In a brief Order issued on December 5, 2016, in U.S. House of Representatives v. Burwell, the U.S. Court of Appeals for the D.C. Circuit granted the motion filed by the U.S. House of Representatives (House) seeking to put the lawsuit challenging the Affordable Care Act’s (ACA’s) cost-sharing subsidies on hold until the Trump administration takes over. In granting the stay, the court also directed the parties to file motions to govern further proceedings for the case by February 21, 2017. The Order was issued by the three judge panel hearing the case, Judges Henderson, Tatel and Srinivasan. Judge Henderson was appointed by President George W. Bush, Judge Tatel by President Clinton and Judge Srinivasan by President Obama.
As we have discussed in prior posts, the House is asking the court to bar the issuance of 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. If the lower court decision agreeing with the House position is affirmed, one of the central features of the ACA making insurance and healthcare coverage affordable to millions of Americans would be removed.
In a motion filed after the November election, the House asked the court to put the case on hold 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.
What lies in store for the ACA is being closely watched. Few programs have been as controversial, have had such broad impact and great consequence. The new administration, Congress and the many stakeholders will be debating and seeking to influence future policy directions. The details of what is broadly described by terms such as repeal, repeal and replace, repeal and delay – will determine the future of healthcare for years to come.