The U.S. Supreme Court on Tuesday will hear the case of a Maine insurer, which is arguing alongside others for billions in payments under the Affordable Care Act. Credit: Dreamstime | TNS

AUGUSTA, Maine — Three insurers — including one from Maine — will argue for $12 billion in suspended payments under the Affordable Care Act at the U.S. Supreme Court on Tuesday in a long-running case against the federal government.

The key question in the case is a civic one: Can Congress repeal a law without explicitly repealing that law? But the high court’s ultimate decision could have a bearing on future cases over the tested but surviving health care law.

That money was part of the Affordable Care Act’s “risk corridor” program, meant to entice insurers to participate in the new market during the first three years of the law’s implementation from 2014 to 2016. Insurers with lower-than-expected costs were to pay the government back and the money went to insurers bearing higher costs.

Early in the implementation of the program, the pool ran short of what insurers were owed and congressional Republicans opposed to the health care law championed by then-Democratic President Barack Obama attached a rider to a spending bill that removed the program’s funding, which wasn’t specifically provided in the language of the Affordable Care Act.

That move was a factor in the closures of most of the health insurance co-ops that formed under the law. But four remain, including Community Health Options, a Lewiston-based nonprofit that sued the federal government in 2016 over the move and argues that it’s owed $57 million.

The U.S. Supreme Court agreed to hear the case and two others it has been consolidated with after a split panel of circuit court judges ruled against the insurers in 2018, arguing that while the government was “obligated” to make the payments, the rider suspended the obligation. A decision in the case is likely to come in the spring.

The administration of President Donald Trump, a Republican, is defending that position, while Community Health Options argued in a petition to the high court that the move was “a classic bait-and-switch” and it was “no way for the government, or anyone, to do business.”

The Maine co-op was well-regarded early in the implementation of the law. In 2015, it controlled 80 percent of the Affordable Care Act market in Maine. But it lost millions in 2016 and came under the monitoring of the Maine Bureau of Insurance. It now has 37,000 members. The bureau deemed it on Friday to be in good enough financial shape to meet obligations.

The high court has a conservative majority after the 2018 confirmation of Justice Brett Kavanaugh, though its decision to take the case could be a good sign for insurers because it could simply have left the lower court’s decision in place to end debate over the payments.

It could also affect other cases around the Affordable Care Act. Trump moved in 2017 to halt cost-sharing payments to insurers that lowered insurance payments for low- and middle-income people. States and insurers sued over that, including Community Health Options, which won an initial court decision this year. The legal issues are similar in the U.S. Supreme Court case.

Michael Shepherd

Michael Shepherd joined the Bangor Daily News in 2015 after three years as a reporter at the Kennebec Journal. A Hallowell native who now lives in Augusta, he graduated from the University of Maine in...