At stake is the ability of more than 177,000 Virginians to keep an annual average of $3,048 in financial assistance they are already receiving, and the ability of up to 495,000 future customers on the exchange to access that financial assistance. The case threatening this important health care affordability assistance, Halbig v. Burwell,is scheduled for argument on December 17, 2014, before the full en banc United States Court of Appeals for the District of Columbia Circuit. Attorney General Herring has already helped successfully defend Virginians’ access to this assistance in an identical case in the U.S. Court of Appeals for the Fourth Circuit which covers Virginia.
“No matter how you feel about the Affordable Care Act, its discounts make it possible for hundreds of thousands of Virginians to purchase their own private health insurance-and we can’t let a lawsuit from outside the state disrupt our right to those subsidies,” said Attorney General Mark Herring. “We’re talking about reducing monthly premiums from $758 to $280 for a family of four with an income of $50,000. That’s the difference between affordable health care and no health care for many families. Just because Virginia didn’t set up its own exchange doesn’t mean our people should suffer because of a lawsuit that’s trying to score political points.”
Of the more than 216,000 Virginians who have already purchased plans on Virginia’s exchange, 117,000 are women and approximately 82% have received financial assistance. The U.S. Department of Health and Human Services estimates that up to 495,000 Virginians may be eligible for some level of assistance, averaging $2,900 per year, and totaling up to $1.02 billion annually.
Thirty-four states currently use a federally-facilitated exchange, and in 2016 alone, The Urban Institute estimates that 7.3 million Americans in those states are expected to be eligible to receive premium-assistance tax credits totaling $36.2 billion. Attorney General Herring is leading the states’ effort to defend these discounts nationwide.
The plaintiffs in this case claim that only Americans who purchase health care plans through state health insurance exchanges are eligible for premium assistance. This novel interpretation, does not reflect the full language, context, legislative history, or legislative intent of the Affordable Care Act, and if applied to Virginia, it would make otherwise qualified Virginians ineligible for financial assistance because Virginia uses a federally-facilitated exchange.
In supplementing arguments that will be made by the Department of Health and Human Services, Virginia’s brief strongly argues that the plaintiffs’ claim should be rejected because the states were not provided any notice, as would have been required, that their citizens would be so dramatically punished if they chose to utilize a federally-facilitated exchange rather than constructing their own.
In early July, a three-judge panel of the D.C. Circuit, in a split decision, struck down the federal subsidies. On the same day, however, in an identical case out of Virginia, King v. Burwell, a three-judge panel of the Fourth Circuit ruled unanimously that customers of a federally-facilitated exchange were eligible for financial assistance. TheCommonwealth filed a similar brief defending Virginians’ access to affordable health care in King and participated in oral argument.
This is the first multi-state amicus brief led by Attorney General Herring. The other states that have signed on are Arkansas, California, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Mississippi, New Hampshire, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Vermont, and Washington.