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Obamacare, Health Care Exchanges, Subsidies, Typos, and Speak-o’s

Have you ever said something that you immediately wished you could put back in your mouth? I know I have! In fact, just recently, I was eating lunch with my husband and one of our closest friends Josh. Josh, his wife, Tracey, my husband Scott and I ride horses together almost every weekend. Our daughters come with us, and it’s a fun family event. So, I should have known that a manger is a tool used in barns to hold the hay for the horses to eat, not just baby Jesus’ bed.

Josh tells me that he is going to pick up a manger. To which I respond, “Josh, why do you need a baby manger?” If words came out of your mouth on a string, I would have grabbed that string and shoved it back into my mouth. Of course, my husband had no end to his ribbing. “Josh, why do they sell baby mangers in Tractor Supply?” And “Baby Jesus was so lucky that someone put a manger in that barn for when he was born.”

At that point, I would have liked to claim that I had a “speak-o.” You know, like a typo, but for speech.

At least this is what Jonathan Gruber has claimed…that he made a speak-o in 2012.

Jonathan Gruber is one of the architects of the Affordable Care Act (ACA). He drafted much of the language included in the ACA. After the ACA was passed, Gruber was interviewed by a number of journalists regarding specific sections of the ACA. One of the sections on which he spoke was the section that allowed for health care premium subsidies for people enrolled in the program who reside in states which created state-run health care exchanges as opposed to states that opted to use the federal exchange. For ease of this blog, I will call this ACA section the “Health Care Premium Subsidies Section.”

As I am sure you are aware if you follow my blog, two appellate court cases came out July 22, 2014, regarding the Health Care Premium Subsidies Section, with polar opposite holdings. In Halbig v. Burwell, the D.C. Circuit Court found that the clear language of the ACA only allows the health care premium subsidies in states that created their own state-run health care exchanges, i.e, residents in NC along with 35 other states would not be eligible for the subsidies. See my blog: “Halbig: Court Holds Clear Language of the ACA Prohibits Health Care Subsidies in Federally-Run Exchanges.”

Juxtapose the 4th Circuit Court’s decision in King v. Burwell, which held that “For reasons explained below, we find that the applicable statutory language is ambiguous and subject to multiple interpretations. Applying deference to the IRS’s determination, however, we uphold the rule as a permissible exercise of the agency’s discretion.”

The two cases were released within hours of each other and came to two entirely different conclusions. Halbig: ACA is clear; King: ACA is ambiguous.

Interesting to note is that D.C. is not a state, and the 4th Circuit clearly embraces five states.

In my Halbig blog, I explain the legal analysis of statutory interpretation. I also explain that based on my reading of the Health Care Premium Subsidies Section, I tend to side with the D.C. courts and opine that the Section is not ambiguous.

If, however, a court finds that the statutory language is ambiguous, the court defers to the agency’s interpretation “so long as it is based on a permissible construction of the statute,” which is clear case law found in the 4th Circuit.

Therefore, once the 4th Circuit determined that the statute is ambiguous, the court made the correct determination to defer to the IRS’ ruling that all states could benefit from the subsidies.

Yet another approach to statutory interpretation is considering the legislative intent. The courts may attempt to evaluate legislative intent when the statute is ambiguous. In order to discern legislative intent, courts may weigh proposed bills, records of hearing on the bill, amendments to the bill, speeches and floor debate, legislative subcommittee minutes, and/or published statements from the legislative body as to the intent of the statute.

Recently, some journalists have uncovered 2012 interviews with Gruber during which he states that the Health Care Premium Subsidies Section was drafted intentionally to induce the states to create their own health care subsidies and not rely on the federal exchange. How’s that for intent?

The exact language of that part of the 2012 interview is as follows:

Interviewer: “You mentioned the health information [sic] Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.”

Gruber: “I think what’s important to remember politically about this is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get the tax credits… I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.”

What do you think? You think Gruber is pretty explicit as to legislative intent? Well, at least in 2012….

In 2014, Gruber states, as to his 2012 comment, “I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.”

According to Gruber, Congress made a typo; Gruber made a speak-o.

“It’s unambiguous that it’s a typo,” Gruber tells reporter Chris Matthews from NBC and MSNBC.

Um…a typo when the statement is spoken? Hence, the new word “speak-o” blowing up Twitter.

If Gruber’s statement was truly a speak-o, it was a re-occurring speak-o. Gruber also made two speeches in which he listed three possible threats to the implementation of Obamacare. In both cases the third “threat” was that states would not set up exchanges and, instead, would rely on the federal government.

I anticipate that Gruber’s 2012 and contrary 2014 statements will be at issue as these cases, Halbig and King, move forward.

As for me, I would like to invoke my own speak-o’s. I can only imagine how I will be received when I appear before a court and say, “Your Honor, I apologize. That was a speak-o.”

Government Shutdown: No Medicaid Funds Available in D.C., So Why Am I Still Getting My Mail!

Hey, have you heard??? Our federal government has shut down. So why am I still getting mail???

Unless you have lived under a rock for the past couple weeks, you are aware that our esteemed federal government has shut down.  At least…partially.  I keep getting mail.  Social security is still getting paid.  But don’t you dare try to visit a national monument…those are off-limits!! Really? Who decided what gets shut down and what stays open?  How is it that I still get my cable bill, but cannot visit Yellowstone National Park??

How is all this tomfoolery affecting Medicaid?  Minimally, in most areas, but Medicaid fundings HAS STOPPED in Washington D.C.

Why stop Medicaid funding in D.C. when the federal air traffic controllers are still working.  The State Department continues processing foreign applications for visas and U.S. applications for passports.  The federal courts are open.  The National Weather Service is still working.  Student loans are still getting paid. The Veterans’ hospitals are all up and running.  The military is still working.  I guess, Obama and White House staff are still working. (Although Obama could be on the golf course).  The Post Office is delivering mail.

Yet, here are some random federal actions and agencies that are actually stopped/closed:  Food safety inspections are suspended; U.S. food inspections abroad have also been stopped.  Auto recalls and investigations of safety defects are stopped.  Taxpayers, who filed for an extension in the spring, still have to pay their taxes by today, yet the IRS is not processing tax returns (How does this make sense??). The Consumer Product Safety Commission (CSPC) is not working.  (Great, after the CPSC starts working again, there are sure to be numerous lawsuits based on new product defects that have been placed in the market over the last 2 weeks).  The Environmental Protection Agency (EPA) has ceased to run, which means we have two weeks of allowable pollution.  Many at the Federal Bureau of Investigations (FBI) and the federal housing agency are furloughed.

How does this shutdown make any sense?? Who determined that the IRS should not process tax returns, but should accept taxes?  Who decided that safety inspections should be stopped, but passports should still be processed?

That safety inspections of food and products should halt, but students should still get federal loans.

Where is the logic?

It is as if someone said, “Shutdown the federal government!! Except not the mail, passports, and the weather service…keep those running!”

And then Medicaid in D.C…. Why did Medicaid funding stop only in D.C.??  While I still think if the mail is being delivered that D.C. providers could get Medicaid fundings, I will attempt to explain the illogical reason below:

Because D.C. is not a state.  D.C. is a local government without a state, so its budget must be authorized by U.S. Congress.  And Congress has not passed a budget.

D.C. has $2.7 billion budgeted for Medicaid, but providers are getting nothing (and, quite possibly, some recipients).  I can only imagine how this is negatively impacting health care providers in D.C. I am sure many of the providers are still rendering services unpaid.  But some, I would imagine, are closing up shop.  I know I could not last financially without a paycheck for 3 months.  I am sure many of the D.C. providers are no different.

But it still makes no sense.  Just like NC, D.C. pays for about 30% of Medicaid with the federal government reimbursing about 70%.  If NC’s federal reimbursements are still being paid, why not in D.C.?

And why am I still getting mail????

Well, my heart goes out to all the Medicaid providers and Medicaid recipients in D.C.  I hope you receive Medicaid fundings very soon.

Although, at least D.C. providers know that, at some point, the Medicaid funds will be funded; whereas in NC we still have NCTracks.