Stuart Gerson Quoted in “Strategic Perspectives: Don’t Know Much About History: How the Creation of the ACA Informs King v. Burwell

Health Reform WK-EDGE

Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm's Washington, DC, and New York offices, was quoted in Health Reform WK-EDGE, in “Strategic Perspectives: Don’t Know Much About History: How the Creation of the ACA Informs King v. Burwell,” by Melissa Skinner.

Following is an excerpt:

Indeed, in an interview with Wolters Kluwer, Stuart M. Gerson of Epstein Becker Green, noted that “the discussion of subsidies goes back at least as far as 1989, when the Heritage Foundation, a conservative think tank, proposed an individual mandate as part of a market-based solution to the problem of the growing number of people without health insurance.” Gerson went on to explain that, “[s]ubsidies entered into the picture to deal with those of lower income who couldn’t afford insurance but who, given conservative thinking, still should stay in the market.” Then, according to Gerson, this idea was revived in 1993 during the Clinton Administration after the proposal by the Administration, which involved employer-sponsored coverage through a “heavily regulated market of managed care organizations,” was found to be “very bureaucratic and complicated and was wildly unpopular.”

In general, during the early days of discussion over health reform and subsidized coverage, Gerson notes that Republicans and right-leaning think tanks and organizations “took the lead as to subsidization.” As the reform took shape and the health care debates of 2008 (stemming from the Gang of Six actions and the election of President Obama) were took place Democrats added the idea of subsidies to their “arsenal, which lead to the passage of the [ACA]” says Gerson, and, “Republicans largely abandoned the field because of their belief that the program adopted was too government-centered and expensive.” …

Gerson’s assertion that the ACA was essentially too big to be read in its entirety before passage, if true, may have implications as to the real legislative intent behind such provisions as ACA sections 1311 and 1321 as well as IRC section 36B. Yet, at the same time, when asked about the misconceptions regarding the politics behind the creation and adoption of subsidized health coverage, Gerson summarized the big on what the opposition to the ACA thought about the idea of subsidies in general by stating: “The most common misconception is that the concept originated with Democrats. It didn’t. The second most common misconception is that the concept championed by Democrats as to the [ACA] represents a cooption of what conservatives first proposed. The dividing lines between the majorities of each party had more to do with the role of the federal government and the expense of the program, as well as the Medicaid burden on the states and the nature and timing of both the individual and employer mandates, than it did with respect to subsidies.”