A December 5 decision by the United States Court of Appeals gives President-elect Donald Trump the chance to deliver a killing blow to the Affordable Care Act by taking away federal risk funding to insurers.
The court decision puts on hold the case of House v. Burwell, and the question of whether insurers can legally receive federal funding for taking on risk in the ACA marketplace.
Trump, when he takes office, can decide to drop the appeal before the court-ordered direction for the parties to file motions governing further proceedings by Feb. 21, 2017.
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Currently, insurers continue to be paid on a monthly basis for covering low-income consumers on the ACA exchanges.
If Trump drops the appeal, they will no longer be paid, likely leading most to drop their exchange products due to financial losses, or to raise the cost of coverage to an unaffordable amount.
Many insurers such as UnitedHealth and Aetna have already stopped offering exchange products in numerous states, citing losses.
The issue pertains to the ACA-established tax credit and insurer cost-sharing program to help low- and moderate-income consumers gain health insurance. The payments help subsidize deductibles, copayments and out-of-pocket costs to help lower the price of health insurance products sold on the ACA exchanges.
In 2014, Republican House members filed the House v. Burwell lawsuit, charging Health and Human Services Secretary Sylvia Burwell with unconstitutionally spending money that Congress had not formally appropriated.
In May, they won their case in U.S. District Court. The lower court said the ACA cost-sharing program reimbursing health insurers wasn't legal because Congress never appropriated the funds.
The Obama administration appealed the ruling to the U.S. Court of Appeals for the District of Columbia.
The Republican-controlled House of Representatives then asked the U.S. Court of Appeals to temporarily halt proceedings in House v. Burwell until at least after Trump's Jan. 20 inauguration.
Trump has promised to repeal and replace Obamacare. GOP leaders have said it may be possible to immediately vote to repeal the law, but to wait three years for the repeal to take effect as they come up with a replacement plan.