Quote:

 

http://bigstory.ap.org/article/d4eef9cd0a8a4156806e210bda02a172/democrats-see-skimpy-insurance-next-health-care-issue

Democrats see skimpy insurance as the next health care issue

A different health care issue has emerged for Democrats, in sync with the party's pitch to workers and middle-class voters ahead of next year's elections.

It's not the uninsured, but rather the problem of high out-of-pocket costs for people already covered. [...high for even those qualified for subsidies]

Democrats call it "underinsurance."

After paying premiums, many low- and middle-income patients still face high costs when trying to use their coverage. There's growing concern that the value of a health insurance card is being eaten away by rising deductibles, the amount of actual medical costs that patients pay each year before coverage kicks in.

"I think it's going to be the next big problem," said Rep. Jim McDermott, D-Wash., a congressional leader on health care.

"We've got some 17 million more people covered ... but they can't access the care they seem to be entitled to," McDermott said. "It costs too much to use the care. That's the deceptive part about it."
[Looks like good news, as soon as they solve the problem they created!]

Since virtually all U.S. residents are now required to have health insurance by President Barack Obama's health care law, McDermott said Democrats have a responsibility to make sure coverage translates to meaningful benefits.

Several liberal-leaning organizations have recently focused on the issue.

—A Commonwealth Fund study found that 31 million adults were underinsured last year. Half of them had problems with medical bills or medical debt. Seven million were underinsured due to high deductibles alone. "The steady growth in the proliferation and size of deductibles threatens to increase underinsurance in the years ahead," the study concluded.

—A study by the advocacy group Families USA found that one-quarter of the people with individual health insurance policies went without care in 2014 because they could not afford the out-of-pocket costs. The study singled out high deductibles.
[An overwhelming majority of that market is through the "Marketplace" ...AKA Obamacare exchanges]

—The Center for American Progress, a think tank often aligned with the White House, found that employers have been shifting a disproportionate burden of health care costs onto workers. As a result, the report said, employees and their families have not shared in the benefits of a prolonged lull in medical inflation. The group recommended several policy changes, including rebates for workers under certain conditions.

"Cost shifting is part of what makes people underinsured," said Topher Spiro, vice president for health policy at the center. "There's an effort to raise the issue generally, and there's general recognition that this is a problem that needs to be addressed."

The insurance industry says the focus on deductibles and cost sharing is misplaced. It says the real problem is that the United States pays too much for medical care. Deductibles can be a legitimate tool for employers and insurers to steer patients to doctors and hospitals providing high-quality care at a reasonable cost. Some plans set lower amounts for services provided within a network.

"It can't be looked at in isolation," said Karen Ignagni, outgoing head of America's Health Insurance Plans, the main industry trade group.

Some consumers may prefer a high-deductible plan in exchange for lower monthly premiums, she added. "They are making a conscious decision to make that trade-off."

A wide body of research shows that out-of-pocket costs discourage people from getting medical care, but there is no agreed-upon standard of what constitutes "underinsurance."

The Commonwealth Fund, a private foundation that aims to improve the health care system, defines underinsurance as out-of-pocket costs that add up to 10 percent or more of household income, in most cases, or a deductible that amounts to 5 percent of income or higher.

Obama's Affordable Care Act set annual limits on out-of-pocket costs for most insurance plans, currently $6,600 for an individual policy and $13,200 for a family plan. It's better than no limit, but a stretch for many families.

Annual deductibles for employer plans averaged about $1,200 for employee-only coverage last year, according to the Kaiser Family Foundation.

Deductibles can be much higher for plans sold through the health law's insurance exchanges, averaging about $2,500 for single coverage under a midrange silver plan. But more than half of exchange customers receive additional government subsidies to reduce their cost sharing.
[Misleading! The minimum out-of-pocket for an individual is $2,050, even with "additional government subsidies."]

Democrats need an election-year health care narrative about how to improve Obama's law, said Robert Blendon, a professor at the Harvard T.H. Chan School of Public Health.

"The issue that has come up repeatedly is the impact that high deductibles are having on moderate income people," he said.

Quote:

 

http://www.wsj.com/articles/health-costs-hinge-on-supreme-court-ruling-1432607402

Health Costs Hinge on Supreme Court Ruling

Subsidies that made insurance plans affordable face a crucial test with decision expected in June

After the Affordable Care Act kicked in, Michael Kole’s monthly health-insurance premium to cover himself and his family grew to $848 from $513. Like others, he wasn’t happy about it. “It’s taking a lot out of pocket,” he said.

The 52-year-old sales and marketing entrepreneur is one of millions of Americans who earn too much to qualify for government subsidies on policies purchased through the federal insurance exchange. To save money, he said, he now works from home instead of renting an office.

Many people are paying more, and the reasons are simple: The health law requires that policies offer broad coverage and greater protection against catastrophic medical costs—and everybody is supposed to be covered. Others, thanks to government subsidies, are paying less.

But a coming decision by the Supreme Court may greatly complicate matters. The court is expected by the end of June to rule on a lawsuit seeking to invalidate subsidies to more than 7.5 million people who bought plans on the federal exchange.

If the court upholds the lawsuit, those people will land in the same boat as their more well-heeled compatriots. People with individual coverage in 2010 and 2012 who bought silver and bronze plans on the exchange after the law took effect saw total premiums and out-of-pocket payments rise an estimated 14% to 28%, according to a study last year by the National Bureau of Economic Research.

“Should subsidies be lost, the formerly subsidized will face premiums and out-of-pockets that are already a reality for the unsubsidized,” said Kev Coleman, head of research and data at HealthPocket Inc., a company that analyzes health-insurance costs across the U.S.

The lawsuit before the high court, King v. Burwell, asserts that language in the health law excludes subsidies to people who bought coverage on the federal exchange, HealthCare.gov. Upholding the suit would pressure the Republican-controlled Congress—including many who oppose the law—and GOP leaders are considering alternative plans, including a contingency option that would allow people to keep their subsidies until 2017.
[The "fix" might be an election year compromise!]

[...]

Health plans have become more expensive since passage of the law because, in addition to broader coverage, they must cap out-of-pocket expenses, unlike many older policies. Insurers also can no longer exclude such benefits as maternity, mental health`and prescription-drug coverage. They also can’t deny coverage or charge more for someone because of an existing condition, spreading higher costs to healthier customers.

“Plans before the Affordable Care Act lacked the financial and consumer protections now being enjoyed by millions of people, and that makes price comparisons misleading,” said Katie Hill, a spokeswoman for the Department of Health and Human Services.

[...]

More people are getting more coverage—but at a price that has many who don’t get subsidies grumbling. Lance Taylor, 64, a retired commercial real-estate broker in Victorville, Calif., said he used to pay $431 a month to cover himself and his daughter with an annual deductible of $6,000. The plan was canceled because it didn’t meet the new requirements, he said, and its replacement policy costs $731 a month. He doesn’t qualify for a subsidy.

“Every time I write the check, I grit my teeth,” he said, angry about paying for maternity benefits and newborn-care coverage that he doesn’t need.

Higher out-of-pocket costs accompany the new plans, according to an analysis conducted this year for The Wall Street Journal by HealthPocket: The average family deductible for an economical bronze plan was $10,545; for the more expensive silver plan it was $6,010. In 2013, before the law took full effect, the average family deductible was $4,230.

Besides the insurance deductible, consumers also face higher out-of-pocket expenses for medical procedures and expenses. HealthPocket found the average coinsurance fee for inpatient hospitals services jumped to 27% of the cost on bronze plans; 2013 pre-reform plans averaged 20% for similar care.
[That is health cost redistribution at work!]

[...]

Quote:

 

http://www.nytimes.com/2015/05/26/us/politics/contested-words-in-affordable-care-act-may-have-been-left-by-mistake.html

Four Words That Imperil Health Care Law Were All a Mistake, Writers Now Say

They are only four words in a 900-page law: “established by the state.”

But it is in the ambiguity of those four words in the Affordable Care Act that opponents found a path to challenge the law, all the way to the Supreme Court.
[Since they MUST convince the court that OTHER portions of the law are ambiguous, clouding the facts to justify the IRS interpreting RE-WRITING the law as they please, NYTimes has gone so far as to now classify the actual and clear text of the law as an "ambiguity." How's that for turning the tables in the media?!?!]

How those words became the most contentious part of President Obama’s signature domestic accomplishment has been a mystery. Who wrote them, and why? Were they really intended, as the plaintiffs in King v. Burwell claim, to make the tax subsidies in the law available only in states that established their own health insurance marketplaces, and not in the three dozen states with federal exchanges?

The answer, from interviews with more than two dozen Democrats and Republicans involved in writing the law, is that the words were a product of shifting politics and a sloppy merging of different versions. Some described the words as “inadvertent,” “inartful” or “a drafting error.” But none supported the contention of the plaintiffs, who are from Virginia.

“I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies,” said Olympia J. Snowe, a former Republican senator from Maine who helped write the Finance Committee version of the bill.

“It was never part of our conversations at any point,” said Ms. Snowe, who voted against the final version of the Senate bill. “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.” The four words, she said, were perhaps “inadvertent language,” adding, “I don’t know how else to explain it.”

Former Senator Jeff Bingaman, Democrat of New Mexico, said there may have been “some sloppiness in the drafting” of the bill. Mr. Bingaman, who was a member of both committees that developed the measure, said he was surprised that the lawsuit had reached the Supreme Court because the words in dispute appeared to be a “drafting error.”

“As far as I know, it escaped everyone’s attention, or it would have been deleted, because it clearly contradicted the main purpose of the legislation,” Mr. Bingaman said. He added, “In all the discussion in the committees and on the floor, I didn’t ever hear anybody suggest that this kind of distinction between federal and state exchanges was in the bill.”

[...]

The story of the four words has its loose origins in Mr. Obama’s campaign pledge in 2008 to overhaul the health insurance system, something presidents had tried to do for decades.

After he offered broad guidance on what the plan should include, two Senate panels —

the Health, Education, Labor and Pensions Committee and

the Finance Committee —

began working on the legislation in summer 2009. Staff members began reconciling many complex and competing imperatives.

[...]

At the Finance Committee, which thrashed out its version of the bill in September and October 2009, senators initially assumed that all states would set up exchanges, so they added a section to the Internal Revenue Code to provide subsidies, in the form of tax credits, for insurance purchased through an exchange.

But senators and staff lawyers came to believe that some states — “five or 10 at the most” — would choose not to set up exchanges, said Christopher E. Condeluci, who was a staff lawyer for Republicans on the Finance Committee.

At that point, senators authorized a backup plan to allow the federal government to establish an exchange in any state that did not have its own, but they failed to include that language in the section of the tax code providing subsidies. “We failed to include a cross-reference to the federal exchange,” Mr. Condeluci said. “In my opinion, due to a drafting error, we overlooked it. It was an oversight. Congress, in my experience, always intended for the federal exchange to deliver subsidies.”

Russ Sullivan, the staff director for Democrats on the Finance Committee, gave a similar account. The language in the law providing tax credits through state exchanges was “a holdover from what we had in the Finance Committee,” which originally assumed that “every state was going to set up an exchange,” Mr. Sullivan said.

The idea of a federal backstop came later, he said, when people started asking what would happen if some states did not set up an exchange.

Consistent with its usual practice, the Finance Committee voted on a detailed conceptual description of the bill. The actual legislative language was not available at the time of that vote.

In the Finance Committee bill, the sections setting up exchanges were separate from the section providing tax credits.

The words were written by professional drafters — skilled nonpartisan lawyers — from the office of the Senate legislative counsel, then James W. Fransen. It appears that the four words now being challenged were based on the initial premise and were carelessly left in place as the legislation evolved.

The language of the Finance Committee bill was written largely by Mr. Fransen and a tax expert, Mark J. Mathiesen, while much of the health committee version was written by William R. Baird, a public health expert. The two committees worked on separate tracks.

When Mr. Fransen retired in December 2014, after working in the Senate for nearly 40 years, Senator Harry Reid, Democrat of Nevada, who was majority leader at the time, praised his impartiality and said he understood the tax code “perhaps better than anyone in Washington.” Mr. Fransen did not respond to a message seeking comment, and other attempts to reach him were not successful.

Still, there were substantial differences between the two committees’ versions of the bill, and the task of merging them in October and November 2009 fell largely to Mr. Reid. Both bills called for insurance exchanges and provided subsidies to lower-income people, but the health committee measure clearly allowed subsidies in all states. The Finance Committee version was not so explicit.

In stitching together the final legislation, Mr. Reid took the language on tax credits from the Finance Committee, and he generally followed the health committee in allowing the secretary of health and human services to operate a federal exchange.

But in borrowing from the health committee bill, Mr. Reid did not adopt an important provision that could perhaps have avoided the current fight. That provision said that a state with a federal exchange “shall be deemed to be a participating state,” and that its residents could receive federal subsidies to help pay premiums.

“I remember meeting after meeting in which we went through the language of the legislation line by line,” said Robert D. Greenawalt, who worked as a senior tax adviser to Mr. Reid. “I do not recall any discussion of a distinction between federal and state exchanges for the purpose of subsidies.” But Mr. Greenawalt said: “In merging two bills that were so big, it’s possible that something got left out. It would have been accidental.”

Douglas W. Elmendorf, director of the Congressional Budget Office at the time, and his staff reviewed every version of the bill so they could estimate the cost. If subsidies were unavailable in some states, the cost would presumably have been lower.

“To the best of our recollection, the possibility that those subsidies would only be available in states that created their own exchanges did not arise during the discussions C.B.O. staff had with a wide range of congressional staff,” Mr. Elmendorf said.
[Yeah...they told the CBO that ALL states would establish their own exchange, so the CBO cost estimate was based on that presumption they gave them.]

Senators — notably Max Baucus, Democrat of Montana, who was chairman of the Finance Committee — also were mindful of the politics of health care.

Jon Selib, Mr. Baucus’s chief of staff, said senators had never discussed the question now before the justices. Mr. Baucus, “from the red state of Montana,” would never have agreed to an arrangement that jeopardized tax credits for his constituents, he added.

Senate Democratic leaders said they had several reasons for highlighting the role of state exchanges. They wanted to make clear that states could decide for themselves whether to set up exchanges because that made the bill more palatable to conservative Democrats. In addition, they wanted to contrast their bill with one passed in November 2009 by the House, which called for a national insurance exchange.

The Senate bill was on the floor for 25 consecutive days before it was approved on Christmas Eve 2009 by a party-line vote of 60 to 39. Senators always assumed that their bill would be polished and refined in negotiations with the House. But the expected conference between the two chambers never occurred. Democrats switched their plans after Scott Brown, a Republican, won a special election in January 2010 to fill the seat long held by Senator Edward M. Kennedy, Democrat of Massachusetts, who had died the previous year.

Having lost a filibuster-proof majority, Democrats believed they could not afford to make significant changes in the Senate bill; it was then approved by the House and sent to the president, with an agreement that lingering questions could be answered separately. Some were, though these four words were unaddressed.

The Obama administration contends that the “text, structure and history” of the Affordable Care Act all support its position. Even if the court agreed on the intent of Congress, that would not necessarily ensure a victory for the administration.

A powerful line of judicial thinking holds that courts do not have a license to disregard or revise the clear language of a law.

What matters, Justice Antonin Scalia has said, is “not what Congress would have wanted, but what Congress enacted.”

Quote:

 

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/26/on-the-origins-of-established-by-the-state-in-the-affordable-care-act/

On the origins of ‘established by the State’ in the Affordable Care Act

At some point between now and the end of June, the Supreme Court will decide King v. Burwell and, in the process, determine whether the phrase “established by the State” actually means “established by the State.” This phrase, which appears twice in the Patient Protection and Affordable Care Act (PPACA) provisions authorizing tax credits for the purchase of health insurance in exchanges, has bedeviled defenders of the IRS rule purporting to authorize credits in federally established exchanges. Some claim this phrase is “convenient shorthand” for “exchange” (even though it’s neither more convenient nor shorter), while others argue the phrase is effectively meaningless, or actually means something else (such as established in the State). The plaintiffs, on the other hand, maintain that the language means precisely what it says.

If Congress did not mean to refer to state-established exchanges, why did it use the phrase “established by the State”? According to story by Robert Pear in the New York Times “the words were a product of shifting politics and a sloppy merging of different versions. Some described the words as ‘inadvertent,’ ‘inartful’ or ‘a drafting error.'” In other words, by this account it was a mistake — and a mistake no one noticed until well after the bill’s passage.

This may be how congressional staffers and legislators characterize the drafting process now, but that’s not what the federal government and its supporting amici told the Supreme Court. The solicitor general, for instance, proclaimed in its brief that the phrase “established by the State” was a “statutory term of art.” At oral argument, the SG also denied that there were any last-minute revisions (as I discussed here). Throughout, the federal government has insisted that the statute actually authorizes the contested IRS rule.

Why hasn’t the SG embraced the “drafting error” argument? Because that would be a sure way to lose. As I explained years ago, when first discussing this issue on the VC, the courts are not in the business of fixing purported “drafting errors,” and the burden on those making such arguments is quite high. Justice Elena Kagan made the same point in her opinion last year in Michigan v. Bay Mills Indian Community, in which she explained that the “Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that . . . Congress ‘must have intended’ something broader.” It’s also hard to maintain that the inclusion of a phrase is a “drafting error” when it was added in multiple places and multiple separate times during the drafting process, as “established by the State” was in Section 1401.

Later on in the Times story, in discussing how the PPACA emerged from the Senate Finance and HELP Committee bills, Pear writes:

• 
  
• there were substantial differences between the two committees’ versions of the bill, and the task of merging them in October and November 2009 fell largely to Mr. Reid. Both bills called for insurance exchanges and provided subsidies to lower-income people, but the health committee measure clearly allowed subsidies in all states. The Finance Committee version was not so explicit.

As Pear recounts, there was language in the HELP bill clearly authorizing subsidies in federal exchanges, but no such language in the Finance Committee bill. What Pear fails to mention is that the HELP bill also expressly withheld subsidies in states that failed to adopt specified reforms. The staff members Pear interviewed may insist there was never any discussion of withholding subsidies, it is beyond dispute that this is precisely what the HELP bill did.

Not only did the HELP bill hold off subsidies for up to four years in states that refused to create their own exchanges, it also barred subsidies in states that failed to enact other desired reforms, as Michael Cannon and I explained in our amicus brief (see p. 26). Professor Tim Jost, who contests our interpretation of the PPACA on other points, described the HELP provisions in the same way in 2009 (see p. 7). Further, this point was conceded in the pro-government legislators’ amicus brief filed in the D.C. Circuit in Halbig and (less explicitly) in FN18 of the government’s King brief. So anyone who claims that the Senate never considered withholding subsidies in recalcitrant states is either a) dishonest, or b) doesn’t know what they’re talking about.

Pear continues:

• 
  
• In stitching together the final legislation, Mr. Reid took the language on tax credits from the Finance Committee, and he generally followed the health committee in allowing the secretary of health and human services to operate a federal exchange.
  
  But in borrowing from the health committee bill, Mr. Reid did not adopt an important provision that could perhaps have avoided the current fight. That provision said that a state with a federal exchange “shall be deemed to be a participating state,” and that its residents could receive federal subsidies to help pay premiums.

In other words, according to Pear’s account, the Senate drafters failed to include language expressly authorizing subsidies in federal exchanges, even though that language was in one of the precursor bills. This sort of equivalence language exists in other parts of the PPACA, however. Section 1322(c)(6), for instance, conditions recognition of an organization as a “qualified nonprofit health insurance issuer,” in part, on whether a state has adopted insurance market reforms or “the Secretary has implemented [the reforms] for the State.” So the bill’s drafters knew such language was necessary where equivalence was desired and knew full well how to authorize the federal government to fill the state’s shoes where that was intended. The bill’s drafters just did not include such language here.

Pear’s sources uniformly claim that it was never anyone’s intent to deny subsidies in states that failed to create their own exchanges, but such claims really don’t have much legal relevance. Post-hoc accounts of are not reliable indicia of legislative intent particularly where, as here, they are not supported by objective contemporaneous evidence. Yet to this day, no such evidence has emerged — no memos from committee staff discussing the drafting revisions, no e-mails or contemporary analyses of the actual bill’s language, no documents indicating how House staffers interpreted the Senate bill they were forced to accept, nothing. And insofar as the bill was not everything its supporters wanted, and there was no way to fix it, they made the choice to pass it anyway.

The most reliable indicator of legislative intent is the text of the statute Congress enacted and the president signed into law. That statute only authorizes tax credits for insurance plans purchased in an “Exchange established by the State.” As the Pear article makes clear, the relevant statutory text is on the side of the plaintiffs. Were it not, there would no need to claim anything was an “error” or proclaim a contrary intent.

Pear concludes:

• 
  
• A powerful line of judicial thinking holds that courts do not have a license to disregard or revise the clear language of a law.
  
  What matters, Justice Antonin Scalia has said, is “not what Congress would have wanted, but what Congress enacted.”

And that is precisely why the Court should side with the plaintiffs.

Quote:

 

http://www.nationalreview.com/bench-memos/418893/nyt-shows-no-one-buys-governments-term-art-argument-king-v-burwell-michael-f?target=author&tid=1088

NYT Shows No One Buys Government’s ‘Term of Art’ Argument in King v. Burwell

The Supreme Court is likely to rule on King v. Burwell by the end of June. The King plaintiffs are four Virginia taxpayers. They claim the Patient Protection and Affordable Care Act (ACA) does not authorize the Internal Revenue Service to issue certain subsidies or impose certain taxes in states like Virginia, whose health-insurance “Exchanges” were established by the federal government rather than the state itself. The challengers argue Congress intentionally authorized those taxes and subsidies only—as the ACA says—“through an Exchange established by the State.” A win for the challengers means: more than 57 million Americans in up to 38 states will be freed from the ACA’s individual and employer mandates, with considerable economic benefits; and perhaps 8 million consumers will see the full cost of their ACA plans. The Obama administration, on behalf of the IRS, argued before the Supreme Court that the statutory phrase “through an Exchange established by the State” is actually “a term of art that includes an Exchange established for the State by HHS.”

Today’s New York Times asks how the phrase “through an Exchange established by the State” got into the ACA’s subsidy-eligibility rules:

• 
  
• The answer, from interviews with more than two dozen Democrats and Republicans involved in writing the law, is that the words were a product of shifting politics and a sloppy merging of different versions. Some described the words as “inadvertent,” “inartful” or “a drafting error.”

A few observations about the Times’ account.

1. Senators and staff involved in the process don’t buy the government’s “term of art” argument.

None of the senators or staffers quoted in the article echoed the government’s argument that the phrase “through an Exchange established by the State” is a “term of art” meant to encompass Exchanges established by the federal government.

This is not too surprising. The government itself didn’t cook up that argument until King reached the Supreme Court. As Jonathan Adler and I explain here, there are reasons to believe the government doesn’t even believe its own “term of art” argument.

Indeed, by describing “through an Exchange established by the State” as “inadvertent,” “inartful,” or “a drafting error,” the senators and staff implicitly acknowledge the phrase clearly does not encompass federal Exchanges.

2. The ACA’s authors rejected “term of art” language.

The Times explains that Majority Leader Harry Reid (D., Nev.) and other Senate Democrats rejected language that would have converted “through an Exchange established by the State” into a term of art.

The ACA was the merged product of two bills, one produced by the Senate’s Finance Committee and the other by the Senate’s Health, Education, Labor, and Pensions (HELP) Committee. The Times explains—as Adler and I explained three years ago—that in merging the two bills, Reid et alia rejected language from the HELP bill that would have created full equivalence between state-established and federally established Exchanges. (Adler and I also showed that Congress rejected a House-passed bill that contained similar equivalence language.)

The fact that the law’s authors rejected such language suggests the non-equivalence that appears in the ACA was intentional.

3. Senators, staff, and reporters still don’t understand the ACA or its legislative history.

The Times article, which is based on the recollections of senators and staff, provides ample evidence that those recollections are unreliable indicators of what Congress actually intended. Here are a few examples.

The Times reports that the HELP bill “clearly allowed subsidies in all states.” On the contrary, as even the government and its allies acknowledge, the HELP bill conditioned Exchange subsidies on states implementing that bill’s employer mandate.

The Times claims the ACA’s federal-Exchange provisions come from the HELP bill. On the contrary, they are a reorganized version of the Finance bill’s federal-Exchange provisions.

The Senate Finance Committee’s former Democratic staff director claims the idea of a federal fallback Exchange did not appear in the Finance bill. On the contrary, federal fallback Exchanges appeared in the chairman’s mark (p. 11) introduced on September 22, 2009, and in every subsequent draft of the Finance bill and the ACA.

When merging the Finance and HELP bills, Reid did not just “[take] the language on tax credits from the Finance Committee.” Under his supervision, drafters added the restrictive language “through an Exchange established by the State” to the ACA’s tax-credit eligibility rules in multiple places. As Adler and I explain in an amicus brief to the Supreme Court, “Restricting tax credits to Exchanges ‘established by the State’ was no accident. This phrasing was added to Section 1401 in multiple places at multiple times in the drafting process . . . under the supervision of Senate leaders and White House officials. . . . This requirement survived multiple rounds of revisions throughout the drafting process, including revisions to the cross-references attached to it.”

The Times and its sources speak of conditioning tax credits on state cooperation as if it were some foreign concept. No one acknowledges the chairman’s mark also conditioned tax credits for small businesses on state cooperation: “If a State has not yet adopted the reformed rating rules, qualifying small employers in the state would not be eligible to receive the credit.” Nor do any of the sources acknowledge the HELP bill conditioned Exchange subsidies on state cooperation.

The Times cites the former chief of staff to Senate Finance Committee chairman Max Baucus (D., Mont.) as saying Baucus “would never have agreed to an arrangement that jeopardized tax credits for his constituents.” Yet he proposed exactly that with respect to small businesses in both his chairman’s mark and the Finance bill.

4. Consider the sources.

Aside from the ACA itself and its antecedent bills — all of which Adler and I covered three years ago — the Times article presents no contemporaneous, primary-source material. It includes no contemporaneous written or spoken statements from senators, Senate staff, Senate legislative counsel, House members, or House staff.

Instead, it relies on the unreliable recollections of members of Congress and staff, whose contributions consist mainly of professions of ignorance: I don’t ever recall . . . It was never part of our conversations . . . I don’t know how else to explain it . . . As far as I know, it escaped everyone’s attention . . . I didn’t ever hear anybody suggest . . . I didn’t ever hear…

Indeed, they’re not even the right senators and staff. The Republican staffers quoted in the article were not involved in drafting the ACA. The Democratic and non-partisan staff most responsible for the statutory language in question were unavailable. It is not clear that any of this article’s sources actually helped draft the relevant language.

***

While the Times’ sources may have intended to undercut the King challengers’ case, they, like others before them, inadvertently bolstered it. They acknowledged, perhaps inadvertently, that they did not pay as much attention to the bill as maybe they should have, that they had no choice but to enact a bill they knew was flawed, that the statute’s meaning is plain, and that the government’s “term of art” argument is unbelievable. They demonstrated why courts should rely on the plain meaning of statutes and ignore post hoc statements by members of Congress about what they really intended.

excerpt from Pear's BS article:

 

“I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies,” said Olympia J. Snowe, a former Republican senator from Maine who helped write the Finance Committee version of the bill.

“It was never part of our conversations at any point,” said Ms. Snowe, who voted against the final version of the Senate bill. “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.” The four words, she said, were perhaps “inadvertent language,” adding, “I don’t know how else to explain it.”

• 
  
• ...At that point, senators authorized a backup plan to allow the federal government to establish an exchange in any state that did not have its own, but they failed to include that language in the section of the tax code providing subsidies.
  
  
• ...credits through state exchanges was “a holdover from what we had in the Finance Committee,” which originally assumed that “every state was going to set up an exchange,”
  
  
• ...In the Finance Committee bill, the sections setting up exchanges were separate from the section providing tax credits. (OOPS!)
  
  
• ...But in borrowing from the health committee bill, Mr. Reid did not adopt an important provision that ... said that a state with a federal exchange “shall be deemed to be a participating state,”
  
  
• ...Senators always assumed that their bill would be polished and refined in negotiations with the House. But the expected conference between the two chambers never occurred. Democrats switched their plans after Scott Brown, a Republican, won a special election