing legal advice and consultation on such issues as federal and state regulatory implementations, litigation, mergers and acquisitions, corporate governance and compliance.  She oversaw HCSC’s legal strategy during a period of unprecedented turbulence in the healthcare industry and helped the company navigate the regulatory and business upheaval associated with the passage of the Affordable Care Act (ACA).

With her experience in serving as CLO of a large organization and in representing healthcare clients over the past 20 years, Deborah understands that no legal decision exists in a vacuum, and that it is vitally important to offer legal advice that is business focused, efficient, practical, and solution-oriented.

Before serving as HCSC’s Chief Legal Officer, Deborah was Vice President and General Counsel of Blue Cross and Blue Shield of New Mexico, an attorney with the law firm of Simons, Cuddy & Friedman in  Santa Fe, New Mexico, where she represented health insurers, physician groups, and other healthcare organizations, Special Counsel to the New Mexico Superintendent of Insurance, and a former New Mexico Assistant Attorney General specializing in health insurance and telecommunications regulatory issues.