Consumers choosing insurance via the federal Affordable Care Act exchanges reached 8.25 million over the 2021 open enrollment period, about the same number as the year before, CMS said Wednesday.
Because two fewer states are participating in the federal marketplace this year, adjusted year-over-year growth in plan selections was 7%, the agency said.
Of the total, 23% of consumers were new, down by 3.6%. Renewing consumers who actively chose a new plan and those who were automatically re-enrolled both increased.
The figures are the last from the Trump administration, which has drastically reduced money toward navigators who help people use the Healthcare.gov website and find the best ACA plan for them. The administration has made no secret of its opposition to the law and after failing to overturn it in Congress has used executive actions to undermine it.
President-Elect Joe Biden and his pick for HHS chief, California Attorney General Xavier Becerra, however, are eager supporters and are likely to take a number of actions to restore and burnish it. That could be increasing tax credits and subsidies, increasing navigator funding and building on protections like essential health benefits.
The U.S. Supreme Court is expected to make its ruling on the ACA case later this spring or summer, but the Biden administration could essentially make it moot by walking back the zeroing out of the individual mandate penalty that is the linchpin of the lawsuit against it.
The relatively steady enrollment could be increased through those actions and the possibility of a special enrollment period to account for needs during the coronavirus pandemic. The COVID-19 crisis and the recession it has caused have kicked millions of people off their employer-sponsored insurance, and they could turn to the exchanges for coverage, especially with higher tax credits and subsidies.
President-elect Joe Biden has chosen California Attorney General Xavier Becerra to be the secretary of the Department of Health and Human Services, the Biden transition team announced this morning and the New York Times first reported last night.
Why it matters:If confirmed, Becerra would be the first Latino to lead the department. He’s also been at the forefront of health care legal battles, most prominently over the future of the Affordable Care Act.
Becerra has led the effort by a group of 20 states and the District of Columbia in defending the ACA against a GOP lawsuit aiming to strike down the law. The case was argued in front of the Supreme Court last month.
Biden plans to announce several other top health care advisors, people familiar with the rollout told NYT.
Between the lines:Whoever leads HHS will immediately be in charge of addressing what will likely still be an out-of-control pandemic, including the government’s efforts to distribute coronavirus vaccines.
The virus has disproportionately affected people of color, and Becerra’s selection follows increasing pressure on Biden from the Latino community and the Congressional Hispanic Caucus to diversity his cabinet, per NYT.
On the other hand, Becerra has little experience managing a large bureaucracy or in public health, per Politico.
The big picture: If a global pandemic and the future of the ACA weren’t enough, the HHS secretary could end up in charge of executing most of Biden’s health agenda, particularly if the Senate remains in Republican hands.
Becerra’s legal background could prove useful in enacting a lawsuit-proof regulatory agenda.
Bonus: Biden has selected Rochelle Walensky, chief of infectious diseases at Massachusetts General Hospital and a professor at Harvard Medical School, to lead the Centers for Disease Control and Prevention, Politico reported last night.
For instance, in 2020, UnitedHealthcare, the nation’s largest insurer, became a new entrant in five states, according to the report: Arizona, Maryland, North Carolina, Tennessee and Virginia. Twenty states had new entrants to the market.
For 2021, 30 insurers are entering the individual market, and an additional 61 are expanding their service area within states.
There will be an average of five insurers per state in 2021, up from a low of 3.5 in 2018, but still below the peak of six in 2015. Only 10% of counties will have a single insurer offering in 2021, down from 52% of counties in 2018, the report said. Rural areas tend to have fewer insurers in the ACA market.
Often, when there is only one insurer participating on the exchange, that company is a Blue Cross Blue Shield or Anthem plan, the report said. Before the ACA, state individual markets were often dominated by a single Blue Cross Blue Shield plan.
WHY THIS MATTERS
Despite uncertainties surrounding the ongoing pandemic, the end of the individual mandate and the question of whether the Supreme Court will rule next year to invalidate the entire ACA, the numbers show that insurers appear bullish on participation.
Insurers remained profitable during the pandemic due to decreases in healthcare utilization and claims costs. They are on track yet again to owe substantial rebates to consumers based on low medical loss ratios in 2021.
Even with the lack of a mandate, individuals continue to enroll in ACA plans, with enrollment this year more than keeping pace with last year’s figures. Premiums for 2021 are 1-4% below the average.
THE LARGER TREND
The enrollment numbers continue a trend of rising insurer participation in the ACA going into the 2020 market, and lower premiums.
Insurer participation next year equals the average participation levels at the outset of the marketplaces in 2014, according to the KFF report.
Since 2014, the number of insurers participating on the exchanges has been in flux. Going into the 2018 plan year, many insurers left the market or reduced their footprint due to losses in the market.
The Supreme Court’s new conservative majority showed its muscle on Thanksgiving Eve, with Justice Amy Coney Barrett playing a key role in reversing the court’s past deference to local officials when weighing pandemic-related restrictions on religious organizations.
All three of President Trump’s nominees to the court were in the 5-to-4 majority that blocked New York Gov. Andrew M. Cuomo’s restrictions on houses of worship in temporary hot spots where the coronavirus is raging.
The court’s most conservative justices distanced themselves from Chief Justice John G. Roberts Jr. Justice Neil M. Gorsuch, Trump’s first nominee, went out of his way to say that lower courts should no longer follow Roberts’s guidance of deference, calling it “mistaken from the start.”
“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” Gorsuch wrote. Rather than applying “nonbinding and expired” guidance from Roberts in an earlier case from California, Gorsuch said, “courts must resume applying the Free Exercise Clause.”
“Today, a majority of the court makes this plain.”
The halt of Cuomo’s orders, which had been allowed to remain in place by lower courts, was the first evidence that Roberts may no longer play the pivotal role he occupied over the past couple of years. He had been at the center of the court, with four consistently more conservative justices and four more liberal ones.
Barrett’s replacement of liberal Justice Ruth Bader Ginsburg means there are now five members of the court — a majority — more willing to move it quickly in a more conservative direction.
And pandemic-related restrictions on worship services have drawn the ire of the conservatives for months.
They were previously outvoted when Ginsburg was alive, as she and the other liberals joined with Roberts to leave in place restrictions in California and Nevada that imposed limits on in-person services at houses of worship.
In the cases involved in the court’s midnight order Wednesday, the Roman Catholic Diocese of Brooklyn and Jewish organizations led by Agudath Israel challenged Cuomo’s system of imposing drastic restrictions on certain neighborhoods when coronavirus cases spike.
Under Cuomo’s plan, in areas designated “red zones,” where the virus risk is highest, worship services are capped at 10 people. At the next level, “orange zones,” there is an attendance cap of 25. The size of the facility does not factor in to the capacity limit.
The diocese said in its petition that the plan subjects “houses of worship alone” to “onerous fixed-capacity caps while permitting a host of secular businesses to remain open in ‘red’ and ‘orange’ zones without any restrictions whatsoever.”
And the Jewish organizations noted that Cuomo, a Democrat, had specifically mentioned outbreaks in Orthodox Jewish neighborhoods when imposing the restrictions. “This court should not permit such remarkable scapegoating of a religious minority to stand,” the organizations said in court documents.
Cuomo attributed the court’s order to its more conservative majority. “I think that Supreme Court ruling on the religious gatherings is more illustrative of the Supreme Court than anything else,” Cuomo told reporters. “It’s irrelevant from a practical impact because the zone that they were talking about has already been moved. It expired last week. I think this was really just an opportunity for the court to express its philosophy and politics.”
Technically, the court’s order blocks Cuomo’s restrictions from being reimposed while legal challenges continue. But the court’s unsigned opinion would appear to make the ultimate outcome clear.
“Even in a pandemic, the Constitution cannot be put away and forgotten,” the opinion said. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
The opinion was endorsed by Barrett, Gorsuch and Justices Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh, Trump’s second appointment to the court. It was mild compared with recent comments from Alito and the Gorsuch opinion, which no other justices joined.
Alito, who did not write a separate opinion, recently told the conservative legal organization the Federalist Society that the pandemic “has resulted in previously unimaginable restrictions on individual liberty.”
“It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right,” Alito said.
But Justice Stephen G. Breyer, writing for fellow liberals Sonia Sotomayor and Elena Kagan, said it was a strange time for the court to be offering relief.
“The number of new confirmed cases per day is now higher than it has ever been,” Breyer wrote, pointing to the growing national death toll and the outsize number of fatalities New York has suffered, which tracking by The Washington Post puts at more than 34,000.
“The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges,” Breyer wrote.
Sotomayor was more pointed in a separate opinion joined by Kagan: “Justices of this court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”
Roberts noted in his opinion that the rules might be unduly restrictive but said Cuomo has already eased them, essentially giving the churches and synagogues the relief they had requested.
“The Governor might reinstate the restrictions. But he also might not,” the chief justice wrote. “And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic.”
“It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques,” he wrote.
Gorsuch’s solo opinion was at times scathing and sarcastic. He noted that Cuomo had designated, among others, hardware stores, acupuncturists, liquor stores and bicycle repair shops as essential businesses not subject to the most strict limits.
“So, at least according to the governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians,” Gorsuch wrote. “Who knew public health would so perfectly align with secular convenience?”
Gorsuch criticized Roberts for relying on one of the court’s 1905 precedents for his position that the court should defer to local officials during health crises.
The chief justice seemed taken aback. He said his earlier opinion in the California case asserted only that the Constitution chiefly leaves such decisions to local officials.
That, he wrote, “should be uncontroversial, and the [Gorsuch] concurrence must reach beyond the words themselves to find the target it is looking for.”
He also defended the liberal justices from Gorsuch’s tough words, even though Roberts did not join their dissents.
“I do not regard my dissenting colleagues as ‘cutting the Constitution loose during a pandemic,’ yielding to ‘a particular judicial impulse to stay out of the way in times of crisis,’ or ‘shelter[ing] in place when the Constitution is under attack,’ ” Roberts wrote, quoting Gorsuch’s opinion.
“They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
Conservative religious organizations praised the court’s action.
“Governor Cuomo should have known that openly targeting Jews for a special covid crackdown was never going to be constitutional,” said Eric Rassbach, vice president and senior counsel at the Becket Fund, which represented Agudath Israel. Covid-19 is the disease caused by the coronavirus. “The Supreme Court was right to step in and allow Jews and Catholics to worship as they have for centuries.”
But Donna Lieberman, executive director of the New York Civil Liberties Union, said the court’s action was dangerous.
“New York’s temporary restrictions on indoor gatherings do not discriminate against houses of worship, and, in fact, treat them better than comparable non-religious gatherings,” Lieberman said in a statement. “The Supreme Court’s decision will unfortunately undermine New York’s efforts to curb the pandemic.”
Even a solidly conservative Supreme Court could find a pretty easy path to preserve most of the Affordable Care Act — if it wants to.
The big picture: It’s too early to make any predictions about what the court will do, and no ACA lawsuit is ever entirely about the law. They have all been colored by the bitter political battles surrounding the ACA.
Even so, a handful of factors — the specifics of this case, the court’s recent precedents, even a few threads from Amy Coney Barrett’s Supreme Court confirmation hearings — can at least help draw a roadmap for a conservative ruling that would leave most of the ACA intact.
How it works: There are two steps to the current ACA case. First, the justices will have to decide whether the law’s individual mandate has become unconstitutional. If it has, they’ll then have to decide how many other provisions have to fall along with it.
The real action is in the second step — whether the mandate is “severable” from the rest of the law.
“If you picture severability being like a Jenga game — it’s kind of, if you pull one out, can you pull it out while it all stands? Or if you pull two out, will it still stand?” Barrett explained during Wednesday’s questioning.
“The presumption is always in favor of severability,” she said.
Severability is a question of congressional intent — whether Congress still would have passed the rest of a law if it knew it couldn’t have the piece the courts are striking down. And conservative judges make a point of relying only on a law’s text when determining congressional intent.
That should make the current case easy, the blue states defending the ACA argue: Congress zeroed out the mandate and left the rest of the law intact — a pretty clear sign that it intended for the rest of the law to operate in the absence of the mandate.
“It is abundantly clear that Congress wanted to keep the hundreds of other ACA provisions … without an enforceable minimum coverage provision, because that is the scheme Congress created,” Democratic attorneys general said in a brief.
The other side:The red states challenging the law, on the other hand, get further away from straight textualism.
They say the courts should instead look to Congress’ initial belief, when it passed the ACA in 2010, that the mandate was inextricably tied to protections for pre-existing conditions.
What we’re watching: Barrett acknowledged in this week’s hearings that the law has changed since it was first passed — a potentially encouraging sign, if you’re an ACA defender hoping the conservative justices will look at legislative text Congress wrote in 2017 instead of expert statements from 2010.
“Congress has amended the statute since” the 2012 Supreme Court ruling upholding the ACA, Barrett said Wednesday. “It has zeroed out the mandate, so now California v. Texas involves a different provision.”
A case from earlier this year— tied to another big-ticket Obama policy — might also help illuminate the current court’s approach to severability.
The court’s conservative majority ruled in June that the leadership structure of the Consumer Financial Protection Bureau was unconstitutional.
But a combination of four liberals and three conservatives then held that the whole agency didn’t have to be struck down because of it.
Yes, but: None of this means that the threat to the entire ACA, or to its protections for people with pre-existing conditions, has been exaggerated.
The Republican attorneys general who brought the case are asking the court to invalidate the entire statute. So is the Justice Department.
A federal judge ruled that the entire law had to fall. An appeals court couldn’t decide how much to strike, but said it would probably need to be more than just the mandate — and protections for pre-existing conditions would be next in line.
The bottom line: The ACA’s allies may not be able to save the remains of the individual mandate, but that’s a loss they can live with. And there is at least a clear path to a ruling, even from a conservative court, that would leave the rest of the law intact.
Two conservative justices on the Supreme Court appeared prepared to preserve at least some of the major components of ObamaCare, including its protections for people with preexisting conditions, as they heard arguments Tuesday in a suit challenging the law.
Chief Justice John Roberts and Justice Brett Kavanaugh seemed to express the view that if the court were to strike down the provision of the law mandating the purchase of health insurance, the rest of the law should be allowed to survive.
“Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place, the provisions regarding preexisting conditions and the rest,” Kavanaugh said.
The U.S. Supreme Court is set to hear a case questioning the legality of the ACA on Nov. 10.
Five things to know:
1. At the center of the case is whether the health law should be struck down. In a brief filed June 25 in Texas v. United States, the Trump administration argues the entire ACA is invalid because in December 2017, Congress eliminated the ACA’s tax penalty for failing to purchase health insurance. The administration argues the individual mandate is inseverable from the rest of the law and became unconstitutional when the tax penalty was eliminated; therefore, the entire health law should be struck down.
2. The administration’s brief was filed in support of a group of Republican-led states seeking to undo the ACA. Meanwhile, California Attorney General Xavier Becerra is leading a coalition of more Democratic states to defend the ACA before the Supreme Court.
3. The case goes before the Supreme Court days after media outlets projected Joe Biden as the next president of the U.S. President-elect Biden has said he seeks to expand government-subsidized insurance coverage and wants to the bring back the ACA’s tax penalty for failing to purchase health insurance, according to The Wall Street Journal. If a change regarding the tax penalty did occur, the publication notes that Republicans’ argument on severability would no longer apply.
4. The case also goes before the Supreme Court about two weeks after the Senate voted Oct. 26 to confirm Amy Coney Barrett to the Supreme Court. Ms. Barrett previously criticized Chief Justice John Roberts’ 2012 opinion sustaining the law’s individual mandate, The New York Times reported, but she said during her confirmation hearings in October that “the issue in the case is this doctrine of severability, and that’s not something that I have ever talked about with respect to the Affordable Care Act.”
5. According to the Journal, the Supreme Court is not expected to make a decision in the case until the end of June.
After an exhausting and contentious election campaign, and a vote count that was prolonged by enormous voter turnout and record-breaking use of early and mail-in voting, the major news networks have now made their calls. Joseph R. Biden, Jr. will be the 46th President of the United States, and Kamala D. Harris will be the first woman, and first person of color, to become Vice President. Securing an electoral victory by achieving razor-thin victories in a number of battleground states, President-elect Biden received the largest number of votes of any candidate in American history. Although the Trump campaign vowed to pursue legal challenges to the validity of the election, Biden’s win appeared to be secure.
The election results came in the midst of a dramatic acceleration of the coronavirus pandemic.Over the last week, the average number of new cases per day in the US surpassed 96,000, up 54 percent from just two weeks earlier. On Friday the nation recorded a pandemic-high 132,700 new cases, along with at least 1,220 COVID deaths. Hospitalizations were up in most states, hospital bed and workforce capacity are strained, and public health experts warned that the coming weeks and months will bring even worse news. Unsurprisingly, the pandemic was a top issue on the minds of voters. According to exit polls, however, the electorate was deeply divided on the issue: 82 percent of Biden voters cited the pandemic itself as one of the most important issues in determining their vote, with only 14 percent of Trump voters agreeing. Conversely, 82 percent of Trump voters said the economy was the most important issue on their minds, as opposed to Biden voters, only 17 percent of whom listed the economy as their top issue. Based on that data, it appears that at least one important split among the electorate was “lives” versus “livelihoods”—whether the pandemic response, or its impact on the economy, was of greatest concern.
In the coming weeks, attention is likely to turn in earnest to addressing both aspects of the issue during the lame duck period. Senate Majority Leader Mitch McConnell (R-KY) has signaled that he intends toresume negotiations on a stimulus package with Democrats in the House, whose majority was diminished in the election. At this writing, it appears likely that control of the Senate will come down to the results of two runoff elections in Georgia, and McConnell will undoubtedly want to make the case that Senate Republicans have taken decisive action to bolster the economic recovery. It’s also possible that, as part of the Trump administration’s Operation Warp Speed, a coronavirus vaccine will be granted approval by the end of the year. Health officials at both federal and state levels must continue to work closely together to tackle the complex logistics of distributing and administering the vaccine, and it will be critical for the incoming administration to seek ways to collaborate with the Trump team to ensure a smooth transition of this vital work.
The outcome of the Senate runoffs in Georgia will determine whether the Biden administration must work with divided Congress, or an evenly split Senate in which Vice President-elect Kamala Harris casts the deciding vote. In either case, given the political realities underscored by the electoral result, it’s very unlikely than any of the more sweeping proposals in the Biden campaign platform—lowering the eligibility age for Medicare, establishing a government-run “public option” insurance plan, extending premium subsidies to middle-income workers—will advance very far. Rather, as we’ve discussed before, we’d expect a Biden administration’s first actions to focus on an enhanced federal response to managing the pandemic, including issuing a national mask mandate, enhancing efforts to augment and coordinate personal protective equipment (PPE) supply, and rejoining the World Health Organization.
As we look to the next two years, most healthcare policy changes are likely to come in the form ofregulatory reform, such as reversing waivers for Medicaid programs to establish work requirements and withdrawing flexibility for short-term plans that fail to comply with the Affordable Care Act (ACA). Other Trump-era regulatory changes might continue. There’s broad bipartisan support for efforts to make value-based Medicare payment reforms more successful, to increase price transparency, and to address the issues of surprise billing and the cost of prescription drugs. But even in if Democrats beat the odds and win back control of the Senate, we believe the Biden administration will have other legislative priorities that will supersede any attempt to dramatically overhaul healthcare coverage—voting reforms, climate change legislation, immigration reform, and long-overdue infrastructure investments.
Unless, that is, the Supreme Court throws a spanner in the works by overturning the ACA. Should the Court rule that the individual mandate is not severable from the rest of the law, and that the entire ACA is unconstitutional, the new administration would be forced to take quick action to protect coverage and insurance protections for millions of Americans. In that event, healthcare would rocket to the top of the agenda. Either the Biden team would be forced to find a compromise solution that could pass a divided Congress, or (if Harris is the tie-breaking vote) find a way to use the budget reconciliation process to address coverage. That potential drama lies months in the future, as we won’t know the outcome of the case until next spring. We’ll monitor the oral arguments in the ACA case closely, and let you know what we hear, and what we think it means for the future of the case.
In the coming weeks, we’ll be watching for answers to some of the big healthcare questions that lie ahead: How will the Trump administration handle the worsening pandemic situation in the 75 days between now and Inauguration Day? Will any new stimulus package include additional economic relief for healthcare providers? When and how will a COVID vaccine become widely available? And perhaps most importantly, what toll will the “third wave” of the pandemic take on a nation already exhausted by a difficult year, and a bitter political fight? Surely one reason to be optimistic is that, having turned out to vote in the largest numbers in a century, Americans are more engaged than ever in finding a way forward amid the problems that confront us. Let’s hope our political leaders from across the ideological spectrum will rise to the occasion, and meet this difficult moment with positive, constructive solutions.
In swing states from Georgia to Arizona, the Affordable Care Act — and concerns over protecting preexisting conditions — loom over key races for Congress and the presidency.
“I can’t even believe it’s in jeopardy,” says Noshin Rafieei, a 36-year-old from Phoenix. “The people that are trying to eliminate the protection for individuals such as myself with preexisting conditions, they must not understand what it’s like.”
In 2016, Rafieei was diagnosed with colon cancer. A year later, her doctor discovered it had spread to her liver.
“I was taking oral chemo, morning and night — just imagine that’s your breakfast, essentially, and your dinner,” Rafieei says.
In February, she underwent a liver transplant.
Rafieei does have health insurance now through her employer, but she fears whether her medical history could disqualify her from getting care in the future.
“I had to pray that my insurance would approve of my transplant just in the nick of time,” she says. “I had that Stage 4 label attached to my name and that has dollar signs. Who wants to invest in someone with Stage 4?”
“That is no way to feel,” she adds.
After doing her research, Rafieei says she intends to vote for Joe Biden, who helped get the ACA passed in this first place.
“Health care for me is just the driving factor,” she says.
Even 10 years after the Affordable Care Act locked in a health care protection that Americans now overwhelmingly support — guarantees that insurers cannot deny coverage or charge more based on preexisting medical conditions — voters once again face contradicting campaign promises over which candidate will preserve the law’s legacy.
A majority of Democrats, independents and Republicans say they want their new president to preserve the ACA’s provision that protects as many as 135 million people from potentially being unable to get health care because of their medical history.
President Trump has pledged to keep this in place, even as his administration heads to the U.S Supreme Court the week after Election Day to argue the entire law should be struck down.
“We’ll always protect people with preexisting,” Trump said in the most recent debate. “I’d like to terminate Obamacare, come up with a brand new, beautiful health care.”
And yet the Trump administration has not unveiled a health care plan or identified any specific components it might include. In 2017, the administration joined with congressional Republicans to dismantle the Affordable Care Act, but none of the GOP-backed replacement plans could summon enough votes. The Republicans’ final attempt, a limited “skinny repeal” of parts of the ACA, failed in the Senate because of resistance within their own party.
In an attempt to reassure wary voters, Trump recently signed an executive order that asserts protections for preexisting conditions will stay in place, but legal experts say this has no teeth.
“It’s basically a pinky promise, but it doesn’t have teeth,” says Swapna Reddy, a clinical assistant professor at Arizona State University’s College of Health Solutions. “What is the enforceability? The order really doesn’t have any effect because it can’t regulate the insurance industry.”
Since the 2017 repeal and replace efforts, the health care law has continued to gain popularity.
Public approval is now at an all-time high, but polling shows many Republicans still don’t view the ACA as synonymous with its most popular provision — protections for preexisting conditions.
Democrats hope to change that.
“If you have a preexisting condition — heart disease, diabetes, breast cancer — they are coming for you,” said Biden’s running mate, California Sen. Kamala Harris, during her recent debate with Vice President Pence.
Voters support maintaining ACA’s legal protections
In key swing states, many voters say protecting preexisting conditions is their top health concern.
Rafieei, the Phoenix woman with colon cancer, still often has problems getting her treatments covered. Her insurance has denied medications that help quell the painful side effects of chemotherapy or complications related to her transplant.
“During those chemo days, I’d think, wow, I’m really sick, and I just got off the phone with my pharmacy and they’re denying me something that could possibly help me,” she says.
Because of her transplant, she will be on medication for the rest of her life, and sometimes she even has nightmares about being away and running out of it.
“I will have these panic attacks like, ‘Where’s my medicine? Oh my god, I have to get back to get my medicine?'”
Election season and talk of eliminating the ACA has not given Rafieei much reassurance, though.
“I cannot stomach politics. I am beyond terrified,” she says.
And yet she plans to head to the polls — in person — despite having a compromised immune system.
“It might be a long day. But you know what? I want to fix whatever I can,” she says.
A few days after she votes, she’ll get a coronavirus test and go in for another round of surgery.
A key health issue in political swing states
Rafieei’s home state of Arizona is emblematic of the political contradictions around the health care law.
The Republican-led state reaped the benefits of the ACA. Arizona’s uninsured rate dropped considerably since 2010, in part because it expanded Medicaid.
But the state’s governor also embraced the Republican effort to repeal and replace the law in 2017, and now Arizona’s attorney general is part of the lawsuit that will be heard by the Supreme Court on Nov. 10 that could topple the entire law.
Depending on how the Supreme Court rules, ASU’s Reddy says any meaningful replacement for preexisting conditions would involve Congress and the next president.
“At the moment, we have absolutely no national replacement plan,” she says.
Meanwhile, some states have passed their own laws to maintain protections for preexisting conditions, in the event the ACA is struck down. But Reddy says those vary considerably from state to state.
For example, Arizona’s law, passed just earlier this year, only prevents insurers from outright denying coverage — consumers with preexisting conditions can be charged more.
“We are in this season of chaos around the Affordable Care Act,” says Reddy. “From a consumer perspective, it’s really hard to decipher all these details.”
As in the congressional midterm election of 2018, Democrats are hammering away at Republican’s track record on preexisting conditions and the ACA.
In Arizona, Mark Kelly, the Democratic candidate running for Senate, has run ads and used every opportunity to remind voters of Republican Sen. Martha McSally’s votes to repeal the law.
In Georgia, Democratic challenger Jon Ossoff has taken a similar approach.
“Can you look down the camera and tell the people of this state why you voted four times to allow insurance companies to deny us health care coverage because we may suffer from diabetes or heart disease or have cancer in remission?” Ossoff said during a debate with his opponent, Republican Sen. David Purdue.
Republicans have often tried to skirt health care as a major issue this election cycle because there isn’t the same political advantage to pushing the repeal and replace argument, says Mark Peterson, a professor of public policy, political science and law at UCLA.
“It’s political suicide, there doesn’t seem to be any real political advantage anymore,” says Peterson.
But the timing of the Supreme Court case — exactly a week after election day — has somewhat obscured the issue for voters.
Republicans have chipped away at the health care law by reducing the individual mandate — the provision requiring consumers to purchase insurance — to zero dollars.
The premise of the Supreme Court case is that the ACA no longer qualifies as a tax because of this change in the penalty.
“It is an extraordinary stretch, even among many conservative legal scholars, to say that the entire law is predicated on the existence of an enforced individual mandate,” says Peterson.
The court could rule in a very limited way that does not disrupt the entire law or protections for preexisting conditions, he says.
Like many issues this election, Peterson says there is a big disconnect between what voters in the two parties believe is at stake with the ACA.
“Not everybody, particularly Republicans, associates the ACA with protecting preexisting conditions,” he says. “But it is pretty striking that overwhelmingly Democrats and Independents do — and a number of Republicans — that’s enough to give a significant national supermajority.”
Since the Affordable Care Act (ACA) was signed into law a little more than a decade ago, it has fundamentally reshaped the American healthcare system. As the graphic below highlights, the far-reaching law expanded insurance coverage, increased consumer protections, led to new payment models, established minimum coverage standards, reformed the Indian Health Service—and even gave us calorie counts on menus, among myriad other things.
The fate of the ACA is once again in the Supreme Court’s hands—and the nine Justices, now including Amy Coney Barrett, are scheduled to hear arguments starting November 10th. Eighteen states with Republican leadership are asking the court to determine whether the individual mandate is constitutional without a financial penalty, and whether the mandate is severable from the rest of the law.
The process of unwinding a law that touches nearly every facet of the US healthcare system would mean a confusing and financially detrimental road ahead for many.Although we believe it’s unlikely that the entire law will be ruled unconstitutional, if it is—and no replacement legislation is passed—the effects could be devastating.
An estimated 21 million people would be at serious risk of losing their health insurance. This risk is magnified for Hispanic and Black Americans, who are also hardest hit by COVID-19. As many as 133M people with pre-existing conditions could face insurance disqualification or significantly higher premiums.
The lost coverage would result in a significant revenue hit for doctors and hospitals. While the impact would vary by state depending on Medicaid expansion terms, an Urban Institute report projects that total uncompensated care would grow an average of 78 percent for hospitals and 68 percent for physician services if the ACA is struck down. Although the Court is not expected to rule on the fate of the law until mid-2021, the direction and pace of future health reform legislation will be set by the ruling, under either a Trump or Biden administration.