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What’s ahead?

Wednesday, Jul 23, 2014

* Illinois Issues

Dueling court rulings handed down today put the future of a key piece of Obamacare into question, but for now, nothing will change about the way the law is implemented in Illinois.

A three judge panel in Washington D.C. ruled this morning that under the Patient Protection and Affordable Care Act, federal subsidies to bring down the cost of insurance should only be available to residents of states that operate their own online insurance exchange. Under the decisions, Illinois and 35 other states would lose the subsidies. Illinois partnered with the feds on Getcoveredillinois.gov, but the website still relies on the federal exchange to sign patients up for coverage.

Just hours after the U.S. Court of Appeals for the D.C. Circuit weighed in, The Fourth Circuit Court of Appeals in Virginia issued a diverging opinion on a similar case. That panel of judges said that the wording of the law was unclear, but the majority agreed that the law allows for the subsidies to be dispersed through the federal exchange.

In Illinois, 217,000 people obtained insurance through the exchange. More than three quarters of those qualified for a subsidy. Health officials in Illinois say that those approximately 168,000 will not lose their subsides as an immediate result of the rulings. “We are monitoring today’s appeals court decisions in which two courts have rendered differing rulings. The bottom line for now is that nothing has changed, and the subsidies created under the law to help people cover the cost of their health care remain in effect. Get Covered Illinois is focused on preparing for the enrollment period for year two that will start this fall,” Jennifer Koehler, executive director of Get Covered Illinois, said in a written statement.

* Tribune

Nearly two-thirds of those who signed up for coverage on the federal marketplace were able to pay $100 or less per month on insurance premiums, according to U.S. Department of Health and Human Services data. The average monthly subsidy for those who qualified for tax credits was $264, government data shows.

In Illinois, the average enrollee received a $202 tax credit, lowering their monthly premium from an average price of $316 to an average of $114, according to government data. […]

Steve Brown, spokesman for House Speaker Michael Madigan, said there “is no consensus in terms of a plan going forward” for an Illinois-run exchange.

He and John Patterson, the communications director for Senate President John Cullerton, said the two offices will continue to monitor the court cases as litigation continues.

* AP

State Rep. Robyn Gabel, D-Evanston, said the rulings could inject new urgency into legislative efforts by her and others to create a state-based exchange for Illinois.

“There’s a more compelling reason to look at it,” she said, adding that she is considering calling for a vote on her proposal in the fall veto session, which begins Nov. 11.

Steve Brown, spokesman for House Speaker Michael Madigan, D-Chicago, said a lack of consensus on the matter in the Democratic-controlled Illinois General Assembly has prevented a state exchange from moving forward.

He said he doesn’t know whether Tuesday’s rulings will change any minds.

“It seems like there’s a ways to go in the court process,” Brown said. “Time will tell.”

That’s the power of the insurance lobby in Illinois, for you.

- Posted by Rich Miller        


25 Comments
  1. - Grandson of Man - Wednesday, Jul 23, 14 @ 2:18 pm:

    There is talk about an “en banc” hearing by the full appellate court, after the D.C. court’s ruling.

    Perhaps someone with legal knowledge can explain how that would work. From what little I gathered, cases can go “en banc” when they’re of great importance.

    Would the entire bench take this case en banc, and how can it be refused?


  2. - 47th Ward - Wednesday, Jul 23, 14 @ 2:33 pm:

    An en banc review will probably happen given the high profile nature of this case. In that event, it’s interesting that of the 11 judges on the DC Circuit Court, Obama has appointed 7. Not that politics would come into play (heh) but that tells me an en banc review will be granted and that the full panel of judges will vote to vacate yesterday’s ruling.

    But it’ll end up in the Supreme Court at some point. The case comes down to some poor phrasing in the law about subsidies for state-created exchanges. Does that mean the federal exchanges can’t be subsidized? That’s what two judges said in yesterday’s ruling. Separately in Virginia, 3 judges unanimously ruled that the law clearly did not prohibit subsidies for those using the federal exchanges.

    It’s going to come down to how anal the US Supreme Court wants to be in terms of parsing the actual language against the clear meacontext of the larger law.


  3. - walker - Wednesday, Jul 23, 14 @ 2:40 pm:

    Just keep in mind, this money flows directly to private insurance companies, who greatly want to keep this subsidized, expanded customer base. They have been making record profits from this law, and supported much of it. In that strange sense, Obamacare is partly corporate welfare.

    That’s what happens when you build a government-mandated system using private companies operating in markets. It is the opposite of “socialism;” it is “state-supported capitalism,” and has become common in modern economies around the world. Many private citizens, small and large employers, and health insurance companies will lose if this money flow stops.

    The insurance lobby will have a clearer choice before them, driven by profitability trade-offs, if the decision stands that they must have a state exchange to get their subsidies. We might expect a different reaction from them.


  4. - VanillaMan - Wednesday, Jul 23, 14 @ 2:44 pm:

    This will not impact us - yet.

    The courts will uphold Obamacare - as written.
    That will end it unless the changes necessary to keep it alive can pass a GOP Congress.

    With almost 60% disapproval rate, this law is literally being cursed at by many Americans.

    But not in Illinois.
    I think we will keep smiling until the checks stop coming.


  5. - Bigtwich - Wednesday, Jul 23, 14 @ 2:45 pm:

    Rule 35. En Banc Determination

    http://www.law.cornell.edu/rules/frap/rule_35

    While such hearing are not favored, you have to convince members of the full court to grant the petition. Rules for who hears such an case vary by circuit.


  6. - Rob Roy - Wednesday, Jul 23, 14 @ 2:52 pm:

    Not really Walker, it’s socialism that hasn’t been fully realized yet and at this point it is crony capitalism.


  7. - Under Further Review - Wednesday, Jul 23, 14 @ 2:52 pm:

    Without arguing the merits of the law, this is what happens when you pass a bill without reading the bill (to paraphrase former Speaker Nancy Pelosi).

    Reminds me a bit of the late State Representative John J. McNamara who displeased some Democrats by insisting upon reading proposed legislation rather than relying upon summaries prepared by the House leaders. He sometimes pointed out that the actual bills often did not match the summaries and contained additional material that was not described to the rubber stamp legislators.


  8. - 47th Ward - Wednesday, Jul 23, 14 @ 2:54 pm:

    ===With almost 60% disapproval rate,===

    “Not all of the opposition to the health care law comes from the right,” said CNN Polling Director Keating Holland. “Thirty-eight percent say they oppose the law because it’s too liberal, but 17% say they oppose it because it’s not liberal enough. That means more than half the public either favors Obamacare, or opposes it because it doesn’t go far enough.”

    http://dish.andrewsullivan.com/2014/07/23/americans-back-the-aca-or-more-by-57-42-percent/


  9. - Empty Chair - Wednesday, Jul 23, 14 @ 3:01 pm:

    Keep in mind that even if SCOTUS agreed with the DC Circuit’s logic, it would consider IL a “state based exchange.” Illinois Issues is incorrect in their analysis. IL signed a contract with HHS for them to run their technology, but still technically “operates” the exchange.


  10. - Judgment Day (on the road) - Wednesday, Jul 23, 14 @ 3:06 pm:

    “State Rep. Robyn Gabel, D-Evanston, said the rulings could inject new urgency into legislative efforts by her and others to create a state-based exchange for Illinois.”
    ————————-

    Oh, please NO! An Illinois version of healthcare.gov Ok, this from a state legislature that hates Uber, wants to ban Google Glass, wants to tax Internet sales, and generally come across as complete technophobes - and now they want to jump into this mess? Probably went out and bought a “Websites For Dummies” book…….

    OTOH, our bearded fearless leader will likely be able to have daily topics/posts from now until the end of eternity on the Illinois version of a healthcare portal.

    And we could recycle both Sheila Simon (with Banjo) and JBT (with accordion) to use in promoting use of the new healthcare portal statewide.

    Yeah, this could work. Or not.


  11. - Grandson of Man - Wednesday, Jul 23, 14 @ 3:25 pm:

    First off, thanks for the en banc info and link.

    “That means more than half the public either favors Obamacare, or opposes it because it doesn’t go far enough.”

    The polls I’ve seen consistenly show that the combined percentage of those who either want to keep the law as is or keep and fix it is greater than the percentage of people who want to repeal it.

    “it’s socialism that hasn’t been fully realized yet”

    LOL! Please tell us how partially-subsidized health insurance will lead to complete state ownership of the private sector.


  12. - Jimbo - Wednesday, Jul 23, 14 @ 3:31 pm:

    VMan, you’ve lost touch with reality. There is such a thing as legislative intent, and the Congressional record makes clear that subsidies were universal and necessary because of the mandate. These two republican judges did backflips trying to legitimize the argument that only state exchanges were intended to get the subsidy because that would motivate them to set up their own exchange. Also, the circuits that are reviewing this are comprised of a majority of democratically appointed judges. Those judges aren’t looking for ways to nullify Obamacare, so those en banc decisions are going to uphold the law. Your dreams of ending Obamacare are just that. If this were to get to the Supreme Court, you should remember they had a perfectly legitimate suit in front of them to get rid of Obamacare, and they didn’t. Why would it be different this time when the case is so much weaker?


  13. - Judgment Day (on the road) - Wednesday, Jul 23, 14 @ 3:39 pm:

    “The polls I’ve seen consistently show that the combined percentage of those who either want to keep the law as is or keep and fix it is greater than the percentage of people who want to repeal it.”
    ———————–

    They aren’t going to have any choice but to fix Obamacare. The whole back end (database, data validation, and DB interfaces) of the processing is in shambles.

    The result is that the insurance companies are getting garbage that has to be manually validated, corrected in the Obamacare databases, and then re-transferred to the insurance companies. This is very tough work.

    They’ve got to start to turn this thing around - soon. Else it will make the entire VA mess look like nothing in comparison.


  14. - Under Further Review - Wednesday, Jul 23, 14 @ 4:23 pm:

    What is the big deal? The Affordable Care Act (Obamacare) was designed to fail. Are people complaining that its defects are becoming obvious too quickly and Americans might be able to reverse course if that happens too soon? The plan was to create a system that would collapse and force the country in a single payer system that would have been too unpopular to enact straight up.


  15. - Downstate Illinois - Wednesday, Jul 23, 14 @ 4:36 pm:

    Grandson, Libs in Springfield and Chicago want socialized medicine. They’ve been clamoring for it for ages. Dig out the old single-payer bills that would criminalize the sale of private insurance. If you think your doctor hates Medicaid now, just think that the whole healthcare system would be like if every patient was on it.

    Jimbo, don’t expect the Supremes to support it this time. They only look at a very narrow aspect of the law that’s being challenged. They didn’t look at this part last time. Obama is trying to rewrite the law on his own to allow subsidies for people living in states with federal exchanges. The language in the actual law is clear that the subsidies are only eligible for people in states with state exchanges. It was written that way to create incentives for states to run their own exchanges. The D.C. Circuit opinion is just common sense. You should interpret the law as it is written, not as you wish it to be.


  16. - PrairieFire - Wednesday, Jul 23, 14 @ 4:55 pm:

    @DownstateIllinois - your argument is specious at best. Most doctors, dentists and associated healthcare professionals complain about medicare, and, guess what? They complain even more about the multitude of insurance companies out there nickel-and-diming them and the staggering amount of paperwork and hoops they have to fill out in order to get paid.

    @Under Further Review - stop with the kool-aid arguments taken from old websites. The Affordable Care Act is about as capitalistic a plan as was ever created. It’s saying everybody buy private insurance or else, and medical insurance companies are going to make record amounts of money from it. With millions of additional patients going to see healthcare providers, medical professionals of every kind are going to see demand for their services go up. What will happen then? It’ll be like the old Celozzi-Ettleson (sp?) commercials, they’ll make more money.


  17. - Jimbo - Wednesday, Jul 23, 14 @ 4:57 pm:

    Downstate, if you think the law never intended subsidies to be universal, I have to question your judgment. Legislative intent matters, and here the intent is clear. The reason being that the law will fail if it were not so. By your own reasoning the law will fail if the federal exchanges can’t have subsidies, so why oh wise one, would the law be written that way? Oh, not to mention there is quite a bit of talk in the Congressional Record indicating the purpose of the subsidies and the idea that they are universal. But hey, since repealing it 50 times in the house doesn’t work, why not try this? Be prepared to be disappointed though.


  18. - Judgment Day (on the road) - Wednesday, Jul 23, 14 @ 5:03 pm:

    Single payer isn’t an option - not currently. First off, it’s simply not affordable. No way, no how.

    Secondly, how are you ever going to administer the back office functions? Realize, in the current Medicare system, it’s all age controlled. Basic structural design is around age of patients - in terms of qualifying.

    You don’t just flip a few lines of code to open up eligibility to all ages and voila, you’re good to go. A lot of the base code was written a long time ago (talking up to 40+ years ago), and those folks who did the original work, and their successors are long gone. Try finding legions of software developers trained on legacy big iron code. Have fun.


  19. - Under Further Review - Wednesday, Jul 23, 14 @ 5:05 pm:

    @PrairieFire:

    Kool-Aid is a legal product, but I wonder what you are smoking?

    So we should all disregard what Schakowsky and Cremer have been saying about ACA being “a Trojan Horse” for single payer? What about the number of doctors who are retiring rather than work under ACA?


  20. - Rich Miller - Wednesday, Jul 23, 14 @ 5:10 pm:

    ===So we should all disregard what Schakowsky and Cremer have been saying about===

    Most things.

    lol


  21. - Under Further Review - Wednesday, Jul 23, 14 @ 5:32 pm:

    Right you are Rich. I cringe every time Jan approaches a microphone.


  22. - Anon. - Wednesday, Jul 23, 14 @ 7:35 pm:

    ==Downstate, if you think the law never intended subsidies to be universal, I have to question your judgment. Legislative intent matters, and here the intent is clear.==

    Jimbo, how about a quote from the record somewhere that supports this? None of the judges in any of the opinions could find it. And the statute itself is so clear that no one could mistake it. The credit is allowed for people “enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act.” The federal government is not a “State” and federal exchanges are established under Section 1321. The people who read this statute to allow the credit for federally-established exchanges are the ones doing backflips.


  23. - VanillaMan - Wednesday, Jul 23, 14 @ 9:56 pm:

    We discovered that it was deliberately written as it was written. Not only is there not a shred of evidence that the Federal exchanges were not to distribute subsidies, US territories, in another section of the law, are written the same way.

    So we are not discovering an error or flaw. The Law failed to consider that many states would not create a state exchange. The Democrats assumed that Obamacare would be popular and didn’t imagine it being rejected as it has.

    The courts don’t need to rewrite legislation when Congress can do it. In any other situation like this, Congress would fix it with a single sentence amendment bill. But in this case, Obamacare is extraordinarily badly written and doesn’t have the voter or congressional support to be fixed.

    The courts will rule that Congress wrote the law intentionally, passed it intentionally, and can just as easily fix the Law as needed.


  24. - Jonathan - Thursday, Jul 24, 14 @ 1:48 am:

    No, Empty Chair, Illinois does not have a state-based exchange. It has a “partnership” exchange that is federally-established and operated. Illinois provides some assistance to the federal government, but, under the law, it remains a federally-established exchange created under Sec. 1321. (All regulations and guidance published on “partnership” exchanges note this fact.)


  25. - Robert the Bruce - Thursday, Jul 24, 14 @ 9:28 am:

    I wonder if we’re the only state with Dem governor and Dem-controlled legislature that didn’t set up a state-based exchange.


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