The Commonwealth of Virginia on Wednesday led 22 states and the District of Columbia in filing an amicus brief defending the sustainability of America’s healthcare system and the right of millions of low- and moderate-income Americans, including hundreds of thousands of Virginians, to premium-assistance tax credits when they purchase health insurance on a federally-facilitated exchange. 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 hundreds of thousands of future customers to access the same financial assistance that millions of other Americans receive. This bipartisan coalition of attorneys general represents more than 145 million Americans.
“The financial assistance we’re fighting for is the difference between affording healthcare and going without for many Virginia families,” said Attorney General Herring. “The law allows Virginians to access this financial assistance, which can reduce the monthly premiums for a family of four from $778 to $278. From a legal perspective, this case is without merit, but when you see the devastating impact it could have on Virginians and our citizens’ ability to access quality, affordable healthcare, it’s clear that we can’t take any chances. We can’t allow a novel legal theory to kick hundreds of thousands of Virginians off their insurance and send our healthcare market into a ‘death spiral’ of plummeting enrollment and skyrocketing premiums.”
In 2015, more than 316,000 Virginians have already purchased health insurance through Virginia’s federally-facilitated exchange with more than two weeks of open enrollment remaining. In 2014, more than 216,000 Virginians purchased plans through Virginia’s exchange with 82%, or 177,000 Virginians, receiving 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 about $1.02 billion annually.
A study by the non-partisan Urban Institute projects that, in 2016, ending premium-assistance tax credits in the 34 states using a federally-facilitated exchange would deprive more than 9.3 million Americans of almost $29 billion in financial assistance-an average of $3,090 per eligible person-and increase the number of uninsured by about 8.2 million people nationally. In Virginia, the Urban Institute estimates 321,000 would lose assistance totaling more than $1 billion, and 280,000 more Virginians would go uninsured.
An adverse ruling in King would also send shockwaves through the American healthcare system, with effects felt far beyond the millions of Americans who purchase healthcare through a federally-facilitated exchange. Non-partisan studies from the Rand Corporation and the Urban Institute found that ending premium-assistance would threaten the viability of the health-insurance market. The Fourth Circuit and four justices of the Supreme Court have also said that premium assistance is vital to the functioning of the market as Congress intended.
The plaintiffs in this case claim that only Americans who purchase health care plans through state-established health insurance exchanges are eligible for premium assistance. Their claim is based on a misreading of a single phrase in the law. The claim has already been rejected by several courts because it does not reflect the actual language, context, legislative history, or legislative intent of the Affordable Care Act. If applied to Virginia, the plaintiffs’ interpretation 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 lays out the stakes of the case, and argues that the plaintiffs’ claim should be rejected because the states were not provided clear 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, the Fourth Circuit ruled unanimously in King v. Burwell that customers of a federally-facilitated exchange were eligible for financial assistance. In that case, Virginia filed an amicus brief and delivered oral argument defending Virginians’ access to financial assistance. Attorney General Herring also led a multi-state briefin a nearly identical case, Halbig v. Burwell, that was before the Court of Appeals for the District of Columbia before being stayed following the Supreme Court’s grant of certiorari in King.
Joining Virginia on brief are California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
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