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October 19, 2017

States ask court to force Trump admin to make ACA's CSR payments

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Nearly 20 attorneys general (AGs) on Wednesday filed an emergency motion seeking a temporary restraining order to force the Trump administration to continue making the Affordable Care Act's (ACA) cost-sharing reduction (CSR) payments to insurers.

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New York AG Eric Schneiderman (D) said AGs from 17 states and Washington, D.C., filed the motion in the U.S. District Court for the Northern District of California as part of a lawsuit that contests the administration's decision to halt the payments, which are intended to help insurers.

Trump's announcement last week that he would halt the payments, the next installment of which were expected to be paid Oct. 20, prompted some insurers to request new premium rate hikes for the 2018 coverage year, while other insurers had already raised premiums amid the uncertainty over the payments. 

Details of the motion

The emergency motion seeks a temporary restraining order and preliminary injunction to compel the administration to continue making CSR payments pending a judicial resolution.

The AGs in the motion wrote that the temporary restraining order "is necessary by 4:00 p.m. on Oct. 19, 2017, to prevent immediate and irreparable harm to the … [s]tates and the millions of Americans who benefit from affordable health care coverage under the ACA."

Greg Brown, a lawyer representing the states in the lawsuit, said the motion is urgent because abruptly stopping the CSR payments will disrupt the ACA's exchange markets. Brown said discontinuing the payments "injects a large amount of chaos into the health care system" before the ACA's open enrollment period begins Nov. 1. He added, "Even a two-week delay would, we believe, cause fewer people to be insured."

According to Politico, U.S. District Court Judge Vince Chhabria during a telephone scheduling hearing on the motion Wednesday said he plans to rule on the motion next week. Chhabria on Wednesday issued an order for the federal government to file arguments against the restraining order by Oct. 20 at 10:00 a.m. Under the order, states and others interested in weighing in on the motion must file amicus briefs by Oct. 21 at 10:00 a.m. Chhabria set a hearing on the motion for Oct. 23.


Legal experts say the court is likely to rule against the states, because a federal judge in Washington, D.C., found the CSR payments are unconstitutional, according to Axios' "Vitals." However, district courts often arrive at different conclusions, "Vitals" reports.

James Burnham, a federal lawyer for the Department of Justice, said the ACA does not require the federal government to make CSR payments on a specific schedule, but it does say payments should be "periodic and timely." Burnham said even if the temporary restraining order is granted, "the government would still have discretion about when to make the payments—it could be quarterly, it could be biannually." Further, Burnham said it would be "a big deal to order the federal government to spend $600 million," when the administration "believe[s] Congress has not appropriated" the funds (Christoph, Courthouse News, 10/19; AP/Sacramento Bee, 10/18; Baker, "Vitals," Axios, 10/19; Gerstein, Politico, 10/18; Weixel, The Hill, 10/18; Attorneys General motion, 10/18; District judge's order, 10/18). 

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