Category Archives: Supreme Court

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

Posted on by • Posted in 2020 Election Issues, ACA, Birth Control, Birth Control Coverage, Roe v. Wade, Supreme Court, Womens Health • Leave a comment

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

Posted on by • Posted in 2020 Election Issues, ACA, Essential Health Benefits, Health Policy, Individual Mandate, Preexisting Conditions, Severability, Supreme Court, Texas v. United States, Underinsured, Uninsured • Leave a comment

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

Posted on by • Posted in 2020 Election Issues, ACA, Antitrust, Cost Sharing Reduction Payments, Essential Health Benefits, Health Insurance Coverage Adequacy, Health Insurance Industry, Health Policy, Health System, Hospital, Hospital Industry, Individual Mandate, Out of Pocket Expenses, Preexisting Conditions, Price Transparency, Short Term Health Insurance, Skinny Health Plans, Supreme Court, Texas v. United States • Leave a comment

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

Posted on by • Posted in 2020 Election Issues, ACA, Health Policy, Individual Mandate, Supreme Court, Texas v. United States • Leave a comment

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

Posted on by • Posted in 2020 Election Issues, ACA, Consumerism, Data Control, Data Management, Data Ownership, Data Privacy, Data Sharing, Disruption, Disruptive Technology, Health Insurance Coverage Adequacy, Health Policy, High Deductible Health Plans, High Drug Prices, Lawsuit, Medicaid, Medicaid Expansion, Out of Pocket Expenses, Private Equity, Single Payer Health System, Single Payer Healthcare System, Supreme Court, Surprise Bills, Texas v. United States, Underinsured, Uninsured • Leave a comment

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.

 

 

 

Obamacare Ruling May Spare Republicans Some Political Pain

Posted on by • Posted in 2020 Election Issues, ACA, Contingency Planning, Essential Health Benefits, Health Insurance Coverage Adequacy, Health Policy, High Deductible Health Plans, High Drug Prices, Market Uncertainty, Medicaid, Medicaid Expansion, Preexisting Conditions, Supreme Court, Texas v. United States, Underinsured, Uninsured • Leave a comment

Image result for Obamacare Ruling May Spare Republicans Some Political Pain

The practical effect of the decision is likely to be months of delays, pushing the final outcome of the case beyond the 2020 election.

A federal appeals court in New Orleans handed Republicans a Christmas present.

The court had been considering a case with the potential to dismantle the entire Affordable Care Act, an outcome that could have set off waves of chaos and disruption leading up to the November election, and for which there was very little contingency planning.

 

The court had two main options. It could have agreed with the Trump administration, along with a set of Republican state officials and a district court in Texas, and overturned all of the law. Or it could have upheld Obamacare, undermining the arguments of the White House and its allies.

The court found a third way. In a decision at the close of business Wednesday, two of the three judges signaled their support for a key part of the Republicans’ legal argument. The two agreed with a lower court that Obamacare’s individual mandate had been made unconstitutional by a 2017 law that eliminated the financial penalty for remaining uninsured. But the judges punted on the case’s key question of what that meant for the rest of the health law, asking a lower court to reconsider it. The effect is likely to be months of delays, pushing the final outcome of the case beyond the 2020 election.

 

Starting in 2017, the Republicans’ failed effort to repeal and replace large portions of the health law was deeply unpopular and became a central campaign theme of the 2018 election, in which Democrats won a House majority. Democrats cast themselves as the protectors of Obamacare’s most popular provisions, especially its protections for Americans with pre-existing health conditions.

While most Democrats would have favored a court ruling that upheld Obamacare, a reprise of those politics could have given them a lift in an election year. Voters tend to trust Democrats more than Republicans on health care, but much of the debate during the primary season has focused on ambitious new expansions of government coverage. Those proposals do not enjoy the widespread support attached to the preservation of Obamacare’s core consumer protections.

Those dynamics have allowed Republicans to focus on arguments that they will protect private insurance and oppose socialism, without forcing them to articulate their own detailed health plans. President Trump has periodically hinted at an imminent Obamacare replacement plan, but he has yet to produce one. Mitch McConnell, the Senate majority leader, has declined to produce or advance a major health care bill in the Senate.

 

But if a court had ruled that all of Obamacare had to be wiped off the books, it would have been far harder for Republicans to avoid articulating their vision for health care. The public did not like their previous attempts in 2017, and there has been little progress, even behind the scenes, to produce an alternative plan more palatable to the public. Two concepts have emerged since then, one from a group of conservative think tanks, and one from the House Republican Study Committee. Neither has received much public attention by party leaders, and both share the basic structure of an earlier legislative plan that divided Republican legislators so much that it never made it to a vote.

Meanwhile, Democrats could have retreated to safer ground, by promising to reinstate popular Obamacare provisions.

 

If the court had overturned all of Obamacare, it could have meant major disruptions to the health system. Such a ruling, if upheld by the Supreme Court, would have eliminated consumer protections for people with pre-existing health conditions, and wiped away financial assistance that have helped millions of middle-class Americans buy their own coverage.

It would have erased the Medicaid expansion, which provides health insurance to millions of low-income Americans in three dozen states. It would have reversed Medicare policies that make prescription drugs more affordable for seniors, and Food and Drug Administration rules that have allowed cheaper copies of expensive biologic drugs to enter the market.

It would have undone major experiments in the delivery of care, meant to improve health care quality. It would have rolled back enhanced punishments for Medicare fraud. It would have reduced requirements that workplaces provide space for lactating mothers to pump breast milk, and requirements that chain restaurants post calorie counts for their food.

Around 20 million more Americans would have become uninsured, according to an estimate from the Urban Institute. Experts on Medicare policy said they were not even sure how some of the changes could have been carried out now that they have been enshrined in complex regulations and built on in subsequent laws.

 

None of those effects would have happened immediately, even if the Fifth Circuit had agreed in full with the lower court; the Supreme Court would have probably weighed in. But the prospect of such huge changes had the potential to reset the political conversation about health care in both parties. By avoiding a decision on the case’s consequences, the Fifth Circuit has effectively postponed that shift.

In a statement Wednesday night, President Trump applauded the court’s ruling that the individual mandate was unconstitutional. But he emphasized that the decision would not result in any meaningful changes to voters’ health care.

“The radical health care changes being proposed by the far left would strip Americans of their current coverage,” he said. “I will not let this happen. Providing affordable, high-quality health care will always be my priority. They are trying to take away your health care, and I am trying to give the American people the best health care in the world.”

 

Such a statement would have been harder to issue if the court panel had agreed with the arguments made by Mr. Trump’s lawyers and called for the reversal of Obamacare’s coverage expansions.

Democrats’ frustration with the court’s indecision was palpable. Chuck Schumer, the Senate minority leader, described the judges’ move as “cowardly.” The decision is “obviously an attempt to shield Republicans from the massive blowback they would receive from the public if the highest court in the land were to strike down the A.C.A. before the upcoming election,” he said in a statement.

It’s possible, of course, that the case will reach a final disposition sooner anyway. California’s attorney general, Xavier Becerra, announced that he and other Democratic state officials involved in the case would be appealing the decision to the Supreme Court. Even though the appellate court sent the case back to Texas, the country’s highest court could still choose to take it, should four justices wish to. But the most likely path involves months or years of additional litigation, with lingering uncertainty over the fate of Obamacare.

 

 

 

Fifth Circuit Appeals Court Strikes Down the Affordable Care Act’s Individual Mandate

Posted on by • Posted in 2020 Election Issues, ACA, Bad Debt Expense, District Court, District Court of Appeals, Essential Health Benefits, Health Insurance Coverage Adequacy, Health Policy, Individual Mandate, Medicaid, Medicaid Expansion, Out of Pocket Expenses, Preexisting Conditions, Safety Net Hospitals, Safety-Net Providers, Supreme Court, Texas v. United States, Uncompensated Care, Underinsured, Uninsured • Leave a comment

https://www.commonwealthfund.org/blog/2019/fifth-circuit-appeals-court-strikes-down-affordable-care-acts-individual-mandate

The Fallout from Texas v. U.S.:

Yesterday, a three-judge panel from the Fifth Circuit Court of Appeals struck down the Affordable Care Act (ACA)’s individual mandate. The judges agreed with a lower court decision issued in the case, Texas v. U.S., in December 2018 that the individual mandate is unconstitutional but, unlike the lower court, did not decide that the rest of the ACA is also unconstitutional. Instead, the judges remanded, or sent back, the decision to the same lower court judge to consider. California Attorney General Xavier Becerra, who is leading the 21 Democratic state attorneys general defending the law, along with the U.S. House of Representatives, immediately announced he would appeal the decision to the Supreme Court.

Whether the Supreme Court will decide to take the case now or wait for the decision of Judge O’Connor’s, of the lower court, is uncertain. If the Court decides to take the case now, they could expedite the briefing process and issue a decision in 2020. If it does not take the case now, a ruling will be delayed until after the 2020 presidential election.

No one knows how the Supreme Court will ultimately rule. But we do know that if the Court decides to strike down the ACA, the human toll will be immense and tragic. The law has granted unprecedented health security to millions:

  • 18.2 million formerly uninsured people have gained coverage since 2010
  • 53.8 million Americans with preexisting health conditions are now protected
  • 12.7 million low-income people are insured through expanded Medicaid
  • 10.6 million people have coverage through the ACA marketplaces, 9.3 million of whom receive tax credits to help them pay their premiums
  • 5.5 million young adults have gained coverage, many by staying on their parents’ plans
  • 45 million Medicare beneficiaries have much better drug coverage.

Such a decision will also trigger massive disruption throughout the U.S. health system. The health care industry represents nearly 20 percent of the nation’s economy; the ACA has touched every corner of it. The law restructured the individual and small-group health insurance markets, expanded and streamlined the Medicaid program, improved Medicare benefits, and reformed the way Medicare pays doctors, hospitals, and other providers. It was a catalyst for the movement toward value-based care and established a regulatory pathway for biosimilars — less expensive versions of biologic drugs. States have rewritten laws to incorporate the ACA’s provisions. Insurers, hospitals, physicians, and state and local governments have invested billions of dollars in adjusting to these changes.

The law’s popular preexisting health condition protections have made it possible for people with minor-to-serious health problems to apply for coverage in the same way healthier people have always done. These protections have given the estimated 53.8 million Americans with preexisting health conditions the peace of mind that they will never be denied health insurance because of their health.

More than 150 million people who get coverage through their employers now are eligible for free preventive care, and their children can stay on their policies to age 26.

The wide racial and income inequities in health insurance coverage that have been partly remedied by the ACA would return. Hospitals and providers, especially safety-net institutions, would struggle with mounting uncompensated care burdens and sicker and more costly patients who are not receiving the preventive care they need.

The ACA tore down financial barriers to health care for millions, many of whom were uninsured for most of their lives. It has demonstrably helped people get the health care they need in states across the country. Research indicates that Medicaid expansion has led to improved health status and lower mortality risk.

To date, neither the Trump administration, which has sided with the plaintiffs in the case, nor its Republican colleagues in Congress have offered a replacement plan in the event the law is struck down. The historic progress made by Americans, particularly those with middle and lower incomes and people of color, could unravel. Voters are already telling policymakers they are worried about their ability to afford health care. Yesterday’s decision and the uncertain path forward to the Supreme Court is certain to escalate those worries. With the nation entering the 2020 presidential election year, the Supreme Court may decide to take up the case this term.

 

 

The Presidential Campaign, Policy Issues and the Public

Posted on by • Posted in 2020 Election Issues, Artificial Intelligence, Campaign Financing, Electoral College, Gerrymandering, Governance, Gun Control, Gun Related Deaths, Gun Violence, Health Policy, Job, Job Growth, Job Security, Leadership, Medicare, Roe v. Wade, Social Security, Supreme Court, Womens Health • Leave a comment

https://news.gallup.com/opinion/polling-matters/269717/presidential-campaign-policy-issues-public.aspx

The Presidential Campaign, Policy Issues and the Public

The U.S. presidential campaign is ultimately a connection between candidates and the people of the country, but the development of the candidates’ policies and positions is largely asymmetric. Candidates develop and announce “plans” and policy positions that reflect their (the candidates’) philosophical underpinnings and (presumably) deep thinking. The people then get to react and make their views known through polling and, ultimately, through voting.

Candidates by definition assume they have unique wisdom and are unusually qualified to determine what the government should do if they are elected (otherwise, they wouldn’t be running). That may be so, but the people of the country also have collective wisdom and on-the-ground qualifications to figure out what government should be doing. That makes it useful to focus on what the people are telling us, rather than focusing exclusively on the candidates’ pronouncements. I’m biased, because I spend most of my time studying the public’s opinions rather than what the candidates are saying. But hopefully most of us would agree that it is worthwhile to get the public’s views of what they want from their government squarely into the mix of our election-year discourse.

So here are four areas where my review of public opinion indicates the American public has clear direction for its elected officials.

1. Fixing Government Itself.

I’ve written about this more than any other topic this year. The data are clear that the American people are in general disgusted (even more than usual) with the way their government is working and perceive that government and elected leaders constitute the most important problem facing the nation today.

The people themselves may be faulted here because they are the ones who give cable news channels high ratings for hyperpartisan programming, keep ideological radio talk shows alive, click on emotionally charged partisan blogs, and vote in primaries for hyperpartisan candidates. But regardless of the people’s own complicity in the problem, there isn’t much doubt that the government’s legitimacy in the eyes of the people is now at a critically negative stage.

“Fixing government” is a big, complex proposition, of course, but we do have some direction from the people. While Americans may agree that debate and differences are part of our political system, there has historically been widespread agreement on the need for elected representatives to do more compromising. Additionally, Americans favor term limits, restricting the amount of money candidates can spend in campaigns and shifting to a 100% federally funded campaign system. (Pew Research polling shows that most Americans say big donors have inordinate influence based on their contributions, and a January Gallup poll found that only 20% of Americans were satisfied with the nation’s campaign finance laws.) Americans say a third major party is needed to help remedy the inadequate job that the two major parties are doing of representing the people of the country. Available polling shows that Americans favor the Supreme Court’s putting limits on partisan gerrymandering.

Additionally, a majority of Americans favor abolishing the Electoral College by amending the Constitution to dictate that the candidate who gets the most popular votes be declared the winner of the presidential election (even though Americans who identify as Republicans have become less interested in this proposition in recent years because the Republican candidate has lost the popular vote but has won in the Electoral College in two of the past five elections).

 

2. Fix the Backbone of the Nation by Initiating a Massive Government Infrastructure Program.

I have written about this at some length. The public wants its government to initiate massive programs to fix the nation’s infrastructure. Leaders of both parties agree, but nothing gets done. The failure of the Congress and the president to agree on infrastructure legislation is a major indictment of the efficacy of our current system of representative government.

 

3. Pass More Legislation Relating Directly to Jobs.

Jobs are the key to economic wellbeing for most pre-retirement-age Americans. Unemployment is now at or near record lows, to be sure, but there are changes afoot. Most Americans say artificial intelligence will eliminate more jobs than it creates. The sustainability of jobs with reasonably high pay in an era when unionized jobs are declining and contract “gig” jobs are increasing is problematic. Our Gallup data over the years show clear majority approval for a number of ideas focused on jobs: providing tax incentives for companies to teach workers to acquire new skills; initiating new federal programs to increase U.S. manufacturing jobs; creating new tax incentives for small businesses and entrepreneurs who start new businesses; providing $5.5 billion in federal monies for job training programs that would create 1 million jobs for disadvantaged young Americans; and providing tax credits and incentives for companies that hire the long-term unemployed.

My read of the data is that the public generally will support almost any government effort to increase the availability of high-paying, permanent jobs.

 

4. Pass Legislation Dealing With All Aspects of Immigration.

Americans rate immigration as one of the top problems facing the nation today. The majority of Americans favor their elected representatives taking action that deals with all aspects of the situation — the regulation of who gets to come into the country in the first place and the issue of dealing with individuals who are already in the country illegally. As I summarized in a review of the data earlier this year: “Americans overwhelmingly favor protecting the border, although with skepticism about the need for new border walls. Americans also overwhelmingly favor approaches for allowing undocumented immigrants already living in the U.S. to stay here.”

Recent surveys by Pew Research also reinforce the view that Americans have multiple goals for their elected representatives when it comes to immigration: border security, dealing with immigrants already in the country, and taking in refugees affected by war and violence.

 

More Direction From the People

What else do the people want their elected representatives to do? The answer can be extremely involved (and complex), but there are several additional areas I can highlight where the data show clear majority support for government policy actions.

 

Americans See Healthcare and Education as Important but Don’t Have a Clear Mandate

There are two areas of life to which the public attaches high importance, but about which there is no clear agreement on what the government should be doing. One is healthcare, an issue that consistently appears near the top of the list of most important problems facing the nation, and obviously an issue of great concern to presidential candidates. But, as I recently summarized, “Healthcare is clearly a complex and often mysterious part of most Americans’ lives, and public opinion on the issue reflects this underlying messiness and complexity. Americans have mixed views about almost all aspects of the healthcare system and clearly have not yet come to a firm collective judgment on suggested reforms.”

Education is another high priority for Americans, but one where the federal government’s role in the eyes of the public isn’t totally clear. Both the American people and school superintendents agree on the critical importance of teachers, so I presume the public would welcome efforts by the federal government to make the teaching profession more attractive and more rewarding. Americans also most likely recognize that education is a key to the future of the job market in a time of growing transition from manual labor to knowledge work. But the failure of the federal government’s massive effort to get involved in education with the No Child Left Behind legislation underscores the complexities of exactly what the federal government should or should not be doing in education, historically a locally controlled part of our American society.

 

 

 

Supreme Court sets date for Louisiana abortion case

Posted on by • Posted in 2020 Election Issues, Health Policy, Health System, Hospital, Hospital Industry, Medical Group, Physician, Roe v. Wade, Supreme Court, Womens Health • Leave a comment

Supreme Court sets date for Louisiana abortion case

Image result for supreme court

The Supreme Court has set a date, March 4, to hear oral arguments in a case over a Louisiana abortion law. 

The hot-button case is about a Louisiana law that would require doctors who perform abortions to have admitting privileges at a local hospital. Critics say this is aimed at forcing abortion clinics to close. 

In February, the court ruled to prevent the law from taking effect while it faces a legal challenge. Chief Justice John Roberts joined the liberal justices in this decision, but it is unclear whether he would vote to block the law permanently.

A similar law in Texas was struck down 5-3 in 2016, but Roberts voted to uphold that law at the time. Justice Anthony Kennedy has retired since then.

The case will be the first abortion case heard by the high court since Trump nominees Neil Gorsuch and Brett Kavanaugh have joined the bench.

“All eyes must be on the Supreme Court come March. This case will have lasting consequences for abortion access across the country. Many states have been openly defying Supreme Court decisions in an effort to criminalize abortion,” the Center for Reproductive Rights CEO Nancy Northup said in a statement Tuesday.

“At this critical juncture, the Court needs to set those states straight. If they don’t, Louisiana will be left with a single abortion provider at just one clinic, and other states could soon follow,” Northup added.

In recent months, a number of states have passed laws to restrict abortion. Many have been challenged or blocked in court. 

 

 

Heads Up: A Ruling On The Latest Challenge To The Affordable Care Act Is Coming

Posted on by • Posted in 2020 Election Issues, ACA, Appellate Court, Essential Health Benefits, Health Insurance Coverage Adequacy, Health Policy, Out of Pocket Expenses, Preexisting Conditions, Supreme Court, Texas v. Azar Lawsuit, Underinsured, Uninsured • Leave a comment

https://www.npr.org/sections/health-shots/2019/10/12/769038397/heads-up-a-ruling-on-the-latest-challenge-to-the-affordable-care-act-is-coming?fbclid=IwAR3g7_yZtBbywVWukbTC0PmcInHcioxPcF9Y5LsWYLpEH5Gs-3ZgBGgINVM

A decision in the latest court case to threaten the future of the Affordable Care Act could come as soon as this month. The ruling will come from the panel of judges in the 5th Circuit Court of Appeals, which heard oral arguments in the Texas v. Azar lawsuit.

An estimated 24 million people get their health coverage through programs created under the law, which has faced countless court challenges since it passed.

In court in July, only two of the three judges — both appointed by Republican presidents — asked questions. “Oral argument in front of the circuit went about as badly for the defenders of the Affordable Care Act as it could have gone,” says Nicholas Bagley, a professor of law at the University of Michigan. “To the extent that oral argument offers an insight into how judges are thinking about the case, I think we should be prepared for the worst — the invalidation of all or a significant part of the Affordable Care Act.”

Important caveat: Regardless of this ruling, the Affordable Care Act is still the law of the land. Whatever the 5th Circuit rules, it will be a long time before anything actually changes. Still, the timing of the ruling matters, says Sabrina Corlette, director of the Center on Health Insurance Reforms at Georgetown University.

“If that decision comes out before or during open enrollment, it could lead to a lot of consumer confusion about the security of their coverage and may actually discourage people from enrolling, which I think would be a bad thing,” she says.

Don’t be confused. Open enrollment begins Nov. 1 and runs at least through Dec. 15, and the insurance marketplaces set up by the law aren’t going anywhere anytime soon.

That’s not to underplay the stakes here. Down the line, sometime next year, if the Supreme Court ends up taking the case and ruling the ACA unconstitutional, “the chaos that would ensue is almost possible impossible to wrap your brain around,” Corlette says. “The marketplaces would just simply disappear and millions of people would become uninsured overnight, probably leaving hospitals and doctors with millions and millions of dollars in unpaid medical bills. Medicaid expansion would disappear overnight.

“I don’t see any sector of our health care economy being untouched or unaffected,” she adds.

So what is this case that — yet again — threatens the Affordable Care Act’s very existence?

A quick refresher: When the Republican-led Congress passed the Tax Cuts and Jobs Act in 2017, it zeroed out the Affordable Care Act’s penalty for people who did not have health insurance. That penalty was a key part of the Supreme Court’s decision to uphold the law in 2012, so after the change to the penalty, the ACA’s opponents decided to challenge it anew.

Significantly, the Trump administration decided in June not to defend the ACA in this case. “It’s extremely rare for an administration not to defend the constitutionality of an existing law,” says Abbe Gluck, a law professor and the director of the Solomon Center for Health Law and Policy at Yale University. “The administration is not defending any of it — that’s a really big deal.”

The basic argument made by the state of Texas and the other plaintiffs? The zero dollar fine now outlined in the ACA is a “naked, penalty-free command to buy insurance,” says Bagley.

Here’s how the argument goes, as Bagley explains it: “We know from the Supreme Court’s first decision on the individual mandate case that Congress doesn’t have the power to adopt a freestanding mandate, it just has the power to impose a tax.” So therefore, the argument is that “the naked mandate that remains in the Affordable Care Act must be unconstitutional.”

The case made by the plaintiffs goes further, asserting that because the individual mandate was described by the Congress that enacted it as essential to the functioning of the law, this unconstitutional command cannot be cut off from the rest of the law. If the zero dollar penalty is unconstitutional, the whole law must fall.

Last December, a federal judge in Texas agreed with that entire argument. His judgement was appealed to the panel of judges in the 5th Circuit. Even if those judges agree that the whole law is unconstitutional, that would not be the end of the story — the case will almost certainly end up before the Supreme Court. It would be the third case to challenge the Affordable Care Act in the nation’s highest court.

So if the ruling will be appealed anyway, does it matter? “It matters for at least two reasons,” Bagley says. “First of all, if the 5th Circuit rejects the lower court holding and decides that the whole law is, in fact, perfectly constitutional, I think there’s a good chance the Supreme Court would sit this one out.”

On the other hand, if the 5th Circuit invalidates the law, it almost certainly will go the Supreme Court, “which will take a fresh look at the legal question,” he says. Even if the Supreme Court ultimately decides whether the ACA stands, “you never want to discount the role that lower court decisions can play over the lifespan of a case,” Bagley says.

The law has been dogged by legal challenges and repeal attempts from the very beginning, and experts have warned many times about the dire consequences of the law suddenly going away. Nine years in, “the Affordable Care Act is now part of the plumbing of our nation’s health care system,” Bagley says. “Ripping it out would cause untold damage and would create a whole lot of uncertainty.”