U.S. Capitol building in Washington, D.C.
U.S. Capitol building in Washington, D.C. (Photo: Mike Scarcella/ALM)

Two Affordable Care Act cost-sharing reduction subsidy users are trying to get an official role in a lawsuit that challenges the Obama administration’s operation of the subsidy program.

Lawyers for Gustavo Parker and La Trina Patton, who use the subsidy together with ACA exchange plan health coverage, are asking the U.S. Court of Appeals for the D.C. Circuit for permission to intervene in U.S. House of Representatives v. Burwell to defend the Obama administration program.

Republican House leaders say Sylvia Burwell, the U.S. Health and Human Services secretary, and Jacob Lew, the Treasury secretary, have been using federal money to pay for the cost-sharing reduction subsidy program without a valid authorization from Congress. A Washington federal judge in May concluded the Obama administration unlawfully reimbursed health insurers.

A team from Mayer Brown—partners Andrew Pincus and Brian Netter—represent Parker and Patton in the D.C. Circuit. The two ACA exchange participants fear the incoming Trump administration will not adequately represent their interest in protecting cost-sharing provisions of the health care law.

“Consumers are alarmed because the House of Representatives has told the court they are in discussions with the Trump transition team about resolving this case,” Pincus said in a prepared statement. “The consequences for my clients and millions of other low-income Americans who receive their health coverage thanks to the Affordable Care Act will be devastating if the Trump administration and the House agree to a court injunction barring the government from paying cost-sharing reductions.”

If Parker and Patton cannot intervene, they would like access to “permissive intervention,” or a chance to “defend the main action itself, on the same basis that the Executive Branch has done up to this point,” according to their motion in the D.C. Circuit.

Subsidy users need to act quickly, because it’s not clear whether Trump administration officials will defend subsidy program funding, the Mayer Brown lawyers wrote. A court decision eliminating funding could leave Parker, Patton and millions of others without access to affordable health coverage in the middle of the year, the attorneys said.

The ACA exchange system is supposed to give people a way to shop for health coverage on an apples-to-apples basis, and to use ACA subsidies.

The ACA premium tax credit subsidy helps many consumers pay exchange plan premiums.

The cost-sharing reduction program cuts the expenses related to deductibles, coinsurance requirements and co-payment requirements for lower-income premium subsidy users.

The Obama administration says a permanent funding appropriation in the ACA covers both the ACA premium tax credit subsidy program and the cost-sharing reduction subsidy program, because the programs are part of the same subsidy program.

Republican House leaders say the cost-sharing reduction program is a separate program and needs its own funding appropriation. U.S. District Judge Rosemary Collyer ruled in favor of the Republican House leaders in May but put her ruling on hold pending review in the D.C. Circuit.

House Republicans recently persuaded the D.C. Circuit to halt action in the case until at least Feb. 21, to give the incoming Trump administration time to decide how it wants to handle the litigation.

“[T]here is at least a significant possibility of a meaningful change in policy in the new administration that could either obviate the need for resolution of this appeal or affect the nature and scope of the issues presented for review,” Thomas Hungar, the House general counsel, wrote in court papers.