Competitive Enterprise Institute (CEI), a free-market advocacy group, announced Thursday that it “is suing the Department of Health and Human Services (HHS) for failing to adequately respond to three Freedom of Information Act (FOIA) requests involving the Affordable Care Act’s health insurance exchanges. The FOIA requests… seek documents related to the agencies’ development of tax credit calculators on Healthcare.gov.”
It is important to note that for an exchange website such as Healthcare.gov to offer tax credits, it must have a tax credit calculator that allows individuals to view the actual cost of their coverage after tax credits have been applied to their premiums.
In the release, CEI general counsel Sam Kazman stated, “Our document requests go to the heart of an important question: What did HHS think of Obamacare subsidies, and when did it think it? Given the current debate over this issue, HHS has no business stonewalling our request.”
The release points out that a recent CEI paper I wrote, Beyond Gruber: How HHS Flip-Flopped on Federal Exchange Subsidies, demonstrates “an extensive paper trail of HHS documents indicates the agency originally interpreted Obamacare as permitting subsidies only on state-established insurance exchanges. HHS did not change its view until more than two years after the law passed, when it had to deal with the political fallout of most states refusing to set up their own exchanges.”
CEI states that its FOIA requests were filed in early September 2014 and argues: “To date, more than three months later, the agency has done nothing more than to assign tracking numbers to two of the requests and claim ‘unusual and exceptional circumstances,’” said CEI attorney Hans Bader. “In terms of what we’re entitled to under FOIA, this delay just doesn’t cut it.”
The Supreme Court will decide whether the Affordable Care Act law authorizes tax credits on federal exchanges next year in the King v. Burwell case. CEI is coordinating both the King case and the D.C. Circuit Halbig v. Burwell case.