CEI Files Lawsuit Over Obamacare Exchange Documents


WASHINGTON, Dec. 18 – The Competitive Enterprise Institute is suing the Department of Health and Human Services (HHS) for failing to adequately respond to three Freedom of Information Act (FOIA) requests involving the Affordable Care Act’s health-insurance exchanges. The FOIA requests, filed with HHS and its Centers for Medicare & Medicaid Services (CMS), seek documents related to the agencies’ development of tax credit calculators on Healthcare.gov.

“Our document requests go to the heart of an important question: What did HHS think of Obamacare subsidies, and when did it think it?” said CEI general counsel Sam Kazman. “Given the current debate over this issue, HHS has no business stonewalling our request.”

CEI’s FOIA requests were filed in early September 2014, and CEI was entitled to a substantive response within 20 business days.

“To date, more than three months later, the agency has done nothing more than to assign tracking numbers to two of the requests and claim ‘unusual and exceptional circumstances,’” said CEI attorney Hans Bader. “In terms of what we’re entitled to under FOIA, this delay just doesn’t cut it.”

As independent researcher Scot Vorse demonstrated in a recent CEI paper, Beyond Gruber: How HHS Flip-Flopped on Federal Exchange Subsidies, an extensive paper trail of HHS documents indicates the agency originally interpreted Obamacare as permitting subsidies only on state-established insurance exchanges. HHS did not change its view until more than two years after the law passed, when it had to deal with the political fallout of most states refusing to set up their own exchanges.

The Supreme Court will decide whether the Obamacare statute authorizes subsidies on federal exchanges in the upcoming King v. Burwell case. The Competitive Enterprise Institute is coordinating both the King case and the D.C. Circuit Halbig v. Burwell case.

>> View CEI’s complaint and FOIA requests here