The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Governing reports on another Obamacare "glitch":
One of the most popular provisions in the Affordable Care Act (ACA) gives young adults the option of staying on their parents' health insurance plan until they turn 26. It's been so popular, in fact, that less than half of all eligible employees under 26 enrolled in an employer-provided health plan in 2015. Many instead opted to stay insured under mom and dad.
In late July, Pennsylvania Sen. Bob Casey introduced a similar bill in Congress extending government-subsidized health insurance to foster youth until they turn 26. The funny thing is that Congress already passed just such a provision in 2010 so that young adults weren't penalized for not having a permanent home. So why the duplication?
It turns out, Casey's legislation is an attempt to fix what he calls a "glitch" in the law's language that has led to spotty and limited Medicaid coverage for former foster care youth. The glitch—perhaps more accurately described as a troublesome ambiguity—has come about thanks to two little words: "the State." As it's written, the health-care law says former foster youth only qualify for Medicaid if they "were in foster care under the responsibility of the State." Two years ago, the Centers for Medicare and Medicaid Services (CMS) concluded that "the State" means "the state in which they currently live." In other words, a state is only required to provide Medicaid to a former foster youth if that individual aged out of that specific state's foster care system. Put another way, that means that if a young adult was in foster care in Maryland, but moved to nearby Virginia or the District of Columbia for work, his option to receive Medicaid would only be valid in Maryland.
In this case, the federal government has maintained that the reference to "the State" actually means "the State," even though that makes it more difficult for some foster youth to obtain health coverage. Under Chevron, the agency's interpretation might be due some deference, but not under King v. Burwell. Perhaps if Casey's fix doesn't pass, someone will take this question to federal court to see whether the plain language of the statute reflects "Congress's plan."
UPDATE: Some commenters question my suggestion that the CMS interpretation above would not be due Chevron deference. I was admittedly a bit flip on the point, but I don't think it would be even if one were to conclude that the relevant statutory language were ambiguous.
According to the Governing story linked above, the CMS interpretation was put forward in a proposed rule and never finalized, and has simply become the agency's de facto policy." As a consequence, whether or not thinks this is the sort of question that should receive Chevron deference, it would not be eligible for Chevron deference under Mead and other post-Chevron cases.