Monthly Archives: October 2017

Newsom, Villaraigosa separate over universal health care

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http://www.sacbee.com/news/politics-government/capitol-alert/article180299536.html

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The two leading Democrats for California governor on Sunday split over how to achieve universal health care, with Lt. Gov. Gavin Newsom defending his support for a government-run, single-payer system and former Los Angeles Mayor Antonio Villaraigosa dismissing as “pie in the sky” plans that don’t include viable financing methods.

At a union-sponsored health care forum, Villaraigosa credited the Assembly speaker for sidetracking a universal health bill, Senate Bill 562, in Sacramento, because it didn’t include a funding mechanism. He supports the concept, but argued the state’s immediate focus should be on protecting the 5 million people who could lose their coverage if Republicans and President Donald Trump succeed in repealing Obamacare.

“As governor, you gotta make the tough choices, you can’t just say ‘I want pie in the sky,’ because that doesn’t put food on people’s tables,” he said, advocating for a public option that allows people to buy into the existing Medi-Cal program.

“What I’ll never do is sell you snake oil,” added Villaraigosa. “The fact of the matter is we don’t have a plan yet.”

Newsom, a proponent of advancing the bill, cast the issue as one of leadership and commitment. He contended there is considerable “mythology” about the $400 billion annual price tag of enacting the system because the state currently spends about $368 billion a year on health care in California, nearly two-thirds of it borne by taxpayers.

“A single-payer system drives down the cost of health care; drives down the cost of prescription drugs through economies of scale; and provides more effective, efficient and universal access for those that are uninsured,” Newsom said, pointing to double-digit increases in Obamacare here. He said the financing will be worked out as the legislative process moves forward.

“It’s a question of leadership,” he added. “This is what they said about Social Security and Medicare: ‘You can’t do it …’ I’m not going to wait around for the debate to unfold in Washington, D.C. Sure, I support Medicare for all, but you got to shape the debate in California.”

The exchange between Newsom and Villaraigosa came at the forum hosted by the National Union of Healthcare Workers, which also included Democrats Delaine Eastin, a former state school’s chief, and Treasurer John Chiang.

Chiang largely sidestepped the debate over universal care, offering that the state should take an incremental approach to health care. He wants to see more “effectiveness and efficiency” in the current system.

“We have to figure out how to scale-up, the time frame we’re going to scale-up,” he said, adding, “We don’t have to go all in to provide all the services all at once. Let’s make sure that what we are implementing we can scale-up appropriately.”

Eastin, like Newsom, believes single-payer would cost “slightly more” now but far less in the long run.

“The fact of the matter is people are dying in California because we do not have affordable health care coverage for everybody,” she said, calling the solution “realistic,” and saying it could be paid for with a gross receipts tax and a partial income tax increase.

She added: “There’s nothing California can’t do if we put our minds to it.”

The single-payer measure, driven largely by the California Nurses Association, has divided Democrats and is emerging as a litmus test for 2018. Newsom, endorsed by the nurses’ union, has never trailed in public polls and fundraising, while Villaraigosa has been the second-place Democrat.

The Republicans in the race, John Cox and Travis Allen, did not attend the forum, though the host National Union of Healthcare Workers, representing 14,000 workers in California, said they were invited. After Sunday’s forum, the union voted to endorse Newsom. Eastin was runner-up.

A New Plan To Rescue The ACA: Medicare-At-55

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http://healthaffairs.org/blog/2017/10/16/a-new-plan-to-rescue-the-aca-medicare-at-55/

On October 12, 2017, the Trump Administration announced that it would end subsidies that reduce out-of-pocket payments for low-income individuals. This action might drive insurers out of the exchanges and might encourage younger people to drop their individual insurance plans — thereby destabilizing the individual insurance market.

Extending Medicare to the 55-64 age group—who have relatively high health care costs—is a potential fix that could insure the near-elderly and provide stability to the marketplaces. It would remove expensive individuals and families from coverage by private insurance companies, who could in turn reduce premiums for individuals and families below the age of 55.

Under this proposal, Medicare-at-55 would be universal for people in the 55-64 age group and they would leave their current private insurance. It would require an increase in the Medicare payroll tax contribution which has not increased proportionately to increases in Medicare spending; other countries sustain their health insurance programs by gradually increasing their payroll tax contributions. To make this plan fiscally sustainable, the United States would need to do the same.

The Problem With Making Medicare-At-55 Optional

Medicare-at-55 is quite different from proposals suggested by Democrats in 2009 and 2017, which allowed people aged 55-64 to voluntarily buy into Medicare as an alternative to private insurance. The problem with the idea of Medicare buy-in is that relatively few of the near-elderly would choose it. Medicare premiums for this age group—about $8,200 per year for an individual—would be significantly higher than what they currently pay with employer-sponsored insurance and with individual insurance subsidized under the Affordable Care Act (ACA).

In addition, under an optional buy-in there would be confusion among potential enrollees on whether to use the buy-in and person-by-person enrollment would be administratively complex. Moreover, the buy-in would raise vexing legislative questions around premium levels, Medigap and Medicare Advantage policies, and whether people could buy-in to Parts A, B, and D separately.

Automatic Enrollment, Just Ten Years Earlier

 The better approach would be to implement a Medicare-at-55 concept in which everyone would be automatically enrolled in Medicare — just like the current system does for those 65 and above. Upon reaching the age of 55, eligible individuals (almost everyone in the 55-64 age group) would simply receive their red-white-and-blue Medicare card. Private insurers and employers would no longer be responsible for this age group, which would allow private insurers to reduce premiums on younger families because they would have a younger, and typically healthier, pool of people to cover. In 2015, per capita health care costs for people between 55 and 64 years of age were $9,707 compared with $6,637 for the 45-54 age group, $4,442 for the 26-44 cohort, and $2,915 for those between 19 and 25.

Once on Medicare at the age of 55, people could choose to get a Medicare supplement through their previous insurer or join a Medicare Advantage plan. While the 55-64 age group has higher health care costs than younger people, they have lower costs than current Medicare beneficiaries, which in 2015 incurred per capita spending of $11,904.

Keep in mind that this is not small group to be adding to Medicare’s risk pool. In 2015, there were 41.1 million people in the 55-64 age group. 24 million have access to employer-sponsored insurance, 3 million have subsidized individual insurance under the ACA, 2 million purchase unsubsidized individual insurance, and 3.4 million are uninsured. This leaves an estimated 8 to 9 million already on Medicare and/or Medicaid.

How Would We Pay For Medicare-At-55?

First, it is noteworthy that from 2010 to 2016, per capita Medicare spending growth was 1.3% compared with 3.5% for private insurance. Second, it would be impossible for most people in the 55-64 age group to pay for their Medicare plan and—given the high per capita costs of this age group—it would be very expensive for the federal government to subsidize their plan. The costs of Medicare-at-55 would have to be borne by the younger population, who would benefit greatly as they reached 55.

The best revenue source for Medicare-at-55 is the current Medicare financing model: payroll tax for Medicare Part A, individual premiums and general federal revenues for Medicare Part B, and Part D through general federal revenues and out-of-pocket costs. The same model could be extended to the 55-64 age group, with an increase in the payroll tax, for example, from 2.9% (half from employers and half from employees) to 3.9% and an increase in the higher-income payroll tax from 2.35% to 3.35%. The precise increases would have to be calculated by federal actuaries and these increases could also be used to extend Medicare’s life from the current date of 2029.

To add to these Medicare revenues, which are distributed throughout the entire population, the new 55-64 beneficiaries would still pay their Part B premiums ($134 per month for incomes of $85,000 or less, more for higher incomes) and Part D (prescription drugs) premiums. Their out-of-pocket costs would depend on whether they have a Medicare supplement or Medicare Advantage plan. The 55-64 population would be subject to the same Medicare rules as the over 65 Medicare population.

To pay for the 55-64 age group to be folded into Medicare, not only the payroll tax, but the portion of Medicare financing provided by general federal revenues, needs to increase. Employers that insure their employees would be required to contribute through Medicare-earmarked payments. Otherwise these employers would receive a windfall since they would no longer be responsible for the health care costs of their 55-64 year-old employees.

Medicare-at-55 is a reasonable proposal to stabilize the ACA while providing reliable health insurance for the 55-64 age group. As the most expensive group insured through the ACA marketplaces moves to Medicare, insurers could reduce premiums for the remaining younger and healthier age groups. The transfer of the 55-64 cohort from employer-sponsored insurance to Medicare would allow insurers to also moderate their premiums in the employer market.

Many questions have yet to be answered in developing the concept of Medicare-at-55, but the idea deserves to be added to the mix of proposals designed to extend our nation’s insurance coverage and repair the ACA marketplaces.

 

Traveling The Valley Of The Shadow Of Death In 2017

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http://healthaffairs.org/blog/2017/10/18/traveling-the-valley-of-the-shadow-of-death-in-2017/

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My mother has a letter from her mother written in 1942, telling of the death from pneumonia of a middle-aged neighbor with whom my grandmother had spoken at the post office just a week earlier. For most of human history, that sudden turn to death has been the common experience. Few managed to live into old age; and even for elders, the dying was usually fairly abrupt. There was little risk of living long with dementia, Parkinson’s disease, heart failure, cirrhosis, serious injuries, childbirth complications, or other fatal illnesses. Diabetes was fatal within a few months in 1900. Now, most of us will instead experience a long period of decline in advanced old age. The period of being unable to take care of yourself (mobility, dressing, feeding, toileting) averages more than two years in the last phase of life. During that time, we each will need another person’s help every day—often around the clock. And our society has not even figured out how to talk about the situation, much less how to reorganize to make this newly expectable phase of life comfortable and meaningful, or affordable.

US society seems stuck in an era of “happy talk.” When a fireman pulls a child from a swimming pool, it seems appropriate to call it “saving a life.” But how many times have you seen the newspaper headline touting a new drug or device that will “save X thousands of lives,” when, at best, it will delay the dying of very sick and usually elderly people by some months before something else causes death? That may be a good thing, but it is illusory to claim that it is “saving lives.” Advocacy organizations around each eventually fatal illness promote prevention and cure, but none say what would be a better way to come to the end of life. Influential authors tout odd claims such as “Toward a State of Complete Well-Being,” which persuasively argues for investments in prevention and social determinants of health but does not give voice to the limitations imposed by illnesses associated with aging. Public policy falls into the same pattern, with enthusiasm for supporting development of a costly drug that will delay the progression of heart failure, but inattention to issues such as the struggles of family caregivers, the waiting lists for home-delivered meals, and the misfit of available housing with disabilities.

My mother now lives through the peculiar torment of progressive disability from frailty in a “care system” that is not designed for her situation: losing nearly half of her weight, barely able to get up from a chair, having a plethora of symptoms with no treatable etiology, and yet having enough heart, lungs, kidney, and liver functions to go on for a while. There will be no letter from a neighbor who is startled when she dies; neighbors will be astonished that she lived so long with such severe disabilities. Hospital care is readily available and paid for, but medications after hours are not available, and she must pay out of pocket for personal care. Hospitals, physicians, pharmacists, and civic leaders have not made plans as to how to serve large numbers of elderly people living in the community with serious and worsening disabilities.

Making workable plans would require adopting some novel perspectives and taking account of some salient facts that are often set aside. First, the life possibilities of an elderly person with increasing disabilities is profoundly dependent upon the surrounding community. Is housing accessible? Can you readily get help with minor home repairs, such as changing a light or fixing a gutter? Can you get food delivered, and can you get prepared meals delivered? Can you stay engaged with other people—family, neighbors, and church or club members? Are you considered an embarrassment when out in public with a walker or wheelchair—or an adult diaper? Are walk lights lit long enough for you to cross the street? Are there personal care aides trained to deal with disabilities and challenging behaviors at home, and can elders in need afford them? Are there physicians attuned to your physiology and preferences who will, when needed, come to your home?

None of these things can be made available just for one person; they all are traits that affect whole communities, and they are available to all or most in the community, or to no one. Yet, communities have little voice or resources. Instead, what happens to be available is mostly the result of chance developments and leadership opportunities that vary over time and across communities. Health care has geographically overlapping hospitals, insurers, and other providers, none of which are involved in community planning for elder care and often none of which are actually anchored in any particular community.

Second, the preferences and priorities of elders in this phase of life vary much more than in earlier phases. A 50-year-old with gall bladder attacks is very likely to have about the same preferences for medical care as any other 50-year-old with gall bladder attacks. But two 90-year-olds with frailty syndrome are likely to require substantial customization of their care plans. It matters whether one has a volunteer family caregiver, or a home on one floor, or assets in the bank to hire help. So, elder-driven care planning becomes a central activity, and one that is not yet well-developed or commonly done. We do not yet evaluate care planning; we have aspirational sets of documentation requirements but little actual documentation, and we don’t assure that elders and their families are really driving the choices.

Third, we need more reliable and reasonable financing plans. Working-age people still don’t realize that they need to provide for themselves in old age. Policies need to change to make vehicles for saving affordable and reliable. The Bipartisan Policy Center, a Washington, D.C., think tank committed to balanced policy development, encouraged federal government catastrophic coverage for long-term care when the need for substantial personal care persists for more than a few years. That would make it plausible for many people to save or insure for the first few years of needing long-term supports and services, which is all that most people will need. Other approaches are appealing. For example, by providing flexible hours and part-time work, employers of family caregivers can make it much easier for them to stay at work and still provide care to an elderly family member. The range of possibilities is substantial but largely unexplored in public discourse and policy development.

Fourth, sick and disabled elders living in the community need continuity and reliability across time, instead of the cut-up care system we provide. Remarkable efficiencies are possible if services in the home were allowed to be organized geographically. As much as half of our spending on home care can go to supporting the inefficiencies of having each provider organization spread across a large area.

A substantial revision of Medicare and Medicaid that would put these observations and the existing research together is in order. Call it MediCaring Communities. What would be required? Allow some communities to take on responsibility for monitoring and improving their elder-care system’s performance and enable them to shift resources from medical care to supportive services when appropriate. Let them be able to develop their workforce and improve their built environment. Enable geographic concentration of home care services to capitalize on efficiencies. Help these pioneer communities develop metrics to monitor the local system’s performance over time and to guide setting priorities and monitoring the effects of changes. Explore the possibilities for reliable financing. We could learn a great deal from the first few highly efficient and highly reliable community-anchored care systems for elders. Everyone would want their community to follow suit!

Dozens of revisions in delivery arrangements for elder care have been proven to be effective in improving care and reducing costs. The most comprehensive is PACE, the Program of All-Inclusive Care of the Elderly. PACE serves people who are disabled enough to qualify for nursing home care but who continue to live in the community with substantial support, and PACE provides all Medicare and Medicaid covered services, from enrollment to the end of life. More limited fixes, such as transitional care, have been effective. Our MediCaring Communities reform proposal would incorporate whatever improvements in service supply, quality, and delivery serve the priorities of the community. What’s novel about it would be the development of a deliberate local entity capable of some management of the community’s “system.” This entity could assure elder-directed care planning, adequate supportive services, appropriate medical care tailored to this population, monitoring of system performance, local priority setting, shifting of some resources from overuse of medical care, and implementation of improvements with evaluation to assure learning.

Long-term survival with serious disabilities for very large numbers of elderly people is already a major challenge, and one which will grow with the aging baby boomer population. The models that worked to provide and pay for hospital care for acute illnesses will not work for this new situation. We need an era of innovation and testing, shaped by the facts of the situation. We need a new set of policies for our new way of living at the end of our lives. Let’s try substantial innovations, mostly by relieving communities of the burdens of past policies and regulations, and let’s learn quickly so we can count on living comfortably and meaningfully in the last years of our lives.

 

ACA Repeal Votes Defy Preferences Of Constituents

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http://healthaffairs.org/blog/2017/10/16/aca-repeal-votes-defy-preferences-of-constituents/

Despite repeatedly failing to advance legislation through the Senate, Republicans in Congress have not abandoned their goal of repealing and replacing the Affordable Care Act (ACA). The latest attempt at repeal in the form of the Graham-Cassidy bill would have established a per capita cap on federal Medicaid financing, eliminated the individual mandate, and undermined protections for older adults and people with preexisting conditions, by allowing states to opt out of key ACA insurance regulations. It would also have eliminated funding for the ACA’s Marketplace premium and cost-sharing subsidies and Medicaid expansion, and redirected some of that funding toward block grants to states.

One puzzling aspect of this and previous repeal efforts is that they nearly succeeded in spite of widespread public support for the core elements of the ACA that would have been overturned. Although almost 80 percent of nonelderly adults favor keeping the Medicaid expansion and nearly 70 percent favor keeping the premium subsidies, previous legislation eliminating or weakening these provisions passed the House by a vote of 217–213 (with House votes by district shown in Exhibit 1) and fell just a few votes short of passing the Senate. ACA protections for people with preexisting conditions—including guaranteed issue, community rating, and essential health benefits—are even more popular, eliciting support of 80 percent to 90 percent of nonelderly adults, and age rating limits are supported by three-quarters of adults.

A possible explanation for the perseverance toward repeal despite its unpopularity is that residents in districts and states where members of Congress voted for repeal may exhibit less support for key ACA provisions compared to those living in districts and states where members voted against repeal. If favorability toward these provisions varies widely across politically polarized Congressional districts and states, voting patterns in Congress may simply reflect legislators’ responsiveness to the preferences of their constituents. In contrast, if favorability toward ACA provisions is high across districts and states, it would indicate that the push for repeal is motivated by factors beyond constituent demands.

Most Nonelderly Adults Support Keeping Core ACA Provisions In Districts Where Members Of The House Voted For Repeal

To understand the link between congressional votes and public opinion on ACA repeal, we used data from the Urban Institute’s March 2017 Health Reform Monitoring Survey to examine public support for keeping or repealing core ACA provisions among a sample of more than 9,500 nonelderly adults—and the potential impact of repeal on coverage—based on how their member of the US House of Representatives voted for the American Health Care Act (AHCA) last May and how their senators voted for the Better Care Reconciliation Act (BCRA) and Obamacare Repeal and Reconciliation Act (ORRA) last July. Senators voted on a third repeal bill, the Health Care Freedom Act, that would have eliminated the individual mandate without directly targeting other core coverage provisions described in the survey.

We found that although support was somewhat lower in House districts where representatives voted for the AHCA, 75.2 percent of adults in these districts supported keeping the Medicaid expansion and 64.3 percent of them supported keeping the premium subsidies (Exhibit 2). In districts where representatives voted against AHCA, support was 81.0 percent for Medicaid expansion and 72.6 percent for the premium subsidies. There were no differences by districts’ House votes in support for the ACA’s guaranteed issue and community rating provisions, and only slightly higher support for essential health benefit requirements and age rating limits in districts where representatives voted against the AHCA.

Little Or No Variation Across States In Support For Core ACA Provisions

Support for Medicaid expansion did not vary across states. In states where at least one senator voted for either the BCRA or the ORRA, 77.5 percent of adults supported keeping the Medicaid expansion, which is not significantly different from the 79.1 percent supporting Medicaid expansion in states where both senators voted against both repeal bills (Exhibit 3). Support for keeping premium subsidies was somewhat lower in states where a senator voted for repeal (65.7 percent versus 71.9 percent). In states where both senators voted against both repeal bills, adults were only 2.2 percentage points more likely to support guaranteed issue, 2.0 percentage points more likely to support community rating, and 4.3 percentage points more likely to support age rating limits relative to adults in states where at least one senator voted for repeal. Support for essential health benefits was similar in each state group.

It is possible that members of Congress are more responsive to certain segments of their districts and states, including those individuals who are most likely to vote or those who participate in primary elections. However, we found that in districts where representatives voted for the AHCA, support for most core ACA provisions was high among those who either self-identify as Republicans or lean toward the Republican Party platform, including those who refer to themselves as “strong” Republicans (Exhibit 4). Majorities of both groups supported keeping the Medicaid expansion and consumer protections. About half of those who identify as Republican or lean Republican and 41 percent of strong Republicans supported keeping the premium subsidies. Similar patterns were found among Republicans in states where at least one senator voted for repeal. We also found widespread support across all districts and states among groups with high voter participation rates, including those ages 50–64 and those with high levels of education and income (data not shown).

Repeal Would Jeopardize Coverage And Benefits Of Adults Across House Districts

Adults with Marketplace coverage or Medicaid—including the Medicaid expansion population and those enrolled in Medicaid under pre-ACA eligibility rules—could be affected by repeal of Medicaid expansion, benefit cuts resulting from the establishment of per capita caps on Medicaid funding, elimination of premium subsidies, and/or loss of consumer protections. The share of adults with these types of coverage is larger in House districts where representatives voted against the AHCA. However, these changes would still affect many adults in districts where representatives voted for the AHCA. About 1 in 5 adults (19.5 percent) in House districts where members voted against repeal were enrolled in Medicaid or Marketplace coverage, compared to about 1 in 6 adults (16.3 percent) in House districts where members voted for repeal (Exhibit 5). These differences were driven by the higher Medicaid enrollment in states expanding Medicaid, where representatives were more likely to vote against the AHCA; there were no significant differences in Marketplace enrollment. An additional 3 percent of adults were enrolled in non-Marketplace nongroup coverage both in districts where representatives voted for the AHCA and in districts where they did not. These adults are not eligible for premium subsidies but could lose protections against discrimination by age or health status. Nearly two-thirds (63.3 percent) of adults with Marketplace plans with a premium reported that their premium was subsidized (data not shown). Another 18.5 percent of Marketplace enrollees with a premium did not know whether they received a subsidy, indicating that the 63.3 percent reporting a subsidy represents a lower bound on the share with subsidized coverage.

In States Where Senators Voted For Repeal, A Larger Share Of The Population Would Be At Risk Of Losing Marketplace Coverage

Although adults were more likely to be enrolled in Medicaid in states where both senators voted against both repeal bills (which were generally Medicaid expansion states) than in states where at least one senator voted for repeal (14.8 percent versus 10.7 percent), Marketplace coverage was slightly higher in states where a senator voted for repeal (6.0 percent versus 4.6 percent) (Exhibit 5). The difference in Marketplace enrollment is likely due in part to eligibility for Marketplace subsidies for adults with incomes between 100 percent and 138 percent of the federal poverty level in states that did not expand Medicaid.

Limitations To The Analysis

One limitation to this analysis is that our sample is only adults ages 18–64, and there may be more variation in public opinion toward the ACA across districts and states among the elderly population. However, we found similar patterns across states and districts when we limited our sample to adults ages 60–64, suggesting levels of support across districts and states may be consistent for older age groups as well. In addition, public opinion toward the ACA has changed since March 2017, although most polls have shown a rise in support for the ACA, and growing opposition to repeal legislation would suggest an even larger gap between congressional efforts and constituent preferences.

Without A Strategy For Protecting Coverage, Repealing Core ACA Provisions Threatens Recent Gains In Health Care Access

These findings suggest that congressional votes to repeal the ACA’s core financial assistance provisions and consumer protections are not aligned with the preferences of constituents. Moreover, the potential loss of coverage and benefits from repealing these provisions and transforming Medicaid financing is high in both areas where members of Congress are pursuing repeal and areas where members have opposed repeal. Public opinion and concern for those who would be harmed may have helped derail repeal efforts thus far, but Republicans have come close to securing a legislative majority that is not deterred by these factors. If legislation modeled on Graham-Cassidy or previous repeal bills succeeds without a clear strategy for sustaining coverage, it is likely to reverse the recent gains in health care access and affordability in districts and states across the country.

 

State Attorneys General Ask Court For Injunction Reversing CSR Payment Halt

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http://healthaffairs.org/blog/2017/10/18/state-attorneys-general-ask-appellate-court-for-injunction-reversing-csr-payment-halt/

On October 18, 2017, the attorneys general of eighteen states and the District of Columbia asked the United States District Court for the Northern District of California for a temporary restraining order and order to show cause why a preliminary injunction should not issue to compel the Trump administration to continue making cost-sharing reduction (CSR) payments until the lawsuit they have filed is resolved. The motion asks the court to make a decision by 4:00 PM tomorow, October 19, as the next cost-sharing reduction payment is due on October 20. The plaintiffs ask for a nationwide injunction as the issue it addresses is nationwide in scope.

The motion is supported by a legal memorandum and numerous affidavits. To obtain preliminary relief, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” In the Ninth Circuit, where California is located, it is enough to show that serious legal questions are presented if the balance of hardships tips sharply in the plaintiff’s favor.

The brief begins by explaining the purpose of the Affordable Care Act’s cost-sharing reductions: making health care affordable to lower-income individuals enrolled in silver marketplace plans by reducing out-of-pocket limits, deductibles, and other cost-sharing. It notes that insurers are required to reduce cost sharing for eligible individuals and that they are doing so to the tune of $7 billion for 2017. The ACA requires the federal government to reimburse insurers for these costs and up until September of 2017—including eight months of the Trump administration—it did so. Only days before the October payment was to be made, and less than three weeks before open enrollment began for 2018, the administration cut off the payments.

The states argue that Congress has in fact appropriated funds to cover the cost sharing reduction reimbursement payments. It is undisputed that Congress appropriated in the ACA funds for the premium tax credits and, the states argue, this appropriation covers the CSRs payments as well. They base their argument on the text, structure, and design of the ACA. This argument was rejected by the lower court in the House of Representatives’ lawsuit, but that decision is not binding on any other federal court and the states’ argument has never been ruled on by a federal appellate court.

The states further argue that the executive branch’s sudden termination of the CSR payments was “arbitrary and capricious” and thus prohibited by the Administrative Procedures Act. They contend that President Trump has violated his constitutional duty to “take care that the laws be faithfully executed.” The brief quotes liberally from President Trump’s tweets, in which he claimed, “The Democrats ObamaCare is imploding. Massive subsidy payments to their pet insurance companies has stopped. Dems should call me to fix!”; bragged that the ACA “is being dismantled, but in the meantime, premiums & deductibles are way up!” while health insurance stocks plunge because of his Executive action; and boasted that he had “knocked out the CSRs,” pronouncing the ACA “dead,” “finished,” and “gone.” The brief describes the President as “characteristically frank” in detailing his motives for cutting off the payments, which do not rely on legal analysis.

The brief describes in detail, with frequent cites to affidavits filed with the brief, the harm that the states and their residents will suffer because of the administration’s decision. These include destabilizing the states’ individual health insurance markets, increasing premiums, decreasing consumer plan choices, and suppressing market participation. The decision will also, the states assert, increase the number of uninsured individuals in the states and thus their uncompensated care costs. The brief notes that the District of Columbia Court of Appeals already recognized these burdens on the states when it granted them the right to intervene in the appeal of the case brought by the House of Representatives. The brief contends that the timing of the decision to terminate the CSR payments will cause consumer confusion and cause insurers to absorb multi-million dollar losses, further destabilizing the individual market.

Finally, the brief argues that the balance of the hardships tilts toward the plaintiff states. In particular, as has been noted by the Congressional Budget Office and others, terminating the CSR payments will cost the government more than it saves since it will increase premiums and thus premium tax credits. An injunction is also, the states note, necessary to preserve the status quo until the court can rule on the legal issues in the case.