Two Affordable Care Act cost-sharing reduction subsidy users are trying to get an official role in a lawsuit challenging the Obama administration’s operation of the subsidy program.
Lawyers for Gustavo Parker and La Trina Patton, two people who use the subsidy together with ACA exchange plan health coverage, are asking the U.S. Court of Appeals for the District of Columbia Circuit for permission to intervene in House v. Burwell et al. (Case Number 16-5202).
Republican House leaders say Sylvia Burwell, the Health and Human Services secretary, and Jacob Lew, the Treasury secretary, have been using federal money to pay for the cost-sharing reduction subsidy program without a valid authorization from Congress.
If Parker and Patton cannot intervene in the ordinary way, they would like access to “permissive intervention,” or a chance to “defend the main action itself, on the same basis that the Executive Branch has done up to this point,” according to their motion.
Subsidy users need to act quickly, because it’s not clear whether Trump administration officials will defend subsidy program funding, and a court decision suddenly eliminating funding could leave them without access to affordable health coverage in the middle of the year, according to the motion.
The ACA exchange system is supposed to give people a way to shop for health coverage on an apples-to-apples basis, and to use ACA subsidies.
The ACA premium tax credit subsidy helps many consumers pay exchange plan premiums.
The cost-sharing reduction program cuts the expenses related to deductibles, coinsurance requirements and co-payment requirements for lower-income premium subsidy users.
The Obama administrations say a permanent funding appropriation in the ACA covers both the ACA premium tax credit subsidy program and the cost-sharing reduction subsidy program, because the programs are part of the same subsidy program.
Republican House leaders say the cost-sharing reduction program is a separate program and needs its own funding appropriation.
U.S. District Judge Rosemary Collyer ruled in favor of the Republican House leaders in May.
House Republicans recently persuaded the D.C. Circuit appeals court to halt action on the case until at least Feb. 21, to give the incoming Trump administration time to decide how it wants to handle the case.
Andrew J. Pincus and Brian D. Netter, partners in the Washington office of Mayer Brown LLP, are representing the subsidy users.
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