ACA lawsuit puts GOP in an awkward position

https://www.axios.com/affordable-care-act-lawsuit-republicans-2c0aff0e-e870-49af-a15e-554d34d3ad62.html

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A lawsuit that threatens to kill the entire Affordable Care Act could be a political disaster for the GOP, but most Republicans aren’t trying to stop it — and some openly want it to succeed.

Between the lines: The GOP just lost the House to Democrats who campaigned heavily on health care, particularly protecting people with pre-existing conditions, but the party’s base still isn’t ready to accept the ACA as the law of the land.

The big picture: A district judge ruled last month that the ACA’s individual mandate is unconstitutional and that the whole law must fall along with it. That decision is being appealed.

  • A victory for the Republican attorneys general who filed the lawsuit — or for the Trump administration’s position — would likely cause millions of people with pre-existing conditions to lose their coverage or see their costs skyrocket.

Some Republicans want the lawsuit to go away.

  • Rep. Greg Walden, ranking member of the Energy and Commerce Committee, supports fully repealing the ACA’s individual mandate, which the 2017 tax law nullified. That’s what sparked this lawsuit, and formal repeal would likely put the legal challenge to rest.
  • Sen. Susan Collins laughed when I asked her whether she hopes the plaintiffs win the case. “No. What a question,” she said.

But other Republicans say they see an opportunity.

  • If the lawsuit prevails, “it means that we could rebuild and make sure that we have a health care system that is going to ensure that individuals are in charge of their health care,” Rep. Cathy McMorris Rodgers said.
  • Sen. David Perdue said that “of course” he wants the challengers to win, which would “give us an opportunity to get at the real problem, and that is the cost side of health care.”
  • Sen. Shelley Moore Capito said she views the lawsuit “as an opportunity for us to assure pre-existing conditions and make sure that we fix some of the broken problems,” but that she doesn’t know if it’d be good if the plaintiffs win.

The bottom line: “The longer we’re talking about preexisting conditions, the longer we’re losing. We need to focus on a message that can win us voters in 2020. The debate of preexisting conditions was a stone-cold loser for us in 2018,” said Matt Gorman, the communications director for House Republicans’ campaign arm during the 2018 cycle.

 

 

The Commonwealth Fund’s Top 10 for 2018

https://www.commonwealthfund.org/publications/2018/dec/commonwealth-funds-top-10-2018?omnicid=CFC%25%25jobid%25%25&mid=%25%25emailaddr%25%25

top 10

In 2018, the Commonwealth Fund’s centennial year, we continued our efforts to advance health care for all. When viewed through the lens of the most popular publications, it has been a year dedicated in large part to showing how Americans covered through the Affordable Care Act have fared as the law has come under attack from Congress and the White House. 

In the last year, we also released our latest state scorecard of health system performance and updated our analysis of the rise in deaths attributable to drugs, alcohol, and suicide. Another top report demonstrated how states can sustain investments in social supports for people in Medicaid managed care.

Please join us as we look back over the year. Here they are: the 10 most-read Commonwealth Fund publications released in 2018.

 

 

 

Policy upheaval, tech giant disruption and megamergers: Healthcare Dive’s 10 best stories of 2018

https://www.healthcaredive.com/news/policy-upheaval-tech-giant-disruption-and-megamergers-healthcare-dives-1/543390/

Mobile health records and nurse protests also grabbed readers this year.

This year in healthcare was marked by sweeping changes, including seemingly constant vertical and horizontal consolidation, led by the $69 billion CVS grab of Aetna and Cigna’s $67 billion acquisition of Express Scripts.

As 2018 wound down, a federal judge took an ax to the Affordable Care Act as the Trump administration kept up its efforts to undermine the law, with CMS expanding short-term health plans many say are built to subvert the ACA. Elimination of the individual mandate penalty, Medicaid expansion and rising premiums all likely contributed to declined enrollment on ACA exchanges as well.

The administration encouraged states to use waivers to expand controversial Medicaid work requirements and proposed site-neutral payments, rattling health systems of all sizes that were already struggling under ferocious operating headwinds. Hospitals cut back on services and invested heavily in lucrative outpatient facilities in an attempt to reclaim volume.

Tech companies Apple and Amazon pushed further into the space, with the former focusing on mobile health apps and the latter focusing on, well, almost everything.

But that’s just scratching the surface. Here is a curated list of Healthcare Dive’s top stories from the last year.

    1. Optum a step ahead in vertical integration frenzy

      After a 2017 marked by failed horizontal mergers, vertical consolidation came into vogue during the year, led by CVS-Aetna, Cigna-Express Scripts and Humana-Kindred.

      Some smart observers saw a predecessor to these unions in UnitedHealth Group’s Optum: a pharmacy benefit manager plus a care services unit that employs over 30,000 physicians, using data analytics to capitalize on consumerism and value-based care.

      Our piece on Optum’s solid foothold in the space, and its likelihood of staying ahead of the nascent competition, was Healthcare Dive’s most-read article in 2018. Read More »

    2. New Medicare Advantage rules hold big potential for pop health

      A novel Medicare Advantage rule giving payers more flexibility to sell supplemental benefits to chronically ill enrollees sparked a fair amount of interest in our readers.

      The rule offered up a slate of new opportunities for insurers such as UnitedHealthcare and Humana that can now work with rideshare companies to provide transportation to medical appointments, air conditioners for beneficiaries with asthma and other measures around issues like food insecurity in a broad shift to recognizing social determinants of health. Read More »

    3. Apple debuts medical records on iPhone

      Outside players such as Apple, Amazon and Google moved forward in their bids to disrupt healthcare in 2018. Apple rang in the New Year with its announcement that customers would now be able to access their medical records on the Health app following months of speculation and buzz.

      The move looks to put access to personal, sensitive data back in the patients’ hands, an objective a lot of the entrenched healthcare ecosystem can get behind as well. Heavy hitters on the EHR side (Epic, Cerner, athenahealth) and the provider side (Johns Hopkins, Cedars-Sinai, Geisinger) are taking place in the initiative. Read More »

    4. At least 14 states have legislation addressing safe staffing currently, but California is the only one to implement a strict ratio at one nurse per every five patients. Looking to 2019, in Pennsylvania voters elected a governor who has voiced support for state legislation. Read More »
    5. More employers go direct to providers, sidestepping payers

      Employers ramped up their cost-containment creativity in 2018. One method? Cutting out the middleman and forging direct relationships with providers themselves, whether it’s contracting with an accountable care organization to manage an entire employee population or a simple advocacy role to fight for payment reform.

      Aside from some correlated CMS interest, big names forging inroads in the arena include General Motors, Walmart, Whole Foods, Boeing, Walt Disney and Intel, all with various levels of investment.

      Although only 6% of employers are doing so currently, 22% are considering solidifying some sort of provider relationship for next year according to a Willis Towers Watson survey. It’s also likely the Amazon-J.P. Morgan-Berkshire Hathaway venture will look at direct contracting in its (still vague) mission to lower employer costs. Read More »

    6. Amazon Business’ medical supply chain ambitions: 4 things to know

      Amazon’s B2B purchasing arm reached out and grabbed the healthcare supply chain this year, shaking a once-predictable business model.

      Under intense operating headwinds, supply chain professionals looked to trim the fat from traditional distribution and supplier models in 2018. Some looked to Amazon Business, which generated more than a billion dollars in sales its first year alone by relying on its marketplace model, streamlined ordering and a “tail spend” strategy.

      1. Healthcare Dive discussed this and more with global healthcare leader at Amazon Chris Holt in an exclusive interview that drove a lot of interest. Read More »

GE, Medtronic among those linking with hospitals for value-based care

Value-based care was a buzzword over the past year, with providers, payers and healthcare execs across the board looking (or saying they’re looking) for ways to cut costs and improve quality.

Although legal barriers stemming from the Anti-Kickback Statute and Stark Law persist, medical technology companies jumped on the bandwagon, with big names like GE, Philips and Medtronic coupling with hospitals to promote VBC initiatives. Read More »

  1. How Amazon, JPM, Berkshire Hathaway could disrupt healthcare (or not)

The combination of the e-commerce giant, a 200-year-old multinational investment bank and Warren Buffet’s redoubtable holding company joining forces to take on healthcare costs spooked investors in traditional industry players. The venture added a slew of big names to its C-suite, including Atul Gawande and Jack Stoddard for CEO and COO, respectively. Read More »

 

 

 

Congress could get rid of ACA lawsuit, but won’t

https://www.axios.com/congress-could-get-rid-of-aca-lawsuit-ba906df5-57fd-492a-b365-baab06421ac1.html

 Illustration of hand with gavel breaking a red cross symbol

Congress could kill the lawsuit that threatens to wipe out the Affordable Care Act, legal experts say, but the politics of the issue will almost certainly keep it from doing so.

Why it matters: While these same legal experts think it’s very likely that this case gets thrown out on appeal, that doesn’t mean it definitely will — and a failure to overturn it would wreak havoc on the entire health care system.

The big picture: A federal judge ruled that since Congress repealed the ACA’s fine for not having health insurance, the still-existing-yet-toothless mandate that people have insurance is now unconstitutional, as is the rest of the law.

  • That’s because the requirement for having insurance is no longer bringing in any revenue. Its status as a revenue-generating tax is why the ACA survived its first major legal challenge.
  • The judge wrote in his decision that “both [the 2010 and 2017] Congresses manifested the same intent: The Individual Mandate is inseverable from the entire ACA.” That means the rest of the law is, by association with the mandate, unconstitutional as well.

What they’re saying: Each of the three legal experts I spoke to offered a different idea as to how Congress could make the entire lawsuit moot, if it wanted to.

  • Law professor Nicholas Bagley said that Congress could pass a law, signed by the president, stating that it believes the individual mandate is separable from the ACA – making its intent clear.
  • Legal expert and ACA supporter Tim Jost said that Congress could pass a $1 penalty for not having health insurance, essentially recreating its status as a (constitutional) tax.
  • Legal expert and ACA critic Jonathan Adler told me that Congress could just repeal the health insurance requirement entirely. “The surest way you make that go away is by officially getting rid of the part of the law that is allegedly unconstitutional,” he said.

Yes, but: Doing any of these things would require Republicans to vote to protect the ACA — giving up yet another chance to get rid of it — and Democrats to admit that the lawsuit is reasonable, as well as potentially to vote to repeal the individual mandate.

  • “We shouldn’t be jumping through hoops to try to respond to a judge who just broke decades of legal precedent on severability,” Sen. Chris Murphy said. “Maybe there’s creative things we could do if it got upheld on appeal, but I don’t think it’s going to be upheld on appeal.”
  • “This is an interesting case and we’re going to have to see how it ultimately plays out,” Finance Chairman Orrin Hatch said in a statement.

Incoming House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer have said that they want to intervene in the case.

  • While only Pelosi has the power or the votes to make that happen without Republican assistance, it would have little practical effect, the experts said.
  • Courts care what Congress does, not what Congress says,” Adler said. “And intervening to defend the law in court is really more Congress talking than Congress doing.”

Ironicallythe precedent for the House filing a lawsuit or becoming party to a case is when the House sued the Obama administration over the ACA’s cost-sharing reduction payments.

  • “Just like [former Speaker John] Boehner’s intervention was a political stunt, I also think Pelosi’s intervention would be a political stunt,” Bagley said.

 

 

The GOP’s health problem: They like big chunks of the Affordable Care Act

https://www.axios.com/aca-ruling-republicans-politics-changed-f54f7a3f-53f4-47f2-9deb-2c4c424534b6.html

A protester in New York holds a sign saying, "ACA saves lives"

Now that a Texas judge has ruled that the entire Affordable Care Act is unconstitutional — all because of its individual mandate — Republicans may find themselves wishing for a different outcome.

The big picture: There is little hope of a deal with Democrats on health reform in a divided Congress if the decision is upheld. Democrats will now use the 2020 campaign to paint Republicans as threatening a host of popular provisions in the ACA. And here’s the kicker: protections for pre-existing conditions, the provision that played such a big role in the midterms, is not even the most popular one.

Here are just some of the more popular provisions that would be eliminated — in order of their popularity, according to the Kaiser Family Foundation’s November tracking poll:

  • Young adults can remain on their parents’ health insurance policies until age 26: 82% of the public supports this, including 66% of Republicans.
  • Subsidies for lower and moderate income people: 81% support this, including 63% of Republicans.
  • Closing the “donut hole” so there’s no gap in Medicare prescription drug coverage: 81% like this, as do 80% of Republicans.
  • Eliminating costs for many preventive services: 79% support this, as do 68% of Republicans.
  • Medicaid expansion: 77% like it, as do 55% of Republicans.

The list goes on, but notably, further down but still very popular: 65% of the public supports protecting people with pre-existing conditions, as do 70% of Democrats, 66% of independents and 58% of Republicans. The fact the pre-existing conditions does not top the list shows how popular all of the other provisions are.

The Republican attorneys general brought their lawsuit in a different political environment, when Republicans held the House, Senate and the White House. If that had continued, they could have had reason to hope that a ruling in their favor, if upheld by higher courts, could have helped them achieve their goal of repeal and replace legislation.

The bottom line: Their world has changed politically, with Democrats preparing to take control of the House next year, and Republicans may have been better off settling for the repeal of the mandate penalty that Congress already passed. The mandate was by far the least popular part of the law and gave them something to crow about. Now, they may have bought more than they bargained for.

 

 

 

 

What to expect after whirlwind ACA ruling

https://www.healthcaredive.com/news/what-to-expect-after-whirlwind-aca-ruling/544527/

Judge Reed O’Connor’s unexpectedly sweeping ruling calling the Affordable Care Act unconsitutional late Friday sent shock waves rippling through the healthcare landscape.

The ruling, which will almost certainly be appealed (likely up to the U.S. Supreme Court), would effectively wipe out Medicaid expansion, pre-existing condition protections and could affect a number of hospital payment reforms.

But the decision faces a lengthy appellate process, along with attacks from the left and right alike.

What happens immediately?

The ruling doesn’t have much immediate impact, as it was a declaratory judgment and not an injunction to stop the ACA. The Trump administration confirmed Friday night that the law would stay in place during appeals.

Still, President Donald Trump himself celebrated on Twitter in the early hours of Monday morning.

Not all of the administration officials echoed the tone, however, as CMS Administrator Seema Verma tweeted a message of reassurance Friday night, confirming that the exchanges would stay open through Saturday as previously planned.

A day later, however, Verma returned to script, tweeting “Obamacare has been struck down by a highly respected judge.”

Critics decried the timing of the ruling, which dropped on the penultimate day of an already-lagging open enrollment season for 2019. Kaiser Family Foundation put enrollment in the individual market at 17 million in 2016, 15.2 million in 2017 and 14.2 million as of Q1 2018.

Saturday dawned with potential confusion for tens of thousands of Americans looking to enroll at the last minute. The Justice Department had asked O’Connor to hold off on the ruling so that it didn’t affect 2019 enrollment on Healthcare.gov until after enrollment ended Saturday.

He issued his decision one day before. But it’s unclear what effect the ruling will have, if any, on 2019 insurance.

Republicans were in a bind with the timing as well, along with the mounting popularity of the ACA.

In 2018, as protections for pre-existing conditions took center stage in the midterms, Republicans changed tack and hedged their language around the ACA, promising to protect Americans’ coverage despite dozens of attempts at repealing the entire law. 

Which players will see the biggest impact?

The decision Friday evening sent ripples through Wall Street with major dips for hospitals and insurers. HCA stock dropped more than 5%, Cigna and Humana each fell 4%, Centene took a 7.5% hit and Molina dropped as much as 13%. Some stocks recovered later Monday morning.

Leerink analysts called Monday a buying opportunity for managed care organizations, along with WellCare and HCA.

While the law touches nearly every aspect of American healthcare, some players will take bigger hits than others.

Hospitals, especially those who serve a disproportionate number of ACA-insured patients, don’t need the further stress on their bottom lines.

America’s Essential Hospitals president and CEO Bruce Siegel called the ruling a “profoundly troubling development,” adding that “the crushing rise in the number of uninsured patients likely to follow this decision, absent a higher court’s reversal, will push [hospitals] to the breaking point.”

Health systems are “deeply disappointed” with O’Connor’s decision, said Rick Pollack, CEO of the American Hospital Association. “The ruling puts health coverage at risk for tens of millions of Americans, including those with chronic and pre-existing conditions, while also making it more difficult for hospitals and health systems to provide access to high-quality care.”

Multiple provider groups urged a stay in the decision until it moves through the appeals process.

 

 

 

 

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

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

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.