Opinion analysis: Decisive win for health insurers seeking compensation for ACA losses

Today the Supreme Court ruled that health-insurance companies that lost money offering policies on the “health benefit exchanges” established by the Affordable Care Act are entitled to compensation for their losses. The decision was a major victory for the four insurers, which argued that they are owed hundreds of millions of dollars, and a defeat for the government, which had argued that Congress had repealed any obligation that the government might have had to reimburse the insurers.

As part of the Affordable Care Act, Congress created “risk corridors” to balance out the risks that insurers faced from offering health insurance on the exchanges, where the insurers would have difficulty predicting how much it would cost to provide health care for their new customers, many of whom would not have had insurance previously. To address this problem, Section 1342 of the ACA established a mechanism that would allow insurers to share both profits and losses for the first three years in which the exchanges operated: Insurers that collected premiums that exceeded their costs would have to make “payments in” to the government to share the benefits, while insurers whose costs exceeded the premiums they collected would receive “payments out” from the government to compensate for their losses. However, beginning in 2014, Congress restricted the funding available to reimburse insurers for their losses, which proved to be substantial: The government owed unprofitable plans $2.87 billion in the first year alone, while profitable plans owed the government only $362 million.

When the insurers filed a lawsuit in federal court to recover the money, a federal appeals court ruled for the government. The court agreed with the insurers that Section 1342 requires the government to make the risk-corridor payments, but it held that the appropriations bills passed in 2014 and subsequent years “repealed or suspended” that requirement. The insurers then asked the Supreme Court to weigh in, which it agreed to do last year.

Today the Supreme Court reversed, in an 8-1 decision authored by Justice Sonia Sotomayor. First, the court explained, the government was required to reimburse the insurers for their losses according to the formula outlined in the ACA. And it was obligated to do so, the court made clear, even if Congress had not specifically appropriated funds to make those payments.

Second, the court continued, Congress did not repeal or suspend the government’s obligation to reimburse the insurers when it passed appropriations bills with riders that prohibited the use of funds for risk-corridor payments. Because the appropriations riders were not a direct repeal of the obligation to make the risk-corridor payments, the obligation remains in effect unless Congress impliedly repealed it. But the Supreme Court’s cases impose a very high bar for implied repeals, requiring that Congress’ intent to impliedly repeal a statute be “clear and manifest.” This case, in the court’s view, does not meet that test: “Congress ‘merely appropriated a less amount’ than that required to satisfy the Government’s obligation, without ‘expressly or by clear implication’” altering it. “And especially because the Government had already begun incurring the prior year’s obligation each time Congress enacted a rider, reasonable (and nonrepealing) interpretations exist.” In fact, the court noted, “finding a repeal in these circumstances would raise serious questions about whether the appropriations riders retroactively impaired insurers’ rights to payment.”

Third and finally, the court agreed that the insurers had properly relied on the Tucker Act, a federal law allowing certain claims for money from the government, to sue in the Court of Federal Claims. To fall within the Tucker Act’s waiver of the government’s sovereign immunity, the court explained, a claim must be based on a statute that can be fairly interpreted as requiring compensation from the government – which Section 1342 does. And neither of the exceptions to the Tucker Act – which look at whether the statute involved creates its own remedial scheme or whether the federal law governing administrative agencies “provides an avenue for relief” – applies, the court concluded.

Justice Samuel Alito dissented from today’s ruling. Even assuming for the sake of argument that his colleagues are correct that Section 1342 requires the government to reimburse insurers for their losses under the risk-corridor program, and that Congress did not impliedly repeal that obligation, Alito disagreed with the court’s ruling that the insurers can rely on the Tucker Act to bring their claims. The Tucker Act, Alito contended, waives the government’s immunity from lawsuits seeking money and gives federal courts the power to hear those lawsuits, but it does not create a private right for the insurers to sue. That question is important, Alito continued, not simply because, following today’s decision, “billions in taxpayer dollars will be turned over to insurance companies that bet unsuccessfully on the success of the program in question,” but also because other federal statutes contain language similar to the language in Section 1342 that the court relied on to conclude that the insurers can bring their claims. Without a better explanation of how “to reconcile our approach to inferring rights of action in Tucker Act cases with our broader jurisprudence,” and because he believes that the question has not received sufficient attention in the case, Alito would “request supplemental briefing and set the cases for re-argument next term.”

This post was originally published at Howe on the Court.