jay angoff: "king v. burwell: obamacare on the brink?" 6.16.15
TRANSCRIPT
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King v. Burwell
Jay Angoff
Partner, Mehri & Skalet, PLLCFormer Director, HHS Office of Consumer Information and Insurance
Oversight
June 16, 2015
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Who really wants the King plaintiffs to win?
The Administration? Congressional Democrats? Pro-ACA governors in states using the federal Exchange? People receiving ACA subsidies?
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Who really wants the King plaintiffs to win?
Congressional Republicans? Anti-ACA governors in states using the federal Exchange? The insurance industry? The hospital industry? Business in general?
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Previous HHS/Administration actions
Postponing and phasing in employer mandate Allowing renewal of non-ACA-compliant plans after 2014 Allowing multiple deductibles Keeping 2014 and 2015 rate filings non-public Exempting "mini-med" policies from MLR rule Authorizing "partnership" Exchanges
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Actions HHS can take if King plaintiffs win
Deem "partnership" and "SSBE" Exchanges to be state Exchanges? Make it as logistically easy as possible for other states using federal Exchange to credibly characterize it as a state Exchange?
By regulation or guidance, define an "Exchange shall be a governmental or non-profit entity established by the state" in the broadest possible way? Use carrots and sticks to encourage states and interest groups to cooperate?
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Problems HHS can't solve
Absolute refusal to cooperate by state (3 types of states)
2010 precedent--Enforcement, and Exchange grants
No more state Exchange grant money Poor track record of states even with unlimited Exchange money Any aggressive HHS action likely to be challenged
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Considerations if King plaintiffs win
What carrots and sticks can HHS use to encourage states and interest groups to cooperate? What incentives do HHS, states, and interest groups have to make ACA work? What incentives do HHS, states and interest groups have to have ACA not work?
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