In yesterday’s post, I canvassed the latest decisions from the Court of Federal Claims in the fight over whether insurers can recover cost-sharing payments. Three different judges have now concluded—rightly, in my view—that the United States has breached its payment obligation and must pay damages. The harder question is how to calculate those damages. Should […]
The litigation to recover cost-sharing money has heated up in the Court of Federal Claims, with potentially enormous consequences for the public fisc. Three federal judges have now concluded that the United States is liable to insurers for missed cost-sharing payments. If their decisions stand, insurers could recover roughly $12 billion a year, every year, […]
Yesterday evening, a California federal judge enjoined the Trump administration from enforcing two rules that would greatly expand the exemptions to the Affordable Care Act’s contraception mandate. The injunction applies only in the plaintiff states, which include California, New York, Virginia, and ten others, as well as Washington, D.C. I’ve written extensively about these rules, […]
My colleague Richard Primus and I have an article at The Atlantic offering an idea to the incoming House of Representatives about how to deal with the decision out of Texas invalidating the Affordable Care Act. If congressional intent is the key to O’Connor’s decision, Congress can intervene. And the best way for it to do so is […]
I’ve got a piece at The Atlantic this morning arguing that Judge O’Connor was wrong—and obviously so—to hear the Texas lawsuit at all. The states don’t have standing to challenge a mandate that doesn’t apply to them. And the two Texas consultants they recruited as plaintiffs don’t have standing either. Here’s the key argument: Nantz […]
And I’ve got an op-ed in the Washington Post about why the decision is wrong. Here’s a taste: Who cares if a zero-dollar mandate is constitutional or not? Why does it matter in the slightest? And what on earth does it have to do with the rest of ACA? You might have thought that the […]
With the midterms out of the way, HHS has released two final rules affording employers wide leeway to opt out of the so-called contraception mandate. The first exempts employers with religious beliefs from the obligation to include contraception in the health insurance package they offer to their employees. The second does the same for employers […]
That’s the headline to an article of mine, co-authored with Sam Bray of Notre Dame Law School and published today in The Atlantic. We highlight the disquieting possibility that a single district court in Texas might soon enter an injunction prohibiting the enforcement of all or part of the Affordable Care Act across the entire […]
That’s the title of a new perspective piece from Rachel Sachs and me in the New England Journal of Medicine. The Trump administration has refused to allow Massachusetts to experiment with a closed formulary, which would give the state some leverage in price negotiations over low-value drugs. But, as we explain, CMS has offered no written explanation whatsoever for its refusal. […]
Last week’s hearing in Texas v. United States convinced a lot of observers, me included, that a district court judge in Texas is poised to declare that all or part of the Affordable Care Act is unconstitutional. When and if he does so, the judge might also enter an injunction ordering the administration to stop enforcing the Act […]
So runs the headline of an op-ed that I co-authored with Abbe Gluck of Yale Law School in the New York Times. Here’s an excerpt: Never in modern American history has a president so transparently aimed to destroy a piece of major legislation. What makes Mr. Trump’s sabotage especially undemocratic is that Congress has repeatedly […]
It took a crisis to spur the Trump administration to action, but it did finally act. Yesterday evening, HHS released a rule addressing a New Mexico judge’s concerns with the risk adjustment program. If all goes well—more on that in a moment—the new rule should put an end to risk adjustment fiasco. To bring you […]
On Friday evening, the Wall Street Journal reported that the Trump administration would be suspending risk adjustment payments due for 2017 and 2018. The next day, CMS scurried to clarify that the suspension was a necessary response to an adverse court judgment out of New Mexico. “As a result of this litigation,” Administrator Seema Verma […]
A few weeks back, I raised a question about Texas’s latest challenge to the Affordable Care Act: do the plaintiffs even have standing to sue? Now that the Justice Department has thrown in the towel and declined to the defend the statute, that question has become a lot more urgent. To demonstrate standing, Texas and […]
In a lengthy blog post about the Texas lawsuit that’s trying to bring down the ACA, Josh Blackman takes aim at an amicus brief filed by a bipartisan group of law professors (including me). The brief argues that the Affordable Care Act should stand, even if the penalty-free individual mandate is held unconstitutional. Blackman isn’t […]