A federal judge on Tuesday indicated he wasn't willing to block the Trump administration's rule expanding access to short-term, limited-duration health plans since Congress didn't limit them in the Affordable Care Act or in the six years after its passage.
U.S. District Judge Richard Leon heard a second round of arguments in the lawsuit over the Trump administration's reversal of the Obama administration's cap on short-term plans.
The not-for-profit Association for Community Affiliated Plans first sued to block the rule last year. It was finalized in August and went into effect in early October. In the first set of oral arguments, Leon told the plaintiffs they sought relief prematurely, before they could show proof that the Trump administration's regulation would deal them a financial blow.
Tuesday's arguments appeared to revive the judge's skepticism. Charles Rothfeld, lawyer for the Association for Community Affiliated Plans, argued that the group's plans across the country have lost about 100,000 enrollees since the rule went into effect. Leon asked him to break down the lost subscribers by age and health status to better understand their motivations for leaving ACA-compliant plans, but Rothfeld didn't have the data.
The federal government's lawyer, Serena Orloff, argued that one of the group's plans in Texas actually saw less attrition since the expansion of short-term plans than it had in previous years.
Leon suggested that the statistics didn't necessarily show a link between the plan's enrollment numbers and the new regulation, and Orloff argued that the figures didn't show any link.
But the argument that seemed to resonate most with the judge was the fact that Congress didn't try to curb enrollment in short-term plans in the Obamacare statute itself, or in the years that followed.
"That point alone, your honor, should resolve this case," Orloff told Leon.
She also emphasized that the Trump administration allows states to restrict access to short-term plans if they choose, and that since federal ACA refundable tax credits can't help pay for these options they are unlikely to appeal to the 80% of the individual market that is subsidized.
Judge Leon said that with its 36-month cap on renewals, the Trump administration enacted limits on short-term plans that didn't exist before the Obama administration's initial rule.
"What's going on here is nothing more than what had been the status quo before," Leon said.
Just as he had in October, the judge also suggested it was premature for the plans to claim harm from the rule, since the data is limited.
"Why not let this play out a few years, look at the data, and then take another look?" he said.
The judge said he couldn't promise a date for when he will issue his ruling, but said he hoped to deliver a decision this summer.