Friday, October 13, 2017

Very Brief Blog: Health Affairs' Rapid Coverage of Executive Branch Obamacare Changes

Numerous news outlets cover the Executive Branch's changes in Obamacare policy in real time.  However, it can be difficult to find the original sources, such as the actual text of the Executive Orders.  ( recently gave an example in this blog that links to the executive orders, past executive orders, rulemaking, regulation, etc, on the Contraceptive Religious Exemption issue, here.)

For several years, Timothy Jost, emeritus professor at Washington & Lee Law School, has provided rapidly updates on federal health policy at the Health Affairs blog (here).   Lately, his lengthy analyses have been appearing in record time, often less than 24 hours.  He provides links to original documents that are often missing in journalists' articles.
  • Jost's October 12 analysis of the executive order asking for creation of lighter less expensive health plans is here.   (Linking to the actual executive order, here.)
  • Jost's October 13 analysis of the Executive Branch decision to immediately end cost-supporting payments for low income persons in Exchanges is here.
    • The issue has been progressing through federal court ligitation with differing opinions as to whether the cost-supporting payments are properly authorized and appropriated under current law.
    • Jost also links to the current Attorney General opinion that payments should stop, here (J. Sessions, 5p).
    • May 2016 38-page ruling that payments were unauthorized, here (Judge Collyer, DC, 38p).
    • Article on the Collyer ruling, here.
    • The price supports for low income persons apparently tally only $7B a year, a tiny part of our $3T healthcare system or the circa $3T federal budget.
  • Jost's October 14 summary analysis and outlook is here.

Footnote - 

Often lost in the excitement about Executive Orders is that they can differ greatly in their actual content and effect.   For example, if there was an Executive Order to immediately close the border with Mexico to all traffic, due to emergency conditions, that would have a huge immediate effect.  Other policy measures are couched as Executive Orders (with pomp and circumstance) but need not be in that format.  The E.O. regarding lighter health plans, for example, directs the HHS to "consider proposing regulations, or revising guidance" on the topic.  This could be conveyed equally effectively by a press conference remark, internal instructions, an action item delegated at a Cabinet meeting, a paragraph in a speech, or even a tweet.  It gets higher visibility by being couched in the format of an executive order.

Footnote -

As discussed in the citations to Sessions and Collyer above, the ACA issue is that the ACA created tax credits for individuals (S. 1401) and funding for low income persons directly paid to insurers (S. 1402; also called CSR's, cost-sharing reduction), but the ACA provided a clear appropriation of funds only for S. 1401. 

Til now, payments have nonetheless been issued as due under both S. 1401 and S.1402.  In layman's terms, the issue involves what to do when there is an apparent error in law.  On the one hand, we want laws to be enforced as written; on the other hand, we don't want national processes to grind to a halt every time there is a typo.  (Sessions directly discusses the Supreme Court decision in King in this regard; link above).  Alternatively, the law could be correct as written; S.1402 could be quite deliberately dependent on annual appropriations from the House -- appropriations which the House isn't making.  (Another topic in the court action is whether the House had standing to sue the executive branch in this way.)

With a Republican House not wanting to make the fiscal appropriation and a Republican President not wanting to make the payment, and a Federal Court injunction that the payments shouldn't be made, the outcome this week was pretty foreseeable.