By our count at the Galen Institute, more than 54 significant changes have been made to the Patient Protection and Affordable Care Act since it was enacted in 2010 – at least 34 that the Obama administration has made unilaterally, 17 that Congress has passed and the president has signed, and three by the Supreme Court.
Our latest count has added two more changes made by the Obama administration contrary to statutory language, and one rewrite of the law’s text from the latest U.S. Supreme Court decision. Our latest additions:
- Extension of credits to people receiving employer-sponsored coverage. Section 1511 of the ACA instructs the Labor Department to issue regulations requiring businesses with more than 200 employees to automatically enroll their employees in any health benefits plan offered by the employer. Section 36B correspondingly denies credits to employees covered by an employer plan. IRS regulations contradict the statutory language and allow credits to taxpayers when they are automatically enrolled in employer minimum essential coverage. Treasury implicitly acknowledges there isno statutory authority for its regulatory change. (May 23, 2012)
- Illegal use of exchange grants. CMS issued guidance saying that states operating their own exchanges can use money from federal grants to do outreach and education to increase enrollment, even though the ACA stipulates the grants are to be used only to set up exchanges. (June 8, 2015)
- The law doesn’t mean what it says: In King v. Burwell, the U.S. Supreme Court overruled the plain meaning of the ACA to limit tax credits to people living in states that created their own exchanges and instead allowed tax credits for insurance purchased through federally-facilitated exchanges as well. (June 25, 2015)
Allowing tax credits through federal exchanges: The latest change to the law was made by the U.S. Supreme Court on June 25, 2015, in King v. Burwell when it ruled that the law doesn’t mean what it says. The court ruled 5-4 that the spirit of the law’s goal to expand coverage, not the actual language, allows tax credits to flow through federal exchanges, despite seven instances in the law only allowing credits to citizens in states that set up their own exchanges.