CVS to Judge: Please Don’t Let Those 7 Witnesses Testify

https://www.healthleadersmedia.com/strategy/cvs-judge-please-dont-let-those-7-witnesses-testify

The pharmacy chain asked for a narrow hearing on its DOJ-approved purchase of Aetna, as seven witnesses prepare to testify against it.


KEY TAKEAWAYS

Both CVS and the DOJ argue the hearing should be narrowly tailored, with at least some witnesses excluded.

If allowed to proceed as proposed, the hearing could devolve into “a forum for airing competitors’ grievances,” CVS warned.

CVS Health asked the federal judge overseeing its acquisition of Aetna to prevent seven witnesses who lined up to testify against the megamerger from speaking at a hearing next month.

Although antitrust regulators with the U.S. Department of Justice greenlit the CVS-Aetna deal last fall, U.S. District Judge Richard Leon in Washington, D.C., made clear that his review should not be seen as a rubber stamp. Leon said he wanted to hear from witnesses before deciding whether to sign off on the DOJ-approved deal.

The seven witnesses put forward by three groups of amici curiae include health policy professors and economists from major universities, but CVS argued in a court filing Friday that Leon should decline altogether to hold a hearing with live witnesses. The planned testimony, as outlined in court filings, includes irrelevant arguments that could turn the hearing “into a forum for airing competitors’ grievances about the CVS-Aetna merger and about the healthcare industry more generally,” attorneys for CVS wrote.

The CVS filing argues that the three groups of amici—the AIDS Healthcare Foundation (AHF), the American Medical Association (AMA), and Consumer Action with the U.S. Public Interest Research Group (PIRG)—would be advancing their own competitive interests if the hearing were to proceed.

“Amici’s submissions demonstrate that such a hearing is unnecessary in light of the considerable record already before the Court,” attorneys for CVS wrote, “and Amici’s planned presentations, consisting almost exclusively of unreliable competitor testimony on issues that are not relevant to the Court’s Tunney Act determination, will add little, if anything, of value.”

In its own filing Monday, the DOJ argued that Leon should limit the testimony to only those items relevant to the scope of Tunney Act review. The DOJ asked the court to strike five of the seven witnesses entirely and limit of the scope of the testimony offered by the other two.

“These limitations will ensure that the hearing remains within the appropriate statutory and constitutional bounds, and will protect the Executive Branch’s constitutionally mandated control over its resource-allocation decisions in the enforcement of antitrust laws,” DOJ attorneys wrote.

 

 

 

Judge rules Trump AHP expansion unlawful ‘end-run’ around ACA

https://www.healthcaredive.com/news/judge-rules-trump-ahp-expansion-unlawful-end-run-around-aca/551601/

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Dive Brief:

  • A federal judge on Thursday struck down a Trump administration expansion of association health plans, which aren’t bound by the requirements of the Affordable Care Act. U.S. District Judge John Bates said the June rule from the Department of Labor that loosened restrictions on what groups could band together to offer AHPs “is clearly an end-run around the ACA.”
  • The ruling stems from a lawsuit 11 states and the District of Columbia filed to challenge the DOL rule. It comes the same week the Trump administration stepped up its attacks against the ACA, arguing in a court filing Monday the law should be eliminated in its entirety following a Texas judge’s decision the act is unconstitutional without the individual mandate penalty.
  • The judge had strong language condemning the administration’s attempt to allow for easier creation and use of AHPs, calling the regulatory change a “magic trick” that allowed for “absurd results” undermining the intent of Congress.

Dive Insight:

The ruling is a blow to the Trump administration’s efforts to circumvent the ACA, which ramped up significantly with the administration’s filing this week seeking complete repeal of the law. Another hit to those efforts came down Wednesday when a different federal judge struck down Medicaid work requirements in Arkansas and Kentucky.

The renewed fight comes as Democrats lining up for a 2020 presidential run are pushing for more progressive policies than have previously gained public traction. Some Democratic contenders are making Medicare for all and other single-payer models a central part of their platforms as healthcare shapes up to be a major issue for the next presidential election.

Experts have argued extended use of AHPs could siphon away young and healthy people looking for minimum coverage at a lower cost. If they choose AHPs they upset the balance on risk pools for more comprehensive coverage. Also, many consumers don’t understand the tradeoff and could be surprised by what isn’t covered when they are in need.

But even though the plans aren’t required to meet ACA standards, some that have formed have been adamant they provide adequate coverage, including the 10 essential ACA benefits. The plans are less obstructive to the regulatory environment than short-term health plans, which have also been granted more leeway under the Trump administration.

Land O’Lakes, for example, which said it was the first to offer an AHP under the more relaxed rules, said its plan covered essential benefits and pre-existing conditions, as well as “broad network coverage.”

The Society of Actuaries has said as many as 10% of people in ACA plans could leave for AHPs, which would also drive up premiums for plans in the individual market. Avalere predicted about 3.2 million people would shift and premiums would rise by 3.5%.

Supporters of AHPs decried the judge’s decision Thursday. Kev Coleman, founder of AssocationHealthPlans.com, said in a statement the ruling will hurt small businesses throughout the country.

“Thousands of employees and family members within the small business community have already enrolled in association health plans — which help lower health care costs — since they first became available last fall,” he said. “They have provided a means by which broad benefits may be accessed at more economical prices. While I do not believe today’s ruling will survive appeal, I believe Judge Bates’ decision is an unnecessary detour on small businesses’ path toward more affordable health coverage.”

 

 

Health Law Could Be Hard to Knock Down Despite Judge’s Ruling

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Could a federal judge in Texas be the catalyst that finally brings down the Affordable Care Act, a law that has withstood countless assaults from Republicans in Congress and two Supreme Court challenges?

On the morning after Judge Reed O’Connor’s startling ruling that struck down the landmark health law, legal scholars were doubtful.

Lawyers on both sides of previous A.C.A. battles said the reasoning behind this one was badly flawed, notably in its insistence that the entire 2010 law must fall because one of its provisions may have been rendered invalid by the 2017 tax overhaul legislation. Had Congress meant to take such radical action, they said, it would have said so at the time.

Legal experts also noted that the Supreme Court, where most people believe the case is headed, historically has been reluctant to strike down federal laws, particularly those that have become ingrained in the lives of millions of citizens.

For now, the ruling is unlikely to affect the more than 23 million people who get health coverage through the insurance marketplaces set up by the law and the expansion of Medicaid in 36 states. The Trump administration immediately said — despite the president’s gleeful tweets hailing the decision — that it would continue to enforce the law until the appeals process plays out, which could take more than a year. That will ensure that the American health care system, which has been operating under the law for more than five years, will not be thrown into immediate chaos.

Judge O’Connor, who was appointed by George W. Bush to the Federal District Court in Fort Worth, has ruled against laws supporting immigration, transgender and Native American rights. Conservative lawyers are known to choose his district to file cases, hoping he will fire opening salvos that propel their issues through the court system.

The crux of Judge O’Connor’s decision centered on the health law’s requirement that most people have health coverage or pay a tax penalty.

That tax penalty was effectively eliminated when Congress reduced its amount to zero in the tax legislation enacted last year. And once the tax penalty no longer stood, the so-called “individual mandate” was unconstitutional and the entire law had to fall, the judge reasoned in accepting the argument of the 20 states that brought the lawsuit challenging the legislation.

But an array of legal experts said that argument was unsound. Jonathan H. Adler, a conservative law professor at Case Western Reserve University in Cleveland, called that position “simply nonsensical” and said the judge’s conclusion was “hard to justify” and “surprisingly weak.”

He and others pointed to the fact that even though Congress erased the tax penalty, it did not touch the rest of the sprawling health act. A longstanding legal doctrine called “severability” holds that when a court excises one provision of a statute, it should leave the rest of the law in place unless Congress explicitly stated that the statute could not survive without that provision.

In this case Congress’s intention was particularly clear, legal experts said.

“Congress amended one provision of a 2,000 page law and did not touch the rest of the law so it is implausible to believe that Congress intended the rest of the law not to exist,” said Abbe R. Gluck, a health law expert at Yale Law School.

Judge O’ Connor also cited congressional intent, focusing on language from the 2010 law, which underscored the significance of the individual mandate to the entire act. But he largely ignored the 2017 congressional action. In essence, legal scholars said, he looked to one congressional view and not the more recent one.

And in so doing, he opened the door for House Democrats to intervene in successive appeals. On Saturday aides to Representative Nancy Pelosi, who is expected to become the next speaker of the House, said she would move quickly to notify the Trump administration that House Democrats intended to step in to defend the law in the case.

As the legal showdown plays out, efforts to protect the A.C.A. are also underway in the courts. Earlier this year the state attorney general of Maryland sued the Trump administration for attempting to gut the act. The case is pending.

Nicholas Bagley, a health law expert at the University of Michigan, suggested that Judge O’Connor may not yet be done with the case. In a series of tweets on Saturday, Mr. Bagley noted that the judge had not yet addressed a handful of central issues in the suit, nor had he issued a final ruling indicating whether the act should fall immediately. Judge O’Connor could indeed hold onto the case before an appellate court takes it up.

But if he lets the case move forward, a likely timeline, according to many legal experts, is that the case will be taken up by the United States Court of Appeals for the Fifth Circuit in New Orleans this spring. If the Fifth Circuit upholds Judge O’Connor’s decision, the Supreme Court is likely to agree to hear the case in its term that starts in October 2019, with a decision in 2020. If the Fifth Circuit overturns the judge’s ruling and upholds the law, there is a good chance the Supreme Court would decline to even take the case, legal scholars said.

One law professor, Ilya Somin of George Mason University, criticized parts of the opinion, but said he was “a bit less confident about the outcome” because “the history of A.C.A.-related litigation is filled with surprises and failed predictions by experts.”

Among the observations flying about was the notion that the Supreme Court only rarely strikes down federal laws, and it is particularly reluctant to do so when the laws have been in place for years and affect millions of people. In fact, Chief Justice John G. Roberts Jr. wrote in his 2012 opinion upholding the health care law, that the court should err on the side of sustaining federal laws.

“As between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid,” he wrote, quoting Justice Oliver Wendell Holmes Jr., “our plain duty is to adopt that which will save the act.”

The five justices who voted to uphold the law in a landmark 2012 case, including Justice Roberts, are all still on the court.