The Supreme Court isn’t done with the ACA case yet. Here are the next steps.

https://www.healthcaredive.com/news/the-supreme-court-isnt-done-with-the-aca-case-yet-here-are-the-next-steps/570816/

The U.S. Supreme Court is scheduled to review the legal challenge to the Affordable Care Act on Feb. 21 to potentially weigh whether to take the case. However, legal expert Katie Keith from Georgetown University cautioned Healthcare Dive it’s common for the court to reschedule or relist cases for a later conference date.

Tuesday’s one-sentence order from the U.S. Supreme Court denying a request to fast-track the challenge to the Affordable Care Act is not the final word from the high court.

The justices will now decide whether to take up the legal case threatening to overturn the landmark law during their next term, which begins in October.

Essentially, the order returns the case to the typical review process as a group of blue states, led by California’s Democratic Attorney General Xavier Becerra, try to convince the Supreme Court it should hear the case at some point instead of letting it wind its way back through the lower courts.

“The court did not say we’re not reviewing this case at all,” MaryBeth Musumeci, an associate director at Kaiser Family Foundation and graduate of Harvard Law School, told Healthcare Dive.

The blue states sought to expedite the case, which would have resulted in a ruling before the presidential election in November. Some Democrats hoped that would pressure Republicans to come up with a replacement had the law been tossed, or more publicly defend efforts that would kill popular provisions like protections for pre-existing conditions.

The court refused to accelerate its review despite requests from hospitals, insurers, advocacy groups including AARP and a group of bipartisan economic scholars.

“It’s disappointing but it’s not altogether unsurprising. They typically don’t like to grant expedited review,” Katie Keith, a lawyer and health policy expert at Georgetown University​, told Healthcare Dive.

Other legal experts warned against reading too much into Tuesday’s order and what it may mean for the case going forward.

“Expediting was always unlikely. It’s a big ask for little purpose here. I wouldn’t read anything else into it,” Jonathan Adler, a law professor at Case Western Reserve University, told Healthcare Dive​.

Careful observers of the case should expect the justices to vote on whether to take it up by June at the latest, Keith said.

In the meantime, Tuesday’s order sets off another wave of briefs. First, the red states will try to convince the court of its position on whether the legal challenge should be heard in October. Expect that motion in the first few days of February, experts told Healthcare Dive.

Robert Henneke, the lawyer representing the individual plaintiffs, told Healthcare Dive his team will argue that the case is still premature for Supreme Court review. “The opinion from the Fifth Circuit was not a complete opinion,” Henneke said.

The appeals court in part affirmed a lower court’s decision, ruling that the individual mandate is unconstitutional because it can no longer be considered a tax. However, it sent the key question of whether the rest of the ACA can stand without the mandate back to the lower court for further analysis.

Becerra has argued that the lower court’s decision is wrong and, without a definitive ruling from the Supreme Court, the challenge only fuels doubt about the future of the ACA — credited with significantly reducing the ranks of the uninsured.

“The health and wellbeing of millions of our loved ones who rely on the ACA for healthcare is too important. We will do everything in our power to keep fighting for them,” Becerra said in a tweet following the order.

Nevertheless, Tuesday’s result likely thrusts the issue of the ACA back in the spotlight for another presidential campaign cycle.

Much of the healthcare debate among Democrats vying to take on President Donald Trump has revolved around a “Medicare for All” idea. One question now is, will Democrats shift to talk about rescuing the ACA, a law in place but remains in jeopardy?

The problem is the outcome is still uncertain, Stephanie Kennan, senior vice president of federal public affairs at McGuireWoods Consulting, told Healthcare Dive. However, it does give Democrats the opportunity to talk about what’s popular in the bill, noting protections for those with pre-existing conditions.

“It certainly gives them a springboard for them to talk about the things they could do to fix it,” Kennan said.

Despite Tuesday’s outcome, there will still be some Democratic contenders who will campaign for Medicare for All, Bill Jordan, chair of Alston and Bird’s healthcare litigation group, told Healthcare Dive. But this ruling gives Democrats another tool against Republicans, he said.

“As time has gone on, the Affordable Care Act has become more popular, not less popular,” Jordan said.

But he cautioned that anything can happen in the next election, which could entirely alter the political landscape and influence whether the case makes it back up to the Supreme Court if the justices pass this time.

 

 

 

 

Supreme Court denies blue states’ effort to expedite ObamaCare challenge

https://thehill.com/policy/healthcare/479116-supreme-court-denies-blue-states-effort-to-expedite-obamacare-challenge?userid=12325

Supreme Court denies blue states' effort to expedite ObamaCare challenge

The Supreme Court on Tuesday rejected an effort by Democrats to expedite a challenge to a lower court’s ruling striking down a key tenet of ObamaCare, narrowing the possibility that the court takes up the contentious case this year.

The House of Representatives and a group of blue states had asked the court to fast-track their appeal after the 5th Circuit Court of Appeals ruled that the Affordable Care Act’s individual mandate is unconstitutional.

“Under the current state of affairs, there is considerable doubt over whether millions of individuals will continue to be able to afford vitally important care,” the House wrote in a court filing earlier this month.

“Millions of individuals will live with the insecurity of not knowing that they have access to affordable health care, and will be forced to make important life decisions without knowing how those decisions will affect their continued access to such care.”

“If the Court does not hear the case this Term, that uncertainty will likely persist through next year’s open enrollment period,” the House wrote.

Tuesday’s order makes it unlikely that the high court will rule on the health care law before the November presidential election, where health insurance policy is sure to play a prominent role.

The 5th Circuit’s ruling delivered a victory for the coalition of conservative state attorneys general challenging the Obama administration’s signature achievement.

The Trump administration has declined to defend the Affordable Care Act in court, and the president has cheered on legal efforts to dismantle it.

“This decision will not alter the current healthcare system,” President Trump said in a statement last month. “My Administration continues to work to provide access to high-quality healthcare at a price you can afford, while strongly protecting those with pre-existing conditions. The radical healthcare changes being proposed by the far left would strip Americans of their current coverage. I will not let this happen.”

It’s still unclear whether the Supreme Court will decide to hear the challenge to the 5th Circuit ruling. Now that the justices have chosen to adhere to a normal briefing schedule, that decision will likely not come until March at the earliest.

 

 

 

Supreme Court to take up Trump appeal in ObamaCare birth control case

https://thehill.com/regulation/court-battles/478838-supreme-court-to-take-up-trump-appeal-in-obamacare-birth-control

Image result for Supreme Court to take up Trump appeal in ObamaCare birth control case

The Supreme Court on Friday agreed to hear the Trump administration’s appeal in a legal fight over religious exemptions for ObamaCare’s requirement that employer-based health plans cover birth control.

The administration is seeking to expand exemptions for religious objectors to the Affordable Care Act’s so-called “contraceptive mandate.”

It will mark the third time the Supreme Court has heard a case regarding the mandate, a controversial provision of ObamaCare that has been fiercely opposed by conservatives and religious groups for years.

The Trump administration is asking the Supreme Court to overturn a nationwide injunction issued by a lower court blocking the rule from taking effect.

The rule would allow most businesses to claim a religious exemption to the mandate and opt out of covering contraception for their employees. 

Rules issued by the Obama administration already provided exemptions for religiously-affiliated organizations. But the Trump rule would also allow exemptions for almost all other businesses, including nonprofits, for-profit companies, higher education institutions and other non-government employers.

Civil rights groups argue the rules would essentially let employers discriminate against employees who use birth control. 

“Allowing employers and universities to use their religious beliefs to block employees’ and students’  birth control coverage isn’t religious liberty — it’s discrimination,” said Brigitte Amiri, deputy director at the ACLU Reproductive Freedom Project.

 

 

 

 

Hospitals, insurers urge Supreme Court to hear ACA case to avert havoc

https://www.healthcaredive.com/news/hospitals-insurers-urge-supreme-court-to-hear-aca-case-to-avert-havoc/570525/

Dive Brief:

  • The main lobbying groups for both the hospital and insurance industries filed amicus briefs Wednesday urging the Supreme Court to take on the controversial case seeking to overturn the Affordable Care Act.
  • By sending the key question in the case back down to the lower court for a “do-over,” the appellate court’s ruling “casts a long shadow of uncertainty over ACA-based investments,” America’s Health Insurance Plans said in its brief.
  • Various hospital lobbying groups argued the case creates enormous uncertainty for industry, raising questions about whether they should continue to invest in the provisions that are so closely intertwined with the ACA, according to their brief.

Dive Insight:

Two courts have so far ruled against the landmark health law, finding that the individual mandate is unconstitutional because Congress stripped away the financial penalty for forgoing insurance coverage.

Without the financial penalty attached, the so-called individual mandate can no longer be considered a tax and is therefore unconstitutional, according to the courts. A lower court went even further than the appellate court and found that the entire law must fall because the mandate cannot be severed from the remainder of the ACA.

The appellate court avoided answering this key question regarding severability and sent it back to the lower court for additional analysis. The appellate court ruling generated outcry from industry, which argues the case will take years to wind its way through the courts leaving a cloud of uncertainty in its wake.

The ACA fundamentally reshaped the nation’s healthcare system and is credited with lowering the ranks of the uninsured by millions.

A coalition of blue states that stepped in to defend the law petitioned the Supreme Court to hear the case and asked for an expedited review. Meanwhile, a group of red states looking to overturn the law has argued the case does not merit intervention from the high court.

After failed attempts by Republicans in Congress to kill the law entirely, in 2017 Congress cut the penalty for not having insurance coverage to zero in a unrelated tax bill. The red states and two individual plaintiffs from Texas have argued the move renders the law unconstitutional.

AHIP argues that the ACA can stand without the penalty (and has) since Congress’ changes in 2017.

“Congress has unmistakably indicated through its actions: that the ACA should continue in operation even in the absence of the individual mandate,” AHIP said in its brief, arguing a repeal of the law would “wreak havoc” on the nation’s healthcare system.

Other advocacy groups, including AARP, American Cancer Society and Small Business Majority filed separate briefs urging the Supreme Court to take on the case. A group of bipartisan economic scholars also submitted a brief in support of the Supreme Court taking on the case.

 

 

 

 

Beyond the ACA: Healthcare legal fights to watch in 2020

https://www.healthcaredive.com/news/beyond-the-aca-healthcare-legal-fights-to-watch-in-2020/569793/

All eyes were on the legal drama over the Affordable Care Act as 2019 drew to a close — and while that case remains a focus for this year — a lot more is also at stake.

Payers and providers are fiercely contesting a price transparency push from the Trump administration that would force privately negotiated rates out into the open. The administration is also being challenged over regulations regarding risk corridor payments to payers and the expansion of association health plans.

Antitrust concerns are also front and center, as payers clash over exclusive broker policies in Florida.

As policy debates rage on this year through presidential debates and on Capitol Hill, courthouses will also be a key battleground for the industry in 2020.  Below are the big cases to watch.

ACA and the high court

The most consequential case still making its way through the court system is the challenge to the Affordable Care Act. At the end of last year, an appeals court notched a win for the red states fighting the law by declaring the individual mandate was no longer constitutional after the penalty was zeroed out by a Republican-controlled Congress.

The three-judge panel, however, stopped short of declaring the entire ACA void, instead asking the lower court that made the argument that the rest of the law is not severable from the individual mandate to revisit and clarify its ruling.

Supporters of the ACA are trying to speed up what is almost certainly the next major step for the court case by petitioning the Supreme Court on Friday to hear the case before the November presidential election.

“States, health insurers, and millions of Americans rely on those provisions when making important — indeed, life-changing — decisions. The remand proceedings contemplated by the panel majority would only prolong and exacerbate the uncertainty already caused by this litigation,” according to the Jan. 3 petition filed by California Attorney General Xavier Becerra and a coalition of 19 other states and D.C.

Five justices are needed to approve the suggested expedited timeline while four are needed to agree to hear the case at all. More will be clear in the next couple of months as justices make their decisions. The ultimate decision — whether it comes in months or years — will have huge ramifications across the healthcare landscape.

Price transparency pushback

The legal clash between hospitals and the administration over forcing providers to reveal negotiated rates is set to heat up quickly in the new year.

The federal judge overseeing the case recently released a timeline for how it is expected to proceed in the coming months. Hospitals are seeking a swift ruling and summary judgment. HHS faces a Feb. 4 deadline to file its opposition motion to the summary judgment, while deadlines for motions extend through March 10.

“That is an extremely accelerated schedule,” James Burns, a partner at Akerman, told Healthcare Dive. “My strong suspicion is that we’ll get a ruling from the judge late spring or earlier summer at the latest, which is obviously all before the election.”

Hospital groups including the American Hospital Association and health systems have alleged that the administration’s push to force negotiated rates out into the open exceeds the government’s authority and violates the First Amendment because it compels hospitals to reveal confidential and proprietary information. Legal experts say the principal argument will center around whether the government exceeded its authority, not the First Amendment.

Risk corridor payments

On last month’s Supreme Court docket was a case regarding an ACA risk adjustment program. At issue are $12 billion in payments insurers say they are owed from losses on state exchanges.

Early participants in the marketplaces were hit hard in some cases as they attempted to adjust to people gaining coverage under the ACA. A few nonprofit co-ops were driven to close when CMS declared the program had to be budget neutral and therefore only about one-eighth of the expected risk corridor amount could be paid out.

A number of justices seemed to lean toward ruling in favor of the insurers during arguments in front of the high court, Tim Jost, health law expert and professor emeritus at Washington and Lee University School of Law, told Healthcare Dive​. “Only a couple of the justices that spoke seemed inclined to support the government, but we’ll see what happens there,” he said.

If the payers do prevail, there’s still the question of exactly how much they are owed and how the money will be distributed. It could ultimately affect medical loss ratio rebates or premiums down the road, he said.

CSR fight in court this week

The legal fight over canceled payments to insurers​ under the ACA drags on as oral arguments begin this week in a federal appeals court.

A number of insurers including Maine Community Health Options and Sanford Health claim they’re owed millions in cost-sharing reduction payments that the government failed to pay out after the Trump administration said Congress failed to appropriate the funds. The payments were intended to repay insurers for lowering the cost of care to make coverage affordable for those with low incomes.

Health Options and Sanford both won in the lower courts after judges ruled they were entitled to the unpaid CSR payments. The cases have been consolidated within the appeals court and oral arguments start Thursday.

A ruling in favor of insurers in the risk corridor case could be a good sign for their fight to be reimbursed for CSRs as well, Jost said.

Oscar antitrust argument

Health insurer Oscar has alleged that Blue Cross Blue Shield of Florida is enforcing a broker policy that is impeding Oscar’s ability to sell individual exchange plans and undermines competition in Florida.

The key question in this case is whether Florida Blue, a dominant insurer in the sunshine state, can lawfully bar independent brokers from working with other carriers like Oscar by threatening to cut off their ability to sell all other Florida Blue plans if they sell Oscar’s individual plans.

A lower court ruled against Oscar and found that such arrangements are shielded from antitrust scrutiny. A federal law excludes the “business of insurance” from antitrust scrutiny in some cases, legal experts say this case shouldn’t be exempt from antitrust enforcement.

A group of 10 antitrust scholars called the ruling “dangerous” and “plainly incorrect,” in an amicus brief Dec. 23 to the U.S. Court of Appeals for the 11th District.

“The practice at issue here — forming exclusive deals with industry gatekeepers to box out potential entry by competitors — is a quotidian business strategy that appears across many industries and raises well-recognized antitrust concerns,” according to the amicus brief.

Oscar alleges that consumers are harmed if brokers are barred from discussing other plan options outside Florida Blue.

The Department of Justice also intends to file an amicus brief, according to a recent filing in the appeals case.

Association, short-term health plans

The federal court of appeals in D.C. heard arguments late last year to review a judge’s decision in March 2019 declaring association health plans an “end-run” around the ACA. AHPs are offered by business or professional associations and aren’t bound by ACA requirements protecting pre-existing conditions and mandating essential benefits.

U.S. District Judge John Bates had strong language in March for the Trump administration, which is being challenged for loosening restrictions on what groups can offer AHPs — and therefore expanding their presence in the marketplace.

The D.C. appeals court is expected to rule on the case in the coming months. Jost’s take from the oral arguments is that the court seem inclined to reverse Bates’ decision, though he warned the outcome is not certain. “It’s a technical case that really has more to do with interpreting ERISA than the Affordable Care Act, though both are relevant,” he said.

A similar challenge has risen on short-term health plans, which were originally meant as stopgap coverage but have been expanded by the Trump administration to offer up to three years worth of coverage.

U.S. District Judge Richard Leon ruled in favor of the administration in July, saying the plans did not undermine the ACA. The plaintiffs, including the Association for Community Affiliated Plans, the National Alliance on Mental Illness and AIDS United, quickly appealed to the U.S. Court of Appeals in D.C.

Briefs are due this month and argument is likely in the spring, Jost said.

If AHPs and short-term plans are allowed to continue as the Trump administration has pushed for, it presents a concern for the viability of ACA risk pools. Consumer warnings against short-term plans, however, may be working, he said.

“There’s been a lot of publicity about how risky these plans are and I think they probably have not been achieving the same market strength they were hoping for,” he said.

 

 

 

Supreme Court says ACA opponents have until Friday to respond to motion to expedite

https://www.healthcaredive.com/news/blue-states-ask-supreme-court-to-weigh-aca-case-ahead-of-2020-election/569788/

UPDATE: Jan. 7, 2019: The Supreme Court on Monday set a Friday afternoon deadline for challengers of the ACA to respond to the blue state coalition’s motion to expedite the case.

California Attorney General Xavier Becerra and a coalition of 19 other states and D.C. on Friday asked the Supreme Court to hear the case seeking to overturn the Affordable Care Act, following an appeals court ruling that a key element of the law is unconstitutional.   

The ruling warrants an immediate and expedited review, the group said in its petition filed to the Supreme Court. The coalition laid out an aggressive timeline, in an effort to get an answer on the case before the November 2020 presidential election.

Although the court is made of nine justices, five of whom lean conservative, just four justices are needed to agree to hear the case. However, five are needed to approve the expedited timeline, according to University of Michigan law professor Nicholas Bagley.

The landmark Affordable Care Act drastically altered the healthcare industry and ushered in insurance coverage for millions of Americans. Its provisions regulate a substantial portion of the nation’s economy and any further delay in a final outcome stokes uncertainty, the petition argues.

“States, health insurers, and millions of Americans rely on those provisions when making important — indeed, life-changing — decisions. The remand proceedings contemplated by the panel majority would only prolong and exacerbate the uncertainty already caused by this litigation,” the petition states.

Rob Henneke, the attorney representing the two individual plaintiffs in this case, said the push for a Supreme Court review this fast is unreasonable and unrealistic. “This is more influenced by the political calendar now that we are in 2020 than a valid litigation strategy,” he told Healthcare Dive.

The closely-watched case has fueled jitters in healthcare markets as the litigation has made its way through the courts.

A federal appeals court recently affirmed part of a lower court’s ruling that found the individual mandate is unconstitutional because it no longer has a financial penalty attached. The lower court went one step further and found that because the mandate is unconstitutional, so too is the entire law. The Texas-led coalition of Republican states seeking to overturn the law has argued that when Congress zeroed out the financial penalty associated with forgoing insurance, it invalidated the entire law.

This group of red states and two individual plaintiffs argue that the law cannot stand on its own without the individual mandate and that the entirety of the law must be struck down. That mandate’s financial penalty was nixed in a subsequent tax bill.

“The individual mandate is unconstitutional because it can no longer be read as a tax,” the majority wrote in the federal appeals court ruling. But on the key question of whether the rest of the law can stand, the majority sent that back to the lower court to provide more detailed analysis on what can stay or go.

The blue states intervened to defend the ACA after the Trump administration’s DOJ waffled on its position and is not actively defending to uphold the law throughout the country.

 

 

 

Health Care in 2019: Year in Review

https://www.commonwealthfund.org/blog/2019/health-care-2019-year-review

Health care was front and center for policymakers and the American public in 2019. An appeals court delivered a decision on the Affordable Care Act’s (ACA’s) individual mandate. In the Democratic primaries, almost all the presidential candidates talked about health reform — some seeking to build on the ACA, others proposing to radically transform the health system. While the ACA remains the law of the land, the current administration continues to take executive actions that erode coverage and other gains. In Congress, we witnessed much legislative activity around surprise bills and drug costs. Meanwhile, far from Washington, D.C., the tech giants in Silicon Valley are crashing the health care party with promised digital transformations. If you missed any of these big developments, here’s a short overview.

 

1. A decision from appeals court on the future of the ACA: On December 18, an appeals court struck down the ACA’s individual mandate in Texas v. United States, a suit brought by Texas and 17 other states. The court did not rule on the constitutionality of the ACA in its entirety, but sent it back to a lower court. Last December, that court ruled the ACA unconstitutional based on Congress repealing the financial penalty associated with the mandate. The case will be appealed to the U.S. Supreme Court, but the timing of the SCOTUS ruling is uncertain, leaving the future of the ACA hanging in the balance once again.

 

2. Democratic candidates propose health reform options: From a set of incremental improvements to the ACA to a single-payer plan like Medicare for All, every Democratic candidate who is serious about running for president has something to say about health care. Although these plans vary widely, they all expand the number of Americans with health insurance, and some manage to reduce health spending at the same time.

 

3. Rise in uninsured: Gains in coverage under the ACA appear to be stalling. In 2018, an estimated 30.4 million people were uninsured, up from a low of 28.6 million in 2016, according to a recent Commonwealth Fund survey. Nearly half of uninsured adults may have been eligible for subsidized insurance through ACA marketplaces or their state’s expanded Medicaid programs.

 

4. Changes to Medicaid: States continue to look for ways to alter their Medicaid programs, some seeking to impose requirements for people to work or participate in other qualifying activities to receive coverage. In Arkansas, the only state to implement work requirements, more than 17,000 people lost their Medicaid coverage in just three months. A federal judge has halted the program in Arkansas. Other states are still applying for waivers; none are currently implementing work requirements.

 

5. Public charge rule: The administration’s public charge rule, which deems legal immigrants who are not yet citizens as “public charges” if they receive government assistance, is discouraging some legal immigrants from using public services like Medicaid. The rule impacts not only immigrants, but their children or other family members who may be citizens. DHS estimated that 77,000 could lose Medicaid or choose not to enroll. The public charge rule may be contributing to a dramatic recent increase in the number of uninsured children in the U.S.

 

6. Open enrollment numbers: As of the seventh week of open enrollment, 8.3 million people bought health insurance for 2020 on HealthCare.gov, the federal marketplace. Taking into account that Nevada transitioned to a state-based exchange, and Maine and Virginia expanded Medicaid, this is roughly equivalent to 2019 enrollment. In spite of the Trump administration’s support of alternative health plans, like short-term plans with limited coverage, more new people signed up for coverage in 2020 than in the previous year. As we await final numbers — which will be released in March — it is also worth noting that enrollment was extended until December 18 because consumers experienced issues on the website. In addition, state-based marketplaces have not yet reported; many have longer enrollment periods than the federal marketplace.

 

7. Outrage over surprise bills: Public outrage swelled this year over unexpected medical bills, which may occur when a patient is treated by an out-of-network provider at an in-network facility. These bills can run into tens of thousands of dollars, causing crippling financial problems. Congress is searching for a bipartisan solution but negotiations have been complicated by fierce lobbying from stakeholders, including private equity companies. These firms have bought up undersupplied specialty physician practices and come to rely on surprise bills to swell their revenues.

 

8. Employer health care coverage becomes more expensive: Roughly half the U.S. population gets health coverage through their employers. While employers and employees share the cost of this coverage, the average annual growth in the combined cost of employees’ contributions to premiums and their deductibles outpaced growth in U.S. median income between 2008 and 2018 in every state. This is because employers are passing along a larger proportion to employees, which means that people are incurring higher out-of-pocket expenses. Sluggish wage growth has also exacerbated the problem.

 

9. Tech companies continue inroads into health care: We are at the dawn of a new era in which technology companies may become critical players in the health care system. The management and use of health data to add value to common health care services is a prime example. Recently, Ascension, a huge national health system, reached an agreement with Google to store clinical data on 50 million patients in the tech giant’s cloud. But the devil is in the details, and tech companies and their provider clients are finding themselves enmeshed in a fierce debate over privacy, ownership, and control of health data.

 

10. House passes drug-cost legislation: For the first time, the U.S. House of Representatives passed comprehensive drug-cost-control legislation, H.R. 3. Reflecting the public’s distress over high drug prices, the legislation would require that the government negotiate the price of up to 250 prescription drugs in Medicare, limit drug manufacturers’ ability to annually hike prices in Medicare, and place the first-ever cap on out-of-pocket drug costs for Medicare beneficiaries. This development is historic but unlikely to result in immediate change. Its prospects in the Republican–controlled Senate are dim.