Health Reform WK-EDGE State AGs allowed to intervene in ACA subsidies case
Monday, August 14, 2017

State AGs allowed to intervene in ACA subsidies case

By Lindsey Firnbach, J.D.

The motion brought by 17 state attorneys general (AGs) to intervene in House of Representatives v. Price was granted by the U.S. Court of Appeals for the District of Columbia Circuit. The decision declared that the AGs provided enough evidence to demonstrate standing and they met the requirements for intervention as of right (U.S. House of Representatives v. Price, August 1, 2017, per curiam).

Case Background. The case, formerly known as House of Representatives v. Burwell, was brought by House Republicans during the Obama Administration to challenge the legality of cost-sharing subsidies under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). The House was granted summary judgment, but, pending appeal, subsidies were permitted to continue during the abeyance (see Court puts cost-sharing appeal on hold, awaits possible Trump policy, December 7, 2016). The abeyance was granted after the 2016 election, and on March 2, 2017, the court ordered to continue the abeyance for 90 days, and required a status report by May 22, 2017. However, on May 22, 2017, the parties requested yet another 90-day delay, after 15 state AGs filed a motion to intervene (see States seek to intervene, parties ask for more time in ACA subsidies case, May 24, 2017).

Court Decision. The court granted the motion for leave to intervene, declaring that the AGs proved standing, and met the requirements for intervention as of right. The concrete injury that would be suffered if the House was granted an injunction gave the AGs standing to intervene in the case—the injunction would lead to an increase in insurance prices and an increase in the number of uninsured individuals for whom the state would be responsible for providing health care. Additionally, the AGs could intervene as of right because they had an interest relating to the property or transaction that is the issue of the case, and their interests would be impaired because the injunction would prevent them from persuading or compelling the subsidy payments.

Doubt as to the adequacy of HHS’ representation of AG interests was also shown through the public statements made by the Department about a potential position change and a possible joinder with House to terminate the appeal (see State AGs accuse House and Trump Administration of collusion in ACA litigation, July 26, 2017). Finally, the motion was timely—in cases where inadequacy of representation is alleged after the beginning of the case, timeliness begins when the alleged inadequacy develops. Here, the AGs filed within a reasonable time of the statements that they alleged raised questions about the adequacy of HHS’ representation.

The case is No. 16-5202.

Attorneys: Thomas G. Hungar for U.S. House of Representatives. Alisa B. Klein, U.S. Department of Justice, for Thomas E. Price, Secretary, U.S. Department of Health and Human Services.

Companies: U.S. House of Representatives; U.S. Department of Health and Human Services

Cases: CaseDecisions CostSharingNews InsurerNews PremiumTaxNews DistrictofColumbiaNews TrumpAdministrationNews FedTracker HealthCare Tax

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