Fate of Obamacare Lies in Hands of Supreme Court and Potential Republican Congress

In advance of Tuesday’s congressional elections, Republicans continue with their threats to repeal or curtail various elements of the Patient Protection and Affordable Care Act (PPACA) or ‘Obamacare.’ However, Senate Minority Leader Mitch McConnell (R-KY) publicly admitted that a repeal of the law is problematic with President Obama still in office for the next two years due to his veto power. Nonetheless he indicated that, if Republicans ascend to the majority in the Senate, the power of the purse will be used to curtail spending on regulations and presidential orders that Republicans view as overstepping statutory or constitutional authority. The Administration, still recovering from the early missteps in building HealthCare.gov, received another demand from Rep. Lamar Smith (R-TX), the Chairman of the House Science, Space and Technology Committee in the form of a subpoena to former U.S. Chief Technology Officer Todd Park to testify at a November 19th hearing. He said that he wants the American people to be assured that their personal information used in connection with the website is secure. The Supreme Court could also either confirm or overturn the Internal Revenue Service (IRS) ruling which allows PPACA individual tax-credit subsidies to be made to individuals who elect coverage under HealthCare.gov in states that have not set up their own health insurance exchanges. A discussion by the Court of whether or not to take up the issue as pleaded by the plaintiffs in King v. Burwell took place last week and a decision could come later this week. In another development, the 5th U.S. Circuit Court of Appeals will hear arguments on December 2nd in a lawsuit that alleges the PPACA is unconstitutional on the grounds that it is a “tax” law that should have originated in the House rather than the Senate (although the Act bears a House bill number inasmuch as the Senate gutted the House measure and substituted the provisions of Obamacare). Several House and Senate Republicans have joined in supporting this challenge to the law. In addition, despite the permanent injunction given to Hobby Lobby Stores, Inc. in the Burwell decision by the U.S. Supreme Court, the Administration is arguing in the U.S. District Court for the Western District of Oklahoma that the injunction for privately-held corporations should be suspended given the promulgation of revised regulations regarding the PPACA mandate that plans provide no-cost insurance for contraceptive drugs, devices and related services.

SHOPs to Begin under HealthCare.gov in Five States

The U.S. Department of Health and Human Services (HHS) gave notice that when the HealthCare.gov enrollment begins on November 15th the so-called federally facilitated Small Business Health Options Program (FF-SHOP) will be available for the employees of small businesses to elect coverage in Delaware, Illinois, Missouri, New Jersey and Ohio.

Health Plan ID Requirement Delayed

The Centers for Medicare and Medicaid Services (CMS) announced that large self-insured health plans and entities covered by the Health Insurance Portability and Accountability Act (HIPAA), including providers, health plans and healthcare clearinghouses, will not have to meet the regulatory requirement that they obtain unique, 10-digit Health Plan Identifiers (HPIDs) by the November 5th deadline until further notice given problems encountered under the program.

Enhanced Federal Matching Funds for IT Development

CMS notified state officials that the agency will make permanent the previously temporary 90% federal matching funds to allow states to design and maintain information technology systems that they use in enrolling beneficiaries in the Medicaid program and other individuals under their state-run health insurance exchanges. States will have to meet additional criteria, such as incorporating a standardized method for determining income eligibility, to receive the enhanced matching funds.

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