If Trump Administration Uses Executive Action to make CSR Payments, It Will Also Be Illegal

January 5th, 2017

The New York Times reports that the Trump administration may be considered executive action that would continue the cost-sharing reduction payments to insurers.

Within days of taking office, President-elect Donald J. Trump plans to announce executive actions on health care. Some may undo Obama administration policies. Others will be meant to stabilize health insurance markets and prevent them from collapsing in a vast sea of uncertainty.

“We are working on a series of executive orders that the president-elect will put into effect to ensure that there is an orderly transition, during the period after we repeal Obamacare, to a market-based health care economy,” Mr. Pence said at the Capitol on Wednesday.

He did not provide details, and Trump transition aides said they had no information about the executive orders. But some options are apparent. The federal government could continue providing financial assistance to insurance companies to protect them against financial losses and to prevent consumers’ premiums from soaring more than they have in the last few years.

These payments are illegal when the Obama Administration made them, and they will be illegal if the Trump Administration makes them. As I understand it, payments are made monthly, so fairly shortly after the inauguration, the Trump Administration will have to decide whether it will revoke a (never-released) OMB memorandum that authorized the payments. Another important decision: will the federal government continue to prosecute the appeal in House of Representatives v. Burwell.

These are important decisions to make soon.