Leukemia Lymphoma Society (LLS) supports actions that regulate or prohibit “junk insurance” plans that discriminate against people with pre-existing conditions, offer no meaningful coverage in the case of a cancer diagnosis or neglect to cover essential healthcare services like prescription drugs
LLS advocate Sam Bloechl thought he was doing everything right. After experiencing back pain that wouldn’t go away, he spoke to an insurance broker about upgrading his insurance plan to better cover any treatment he might need. Sam’s broker insisted she had the perfect plan for him. It wasn’t.
A month later, Sam was diagnosed with non-Hodgkin lymphoma. After chemotherapy and radiation, Sam achieved remission. But his health plan refused to cover the bill, leaving Sam with more than $800,000 in medical debt. It turns out he was sold a short-term, limited-duration plan—a type of “junk insurance.”
Sam isn’t alone. Patients with pre-existing conditions are penalized by low-quality policies, known as “junk insurance” Because such plans are exempt from important consumer protections, they can leave patients vulnerable when they most need timely access to quality, affordable care.
The patient impact
Most short-term, limited-duration plans leave patients on the hook for thousands of dollars if they face serious health problems—much more than they’d face if they had traditional health insurance, a recent Milliman study funded by LLS reveals. The plans often rely on misleading marketing and are misunderstood by consumers who buy them. And patients have no right to appeal plan decisions.
Moreover, junk plans drive up more than a patient’s out-of-pocket costs—they threaten prices across the health insurance market. As younger and healthier individuals choose these cheaper “junk plans” over comprehensive insurance, premiums for comprehensive insurance are expected to rise.
LLS supports actions that regulate or prohibit “junk insurance” plans that discriminate against people with pre-existing conditions, offer no meaningful coverage in the case of a cancer diagnosis or neglect to cover essential healthcare services like prescription drugs. These plans include:
• Short-term, limited-duration insurance • Health care sharing ministries • Farm Bureau plans • Grandfathered plans • Multiple employer welfare arrangements and association health plans • Spurious single-employer self-insured group health plans • Minimum essential coverage-only plans • Excepted benefit plans
Unvaccinated people accounted for the overwhelming majority of deaths in the United States throughout much of the coronavirus pandemic. But that has changed in recent months, according to a Washington Post analysis of state and federal data.
The pandemic’s toll is no longer falling almost exclusively on those who chose not to or could not get shots, with vaccine protection waning over time and the elderly and immunocompromised — who are at greatest risk of succumbing to covid-19, even if vaccinated — having a harder time dodging increasingly contagious strains.
The vaccinated made up 42 percent of fatalities in January and February during the highly contagious omicron variant’s surge, compared with 23 percent of the dead in September, the peak of the delta wave, according to nationwide data from the Centers for Disease Control and Prevention analyzed by The Post. The data is based on the date of infection and limited to a sampling of cases in which vaccination status was known.
As a group, the unvaccinated remain far more vulnerable to the worst consequences of infection — and are far more likely to die — than people who are vaccinated, and they are especially more at risk than people who have received a booster shot.
“It’s still absolutely more dangerous to be unvaccinated than vaccinated,” said Andrew Noymer, a public health professor at the University of California at Irvine who studies covid-19 mortality.“A pandemic of — and by — the unvaccinated is not correct. People still need to take care in terms of prevention and action if they became symptomatic.”
A key explanation for the rise in deaths among the vaccinated is that covid-19 fatalities are again concentrated among the elderly.
Nearly two-thirds of the people who died during the omicron surge were 75 and older, according to a Post analysis, compared with a third during the delta wave. Seniors are overwhelmingly immunized, but vaccines are less effective and their potency wanes over time in older age groups.
Experts say they are not surprised that vaccinated seniors are making up a greater share of the dead, even as vaccine holdouts died far more often than the vaccinated during the omicron surge, according to the CDC. As more people are infected with the virus, the more people it will kill, including a greater number who are vaccinated but among the most vulnerable.
The bulk of vaccinated deaths are among people who did not get a booster shot, according to state data provided to The Post. In two of the states, California and Mississippi, three-quarters of the vaccinated senior citizens who died in January and February did not have booster doses. Regulators in recent weeks have authorized second booster doses for people over the age of 50, but administration of first booster doses has stagnated.
Even though the death rates for the vaccinated elderly and immunocompromised are low, their losses numbered in the thousands when cases exploded, leaving behind blindsided families. But experts say the rising number of vaccinated people dying should not cause panic in those who got shots, the vast majority of whom will survive infections. Instead, they say, these deaths serve as a reminder that vaccines are not foolproof and that those in high-risk groups should consider getting boosted and taking extra precautions during surges.
“Vaccines are one of the most important and longest-lasting tools we have to protect ourselves,” said California State Epidemiologist Erica Pan, citing state estimates showing vaccines have shown to be 85 percent effective in preventing death.
“Unfortunately, that does leave another 15,” she said.
‘He did not expect to be sick’
Arianne Bennett recalled her husband, Scott Bennett, saying, “But I’m vaxxed. But I’m vaxxed,” from the D.C. hospital bed where he struggled to fight off covid-19 this winter.
Friends had a hard time believing Bennett, co-founder of the D.C.-based chain Amsterdam Falafelshop, was 70. The adventurous longtime entrepreneur hoped to buy a bar and planned to resume scuba-diving trips and 40-mile bike rides to George Washington’s Mount Vernon estate.
Bennett went to get his booster in early December after returning to D.C. from a lodge he owned in the Poconos, where he and his wife hunkered down for fall. Just a few days after his shot, Bennett began experiencing covid-19 symptoms, meaning he was probably exposed before the extra dose of immunity could kick in. His wife suspects he was infected at a dinner where he and his server were unmasked at times.
A fever-stricken Bennett limped into the hospital alongside his wife, who was also infected, a week before Christmas. He died Jan. 13, among the 125,000 Americans who succumbed to covid-19 in January and February.
“He was absolutely shocked. He did not expect to be sick. He really thought he was safe,’” Arianne Bennett recalled. “And I’m like, ‘But baby, you’ve got to wear the mask all the time. All the time. Up over your nose.’”
“When we are not taking this collective effort to curb community spread of the virus, the virus has proven time and time again it’s really good at finding that subset of vulnerable people,” Salemi said.
While experts say even the medically vulnerable should feel assured that a vaccine will probably save their lives, they should remain vigilant for signs of infection. As more therapeutics become available, early detection and treatment is key.
When Wayne Perkey, 84, first started sneezing and feeling other cold symptoms in early February, he resisted his physician daughter’s plea to get tested for the coronavirus.
The legendary former morning radio host in Louisville had been boosted in October. He diligently wore a mask and kept his social engagements to a minimum. It must have been the common cold or allergies, he believed. Even the physician who ordered a chest X-ray and had no coronavirus tests on hand thought so.
Perkey relented, and the test came back positive. He didn’t think he needed to go to the hospital, even as his oxygen levels declined.
“In his last voice conversation with me, he said, ‘I thought I was doing everything right,’” recalled Lady Booth Olson, another daughter, who lives in Virginia. “I believe society is getting complacent, and clearly somebody he was around was carrying the virus. … We’ll never know.”
From his hospital bed, Perkey resumed a familiar role as a high-profile proponent for vaccines and coronavirus precautions. He was familiar to many Kentuckians who grew up hearing his voice on the radio and watched him host the televised annual Crusade for Children fundraiser. He spent much of the pandemic as a caregiver to his ex-wife who struggled with chronic fatigue and other long-haul covid symptoms.
“It’s the 7th day of my Covid battle, the worst day so far, and my anger boils when I hear deniers talk about banning masks or social distancing,” Perkey wrote on Facebook on Feb. 16, almost exactly one year after he posted about getting his first shot. “I remember times we cared about our neighbors.”
In messages to a family group chat, he struck an optimistic note. “Thanks for all the love and positive energy,” he texted on Feb. 23. “Wear your mask.”
As is often the case for covid-19 patients, his condition rapidly turned for the worse. His daughter Rebecca Booth, the physician, suspects a previous bout with leukemia made it harder for his immune system to fight off the virus. He died March 6.
“Really and truly his final days were about, ‘This virus is bad news.’ He basically was saying: ‘Get vaccinated. Be careful. But there is no guarantee,’” Rebecca Booth said. “And, ‘If you think this isn’t a really bad virus, look at me.’ And it is.”
Hospitals, particularly in highly vaccinated areas, have also seen a shift from covid wards filled predominantly with the unvaccinated. Many who end up in the hospital have other conditions that weakens the shield afforded by the vaccine.
Vaccinated people made up slightly less than half the patients in the intensive care units of Kaiser Permanente’s Northern California hospital system in December and January, according to a spokesman.
Gregory Marelich, chair of critical care for the 21 hospitals in that system, said most of the vaccinated and boosted people he saw in ICUs were immunosuppressed, usually after organ transplants or because of medications for diseases such as lupus or rheumatoid arthritis.
“I’ve cared for patients who are vaccinated and immunosuppressed and are in disbelief when they come down with covid,” Marelich said.
‘There’s life potential in those people’
Jessica Estep, 41, rang a bell celebrating her last treatment for follicular lymphoma in September. The single mother of two teenagers had settled into a new home in Michigan, near the Indiana border. After her first marriage ended, she found love again and got married in a zoo in November.
As an asthmatic cancer survivor, Estep knew she faced a heightened riskfrom covid-19, relatives said. She saw only a tight circle of friends and worked in her own office in her electronics repair job. She lived in an area where around 1 in 4 residents are fully vaccinated. She planned to get a booster shot in the winter.
“She was the most nonjudgmental person I know,” said her mother, Vickie Estep. “It was okay with her if people didn’t mask up or get vaccinated. It was okay with her that they exercised their right of choice, but she just wanted them to do that away from her so that she could be safe.”
With Michigan battling back-to-back surges of the delta and omicron variants, Jessica Estep wasn’t able to dodge the virus any longer — she fell ill in mid-December. After surviving a cancer doctors described as incurable, Estep died Jan. 27. Physicians said the coronavirus essentially turned her lungs into concrete, her mother said.
Estep’s 14-year-old daughter now lives with her grandparents. Her widower returned to Indianapolis just months after he moved to Michigan to be with his new wife.
Her family shared her story with a local television station in hopes of inspiring others to get vaccinated, to protect people such as Estep who could not rely on their own vaccination as a foolproof shield. In response to the station’s Facebook post about the story, several commenters shrugged off their pleas and insinuated it was the vaccines rather than covid causing deaths.
Immunocompromised people and those with other underlying conditions are worth protecting, Vickie Estep said. “There’s life potential in those people.”
A delayed shot
As Arianne Bennett navigates life without her husband, she hopes the lesson people heed from his death is to take advantage of all tools available to mitigate a virus that still finds and kills the vulnerable, including by getting boosters.
Bennett wore a music festival shirt her husband gave her as she walked into a grocery store to get her third shot in March. Her husband urged her to get one when they returned to D.C., but she became sick at the same time he did. She scheduled the appointment for the earliest she could get the shot: 90 days after receiving monoclonal antibodies to treat the disease.
“My booster! Yay!” Bennett exclaimed in her chair as the pharmacist presented an updated vaccine card.
“It’s been challenging, but we got through it,” the pharmacist said, unaware of Scott Bennett’s death.
Tears welled in Bennett’s eyes as the needle went in her left arm, just over a year after she and her husband received their first shots.
“Last time we got it, we took selfies: ‘Look, we had vaccines,’” Bennett said, beginning to sob. “This one leaves me crying, missing him so much.”
The pharmacist leaned over and gave Bennett a hug in her chair.
“He would want you to do this,” the pharmacist said. “You have to know.”
Death rates compare the number of deaths in various groups with an adjustment for the number of people in each group. The death rates listed for the fully vaccinated, the unvaccinated and those vaccinated with boosters were calculated by the CDC using a sample of deaths from 23 health departments in the country that record vaccine status, including boosters, for deaths related to covid-19. The CDC study assigns deaths to the month when a patient contracted covid-19, not the month of death. The latest data published in April reflected deaths of people who contracted covid as of February. The CDC study of deaths among the vaccinated is online, and the data can be downloaded.
The death rates for fully vaccinated people, unvaccinated people and fully vaccinated people who received an additional booster are expressed as deaths per 100,000 people. The death rates are also called incidence rates. The CDC estimated the population sizes from census data and vaccination records. The study does not include partially vaccinated people in the deaths or population. The CDC adjusted the population sizes for inaccuracies in the vaccination data. The death data is provisional and subject to change. The study sample includes the population eligible for boosters, which was originally 18 and older, and now is 12 and older.
To compare death rates between groups with different vaccination status, the CDC uses incidence rate ratios. For example, if one group has a rate of 10 deaths per 100,000 people, the death incidence rate would be 10. Another group may have a death incidence rate of 2.5. The ratio between the first group and the second group is the rate of 10 divided by the rate of 2.5, so the incidence rate ratio would be 4 (10÷2.5=4). That means the first group dies at a rate four times that of the second group.
The CDC calculates the death incidence rates and incidence rate ratios by age groups. It also calculates a value for the entire population adjusted for the size of the population in each age group. The Post used those age-adjusted total death incidence rates and incidence rate ratios.
The Post calculated the share of deaths by vaccine status from the sample of death records the CDC used to calculate death incidence rates by vaccine status. As of April, that data included 44,000 deaths of people who contracted covid in January and February.
The share of deaths for each vaccine status does not include deaths for partially vaccinated people because they are not included in the CDC data.
The Post calculated the share of deaths in each age group from provisional covid-19 death records that have age details from the CDC’s National Center for Health Statistics. That data assigns deaths by the date of death, not the date on which the person contracted covid-19. That data does not include any information on vaccine status of the people who died.
Obamacare enrollment at a record-high 14.5 million
Congress may not fund premium subsidies in 2023
The Affordable Care Act marks its 12th anniversary Wednesday, and despite a record 14.5 million enrollees, the Biden administration is preparing for the possibility that millions could lose coverage next year.
The $1.9 trillion pandemic stimulus package (Public Law 117-2), signed March 2021, reduced Obamacare premiums to no more than 8.5% of income for eligible households and expanded premium subsidies to households earning more than 400% of the federal poverty level. The rescue plan also provided additional subsidies to help with out-of-pocket costs for low-income people. As a result, 2.8 million more consumers are receiving tax credits in 2022 compared to 2021.
But without congressional action, the subsidies—and the marketplace enrollment spikes they ushered in—could be lost in 2023. A new HHS report released Wednesday, shows an estimated 3.4 million Americans would lose marketplace coverage and become uninsured if the premium tax credits aren’t extended beyond 2022.
In a briefing with reporters Tuesday, Chiquita Brooks-LaSure, administrator for the Centers for Medicare & Medicaid Services, said her agency is “confident that Congress will really understand how important the subsidies were” to enrolling more people this year. The CMS would “pivot quickly,” however, to implement new policies and outreach plans if the subsidies aren’t extended as open enrollment for 2023 begins in November.
“That said, today and tomorrow we are celebrating the Affordable Care Act,” Brooks-LaSure added. “As part of that process, we’ve been reminding ourselves that sometimes it takes some time to pass legislation. And just like the Affordable Care Act took time, we’re confident that Congress is going to address these critical needs for the American people.”
After years of legal and political brawls that turned the landmark legislation into a political football, Obamacare “is at its strongest point ever,” Brooks-LaSure said. The 14.5 million total enrollees—those who extended coverage and those who signed up for the first time—is a 21% increase from last year. The number of new consumers during the 2022 open enrollment period increased by 20% to 3.1 million from 2.5 million in 2021.
This week, the Department of Health and Human Services will highlight the impact of the ACA and the Biden administration’s efforts to strengthen the law. The CMS recently announced a new special enrollment period opportunity for people with household incomes under 150% of the federal poverty level who are eligible for premium tax credits. The new special enrollment period will make it easier for low-income people to enroll in coverage throughout the year.
Troubled times could be around the corner, however, as millions of people with Medicaid coverage could become uninsured after the public health emergency ends. Under the Families First Coronavirus Response Act (Public Law 116-127), signed March 2020, states must maintain existing Medicaid enrollment until the end of the month that the public health emergency is lifted. Once the continuous enrollment mandate ends, states will resume Medicaid redeterminations and disenrollments for people who no longer meet the program’s requirements.
Dan Tsai, deputy administrator and director of the Center for Medicaid and CHIP Services at CMS, said the agency is working with states to make sure people who lose Medicaid coverage can be transferred into low- and no-cost Obamacare coverage.
“A substantial portion of individuals who will no longer be eligible for Medicaid will be eligible for other forms of coverage,” including marketplace coverage, Tsai told reporters Tuesday.
In a statement, President Joe Biden acknowledged the law’s great impact. “This law is the reason we have protections for pre-existing conditions in America. It is why women can no longer be charged more simply because they are women. It reduced prescription drug costs for nearly 12 million seniors. It allows millions of Americans to get free preventive screenings, so they can catch cancer or heart disease early—saving countless lives. And it is the reason why parents can keep children on their insurance plans until they turn 26.”
And there are currently no existential legal threats to the law working their way through federal courts.
In some ways, this rosy report feels unremarkable. Why expect otherwise with the law now in place for more than a decade and baked into every part of the health care system?
But this outcome was far from inevitable.
Just five years ago, Congress tried to repeal as much of the law as possible. When those broader efforts failed, Congress eliminated the much-maligned individual mandate penalty. We appeared to have reached a stalemate: Democrats could not improve the law while Republicans could not repeal it.
Could this be the moment we moved on from ACA politics?!
Enter the courts. In early 2018, Republican attorneys general sued to invalidate the mandate and, with it, the rest of the law. That lawsuit—California v. Texas—was ultimately heard by a new Supreme Court one week after the 2020 election, and the ACA was upheld just last summer.
This marked the third time that the Supreme Court largely rebuffed what could have been a crippling legal challenge to the law. It feels like ancient history now, but it is worth remembering that we were still playing “will they or won’t they?” with the Supreme Court and ACA only one year ago.
In the meantime, the Trump administration tried to undermine access to coverage under the law—except when it didn’t. I won’t list all the relevant Trump-era policies, but they had an impact: the uninsured rate rose, and marketplace enrollment declined until the 2021 plan year.
Ironically, one policy meant to destabilize the market had the opposite effect: so-called “silver loading” led to more generous marketplace subsidies and likely helped stave off even greater coverage losses.
This is the recent history that is top of mind as I reflect on the year ahead—and the work left to do to achieve universal coverage. Here are just some of the major issues facing policymakers:
• The clock is ticking toextend the American Rescue Plan Act subsidies. If Congress fails to do so, millions will face premium hikes next year and marketplace enrollment will likely drop.
• More than 2 million low-income peopleremain stuck in the Medicaid coverage gap in the 12 states that have not yet expanded their Medicaid program.
• Up to 15 million people, including nearly 6 million children, could lose Medicaid coverage at the end of the COVID-19 public health emergency.
• There is increasingly an affordability and underinsurance crisis, including for those with job-based coverage: an estimated 87 million peoplewere underinsured in 2018.
Congress and the White House are working to address these challenges, but much uncertainty remains.
“It feels like ancient history now, but it is worth remembering that we were still playing ‘will they or won’t they?’ with the Supreme Court and Affordable Care Act only one year ago.” – Katie Keith
Looking beyond Congress, 2022 will be an important year for regulatory changes. The Biden administration has proposed, but has not yet finalized, major marketplace changes. Other already-identified priorities include fixing the family glitch, limiting short-term limited duration insurance, and enhancing nondiscrimination protections. We could see movement on at least some of these rules soon.
While the Biden administration may be waiting out Congress before initiating some rulemaking, time is of the essence. New rules take many months to adopt and then take effect—followed by more time to deal with the legal challenges that typically follow.
Follow along as I dive deep on these issues and more in a new Health Affairs’ Health Reform newsletter.
We’ll highlight the latest health policy developments—from legislation to litigation—and explain what these changes mean for patients, payers, providers, and other key health care stakeholders.
Access to healthcare in childhood has long term effects on health outcomes, but many children in the US are either uninsured or underinsured, meaning they often don’t have access to the care they need. Why is that and what can we do about it?
Health economists study the economic determinants of health. They also analyze how health care resources are utilized and allocated, and how health care policies and quality of care can be improved. In this episode, we discuss what exactly a healthcare system would look like if these professionals were calling all the shots.
Ruling by a decisive 7-2 margin, in what dissenting Justice Samuel Alito described as the third in “our epic Affordable Care Act trilogy”, the Supreme Court rejected the latest—and likely the last—effort to overturn the 2010 health reform law. Holding that the states and individuals that brought the latest challenge to the law did not have “standing”—the legal right to sue—the high court effectively closed the book on a decade-long series of challenges to the Affordable Care Act (ACA). Those efforts have included two previous Supreme Court cases, numerous promises to “repeal and replace” Obamacare, and the neutering of the law’s “individual mandate” to buy health insurance, which led to this latest case, Texas v. California.
At issue in the case was whether, by zeroing out the penalty for not purchasing insurance, Congress effectively removed the ACA’s status as a taxation measure, which the Court had previously held as central to the constitutionality of the law. In Alito’s dissenting opinion, the full implications of the issue are laid out: in his view, by invalidating the mandate, Congress rendered the entire law unconstitutional, meaning that it should be overturned. But a majority of seven Justices, including Kavanaugh and Barrett (both appointed by President Trump) disagreed, joining Justice Breyer in his opinion thatno harm had been done to the states that brought the suit, and ordering that the case be returned to the lower court for dismissal.
More than ten years after the passage of the ACA, it now (finally) seems as though the law is here to stay. Bolstering its central provisions—subsidized individual insurance coverage, expanded Medicaid benefits, protections for those who purchase insurance—is a centerpiece of the Biden administration’s policy program, featured first in the American Rescue Plan Act, and now in the recovery legislation currently being debated. Republicans, who had long opposed the ACA, barely mentioned it during the last presidential campaign, instead turning their focus to thwarting Democrats’ plans to expand coverage by lowering the Medicare eligibility age or implementing a government-run “public option”.
Given the evenly split makeup of the Senate, however, we continue to believe the greatest hurdle such proposals will face is not Republican opposition, but reluctance on the part of conservative Democrats, like Sen. Joe Manchin (WV), whose votes will be needed for any legislation to pass.
With the Supreme Court calling a third strike against challenges to the ACA, and the new administration eager to advance its other priorities (infrastructure, childcare, jobs), for the first time in over a decade, we might just be in for a period of relative calm on the healthcare policy front.
In what has become something of a Washington tradition, the Supreme Court again upheld the Affordable Care Act on Thursday, in the third major case from Republican challengers to reach the high court.
The margin this time was larger, 7-2, as the High Court appears less and less interested in revisiting the health care law through the judiciary.
Democrats hailed the ruling as a boost to their signature law, and Republicans were left to figure out a path forward on health care amid another defeat.
Here are five takeaways:
This could be the last gasp of repeal efforts
It is impossible to ever fully rule out another lawsuit challenging the health law or another repeal push if Republicans win back Congress.
But after more than 10 years of fighting the Affordable Care Act, GOP efforts at fighting the law are seriously deflated, as many Republicans themselves acknowledge.
“It’s been my public view for some time that the Affordable Care Act is largely baked into the health care system in a way that it’s unlikely to change or be eliminated,” said Sen. Roy Blunt (Mo.), a member of Senate GOP leadership.
Asked if he still wanted to repeal and replace the law, which was the GOP rallying cry for years, Sen. Chuck Grassley (R-Iowa) said instead, “I think I want to make sure it works,” before attacking former President Obama’s promises about the law’s benefits.
Even Sen. Josh Hawley (R-Mo.), who helped bring the lawsuit against the health law as attorney general of Missouri, said Thursday that the Supreme Court had made clear “they’re not going to entertain a constitutional challenge to the ACA.”
Supporters of the law said it is now even more entrenched, despite years of GOP attacks.
“The war appears to be over and the Affordable Care Act has won,” said Stan Dorn, senior fellow at the health care advocacy group Families USA.
Still, not all Republicans are throwing in the towel on at least verbally attacking the law.
“The ruling does not change the fact that Obamacare failed to meet its promises and is hurting hard-working American families,” said House GOP leaders Kevin McCarthy (Calif.), Steve Scalise (La.) and Elise Stefanik (N.Y.).
And there is at least one ACA-related lawsuit still working its way through the lower courts. Kelley v. Becerra challenges provisions of the health law around insurance plans covering preventive care including birth control.
Through the three major Supreme Court cases on ObamaCare, the margin of victory has risen from 5-4 to 6-3 to 7-2.
“There’s a real message there about the Supreme Court’s willingness to tolerate these kinds of lawsuits,” Andy Pincus, a visiting lecturer at Yale Law School, said of the growing margin of victory.
The case was decided on fairly technical grounds. The Court ruled that the challengers did not have standing to sue, given that the penalty for not having health insurance at the center of the case had been reduced to zero, so it was not causing any actual harm that could be the basis for a lawsuit.
Republicans did get some vindication in that Democrats had fiercely attacked Barrett during her confirmation hearings for being a vote to overturn the health law, when in fact she ended up voting to maintain the law.
The ACA is stabilizing
The early years of the Affordable Care Act were marked with the turbulence of a website that failed at launch, premium increases, and major insurers dropping out of the markets given financial losses.
Now, though, the markets are far more stable. For example, 78 percent of ACA enrollees now have the choice of three or more insurers, up from 57 percent in 2017, according to the Kaiser Family Foundation.
Democrats, now in control of the House, Senate and White House, were able to pass earlier this year expansions of the law’s financial assistance to help further bring down premium costs.
The Biden administration announced earlier this month that a record 31 million people were covered under the ACA, including both the private insurance marketplaces and the expansion of Medicaid.
“We are no longer in the Affordable Care Act, ‘How’s it going to go? Is it going to survive?’ mode,” said Frederick Isasi, executive director of Families USA. “We really are in a whole new phase. It really is: ‘How do we improve it?’”
Republicans face questions on their health care message
The Republican health care message for years was summed up with the simple slogan “repeal and replace.”
But now those efforts have failed in Congress, in 2017, and have failed for a third time in the courts.
That leaves uncertainty about what the Republican health care message is. The party has famously struggled to unite around an alternative to the ACA, so there is no consensus alternative for the party to turn to.
The statement from McCarthy, Scalise, and Stefanik calling the ACA “failed,” shows that party leaders are not fully ready to accept the law.
The leaders added that “House Republicans are committed to actually lowering health care costs,” which has been a possible area for the party to focus that is not simply about repealing the ACA.
But any discussion of health care costs is fraught with complications. Republicans, for example, overwhelmingly oppose House Democrats’ legislation to allow the government to negotiate lower drug prices, arguing it would harm innovation from the pharmaceutical industry.
Grassley reached a bipartisan deal on somewhat less sweeping drug pricing legislation with Sen. Ron Wyden (D-Ore.) in 2019, but that bill went too far for many Republicans as well.
Democrats want to go farther, but face an uphill climb
With the ACA further entrenched, and control of the House, Senate and White House, Democrats are looking at ways to build on the health law.
The main health care proposal from the presidential campaign, a government-run “public option” for health insurance, has faded from the conversation and is not expected to be a part of a major legislative package on infrastructure and other priorities Democrats are pushing for this year.
While the health care industry has largely made its peace with the ACA, pushing for a public option or lowering health care costs means taking on a fight with powerful industry groups.
Progressives like Sen. Bernie Sanders (I-Vt.) have instead poured their energy into expanding Medicare benefits to include dental, vision, and hearing coverage, and lowering the eligibility age to 60.
Allowing the government to negotiate lower drug prices also could make it into the package.
“Now, we’re going to try to make it bigger and better — establish, once and for all, affordable health care as a basic right of every American citizen,” said Senate Majority Leader Charles Schumer (N.Y.). “What a day.”
The Supreme Court on Thursday issued an opinion upholding the Affordable Care Act by a 7-2 vote, allowing millions to keep their insurance coverage amid the coronavirus pandemic.
In the decision, the court reversed a lower court ruling finding the individual mandate unconstitutional. However, the court did not get to the key question of whether the individual mandate is severable from the rest of the law. Instead, the court held the plaintiffs do not have standing in the case, or a legal right to bring the suit.
Justice Stephen Breyer wrote the opinion while Justices Samuel Alito and Neil Gorsuch filed dissenting opinions.
Breyer wrote that a court must address a plaintiffs’ injuries. But Breyer found there were no injuries, so he asked: “What is that relief? The plaintiffs did not obtain damages.” Breyer added, “There is no one, and nothing, to enjoin.”
A wide swath of industry cheered Thursday’s news.
The American Medical Association called it a victory for patients, so too did America’s Essential Hospitals, a safety net trade group that called it a win. The American Hospital Association said the more than 30 million of Americans who obtained coverage from the law can “breathe a sigh of relief.”
Millions of Americans gained health insurance coverage as a result of the Affordable Care Act, President Barack Obama’s landmark law passed in 2010 and reshaped virtually every corner of American healthcare. The latest challenge threatened to undo coverage gains under the law that helped drive down the uninsured rate to a record low.
Proponents feared the law was in greater jeopardy following the death of Supreme Court Justice Ruth Bader Ginsburg, part of the court’s liberal wing, which shrunk to just three of a total of nine justices without her.
Those fears now seem to be overblown. Chief Justice John Roberts joined the courts liberals in upholding the law, as did two of President Donald Trump’s Supreme Court picks, Justices Brett Kavanaugh and Amy Coney Barrett.
In a rare move, Trump’s DOJ declined to defend the ACA, when the challenge was brought by a group of red states and two men with marketplace plans. Former California Attorney General Xavier Becerra, now HHS secretary, led a group of blue states to defend the law in federal court.
Recap of the controversial case
The case centers on the individual mandate, the part of the law that compelled Americans to purchase health insurance or pay a fee. The framers of the ACA believed the mandate would help drive healthy people to ensure they weren’t just filled with sick people, risking higher costs and adverse selection for insurers.
Congress effectively killed the mandate in 2017 by setting the penalty to $0.
The plaintiffs’ legal argument was strategic. They directly targeted the linchpin that saved the law in 2012. The Supreme Court largely upheld the ACA in 2012 when it ruled the mandate could be considered a tax and therefore was constitutional. Roberts infuriated conservatives by siding with liberals in that case.
Take that penalty away, by zeroing it out, and the plaintiffs argue the law is no longer constitutional because it can no longer be considered a tax if no money is collected.
The key question before the Supreme Court was whether they could simply pluck the individual mandate from the remainder of the monumental health law,throw the entire law out or find some middle ground.
The plaintiffs have argued that the individual mandate is so intertwined and closely linked to the rest of the law that the entire piece of legislation must fall if the individual mandate is ruled unconstitutional.
Before arriving at the Supreme Court, a lower court ruled in 2019 the mandate was unconstitutional but sent back the key question of whether the mandate could be extracted from the remainder of the law back to the district court. The federal appeals court ruling by a three-judge panel came down along party lines: two Republicans and one Democrat.
A question of standing
Some legal experts have criticized the challenge because the individual plaintiffs, two Texas men, no longer face any financial penalty if they were to forgo coverage. SCOTUS’ ruling agrees with that logic.
The two men joined the case originally brought by a group of red states. Legal experts said it would have been harder for the group of red states to prove an injury than the two men, John Nantz and Neill Hurley.
The word standing was mentioned at least 59 times, according to the court’s transcript of the hearing, outnumbering other key words such as severability, another important legal concept in the case.
In one now-telling exchange from oral arguments, Gorsuch seemed confused over the premise of the challenge to begin with: “I guess I’m a little unclear who exactly they want me to enjoin and what exactly do they want me to enjoin them from doing?”