- The Washington Times - Sunday, June 14, 2015

House Republicans suing President Obama on claims he funded an Obamacare program without their permission now say the administration is sending millions out the door for a second, optional state program without asking Congress for the money first.

GOP chairmen tasked with government oversight have asked the administration explain why it disbursed funds for the Basic Health Program, a lesser-known part of the 2010 health law that allows states to set up a coverage program for low-income people who are ineligible for Medicaid and would otherwise enter Obamacare’s subsidized health exchanges.

Minnesota kicked off the first such program in January and has received $60 million so far. New York state has plans to establish a program of its own.

Rep. Peter Roskam, Illinois Republican who chairs the Ways and Means Committee’s oversight panel, says the Affordable Care Act of 2010 established the Basic Health Program but didn’t provide funding for it. And so far, the GOP-led House has not appropriated the money, citing its opposition to the law.

Health and Human Services Secretary Sylvia Mathews Burwell has said the program is funded under permanent appropriations for tax credit programs, such as Obamacare’s exchange subsidies.

Tax credit programs “aren’t part of our discretionary budget every year,” Mrs. Burwell told the congressman during a Ways and Means Committee hearing last week.

But GOP lawmakers say the pool of money for Obamacare’s tax credits does not also cover the Basic Health Program.

“I just don’t see how they can possibly hang their hats on a legal theory that lets them do this,” Mr. Roskam said.

The secretary told Mr. Roskam she would meet with him and Rep. Tim Murphy, Pennsylvania Republican and chairman of oversight for the Energy and Commerce Committee, to elaborate on her position.

The Basic Health Program was designed to give states the flexibility to help out people who make 200 percent of the federal poverty or less, but may float in and out of Medicaid eligibility. The federal government pays out 95 percent of the cost it would have otherwise paid in exchange subsidies and cost-sharing payments for the enrollees.

“The Basic Health Program is an option for states that provides flexibility and stability to both states and their consumers,” HHS spokeswoman Meaghan Smith said. “Payments to states that choose this option are fully funded under the Affordable Care Act.”

The GOP’s new concerns about the program parallel claims in House Speaker John A. Boehner’s lawsuit against the administration.

As it stands, House Republicans are challenging Mr. Obama’s decision to twice delay the Affordable Care Act’s insurance mandate on employers and to continue reimbursing insurers who have reduced co-pays and deductibles for qualified Obamacare enrollees as a condition of participating in the state-based health care exchanges.

The lawsuit says Congress never authorized spending for the cost-sharing program, and indeed zeroed out funding for it, so Mr. Obama was breaking the law and violating Congress’ constitutional power of the purse by continuing to disburse the funds.

“It is Congress that wields the power of the purse, and more and more, the administration is acting like a purse snatcher,” Ways and Means Committee Chairman Paul Ryan, Wisconsin Republican, said at last week’s hearing with Mrs. Burwell.

The administration argues it hasn’t done anything wrong, once again citing the permanent appropriation that also covers Obamacare’s exchange subsidies.

“The House’s statutory arguments are incorrect. The cost sharing reduction payments are being made as part of a mandatory payment program that Congress has fully appropriated,” Justice Department attorneys said in court papers seeking to dismiss Mr. Boehner’s lawsuit.

U.S. District Judge Rosemary M. Collyer in Washington is still deciding whether House Republican have legal standing to sue the president, although she seemed sympathetic to their arguments at a hearing last month.

“You either appropriate money or you don’t,” she said at one point.

Mr. Roskam said complaints about the Basic Health Program could bolster the GOP suit.

“We’re bringing this to the attention of the speaker,” he said. “so he can make a decision about informing the legal team and ultimately making a decision [whether to bring it up] at some point in the litigation, or initiating other litigation.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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