As the clock ticks, the likelihood increases that we are in the midst of the longest-ever shutdown of U.S. government agencies. Hundreds of thousands of federal workers are either furloughed or working without pay and critical government services are going unperformed. For the millions of Americans who rely on the federal government for their health care, many likely have questions about whether and how the shutdown will affect them. My colleague Andy Schneider has already written about how the shutdown could impact people enrolled in Medicaid and CHIP. What about those with coverage – and premium subsidies – through the Affordable Care Act (ACA) marketplaces?
Eligibility for and Access to Premium Tax Credits
First, some good news. The ACA’s marketplaces are overseen by the U.S. Department of Health & Human Services (HHS). That agency’s funding has already been appropriated for fiscal year 2019, so the marketplaces are, for the most part, functioning as usual. However, in less-good news, the U.S. Department of Treasury and the Internal Revenue Service (IRS) have no funding, and this could affect some consumers who have lost subsidies due to a failure to file or reconcile a past year’s tax return. Because healthcare.gov call center staff are not allowed to discuss confidential tax information with consumers, they typically refer people in this situation to the IRS. During the shutdown, although that agency is recalling some employees to work without pay, it could still be short on staff to answer questions.
Knowing the Rules of the Road
Other not-so-good news is that HHS relies on other government agencies to set policy and standards for the marketplaces. The reduction of staff at the Treasury and Labor departments, as well as at the Federal Register and the Office of Management and Budget could delay that policy-setting process. For example, HHS publishes something called the “Notice of Benefit and Payment Parameters” (NBPP). It’s a fancy name for the annual rule that governs the ACA’s marketplaces and the insurers that participate. The draft rule for 2019 was published in October 2017 but the 2020 rule has not yet been published. This leaves the public in the dark about critical marketplace policies at a time when insurers must make decisions about participation and premium rates and state officials and legislatures are considering market stabilization efforts that require knowing the federal stance on key issues.
Delays in ACA Litigation
Shortly before the Christmas holidays, a federal judge in Texas found the ACA to be unconstitutional. That decision has been stayed, leaving the ACA in place for now, but the judge’s ruling has created considerable confusion and uncertainty for the millions of consumers, hospitals, doctors, insurers, and others whose lives and businesses would be upended if the law is struck down. A number of states, led by California, filed a notice of appeal to the Fifth Circuit Court of Appeals, as did the U.S. Department of Justice (DOJ). However, in the wake of the government shutdown, the Trump administration has asked the appeals court to stay its proceedings until Congress appropriates funds for DOJ.* California and the other intervening states have objected to this request. Attorney General Becerra tweeted: “First, they refuse to fully defend the #ACA. Now, they’re trying to stay our ACA case. We’re fighting the delay b/c the health care of millions is too important to be sent to the waiting room.” Indeed, given the stakes involved, it would be wrong to indefinitely delay a decision in this case, above and beyond the other problems the shutdown is creating.
*Editor’s Update: Shortly after the publication of this post, the 5th Circuit granted the Department of Justice’s request for a stay.