AG Mark Herring Joins 17 Other AGs in Suit to Defend Healthcare Access, Affordability

RICHMOND (August 2, 2017)-Attorney General Mark R. Herring and 17 other state attorneys general have been granted permission to intervene in House v. Price to defend the federal government’s payment of “cost-sharing reduction payments” (CSRs) under the Affordable Care Act (ACA) that help millions of Americans afford healthcare. According to the Centers for Medicare and Medicaid Services, 242,000 Virginians currently have a plan that relies on CSRs.

“We cannot take the chance that the health and financial well-being of thousands of Virginians, not to mention the stability of the insurance market, will be put in jeopardy if President Trump tries to use the CSRs as some sort of leverage or bargaining chip,” said Attorney General Herring. “If President Trump tries to undermine Virginians’ health insurance by playing games with the CSRs, we are ready and willing to step up to defend their rights and their healthcare.”

Late yesterday, the D.C. Circuit Court of Appeals granted the States’ motion to intervene, concluding that the States had raised “sufficient doubt concerning the adequacy of the Department [of Justice]’s representation of their interests,” because “the Department [of Justice] nowhere argues in its intervention papers that it will adequately protect the States’ interests or even continue to prosecute the appeal.”

In their motion to intervene, the States lay out the stakes of this case:

“The loss of funds and financial uncertainty threatened by this case would lead at least to higher health insurance costs for consumers, and more likely to many insurers abandoning the individual health insurance market. The number of uninsured Americans would go back up, hurting vulnerable individuals and directly burdening the States. The wrong decision could trigger the very system-wide “death spirals” that central ACA features, such as stable financing, were designed to avoid…These concerns are concrete and immediate. Insurers are currently deciding whether to participate in ACA Exchanges in 2018. Some have already withdrawn because of uncertainty over funding for cost-sharing reduction payments, and others are threatening to follow suit. Meanwhile, the President has increasingly made clear that he views decisions about providing access to health insurance for millions of Americans-including the decision whether to continue defending this appeal-as little more than political bargaining chips. The States and their residents cannot continue to rely on the Executive Branch to represent them in this appeal.”

Previously, Attorney General Herring led a coalition of 22 states in successfully defending healthcare subsidies for individuals in Virginia and other states who purchase their coverage on a federally-facilitated exchange when they were challenged at the Fourth Circuit Court of Appeals and the United States Supreme Court. At risk in that case was the affordability assistance relied on by more than 336,000 Virginians who buy private insurance on the exchanges, averaging more than $3,800 annually.