Obamacare, SCOTUSCare, Chevron And You…


Hello, ProviderNation. By now, you’ve read (or read about) the Supreme Court’s decision, in King v. Burwell, protecting Obamacare’s health insurance subsidies across the country. As the fine folks at AHCA/NCAL point out, the decision has very little immediate economic impact, since small-business owners had already been subject to the insurance mandate beginning this year; next year, bigger businesses will have to pony up.

“The SCOTUS ruling is a clear signal that the ACA is here to stay, at least for now,” AHCA/NCAL’s inestimable Dianne De La Mare has it. “In other words, it is ‘business as usual’ in all exchanges, whether those exchanges are state-run or federally run. Currently, 34 states rely on federally run marketplaces. Another 13, plus Washington, D.C., have their own state-run exchanges, and three others have state marketplaces but use HealthCare.gov to determine subsidy eligibility. The court’s decision clarifies that subsidies will continue to be available to any individual who purchases insurance through any exchange (state-run or federally run), and earns between 100-400 percent of the federal poverty level. That means those individuals who previously had tax-credit subsidies in federally run exchanges will keep those subsidies to the extent that they continue to satisfy the subsidy requirements. Those same individuals also will stay insured.”

If some business owners think that Burwell’s endorsement of Obamacare (or, as a rather disgruntled* Justice Scalia put it, “SCOTUSCare”) means the sky is falling, some advocates for front-line care workers clearly see Burwell as manna from heaven. The average direct-care worker earns about $17,000 per year, PHI’s Matthew Ozga writes. That’s way less than the 400 percent of the federal poverty line threshold that would qualify workers for Obamacare subsidies. If owners see Obamacare as bad for business, there might still be a silver lining: Workers who can obtain health care might  just be more willing to stay in their jobs.

Chevron Deference

There’s one other potential message-in-a-bottle from Burwell. You’ll see in reading Justice Roberts’ opinion for the 6-3 majority a reference to the two-pronged Chevron test. Roberts rejects the Chevron logic, but it might be worth exploring the reference because health care observers are likely to hear about it a lot more in the future.

In 1984, energy giant Chevron appealed a lower court decision in favor of a lawsuit originally brought by the National Resources Defense Council. NRDC had gotten the lower court to agree that Reagan-era revisions to EPA’s Clean Air Act regulations were illegal. Chevron appealed to the Supreme Court. In what is a little-known but widely felt decision, the court held that, in instances where legislation was ambiguous, the courts should focus on two questions: first, whether the regulatory action directly contradicts the intent of Congress, and, if not, whether the agency’s action “is based on a permissible construction of the statute.”

“If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute,” Justice Stevens wrote for the majority, “we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”

Ever since, “Chevron Deference” has been the shibboleth of the lobbying American community here in Washington.

*You may think it unfair to refer to Scalia as “disgruntled.” Can we agree, at least, that he was far from being gruntled?

Bill Myers is Provider’s senior editor. Email him at wmyers@providermagazine.com. Follow him on Twitter, @ProviderMyers.

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