In less than two months, the Supreme Court is set to hear the case that could overturn the Affordable Care Act — without Ruth Bader Ginsburg on the bench, fanning anxieties the landmark law is in greater jeopardy due to her passing.
“People should worry,” Nicholas Bagley, a health law expert and professor at the University of Michigan, said.
The death of the liberal justice on Friday at the age of 87 means that of the nine justices, there are now only three appointed by Democratic presidents instead of four.
Assuming the liberal wing was set to uphold the ACA, with Bader Ginsburg they would have only needed to pick up one more conservative justice to vote in favor of preserving the law. Chief Justice John Roberts has been a swing vote in several cases involving the law. Roberts’ 2012 vote saved the law from a fatal blow in a 5-4 decision when he deemed the individual mandate could be considered a tax.
Without Bader Ginsburg, they’ll now need to sway two — raising concerns about whether that’s possible.
“This opens it wide up and I really do think the law could be at risk,” Katie Keith, another legal expert who has followed the case closely, agreed.
The landmark but politically polarizing legislation ushered in health coverage gains and basic protections for millions under President Barack Obama (who appointed two of the three remaining liberal justices). The law’s latest time at the Supreme Court comes after a group of red states argued the law was moot after Republicans zeroed out a key part of it — a tax penalty for those that did not get insured as was required in the law.
However, a split decision may be welcome by ACA proponents.
If the the liberal wing is only able to sway one conservative justice, resulting in a 4-4 split case, it will buy more time for the law and its defenders, a set of blue states lead by California’s Attorney General Xavier Becerra.
In that instance, the case would be punted all the way back down to Judge Reed O’Connor. The Fifth Circuit, which oversaw the appeal following a decision by O’Connor, ruled the individual mandate was unconstitutional but did not weigh in on whether the rest of the ACA could stand without the mandate. It sent that question back to O’Connor, and that’s where the case would land again, before O’Connor, in the event the Supreme Court punts.
That outcome buys more time, plus another opportunity to appeal and for the case to again work its way back before the Supreme Court.
But one legal expert said based on cases from this past term there is reason to be hopeful that two conservative justices could be swayed to leave the remainder of the ACA intact even if the mandate is ruled unconstitutional.
Legal experts point to cases from the most recent term in which Brett Kavanaugh and Roberts — both appointed by Republicans — weighed in on severability in a way viewed as favorable for the outcome of the ACA case.
“I’m pretty hopeful,” Tim Jost, emeritus professor at Washington and Lee University School of Law, said.
Severability is an important question in the challenge to the ACA. The crux of the lawsuit centers on the argument that the individual mandate is so essential and intertwined into the fabric of the ACA that if the mandate is deemed unconstitutional than the entirety of the ACA must fall.
In their legal challenge, the red states and two individual plaintiffs argued that the individual mandate cannot be severed from the rest of the law, so the entire law should be overturned. That’s why ACA case watchers have tried to read the tea leaves by reviewing how justices have weighed in on severability in earlier cases.
Kavanaugh seemed emphatic about his belief that unconstitutional pieces of a larger law should not spell the demise for the entire law.
In a case decided this summer, political organizations were seeking to make robocalls to cell phones. However, a law, barred robocalls to Americans’ cellphones but was later amended by Congress to include an exception for the collection of debt. The plaintiffs argued this was a violation of the First Amendment, favoring debt-collection speech over political speech. The plaintiffs wanted the entirety of the robocall law overturned, not just the exception allowing robocalls for debt collection.
Kavanaugh wrote the 6-3 opinion, finding the exception for debt-collection unconstitutional, but ruling that the remainder of the law can stand.
In his opinion, Kavanaugh wrote that the court’s preference has been to “salvage rather than destroy” the rest of the law in the event a part is deemed unconstitutional.
“The Court’s precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause,” Kavanaugh wrote in his opinion in the case, Barr v. Association of Political Consultants.
And Roberts showed similar favor for surgically precise decisions when it comes to severability. “We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer,” he wrote in a separate 5-4 decision from this latest term regarding a challenge to the Consumer Financial Protection Bureau.
New claims for state unemployment insurance fell last week, but layoffs continue to come at an extraordinarily high level by historical standards.
Initial claims for state benefits totaled 790,000 before adjusting for seasonal factors, the Labor Department reported Thursday. The weekly tally, down from 866,000 the previous week, is roughly four times what it was before the coronavirus pandemic shut down many businesses in March.
On a seasonally adjusted basis, the total was 860,000, down from 893,000 the previous week.
“It’s not a pretty picture,” said Beth Ann Bovino, chief U.S. economist at S&P Global. “We’ve got a long way to go, and there’s still a risk of a double-dip recession.”
The situation has been compounded by the failure of Congress to agree on new federal aid to the jobless.
A $600 weekly supplement established in March that had kept many families afloat expired at the end of July. The makeshift replacement mandated by President Trump last month has encountered processing delays in some states and has funds for only a few weeks.
“The labor market continues to heal from the viral recession, but unemployment remains extremely elevated and will remain a problem for at least a couple of years,” said Gus Faucher, chief economist at PNC Financial Services. “Initial claims have been roughly flat since early August, suggesting that the pace of improvement in layoffs is slowing.”
New claims for Pandemic Unemployment Assistance, an emergency federal program for freelance workers, independent contractors and others not eligible for regular unemployment benefits, totaled 659,000, the Labor Department reported.
Federal data suggests that the program now has more beneficiaries than regular unemployment insurance. But there is evidence that both overcounting and fraud may have contributed to a jump in claims.
Americans became wealthier and more held jobs last year.
Yet at the very same time, one million people lost health insurance. And that number has steadily climbed this year under the pandemic.
A U.S. Census Bureau report released yesterday showed a continued slow erosion of the nation’s insured rate in 2019. The decline of coverage illustrates both the shortcomings of President Barack Obama’s 2010 health-care law and repeated attempts by President Trump and Republicans to undermine it.
“Though the reasons are sharply debated, the new data signifies that the first three years of President Trump’s tenure were a period of contracting health insurance coverage,” Amy Goldstein writes. “The decreases reversed gains that began near the end of the Great Recession and accelerated during early years of expanded access to health plans and Medicaid through the Affordable Care Act.”
The uninsured rate rose to 29.6 million people, totaling 9.2 percent of the population. It has slowly ticked upward since 2016, when 28.1 million people didn’t have a health plan. Between 2018 and 2019, the share of people without coverage increased in 19 states and decreased in just one.
The share of people on Medicare and with employer-sponsored coverage actually increased slightly. That was due to an aging population and last year’s booming economy, which meant more people had workplace plans — still the chief way Americans get their coverage.
Medicaid enrollment fell from 17.9 percent of Americans to 17.2 percent.
One reason for the decline is positive: As poverty rates fell for all major racial and ethnic groups, more people earned too much to qualify for the program. The poverty rate fell to 18.8 percent for Blacks, 15.7 percent for Hispanics and 9.1 percent for Whites.
But other factors were also at play. People no longer face a tax penalty for being uninsured, after Congress repealed it in 2017. Several GOP-led states expanded enrollment requirements. And wide disparities persisted in how states run their programs.
Missouri voters recently approved Medicaid expansion, making the state the seventh to do so under President Trump.
“There is huge variation state-to-state in the ease of enrollment, the administrative process, the mechanisms for verifying eligibility, how hard the state works to sign people up,” said Katherine Baicker, a health economist at the University of Chicago. “All those have big effects on net take-up rates.”
Before the coronavirus pandemic upended life, the United States was enjoying a record-long economic expansion. By the end of last year, the unemployment rate was at a 50-year low of 3.5 percent.
“Women outnumbered men in the workforce for only the second time, buoyed by a tight labor market and fast job growth in health care and education,” Amy writes. “Minimum-wage increases were also fueling faster wage growth for those at the bottom.”
But now millions of people have lost their jobs — and, in the process, their health insurance.
“Since March … job losses have disproportionately hit low-income workers and women, many of whom held service-sector jobs that were gutted by shutdown measures to help protect people from infection,” Amy writes. “Nearly 40 percent of households with income below $40,000 were laid off or furloughed by early April, according to the Federal Reserve.”
The Economic Policy Institute has estimated that 12 million people have lost health insurance received through their workplace or that of a family member. Some of those have been able to enroll in Medicaid — its rolls have risen by about 4 million during the pandemic — but others find it unaffordable.
This week’s contributor is Larry Levitt, the Executive Vice President for Health Policy at the Kaiser Family Foundation.
The study – by Sumit Agarwal and Benjamin Sommers, published in the New England Journal of Medicine – compares people who lost their jobs before and after the ACA went into effect in 2014 to see if there is a difference in how many people retained health insurance. During the pre-ACA period (2011-2013), there was about a 5% increase in the uninsured rate for people following a job loss. After the ACA went into effect (2014-2016), no such increase occurred. Instead, Medicaid and the marketplaces saw large increases in utilization.
If the economic crisis persists, the number of people losing job-based health insurance will climb, making the ACA’s role as a safety net more relevant than ever.
Those on the front lines of the fight against the novel coronavirus worry about keeping themselves, their families and their patients safe.
This story is part of a series examining the state of healthcare six months into the public health emergency declared for COVID-19.
There’s no end in sight for the country as it grapples with another surge of COVID-19 cases.
That’s especially true for nurses seeking the reprieve of their hospitals returning to normal operations sometime this year. Many in the South and West are now treating ICUs full of COVID-19 patients they hoped would never arrive in their states, largely spared from spring’s first wave.
And like many other essential workers, those in healthcare are falling ill and dying from COVID-19. The total number of nurses stricken by the virus is still unclear, though the Centers for Disease Control and Prevention has reported 106,180 cases and 552 deaths among healthcare workers. That’s almost certainly an undercount.
National Nurses United, the country’s largest nurses union, told Healthcare Dive it has counted 165 nurse deaths from COVID-19 and an additional 1,060 healthcare worker deaths.
Safety concerns have ignited union activity among healthcare workers during the pandemic, and also given them an opportunity to punctuate labor issues that aren’t new, like nurse-patient ratios, adequate pay and racial equality.
At the same time, the hospitals they work for are facing some of their worst years yet financially, after months of delayed elective procedures and depleted volumes that analysts predict will continue through the year. Many have instituted furloughs and layoffs or other workforce reduction measures.
Healthcare Dive had in-depth conversations with three nurses to get a clearer picture of how they’re faring amid the once-in-a-century pandemic. Here’s what they said.
Elizabeth Lalasz has worked at John H. Stroger Hospital in Chicago for the past 10 years. Her hospital is a safety net facility, catering to those who are “Black, Latinx, the homeless, inmates,” Lalasz told Healthcare Dive. “People who don’t actually receive the kind of healthcare they should in this country.”
Data from the CDC show racial and ethnic minority groups are at increased risk of getting COVID-19 or experiencing severe illness, regardless of age, due to long-standing systemic health and social inequities.
CDC data reveal that Black people are five times more likely to contract the virus than white people.
This spring Lalasz treated inmates from the Cook County Jail, an epicenter in the city and also the country. “That population gradually decreased, and then we just had COVID patients, many of them Latinx families,” she said.
Once Chicago’s curve began to flatten and the hospital could take non-COVID patients, those coming in for treatment were desperately sick. They’d been delaying care for non-COVID conditions, worried a trip to the hospital could risk infection.
A Kaiser Family Foundation poll conducted in May found that 48% of Americans said they or a family member had skipped or delayed medical care because of the pandemic. And 11% said the person’s condition worsened as a result of the delayed care.
When patients do come into Lalasz’s hospital, many have “chest pain, then they also have diabetes, asthma, hypertension and obesity, it just adds up,” she said.
“So now we’re also treating people who’ve been delaying care. But after the recent southern state surges, the hospital census started going down again,” she said.
Amy Arlund works the night shift at Kaiser Fresno as an ICU nurse, which she’s done for the past two decades.
She’s also on the hospital’s infection control committee, where for years she’s fought to control the spread of clostridium difficile colitis, or C. diff., in her facility. The highly infectious disease can live on surfaces outside the body for months or sometimes years.
The measures Arlund developed to control C. diff served as her litmus test, as “the top, most stringent protocols we could adhere to,” when coronavirus patients arrived at her hospital, she told Healthcare Dive.
But when COVID-19 cases surged in northern states this spring, “it’s like all those really strict isolation protocols that prior to COVID showing up would be disciplinable offenses were gone,” Arlund said.
Widespread personal protective equipment shortages at the start of the pandemic led the CDC and the Occupational Safety and Health Administration to change their longstanding guidance on when to use N95 respirator masks, which have long been the industry standard when dealing with novel infectious diseases.
The CDC also issued guidance for N95 respirator reuse, an entirely new concept to nurses like Arlund who say those changes go against everything they learned in school.
“I think the biggest change is we always relied on science, and we have always relied heavily on infection control protocols to guide our practice,” Arlund said. “Now infection control is out of control, we can no longer rely on the information and resources we always have.”
The CDC says experts are still learning how the coronavirus spreads, though person-to-person transmission is most common, while the World Health Organization recently acknowledged that it wouldn’t rule out airborne transmission of the virus.
In Arlund’s ICU, she’s taken care of dozens of COVID positive patients and patients ruled out for coronavirus, she said. After a first wave in the beginning of April, cases dropped, but are now rising again.
Other changing guidance weighing heavily on nurses is how to effectively treat coronavirus patients.
“Are we doing remdesivir this week or are we going back to the hydroxychloroquine, or giving them convalescent plasma?”Arlund said. “Next week I’m going to be giving them some kind of lavender enema, who knows.”
Erik Andrews, a rapid response nurse at Riverside Community Hospital in California, has treated coronavirus patients since the pandemic started earlier this year. He likens ventilating them to diffusing a bomb.
“These types of procedures generate a lot of aerosols, you have to do everything in perfectly stepwise fashion, otherwise you’re going to endanger yourself and endanger your colleagues,” Andrews, who’s been at Riverside for the past 13 years, told Healthcare Dive.
He and about 600 other nurses at the hospital went on strike for 10 days this summer after a staffing agreement between the hospital and its owner, HCA Healthcare, and SEIU Local 121RN, the union representing RCH nurses, ended without a renewal.
The nurses said it would lead to too few nurses treating too many patients during a pandemic. Insufficient PPE and recycling of single-use PPE were also putting nurses and patients at risk, the union said, and another reason for the strike.
But rapidly changing guidance around PPE use and generally inconsistent information from public officials are now making the nurses at his hospital feel apathetic.
“Unfortunately I feel like in the past few weeks it’s gotten to the point where you have to remind people about putting on their respirator instead of face mask, so people haven’t gotten lax, but definitely kind of become desensitized compared to when we first started,” Andrews said.
With two children at home, Andrews slept in a trailer in his driveway for 12 weeks when he first started treating coronavirus patients. The trailer is still there, just in case, but after testing negative twice he felt he couldn’t spend any more time away from his family.
He still worries though, especially about his coworkers’ families. Some coworkers he’s known for over a decade, including one staff member who died from COVID-19 related complications.
“It’s people you know and you know that their families worry about them every day,” he said. “So to know that they’ve had to deal with that loss is pretty horrifying, and to know that could happen to my family too.”
“It’s new territory, which is why we’re taking that measured approach on rating actions,” Suzie Desai, senior director at S&P, said.
The healthcare sector has been bruised from the novel coronavirus and the effects are likely to linger for years, but the first half of 2020 has not resulted in an avalanche of hospital and health system downgrades.
At the outset of the pandemic, some hospitals warned of dire financial pressures as they burned through cash while revenue plunged. In response, the federal government unleashed $175 billion in bailout funds to help prop up the sector as providers battled the effects of the virus.
Still, across all of public finance — which includes hospitals — the second quarter saw downgrades outpacing upgrades for the first time since the second quarter of 2017.
S&P characterized the second quarter as a “historic low” for upgrades across its entire portfolio of public finance credits.
“While only partially driven by the coronavirus, the second quarter was the first since Q2 2017 with the number of downgrades surpassing upgrades and by the largest margin since Q3 2014,” according to a recent Moody’s Investors Service report.
Through the first six months of this year, Moody’s has recorded 164 downgrades throughout public finance and, more specifically, 27 downgrades among the nonprofit healthcare entities it rates.
By comparison, Fitch Ratings has recorded 14 nonprofit hospital and health system downgrades through July and just two upgrades, both of which occurred before COVID-19 hit.
“Is this a massive amount of rating changes? By no means,” Kevin Holloran, senior director of U.S. Public Finance for Fitch, said of the first half of 2020 for healthcare.
Also through July, S&P Global recorded 22 downgrades among nonprofit acute care hospitals and health systems, significantly outpacing the six healthcare upgrades recorded over the same period.
“It’s new territory, which is why we’re taking that measured approach on rating actions,” Suzie Desai, senior director at S&P, said.
Still, other parts of the economy lead healthcare in terms of downgrades. State and local governments and the housing sector are outpacing the healthcare sector in terms of downgrades, according to S&P.
Earlier this year when the pandemic hit the U.S., some made dire predictions about the novel coronavirus and its potential effect on the healthcare sector.
Reports from the ratings agencies warned of the potential for rising covenant violations and an outlook for the second quarter that would result in the “worst on record,“ one Fitch analyst said during a webinar in May.
That was likely “too broad of a brushstroke,” Holloran said. “It has not come in and wiped out the healthcare sector,” he said. He attributes that in part to the billions in financial aid that the federal government earmarked for providers.
Though, what it has revealed is the gaps between the strongest and weakest systems, and that the disparities are only likely to widen, S&P analysts said during a recent webinar.
The nonprofit hospitals and health systems pegged with a downgrade have tended to be smaller in size in terms of scale, lower-rated already and light on cash, Holloran said.
Still, some of the larger health systems were downgraded in the first half of the year by either one of the three rating agencies, including Sutter Health, Bon Secours Mercy Health, Geisinger, University of Pittsburgh Medical Center and Care New England.
“This is something that individual management of a hospital couldn’t control,” said Rick Gundling, senior vice president of Healthcare Financial Management Association, which has members from small and large organizations. “It wasn’t a bad strategy — that goes into a downgrade. This happened to everybody.”
Looking forward, some analysts say they’re more concerned about the long-term effects for hospitals and health systems that were brought on by the downturn in the economy and the virus.
One major concern is the potential shift in payer mix for providers.
As millions of people lose their job they risk losing their employer-sponsored health insurance. They may transition to another private insurer, Medicaid or go uninsured.
For providers, commercial coverage typically reimburses at higher rates than government-sponsored coverage such as Medicare and Medicaid. Treating a greater share of privately insured patients is highly prized.
If providers experience a decline in the share of their privately insured patients and see a growth in patients covered with government-sponsored plans, it’s likely to put a squeeze on margins.
The shift also poses a serious strain for states, and ultimately providers. States are facing a potential influx of Medicaid members at the same time state budgets are under tremendous financial pressure. It raises concerns about whether states will cut rates to their Medicaid programs, which ultimately affects providers.
Some states have already started to re-examine and slash rates, including Ohio.