But HHS' delay in issuing rules has caused delays for states such as Pennsylvania, testfied Michael Consedine, the state's insurance commissioner. “Most of these outstanding regulations address critical issues on the operations and requirements of key components of the ACA, like health insurance exchanges,” Consedine said. “The lack of detailed information from HHS has put Pennsylvania, and many other states, in a very difficult position. We are traveling down a road, directionless, while knowing the road will soon end—January 2014 is right around the bend.”
Rep. Jim McDermott (D-Wash.), however, said his state is “ready to go,” and that the exchange process is working in some states because the political leadership there wants it to work. It's not working in other states, McDermott added, where the political leadership wants to defeat the law.
Meanwhile, James Blumstein, professor of constitutional law and health law and policy at Vanderbilt Law School, testified about the legal implications of the Affordable Care Act and said the Internal Revenue Service overstepped its authority when it issued a rule that provides for federal subsidies for income-qualified individuals in either a state-run or federally run exchange. The law is unambiguous, Blumstein argued, saying that subsidies should be provided only for state-run exchanges.
“And when you say that the law is what it is—that there is an authority for one exchange and no authority on the other exchange—there's no ambiguity in the law,” Blumstein said after the hearing. “And so therefore, there's no gap-filling function that the agency (the IRS) can perform,” he added. “And it has issued a rule and it has exceeded its authority.”
As states and health plans await a rule on essential health benefits from HHS, Rep. Diane Black (R-Tenn.), a nurse, said they shouldn't expect the regulation before the November elections.
“I don't think you'll see that,” Black laughed. “I'd be very surprised.”
