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Healthcare Bill Part III; Obamacare
Topic Started: Mar 3 2014, 02:20 PM (48,618 Views)
kbp

https://cei.org/sites/default/files/Scot%20Vorse%20-%20Beyond%20Gruber%20-%20How%20HHS%20Flip%20Flopped%20on%20Federal%20Exchange%20Subsidies_0.pdf
"How HHS Flip-Flopped on Federal Exchange Subsidies"

It is 9 pages that will leave you falling to the floor.
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Baldo
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kbp
Nov 20 2014, 06:57 PM
https://cei.org/sites/default/files/Scot%20Vorse%20-%20Beyond%20Gruber%20-%20How%20HHS%20Flip%20Flopped%20on%20Federal%20Exchange%20Subsidies_0.pdf
"How HHS Flip-Flopped on Federal Exchange Subsidies"

It is 9 pages that will leave you falling to the floor.
Powerful Piece with documentation

Conclusion
.
As the above timeline clearly demonstrates, the Obama administration and the Department of Health and Human Services required states establishing their own exchange to build a tax credit calculator. However, for two years after passage of the law, they did not require the same for the federal exchange. These actions provide additional support that the Obama administration and HHS understood that only states that established their own exchanges were entitled to tax credits—the exact opposite of what they have been arguing in federal court.


Of course who knows what Chief Justice "Carnac the Magnificent" Roberts can come up with?.
Edited by Baldo, Nov 20 2014, 07:37 PM.
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kbp


We've been "Gruberized"....

Quote:
 
http://online.wsj.com/articles/u-s-again-overstates-health-care-enrollees-1416513555
U.S. Overstates Health-Care Enrollees
Incorrect Inclusion of Dental Coverage Enrollees in Medical Insurance Numbe

...Some 6.7 million people had paid-up health coverage through the Affordable Care Act’s insurance exchanges as of mid-October, about 400,000 less than the government had reported last week, the Obama administration said Thursday. The erroneous number included people who only bought dental coverage through the exchanges....
Quote:
 
http://www.nytimes.com/2014/11/21/us/health-insurance-enrollment-for-exchanges-was-overcounted-.html
Health Insurance Enrollment for Exchanges Was Overcounted
....Marilyn B. Tavenner, administrator of the Centers for Medicare and Medicaid Services, said in September that 7.3 million people were enrolled. But Bloomberg News reported Thursday that the figure included nearly 400,000 people with stand-alone dental plans, prompting the administration to revise the enrollment figure to 6.7 million as of Oct. 15. The discrepancy was discovered by the House Oversight and Government Reform Committee, which had asked for the enrollment records. About eight million people had signed up for health plans by May, according to the administration, but many are no longer enrolled. At the time, the Health and Human Services Department broke out the number who had signed up for dental but not medical plans, saying that 1.1 million people had done so. In a statement, the Department of Health and Human Services said it still estimated that a total of 9.1 million people would have medical coverage through the exchanges by the end of next year. “The mistake we made is unacceptable,” Sylvia Mathews Burwell, the department’s secretary, wrote on Twitter.
Quote:
 
http://www.washingtonpost.com/blogs/wonkblog/wp/2014/11/20/administration-erroneously-overcounted-obamacare-enrollees/
Administration ‘erroneously’ overcounted Obamacare enrollees
...The House investigation, first reported by Bloomberg, found that this number also counted people enrolled in just dental coverage, a change from how previous enrollment figures have been counted that the Obama administration did not disclose. Without counting those dental plans, enrollment would have been 6.97 million... in November, it reported an inaccurate figure again when it said 7.1 million people were enrolled at the time; the actual figure was 6.7 million... HHS has been especially stingy about providing enrollment data. Reporters have constantly pushed HHS for more up-to-date information, and the answer from HHS is usually the same: the agency can't provide real-time information because it needs to make sure all the data it's putting out is clean. Today's news obviously undercuts that argument....
Quote:
 
http://www.latimes.com/nation/la-na-obamacare-enrollment-error-20141120-story.html
Obama administration overstated Obamacare enrollment tally
The Obama administration overstated 2014 enrollment in health insurance plans purchased through the Affordable Care Act by more than 5%...enrollment projections and suggested that the vast majority of the more than 8 million people who selected a health plan in the first enrollment period were paying their premiums and sticking with their coverage...actual enrollment in medical coverage as of Oct. 15 was approximately 6.7 million...
Quote:
 
http://www.politico.com/story/2014/11/inflated-obamacare-enrollment-dental-113064.html
Administration admits Obamacare enrollment numbers error
...House Majority Leader Kevin McCarthy tweeted, “Administration double counts #Obamacare enrollees to reach enrollment goal” of 7 million.

Saved the best for last...
Quote:
 
http://www.usatoday.com/story/news/politics/2014/11/20/obamacare-exchange-7-million-dental-plans/70014670/
More Obamacare troubles: Enrollment numbers inflated
...Those stand-alone dental plans allowed the Obama administration to claim more than 7 million paid enrollments — the "magic number" that would allow the new health insurance exchanges to be sustainable.

...Even without the inflated numbers from dental plans, the exchanges have lost more than 1 million subscribers since May, a decline Tavenner attributed to people picking up employer coverage, becoming eligible for Medicaid or simply not paying their premiums.
[Tavenner was quick to blame the decline on getting coverage elsewhere!]
The message is that the HHS does NOT have a backend to the system setup to track WTH is going on and they conceal what they do know.

The number needed for the system to be "sustainable" is somewhat of a mystery. We've seen the 'more than 8 million' drop to 7.3 million and now 6'7 million. The deciding factor relates to how the 3-R's will work in bailouts.

Just going off CBO, we were supposed see 7 million in 2014 and then jump to 13M/2015, 22M/2016 and 24M/2017. Now they'll lowering the number for 2015 to only 9 Million. After this latest data, that's only an increase of 2.3 million. I suspect we'll surpass the 9 million early in 2015 and see the dropouts take it closer to that 9 million before the year is done.

This relates to the future year counts also. That 3-R's ending in 2016 is looking bigger every day! I'll touch on that in another post.

Just FYI... In almost every article linked above, Gruber was mentioned!!!!

Barry would rather talk about his compassionate efforts to help the poor immigrants, you know, those ILLEGALS!
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kbp


The 3-R's....


The previous post shows how this topic could become a HUGE issue in the near future. On top of all the twisting and spinning to hide numbers and those they probably do not have because of their failure to complete the enrollment system, it appears the enrollment estimates are sinking down the drain. It's a given fact that it will be the healthy uninsured, most younger, the system can't get onboard the HHS ship running a course charted with the Gruber numbers game (what I call his $6 million program!).

The Obamacare exchanges were certain to get the economically challenged sick and older, so they had to have that MANDATE (Gruber again!) to spread the healthcare wealth from the young and healthy stupid voters. Knowing not all would immediately jump on and that the sick would certainly jump on, they added the 3-R's to help cushion the "transition" in store for the system.

Evidently they had convinced themselves that their tweaked numbers were accurate enough to end that "transition" period in 2016 (an election year!!!!). The 3-R's is near impossible for me to fully understand, as much of the Obamacare law is. The basics of it is for the profitable pools to share their profits with the unprofitable pools, and for what appears to be the 'just in case we F'd up big time,' an unfunded bailout by the federal government.

By the end of 2016, if the new rate of increased enrollment holds true and the dropouts increase like they appear they will, they may have too many problems to solve ...unless we all grow "compassionate" and convince Congress to keep bailing them out. Add a SCOTUS ruling that only State exchanges can give away tax credits and charge "penalties" for the mandate, you'll see a real nightmare for Barry's staff (however he defines "staff").

Anyway, while looking up issues about the 3-R's I happened across this bit of information...
Quote:
 
http://www.politicususa.com/2014/04/17/obama-eviserates-congressional-republicans-aca-sign-ups-fly-8-million.html
Obama Eviscerates Congressional Republicans as ACA Sign Ups Fly Past 8 Million
[...]
Obama said what he had needed to say for a long time. Republicans have been and remain, completely wrong about this law. Their position of wanting to take health insurance away from millions of Americans is become less defensible each day.

It was a smooth move by the White House to use the president speaking at the daily press briefing to get all of the networks to cover the positive news about the Affordable Care Act. This is the same media that turned down the president’s request for a primetime press conference on the ACA, but the White House got their coverage by using the fact that the media can’t resist surprises and breaking news.

According to an accompanying fact sheet released by the White House, here are the numbers:

  • ....– 5 million people are enrolled in plans that meet ACA standards outside the Marketplace, according to a CBO estimate. When insurers set premiums for next year, they are required to look at everyone who enrolled in plans that meet ACA standards, both on and off the Marketplace....
Recall that many insurance companies would not participate in the exchanges BECAUSE the same rules applying to policies offered there would also apply to policies they offered off the Marketplace.

I've not been able to figure out if the losses covered by the 3-R's are to be determined by the numbers from a specific policy pool, pools setup for an entire state under the company offering them, or some sort of national pool of a company offering policies on and maybe off the exchange (marketplace). Does the 3-R's cover losses off the Marketplace.

Next I wonder when and how the HHS will share any loss data and how it was covered so we can get a clearer picture of WTH is going on.
.
Edited by kbp, Nov 21 2014, 10:58 AM.
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chatham
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it was all a mistake

http://www.nydailynews.com/news/politics/white-house-over-reported-obamacare-enrollment-numbers-article-1.2018064?utm_content=buffer5351c&utm_medium=social&utm_source=twitter.com&utm_campaign=NYDailyNewsTw

White House over-reported Obamacare enrollment numbers
The administration admitted to mistakenly double-counting 400,000 enrollees who had signed up for both dental and medical coverage under the Affordable Care Act.
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MikeZPU

chatham
Nov 21 2014, 07:29 PM
it was all a mistake

http://www.nydailynews.com/news/politics/white-house-over-reported-obamacare-enrollment-numbers-article-1.2018064?utm_content=buffer5351c&utm_medium=social&utm_source=twitter.com&utm_campaign=NYDailyNewsTw

White House over-reported Obamacare enrollment numbers
The administration admitted to mistakenly double-counting 400,000 enrollees who had signed up for both dental and medical coverage under the Affordable Care Act.
SOB's

It's just like the deportation numbers.

Breaking with precedent, in order to inflate the numbers,
Obama's thugs count as a deportation when a person
trying to enter the country illegally is turned back, right at the border.

I am dead serious -- this is how they keep claiming that
deportations under Obama are higher than any other President.
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kbp

MikeZPU
Nov 21 2014, 10:08 PM
chatham
Nov 21 2014, 07:29 PM
it was all a mistake

http://www.nydailynews.com/news/politics/white-house-over-reported-obamacare-enrollment-numbers-article-1.2018064?utm_content=buffer5351c&utm_medium=social&utm_source=twitter.com&utm_campaign=NYDailyNewsTw

White House over-reported Obamacare enrollment numbers
The administration admitted to mistakenly double-counting 400,000 enrollees who had signed up for both dental and medical coverage under the Affordable Care Act.
SOB's

It's just like the deportation numbers.

Breaking with precedent, in order to inflate the numbers,
Obama's thugs count as a deportation when a person
trying to enter the country illegally is turned back, right at the border.

I am dead serious -- this is how they keep claiming that
deportations under Obama are higher than any other President.
Numbers. numbers, numbers....

The basic concept of Obamacare is to provide expanded Medicaid and subsidize premiums, collect taxes to pay for such, and get enough healthy people involved so they may redistribute the medical costs involved.

What the count must be to keep the program sustainable is rather important. Truthfully, 6.7 million is much better than I anticipated and is very close to the 7 million goal the CBO numbers used to determine costs.

The 2014 enrollment numbers were budgeted for about a $50 billion cost. In addition to the direct taxes that have yet to kick in (mandate penalty, premium tax...), they added other taxes to budget for the costs. If fewer people enroll, the outcome is fewer tax dollars spent on subsidies to insure them.

Now that they revised the enrollment numbers from 13 to 9 million for 2015, we'll spend less on subsidies. They had guesstimated about $50 billion in subsidies for 2015. There are other costs involved, but just going with 9/13 as the change, the cost reduces to $34 billion (Barry will translate that numbers failure into how he saved us money!).

Another issue is they reported a 25% increase in insurance companies participating in the exchanges this year (after HHS wrote to tell them they could immediately cancel all policies if they lose in the King/Halbig cases!), as if that was great news. It was not clear if it was actually more companies, more policies and/or both.

Anyway, that looks to be splitting the enrollment pie they share in to smaller slices
...which means the pools will have fewer people to redistribute the cost through
...which also means the people enrolled are likely to be less healthy
...which means there are likely to be more dollars paid out per person for healthcare
...which means losses are more likely
...which means the premiums will go up if the 3-R's is not there to guarantee companies a profit

...and all of that comes with more companies serving fewer enrollees than anticipated!

That's where the "sustainable" appears to apply, whether or not the insurance companies can sustain reasonable premiums at the exchanges.

I have not seen any recent reporting on the results of the 3-R's, any projected losses since the news a few months ago that they were anticipated to be huge early on. I guess the policy effective date must expire before any actual loss may be determined.




Edited by kbp, Nov 22 2014, 10:58 AM.
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kbp

Any following this much should have learned that there are not many out there that know more about Obamacare than Michael Cannon.

I had tweeted Cannon a question:

  • Does 3-R's pool insured on & off HIX, allowing bailout for off HIX pools?


He answered "yep."

Recall the companies offering plans on the Health Insurance Exchange (HIX) and in the private market must meet certain guidelines in both markets. I'm not sure how the pooling is structured. It must require that the pool of the both the private and exchange markets be mixed to redistribute private premium payers to subsidized premiums paid.

So the 3-R's bailout would cover (some?) private policy pools of companies participating in the HIX.


ADD: This question came about from me reading the what was called a WH fact sheet put out when Barry was bragging about the "greater than 8 million" enrollees. That fact sheet stated: "insurers set premiums...are required to look at [pools] that meet ACA standards...on & off the [HIX]." That should lead to the conclusion that pools for private market policies MUST be mixed in with pools for exchange policy pools to stretch the head count for redistribution.



Edited by kbp, Nov 22 2014, 11:24 AM.
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kbp

This might explain why some premiums went up and others are cheaper...

http://healthpolicyandmarket.blogspot.com/2014/11/how-many-people-have-enrolled-so-far-in.html?spref=tw

How Many People Have Enrolled So Far in Obamacare's Second Open Enrollment?

Undoubtedly I will hear that question many times in the coming weeks.

The answer is that this enrollment process is so screwed up we will have no earthly idea how many new people have enrolled and how many 2014 enrollees remained on the program until at least April 2015.

Let me try to illustrate.

Let's say George is now enrolled in Obamacare. He is happy to have subsidized and guaranteed health insurance for the first time. He was even been happier to read in the media that the second year Obamacare rate increases would be small.

He was also happy to get a letter just before the Election Day telling him he will be automatically renewed in his current plan.

Then on December 6th George gets his January premium statement. He is paying a lot more! What happened? His insurance company phone lines are suddenly jammed. Seems like a lot of other people got a surprise.

Turns out all of those expert analysts and reporters writing stories about "average rate increases" never heard of the term loaded average––that's when the plan that got 70% market share increased their rates 15% and the rest cut their rates or gave tiny increases.

That is happening a lot in Obamacare this renewal season. Here is a sample list of the rate increases the biggest market share carriers are asking for:

Posted Image

This is all compounded by something called the baseline Silver Plan's effect on subsidies. The second lowest cost Silver plan in any market determines what a person's subsidy will be. Last year, that plan was probably the plan that got the biggest enrollment and also the plan with the biggest rate increase this year. So, it's probably the plan George has.

In fact, you might recall a recent briefing paper by actuarial firm Milliman in which they pointed out that even a modest increase in premium by market leaders of 5% could lead to net after subsidy cost increases of 30% to near 100% for subsidized enrollees.

But because George's plan is no longer the baseline plan, even though George is on subsidy and he is supposed to be shielded from any rate increase by the taxpayer, his premium is going up unless he changes to the insurance company that now holds the honors as having the second lowest cost Silver Plan.

So, George scrambles, in the very few days between his getting his January premium invoice (likely about December 6th) and the January 1 cut-off for open enrollment on December 15, to sign-up for that lower cost plan and save his full subsidy.

But then George's friend Mary tells him that the new second lowest cost Silver Plan is one of those terrible narrow network plans that restricts providers in order to be able to charge the lowest rate and suggests he sign up for a third plan that costs a little more but has his doctor in the network.

So, how many enrollments will the Obama administration and the insurance companies be counting here on their far from finished Obamacare backroom system?

George's first carrier will count him because it was too much bother for George to figure out whom to call to cancel his coverage––he will just not pay the bill. But his carrier, by regulation, can't knock him off the rolls for three months––not until April 1.

George enrolled in his second choice but never bothered to pay that bill but the carrier will count him likely into February as the health plans give people plenty of time to pay their bill in what will be a very confusing situation.

And, of course, George's third carrier will count him.

So, that is one person being counted three times and we won't have just George's status cleared up until George's 2014 carrier can delete him from its rolls in April.

So, how many people have enrolled in Obamacare say, by December 1, or December 15, or January 1, or February 1?

I will have no frickin idea, don't even ask.

So much for Healthcare.Gov working really well.

But I am sure the Obama administration will be telling us the website, call centers, and carriers are very busy with people all excited about Obamacare. They just won't be defining excitement.

Posted by ROBERT LASZEWSKI
Edited by kbp, Nov 22 2014, 11:43 AM.
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Baldo
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Four words that could deep-six Obamacare

http://www.usatoday.com/story/news/politics/2014/11/22/supreme-court-obama-health-care/19271273/
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kbp

Baldo
Nov 22 2014, 03:36 PM
excerpt...
 
Question: Why the fuss over four words?

Answer: The law states that tax credits will be available through so-called exchanges, or online marketplaces, "established by the State." When it was being crafted, it was assumed that all 50 states would create their own exchanges. After it passed in March 2010, it became clear that many states would rely on the federal government to operate them, as the law allows.

In 2012, the Internal Revenue Service made the subsidies available in all states. The law's challengers claim they cannot be offered in exchanges operated by the federal government. Thirty-six states fit into that category. Without subsidies, insurance costs would skyrocket.

Q: What's more important — the plain meaning of those words, or the context?

A: That depends on whom you ask. The challengers say the plain meaning is clear: Subsidies can be offered only in state exchanges. If that's what Congress wrote, they say, the Supreme Court cannot change it, and the IRS cannot extend tax credits to federal exchange customers.

The administration and other proponents say the words must be read in the context of a law clearly intended to make health insurance more widely available and affordable. Even the suspect words appear in a subtitle of the law that reads, "Affordable Coverage Choices for All Americans."
I like that "context" argument.

The law specifically states tax credits go through an exchange "established by the State." There is nothing that says the federal exchange may provide tax credits. That's a piece of the context.

...law clearly intended to make health insurance more widely available and affordable.


The claim was that the proposed law would make AVAILABILITY and AFFORDABILITY a benefit from a central marketplace that created more COMPETITIVE pricing... the tool to help provide $2500/year savings! How do we know this?

  • "I strongly believe that Americans should have the choice of a public health insurance option operating alongside private plans. This will give them a better range of choices, make the health care market more competitive, and keep insurance companies honest."
    Barry - Aug/2009

  • [...said the administration would consider a bill that includes the creation of a not-for-profit insurance cooperative as an alternative to a government-run plan.] "What's important is choice and competition."."
    Sebelius - Aug/2009
We know it because they told us, the law allowed (funded) non-profit coop's to create more competition, and you're not required to get subsidies to purchase plans from the coop's.

Back to context, to form an understanding of the context meaning all exchanges give tax credits, you must somehow UNREAD the plain text of 1311:

  • “(d) REQUIREMENTS.—

    (1) IN GENERAL.—An Exchange shall be a governmental agency or nonprofit entity that is established by a State.
They select provisions from throughout the law that might leave one thinking that is so, but each provision selected, individually, can be explained in a manner that works dandy with "established by the State."

Going the "context" route, they try to combine the provisions (a load of almost!) to create the impression that the entirety of the law, reading the provisions their way, is the best argument to show the intent (cart before the horse). Somehow the idea that to ignore plain text and allow the IRS to change the rules requires that a reading of the various provisions in a manner that supports the plain text MUST be "absurd" got lost. (Recall the pro-Ocare process is identify ambiguity that allows IRS to redefine what the intent was, not determine a possible intent and use it to define possibly ambiguous provisions.)

They're still left with the UNREAD plain text problem (absent any explanation why it was included), so they ignore definitions and partially classify requirements as definitions. To accomplish this, they must select a sentence and declare that only a portion of the sentence helps to define what "established by the State" means, ignoring the balance of the sentence. The Fourth Circuit told us:

  • “As noted, § 1311 provides that “[e]ach State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an “Exchange”)[.]” It goes on to say that “[a]n Exchange shall be a governmental agency or nonprofit entity that is established by a State,” apparently narrowing the definition of “Exchange” to encompass only state-created Exchanges. ACA § 1311(d)(1). Similarly, the definitions section of the Act, § 1563(b), provides that “[t]he term ‘Exchange’ means an American Health Benefit Exchange established under [§] 1311,” further supporting the notion that all Exchanges should be considered as if they were established by a State…
    [They stretch to ignore "1311" here by expanding what "State" means.]

    In the absence of state action, the federal government is required to step in and create, by definition, “an American Health Benefit Exchange established under [§] 1311” on behalf of the state…

    Given that Congress defined “Exchange” as an Exchange established by the state, it makes sense to read § 1321(c)’s directive that HHS establish “such Exchange” to mean that the federal government acts on behalf of the state when it establishes its own Exchange. However, the court cannot ignore the common-sense appeal of the plaintiffs’ argument; a literal reading of the statute undoubtedly accords more closely with their position. As such, based solely on the language and context of the most relevant statutory provisions, the court cannot say that Congress’s intent is so clear and unambiguous that it “foreclose[s) any other interpretation.”
We're left with the plain meaning of "established by the state" as being absurd and established by the fed as meaning "by the State" as not absurd.

“(d) REQUIREMENTS.— (1) IN GENERAL.—An Exchange shall be a governmental agency or nonprofit entity that is established by a State."

Skip the fact this is plainly a requirement and go with it as some defining note for the law. If the :established by the State" is not definition, then so too is the case for "nonprofit." If we go with the Fourth's idea of fed = State, then go further ignoring "nonprofit" and insert Walmart or Gruber. The Fourth unread plain text and selectively prevented any other parts of 1311 from being a definition in their interpretation of what the requirement is to be... partially a requirement and partially a definition.

That plants ignorance on Congress's part through the language used. A reader must add language and meaning to the law to reach this fed=State conclusion, while ignoring the many provisions noting requirements of where the tax credits come from.

Something that gets me on the "context" matter is how if they need to plant intent ahead of finding ambiguity, why have they NOT gone further in to a reading of the HELP and Finance bills the language was borrowed from?
.
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chatham
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The way the ACA was written is not the meaning Gruber was talking about it. So intentions are off the table because gruber's vocalization gruberized his own document.
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kbp

chatham
Nov 23 2014, 11:22 AM
The way the ACA was written is not the meaning Gruber was talking about it. So intentions are off the table because gruber's vocalization gruberized his own document.
Depends on which time Gruber opened his mouth!
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kbp

Directed a couple posts back to "Four words that could deep-six Obamacare"

http://www.supremecourt.gov/opinions/13pdf/12-1146_4g18.pdf

[from a part of Justice Scalia’s opinion on the "context" and words of plain meaning...]

  • ...An agency has no power to “tailor” legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. . . .

    The power of executing laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice. . . .[or DO work in practice!]

    We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.

Another...

http://www.supremecourt.gov/opinions/13pdf/12-515_jq2i.pdf
[from Justice Kagan...]

  • [the Fourth and IRS had] “no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that . . . Congress ‘must have intended’ something”
The IRS and the Fourth seem to have had the cart before the horse, assuming intent that would help them justifiably search for ambiguity.

Context v. Text
If the general definition the Fourth relied on was to be taken as what rules all of the law by UNREADING parts of it, there would not have been any need to add a specific requirement provision to direct tax credits "established by the State."
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kbp

More on the definition issue..

The ACA is divided into Title, Subtitle, Section, Subsection and includes:

  • Subtitle G--Miscellaneous Provisions
    SEC. 1551. DEFINITIONS.
    Unless specifically provided for otherwise, the definitions contained in section 2791 of the Public Health Service Act (42 U.S.C. 300gg-91) shall apply with respect to this title.

    [...]

    SEC. 1563. CONFORMING AMENDMENTS
    (b) Definitions- Section 2791...
    `(21) EXCHANGE- The term `Exchange' means an American Health Benefit Exchange established under section 1311 of the Patient Protection and Affordable Care Act.'.
So, go back up to where the Fourth Circuit wrote:

  • ...Similarly, the definitions section of the Act, § 1563(b), provides that “[t]he term ‘Exchange’ means an American Health Benefit Exchange established under [§] 1311,” further supporting the notion that all Exchanges should be considered as if they were established by a State…

    In the absence of state action, the federal government is required to step in and create, by definition, “an American Health Benefit Exchange established under [§] 1311” on behalf of the state…

    Given that Congress defined “Exchange” as an Exchange established by the state, it makes sense to read § 1321(c)’s directive that HHS establish “such Exchange” to mean that the federal government acts on behalf of the state when it establishes its own Exchange....
The sections 1511 and 1563 are both a part of Subtitle G. One would think that 1511 would tell you how to interpret how 1563 is to be used. That mentioned, section 1311 is something I think "specifically provided for otherwise" in how 1563 applies.

An "Exchange" means one established by State or Federal authorities.

An "Exchange" identified in 1311 "specifically provided for" tax credit to come the an Exchange "established by a State."

(I'm reading too many parts of this hard to follow law!)
Edited by kbp, Nov 23 2014, 01:27 PM.
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