KHN’s ‘What The Health?’ California Here We Come

Podcast: KHN’s ‘What The Health?’ California Here We Come

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Health care is a big political issue, but no place more than in California. In San Francisco last week, voters overwhelmingly approved a ballot measure upholding a ban on flavored tobacco products — over the vehement objections of the tobacco industry.

And the state’s activist attorney general, Xavier Becerra, is leading a group of Democratic officials from more than a dozen states defending the Affordable Care Act in a case filed in Texas. That is important given that the Trump administration’s Justice Department decided not to defend the law in full from charges that changes made by Congress in last year’s tax law invalidates the health law.

This week’s panelists for KHN’s “What the Health?” are: Julie Rovner of Kaiser Health News, Anna Maria Barry-Jester of FiveThirtyEight.com, Carrie Feibel of KQED San Francisco and Joanne Kenen of Politico.

Among the takeaways from this week’s podcast:

  • Republicans and Democrats had been gearing up for a midterm election debate on who is responsible for higher health insurance costs. But that shifted last week to an argument over whether consumers with preexisting conditions should be guaranteed coverage following the Justice Department’s brief saying changes to the ACA invalidated those protections.
  • In California, there is widespread support among Democrats for a single-payer health system. But the term is somewhat amorphous. For some officials, it is a catch-all phrase that seems to suggest strong efforts with current programs to get the uninsured rate down to zero, while still keeping much of the current insurance system in place.
  • Becerra has filed a suit against Sutter Health, a giant in the hospital industry in Northern California, alleging that consolidation has resulted in anti-competitive pricing practices.
  • San Francisco’s adoption of a referendum to ban flavored tobacco products could lead other local governments to follow suit. The measure included not only products with flavors allegedly geared to young people, but also menthol cigarettes, which make up about 30 percent of the market.

 

The Texas lawsuit could end some of the ACA’s protections for employer coverage

https://theincidentaleconomist.com/wordpress/the-texas-lawsuit-could-end-some-of-the-acas-protections-for-employer-sponsored-coverage/

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The Trump administration’s refusal to defend portions of the Affordable Care Act is shocking enough. Equally shocking is how little it seems to care what happens if it gets what it’s asking for.

One question in particular: what about legal protections for the 160 million people who get insurance through their employers? Will their insurance still cover their preexisting conditions, even if they switch jobs? I honestly have no idea.

In its brief, the Justice Department argues that the community rating and guaranteed issue provisions of the ACA must be invalidated. But it never mentions that those provisions apply not only to individual health plans, but also to employer plans.

So should those rules give way across the board? Or only for individual insurance plans?

Maybe it should be the latter. The mandate isn’t critical to securing the health of the employer market, so the ACA rules that protect employees aren’t inextricably linked to the mandate and shouldn’t be invalidated. But it could also plausibly be the former: if the rules governing community rating and guaranteed issue are inseverable, maybe the court shouldn’t do micro-surgery to save some subpart of those rules.

But guess what? In its brief, the Justice Department doesn’t say which approach it endorses.

Actually, it’s worse than that.  When the Justice Department identifies the rules governing community rating and guaranteed issue, it doesn’t cite the ACA itself (Public Law 111-948). Instead, it cites parts of the U.S. Code that codify portions of the ACA (e.g., 42 U.S.C. 300gg). The implication is that the Justice Department wants the court to enjoin those code provisions.

But the code provisions were on the books long before the ACA was adopted. Prior to the ACA, they listed protections for employer-sponsored plans that had been adopted in the Health Insurance Portability and Accountability Act. Among other things, HIPAA limited the circumstances under which an employer could refuse to cover an employee’s preexisting conditions. The protections weren’t perfect, but they were something. The ACA patched HIPAA’s gaps by amending those code provisions.

So if the U.S. Code provisions are enjoined altogether—which, again, is what the Justice Department appears to be asking for—some of the HIPAA-era protections would be wiped from the books too.* Is that really what the Justice Department wants? Because that’s the thrust of its brief.

The confusion may reflect a basic legal mistake, one that Tobias Dorsey highlighted in Some Reflections on Not Reading the Statutes: the U.S. Code is a codification of existing laws, but it’s not itself the law. That’s why code provisions shouldn’t themselves be the target of any injunction. Any injunction should run against the ACA itself. If that’s what the Justice Department really wants, then it has to clarify what it’s really asking for. Failing to do so could wreak havoc in the employer-sponsored market.

Even if the injunction only runs against portions the ACA, however, that still wouldn’t resolve whether the ACA’s protections would still apply to employer-sponsored plans. If they don’t, that’s a big deal: HIPAA’s protections are porous.

So far, however, the Trump administration hasn’t said a word—leaving 160 million people in the lurch.

 

The fight over preexisting conditions is back. Here’s why the Obamacare battle won’t end.

https://www.vox.com/policy-and-politics/2018/6/11/17441858/obamacare-repeal-debate-lawsuit

 

There is a persistent divide in the US: Is insurance a privilege to be earned through hard work? Or is it a right?

President Trump and Republicans are so committed to killing Obamacare they’ve decided, just months before the midterm elections, to take aim at the most popular part of the law: coverage for preexisting conditions.

The Trump administration signed on to a long-shot lawsuit this week that would overturn the parts of the law that require insurers to cover preexisting conditions and not charge more for them.

The lawsuit, which you can read more about from Vox’s Dylan Scott, is, in some ways, a perplexing move mere months before midterm elections. Polling finds that both Democrats and Republicans think it’s a good idea to ensure that sick people have access to health insurance.

Politically, though, Republicans spent eight years campaigning on a promise to repeal Obamacare. They believe they have a responsibility to do something, even if the something doesn’t poll well.

But after eight years of covering the Affordable Care Act, I think there is a much deeper tension that keeps the fight over Obamacare alive. It is a persistent, unresolved split in how we think about who deserves health insurance in the United States: Is insurance a privilege to be earned through hard work? Or is it a right?

The United States hasn’t decided who deserves health insurance

Since World War II, the United States has had a unique health insurance system that tethers access to medical care to employment. Changes to the tax code created strong incentives for companies to provide health coverage as a benefit to workers. Now most Americans get their insurance through their employer, and, culturally, health insurance is thought of as a benefit that comes with a job.

Over time, the government did carve out exceptions for certain categories of people. Older Americans, after all, wouldn’t be expected to work forever, so they got Medicare coverage in 1965. Medicaid launched the same year, extending benefits to those who were low-income and had some other condition that might make it difficult to work, such as blindness, a disability, or parenting responsibilities.

Then the Affordable Care Act came along with a new approach. The law aimed to open up the insurance market to anybody who wanted coverage, regardless of whether he or she had a job.

It created a marketplace where middle-income individuals could shop on their own for private health coverage without the help of a large company. It expanded Medicaid to millions of low-income Americans. Suddenly, a job became a lot less necessary as a prerequisite for gaining health insurance.

This, I think, is the divide over health insurance in America. It’s about whether we see coverage as part of work. In my reporting and others’, I’ve seen significant swaths of the country where people push back against this. They see health as something you ought to work for, a benefit you get because of the contribution you make by getting up and going to a job each day.

This came out pretty clearly in an interview I did in late 2016 with a woman I met on a reporting trip to Kentucky whom I’ll call Susan Allen. (She asked me not to use her real name because she didn’t want people to know that she uses the Affordable Care Act for coverage.)

Allen used to do administrative work in an elementary school but now is a caregiver to her elderly mother. Her husband has mostly worked in manual labor jobs, including the coal industry.

Allen told me a story about when she worked in the school. At Christmas, there would be a drive to collect present for the poorest families, presents she sometimes couldn’t afford for her own kids. It made her upset.

”These kids that get on the list every year, I’d hear them saying, ‘My mom is going to buy me a TV for Christmas,’” Allen says. “And I can’t afford to buy my kid a TV, and he’s in the exact same grade with her.”

Allen saw her health insurance as the same story: She works really hard and ends up with a health insurance plan that has a $6,000 deductible. Then there are people on Medicaid who don’t work and seem to have easier access to the health care system than she does.

”The ones that have full Medicaid, they can go to the emergency room for a headache,” she says. “They’re going to the doctor for pills, and that’s what they’re on.”

Is health insurance a right or a privilege?

More recently, Atul Gawande wrote a piece for the New Yorker exploring whether Americans view health care as a right or a privilege.

He reported the story in his hometown in Appalachian Ohio, where he kept running into this same idea: that health insurance is something that belongs to those who work for it.

One woman he interviewed, a librarian named Monna, told him, “If you’re disabled, if you’re mentally ill, fine, I get it. But I know so many folks on Medicaid that just don’t work. They’re lazy.”

Another man, Joe, put it this way: “I see people on the same road I live on who have never worked a lick in their life. They’re living on disability incomes, and they’re healthier than I am.”

As Gawande noted in his piece, “A right makes no distinction between the deserving and undeserving.” But he often found this to be the key dividing line when he asked people whether everyone should have health coverage. Often, it came down to whether that person was the type who merited such help.

This isn’t a debate that happens in most other industrialized countries. If you asked a Canadian who deserves health care, you’d probably get a baffled look in return. Our northern neighbors decided decades ago that health insurance is something you get just by the merit of living in Canada. It’s not something you earn; it’s something you’re entitled to.

But in the United States, we’ve never resolved this debate. Our employer-sponsored health care system seems to have left us with some really deep divides over the fundamental questions that define any health care systems.

Those are the questions we’ll need to resolve before the debate over Obamacare ever ends.

 

 

California’s Attorney General Vows National Fight To Defend The ACA

California’s Attorney General Vows National Fight To Defend The ACA

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California Attorney General Xavier Becerra pledged Friday to redouble his efforts as the Affordable Care Act’s leading defender, saying attacks by the Trump Administration threaten health care for millions of Americans.

Becerra’s pledge came in response to an announcement from the administration Thursday that it would not defend key parts of the Affordable Care Act in court. The administration instead called on federal courts to scuttle the health law’s protection for people with preexisting medical conditions and its requirement that people buy health coverage.

Becerra accused the administration of going “AWOL.” It “has decided to abandon the hundreds of millions of people who depend on” the law, he said in an interview with California Healthline.

“It’s, simply put, an attack on the health care that millions of Americans have come to count on, and California, being the most successful state in implementing the Affordable Care Act, stands to lose perhaps more than anyone else.”

About 1.5 million Californians buy coverage through the state’s ACA exchange, Covered California, and nearly 4 million have joined Medicaid as a result of the program’s expansion under the law.

The state has been at the forefront in resisting many Trump Administration policies, including on health care and immigration.

“This is not a new experience for us under this new Trump era of having to defend Californians,” Becerra said. In the case of health care, “fortunately we have 16 other  [Democratic attorneys general] who are prepared to do it with us. ”

At issue is a lawsuit filed by 20 Republican state attorneys general on Feb. 26, which charged that Congress’ changes to the law in last year’s tax bill rendered the entire ACA unconstitutional. In the tax law, Congress repealed the penalty for people who fail to have health insurance starting in 2019.

Becerra is leading an effort by Democratic attorney generals from others states and the District of Columbia to defend the ACA against that lawsuit. In May, the court allowed them to “intervene” in the case.