Since July 22, when a federal appeals court panel dealt a potentially major blow to Obamacare by ruling that participants in health exchanges run by the federal government in 34 states are not eligible for billions of dollars in tax subsidies, several facts have emerged which call into question Jonathan Gruber, an MIT economist and chief architect of Obamacare, and his views on whether the intent of Obamacare was that subsidies should only be available for state-run Obamacare exchanges. This raises an important question: what was the view of the Department of Health and Human Services (“HHS”), the department charged with implementing Obamacare? On January 20, 2011, HHS released the Cooperative Agreement to Support Establishment of State-Operated Health Insurance Exchange. As the title suggests, this document was the governing agreement related to establishing “state-operated” health insurance exchanges and provides significant insight into HHS’s views. This January Agreement clearly specified “state-based” or “state-operated” exchanges; in the agreement, the term “state-based” or “state-operated” health insurance exchanges is listed 17 times. The term “federally-facilitated exchange” is never used. The agreement also specifically references Section 1321 – a federal ‘‘fallback’’ provision for states that do not create exchanges of their own. Obamacare specifically
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