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Sue Me Once, and Sue Me Twice, and Sue Me Once Again

It sure seems like a long, long time since ACA foes were suing to block executive actions to “fix” problems that Congress couldn’t or wouldn’t.  Now, it’s the turn of ACA defenders, who are suing to block executive actions to “fix” ACA problems that Congress failed to solve by passing any of the “repeal” bills.

In New York Et Al. v. Acosta, D. D.C. No. 1:18-cv-1747, filed July 26, 2018, eleven states and the District of Columbia contend that the DOL Association Health Plan final rule impermissibly undercuts the ACA by unreasonably re-interpreting ERISA.  The case is assigned to Senior District Judge John D. Bates, an Army veteran who served as Deputy Independent Counsel for the Whitewater Investigation before being appointed to the Court in 2001 by President Bush.

Based on similarly accusatory comments received in opposition to the Final Rule on Short Term, Limited Duration Insurance, we expect its official publication on August 3, 2018 to provoke an attempt to block it before it takes effect in early October.

Of course, executive actions, and countering litigation, have unintended, unforeseen consequences.  One consequence of blocking the STLD Final Rule might be to boost the prospects for Association Health Plans, if that Rule isn’t also blocked.  If both Rules took effect, we would expect the STLD rule to reduce the demand for  Association Health Plans, since both types of coverage would target small business owners who aren’t eligible for ACA Exchange subsidies and whose existing options are limited and expensive.  If the STLD Rule is blocked but the AHP Rule isn’t, some undecided associations and issuers may decide to enter the AHP business.