November Offers Major Test of Medicaid Expansion’s Support in Red States

http://www.governing.com/topics/health-human-services/gov-medicaid-expansion-voters-ballot-november-states.html?utm_term=November%20Offers%20Major%20Test%20of%20Medicaid%20Expansion%27s%20Support%20in%20Red%20States&utm_campaign=A%20Major%20Test%20of%20Medicaid%20Expansion%27s%20Support%20in%20Red%20States&utm_content=email&utm_source=Act-On+Software&utm_medium=email

Several states will hold the first referendum on Obamacare since Congressional Republicans tried and failed to repeal it.

SPEED READ:

  • Four states are voting on Medicaid expansion in November — Idaho, Montana, Nebraska and Utah. 
  • Medicaid expansion is a central tenet of President Barack Obama’s Affordable Care Act. It makes people living up to 138 percent of the federal poverty line eligible for Medicaid, the government-run health insurance program for the poor.
  • Only one state, Maine, has approved Medicaid expansion through the ballot box.
  • It is the first time voters will directly weigh in on provisions of the ACA since Congressional Republicans tried to repeal it.

It started with Maine. After years of failed attempts to get Gov. Paul LePage to sign off on Medicaid expansion, residents took to the ballot box and made it the first state where voters passed the health care policy.

It hasn’t been smooth sailing. Maine’s Republican governor has taken every opportunity to block the expansion — even asking the federal government to reject the state’s Medicaid expansion application that the courts made him send.

But the passage alone galvanized health care advocates who wish to see Medicaid expansion in the 14 states that have declined federal money to offer health insurance to the people who fall in a “coverage gap,” where they make too much money to qualify for Medicaid but can’t afford private insurance.

In November, four states are voting on the issue — Idaho, Montana, Nebraska and Utah. The ballot measures will test support for a central tenet of President Barack Obama’s Affordable Care Act (ACA) in red states, which make up the bulk of the 14 holdouts. It will be the first referendum on provisions of the ACA since Congressional Republicans tried and failed to repeal it last year.

Supporters of Medicaid expansion see it as a vital part of the social safety net, especially because qualifying for Medicaid in nonexpansion states can be tough. Opponents, however, see expansion as fiscally irresponsible since states will start picking up 10 percent of the costs in 2020.

While the price tag of Medicaid expansion can come with some sticker shock, independent analyses have found that states often save money by insuring people — there are fewer instances of uncompensated care, and people are healthier when they have insurance. According to a 2016 report from the Robert Wood Johnson Foundation, 11 states experienced some savings from Medicaid expansion.

In Idaho and Nebraska, there has been no major movement on Medicaid expansion from either the executive or legislative branches for years. Because of Idaho’s historic opposition to Medicaid expansion, and the fact that the ballot measure doesn’t mention how it would be funded, advocates could experience a bit of déjà vu there.

While the federal government initially pays 100 percent of the costs of Medicaid expansion, it eventually hands states a bill for 10 percent. The funding issue is what LePage has been using as a reason to refuse to implement Medicaid expansion in Maine. For his part, Idaho Lt. Gov. Brad Little, the Republican expected to succeed Gov. Butch Otter in November, is against Medicaid expansion but has said he would accept it if it passes.

“Proponents insist that it’ll pay for itself, but entitlement programs are historically costlier than anticipated. I imagine there are going to be some really tough discussions if it passes,” says Fred Birnbaum, vice president of the Idaho Freedom Foundation, which opposes the measure.

Nebraska’s measure also doesn’t have a provision that explicitly says how the state share would be paid for, but supporters don’t believe that should make a difference.

“We modeled our language based on the Maine initiative, so it’s clear and unequivocal,” says Democratic state Sen. Adam Morfeld, who introduced Medicaid expansion bills in the past. “The governor can say he won’t implement it, but we’ll have a court tell him otherwise.”

Republican Gov. Pete Ricketts, who is expected to win reelection in November, has opposed Medicaid expansion since the beginning but said that if it made the ballot, it’s up to the voters to decide.

“That’s honestly the best I could hope for,” says Morfeld.

In Montana and Utah, the questions before voters are a little more complicated.

Montana expanded Medicaid in 2015, but under the deal struck in the state legislature, it is set to expire June 30. Residents will be voting on whether to extend it, and how the state would fund their portion of it. The ballot measure proposes hiking taxes on tobacco products to $2 per pack.

Utah also already passed a bill to expand Medicaid, but it is awaiting federal approval. It would require nondisabled people to work, volunteer or participate in a job training program; the expansion would automatically end if the federal match dipped below 90 percent; and eligibility stops at the poverty line, which is $12,140 for a single person. (The federal government has rejected other states’ requests to limit expansion to people at the poverty line.)

The ballot measure, meanwhile, asks voters to expand Medicaid traditionally — without work requirements or eligibility limits past the federal poverty line. It also asks voters to increase the sales tax to fund the state’s share. It’s unclear what would happen if the ballot measure passes and the federal government approves Utah’s competing Medicaid waiver.

In three of the four states — Nebraska, Montana and Utah — more than $11 million has been spent to sway voters one way or the other. In Nebraska and Utah, supporters have spent $1 million to 2 million while opponents have spent a reported zero dollars. In Montana, the balance is just the opposite: opponents have raised $8 million while supporters have raised just $2 million. In Idaho, the issue has attracted just has $37,067 — all from the supporters’ side.

Only Utah has conducted polling on the issue, which was done in June. The Salt Lake Tribune and the Hinckley Institute of Politics found that 54 percent of voters support the measure, 35 percent oppose it, and the rest are undecided.

“There’s been a lot of discussion in Utah about this, we’ve been having this debate for a couple of years now,” says Danny Harris, associate state director of advocacy at AARP Utah, which is in favor of the ballot measure. “The polling has always been consistently in favor. People are ready for this issue to move forward.”

 

The Health 202: The rate of people without health insurance is creeping upward

https://www.washingtonpost.com/news/powerpost/paloma/the-health-202/2018/09/13/the-health-202-the-rate-of-people-without-health-insurance-is-creeping-upward/5b99569b1b326b47ec95958c/?utm_term=.ae9e8af79dd2

 

THE PROGNOSIS

New Census Bureau data on the number of uninsured Americans is either a testament to the resiliency of the Affordable Care Act or a sign that President Trump’s anti-ACA rhetoric and policies are starting to work.

As our colleague Jeff Stein reported Wednesday, there was a slight uptick in the number of Americans without health insurance in 2017 compared to 2016, even though that number essentially remained statistically flat. Still, the fact that uninsured rate went up at all, by about 400,000 people, marks the first time since the ACA’s implementation that the uninsured rate didn’t drop. 

Supporters of the ACA worry the news marks the beginning of a trend, especially when some of Trump administration policies intended to circumvent the ACA go into effect next year.

Ahead of open enrollment last year, the Trump administration dramatically decreased funding for any Obamacare outreach or advertising, limited resources for “navigators” who help people find an insurance plan, and shortened the window for people to sign up for insurance from three months to six weeks in states that use a federally run marketplace.

“Even with all of that, health coverage stayed steady. But at the same time, we’d like to see further progress in the rate of the uninsured,” said Judith Solomon of the Center on Budget and Policy Priorities.

It’s part of a pattern to weaken the 2010 health-care law known as Obamacare. After the GOP Congress failed to repeal and replace the ACA last summer, the Trump administration moved to dilute the law in other ways: including signing off on a plan to eliminate the individual mandate penalty next year; allowing individuals to buy skimpier, short-term health plans without certain coverage requirements under Obamacare; and seeking to allow states to put conditions on Medicaid coverage.

Some of the most prominent health care organizations in the country came together this morning to voice their disapproval of those short-term plans — including the American Cancer Society Cancer Action Network, the American Heart Association, Planned Parenthood Federation of America, the National Women’s Law Center, the , American Academy of Family Physicians, the American Academy of Pediatrics and Families USA.

“The Administration’s decision to expand short-term health plans will leave cancer patients and survivors with higher premiums and fewer insurance options,” said Dr. Gwen Nichols, chief medical officer of the Leukemia & Lymphoma Society.

The groups’ statements, compiled and released by Sen. Tammy Baldwin (D-Wis.), are in support of the senator’s effort to have Congress rescind the White House regulation. Nearly every Democratic senator has signed a resolution of disapproval to overturn it.

The census data reflects trends that started last year, when the administration’s policies had yet to be implemented. Fourteen states saw their uninsured populations rise in 2017. The only three states that didn’t see a spike in that number were New York, California and Louisiana. The first two aren’t surprising given those states’ robust efforts to enroll their own residents, while Louisiana expanded Medicaid in June 2016 so its decrease represents those low-income individuals who now have government coverage.

Medicaid expansion in most of the 33 states and D.C. that have done so under the ACA has predictably decreased the number of people without coverage. The uninsured rate last year in states with an expanded Medicaid program was 6.6 percent compared to 12.2 percent in non-expansion states — a gap that has only continued to grow since 2013.

To be fair, as Larry Levitt, senior vice president at the Kaiser Family Foundation, pointed out on Twitter: the uninsured rate started leveling off before the Trump administration started its work. But Levitt suggested the uninsured rate may really rise in 2019 when elimination of the individual mandate penalty takes effect. Moreover, states are increasingly taking the White House up on its suggestion to add work requirements to their Medicaid programs — in just the first three months of it being implemented in Arkansas, more than 4,000 people were jettisoned from the rolls for failure to comply.

Matthew Fiedler, a health-policy expert at the Brookings Institution, agreed with Levitt’s assessment, noting that the bulk of the people who were uninsured pre-ACA have already been enrolled  in the program. He contended that if policy had remained static, there would likely have been a modest decline instead of similar increase in the uninsured rate — though not a dramatic one. The real effects, he said, of the Trump administration’s efforts to chip away at the ACA are still to come. 

“I don’t think the right takeaway is that none of the policy changes will have a negative effect. I think they will going forward, we just haven’t seen that yet,” he said. “I think if your goal is to evaluate the ACA, I think the right takeaway is that there was a lot of progress, but more policy progress to be made.”

Of course, Democrats and Republicans have disparate views on how to get there. Democrats are now pushing for a public option or a universal health care system in which the government would foot the bill for many health-care costs. A lot of them feel  the ACA “got us roughly 40 percent there and established a framework for lawmakers to make that progress going forward,” Fiedler said. That’s why we’re now seeing so many Democratic candidates and lawmakers embracing some iteration of a “Medicare for all” program.  

Republicans still criticize the ACA as vast government overreach and are vowing they will take another stab at repealing it should they maintain the congressional majorities after the November midterms.

“We made an effort to fully repeal and replace ObamaCare and we’ll continue,” Vice President Pence said while campaigning for Baldwin’s opponent, Leah Vukmir, if the GOP performs well in the midterms.

One additional interesting data point from the census is ages at which there was the greatest increases or decreases in the uninsured rate. As highlighted in the chart above, rates of those without insurance rose at ages 18 and 19 — when children are no longer eligible for the Children’s Health Insurance Program; and for those between ages 25 and 26 — when children no longer qualify for their parents’ insurance. The uninsured rate dropped, however, for those aged 64 and 65 — when adults are eligible for Medicare.

The greatest spike in those without insurance was documented for 26 year olds. That’s likely because young adults are typically healthier and feel less urgency to pay for insurance when they lose coverage under their family’s plan.

As noted by the New York Times’ Margot Sanger Katz on Twitter, these stats show just how crucial government programs and laws have been in providing health coverage to Americans:

Is Obamacare Constitutional? The Battle Begins Again

http://www.thefiscaltimes.com/2018/09/05/Obamacare-Constitutional-Battle-Begins-Again

 

The debate over the Affordable Care Act entered a new phase Wednesday as a federal court in Texas began hearing oral arguments in a lawsuit brought by 20 Republican-led states challenging the constitutionality of the 2010 law.

Eighteen Republican state attorneys general and two GOP governors bringing the suit argue that the law’s individual mandate was rendered unconstitutional when Congress lowered the penalty for individuals who don’t buy coverage to zero.

The Supreme Court, in upholding the law in 2012, deemed that penalty a tax and thus a valid and legal exercise of Congress’ power of the purse. The lawsuit claims that the law is no longer constitutional because the zeroed-out penalty can no longer raise revenue. “It’s nothing but a hollow shell because its core has been invalidated,” said Misha Tseytlin, Wisconsin’s solicitor general.

The plaintiffs also claim that this means the entire ACA — and, in particular, its protections for patients with pre-existing conditions looking to buy insurance — must be struck down because the mandate can’t be severed from the rest of the law. The Trump Justice Department decided not to defend the ACA in the case.

What a Kavanaugh Confirmation Might Mean

The case, which legal experts see as a long shot, may still wind up before the Supreme Court — which is why Democrats have brought up Obamacare and its protections for patients with pre-existing conditions in this week’s confirmation hearing for Brett Kavanaugh, President Trump’s nominee to replace Justice Anthony Kennedy.

“Kavanaugh has signaled in private meetings with Senate Democrats that he is skeptical of some of the legal claims being asserted in the latest GOP-led effort to overturn the Affordable Care Act,” the Los Angeles Times’ Jennifer Haberkorn reported last week. Three Democrats in the meetings told the Times that Kavanaugh suggested that if one piece of the law is struck down, the rest of the law doesn’t necessarily have to fall with it.

But that may not be enough to assuage Democratic fears that Kavanaugh could be the deciding Supreme Court vote against Obamacare. “Democrats are more concerned about Kavanaugh’s past writings on expansive presidential powers, which they say could lead to his supporting efforts by the Trump administration to dismantle the health-care law without Congress,” The Washington Post’s Colby Itkowitz notes.

Where Public Opinion Stands

The political debate over Obamacare has shifted as public perception of the law has improved. The latest Kaiser Family Foundation tracking poll, released Wednesday, finds that 50 percent now view the law favorably while 40 percent see it unfavorably, with the divide still falling along partisan lines. Just under 80 percent of Democrats support the law, while a similar percentage of Republicans oppose it.

That may be why Republicans still view repealing the law as a potent issue with their base. Vice President Mike Pence, in Wisconsin last week to campaign for Senate candidate Leah Vukmir, said the GOP push to repeal and replace the health care law was still alive: “We made an effort to fully repeal and replace Obamacare and we’ll continue, with Leah Vukmir in the Senate, we’ll continue to go back to that,” he told reporters. With Sen. Jon Kyl (R-AZ) replacing John McCain, a critical vote against the GOP’s 2017 Obamacare repeal bill, there has been chatter about another potential repeal effort — though Senate Majority Leader Mitch McConnell effectively shot that down on Wednesday.

In the meantime, open enrollment on the ACA exchanges is set to begin on November 1, with the Trump administration once again providing reduced funding for outreach groups that help people enroll. A recent report by the nonpartisan Government Accountability Office criticized the administration’s management of Obamacare signup periods.

Why Protections for Pre-Existing Conditions Are Such a Potent Political Issue

http://www.thefiscaltimes.com/2018/09/05/Why-Protections-Pre-Existing-Conditions-Are-Such-Potent-Political-Issue

 

The Affordable Care Act provisions preventing insurers from discriminating against patients with pre-existing medical conditions have become a popular — and politically potent — element of the law, and the new Kaiser Family Foundation tracking poll shows why: Six in 10 Americans say that they or someone in their household suffers from a pre-existing condition such as asthma, diabetes or high blood pressure.

It’s no surprise then that the tracking poll also finds that 75 percent of Americans now say that it is “very important” to keep the provision prohibiting insurance companies from denying a person coverage because of his or her medical history. Another 15 percent say it is “somewhat important” this provision stays in place. Similarly, 72 percent say it is “very important” that the provision to keep insurance companies from charging sick people more remains law. Another 19 percent say it is “somewhat important.”

In addition, more than 60 percent of Americans are “very worried” or “somewhat worried” that they will lose insurance coverage if the Supreme Court overturns the Affordable Care Act’s protections for people with pre-existing conditions. And 75 percent are “very worried” or somewhat worried” that they or a family member will have to pay more for coverage.

Democrats have been hammering the administration and Republicans for their willingness to have a court invalidate protections for those with pre-existing conditions.

As part of their effort to push back on that line of attack, 10 Republican senators last month introduced new legislation that they say would prevent insurance companies from denying coverage to people with pre-existing conditions, or charging those people more, no matter what happens in the Texas court case. Critics have said that the GOP bill’s protections don’t go as far as Obamacare’s. Republicans have responded by saying they’d be willing to look at changes to make the legislation more comprehensive.

 

Fewer Americans Without Health Plans Since Obamacare Debut

https://www.bloomberg.com/news/articles/2018-08-29/fewer-americans-without-health-insurance-since-obamacare-debut

Image result for Fewer Americans Without Health Plans Since Obamacare Debut

Fewer Americans lack health insurance — but the gap remains wide, especially in some pro-Trump states.

The number of uninsured declined to 28.3 million in the first quarter, down from 29.3 last year — and 48.6 million in 2010, the year the Affordable Care Act was signed into law by then-President Barack Obama, according to data from the federal Centers for Disease Control and Prevention.

The distribution, however, is uneven with data for south central states — Arkansas, Louisiana, Oklahoma and Texas — showing almost a quarter of adults lacking health care coverage. President Donald Trump, who has opposed Obamacare, won those four states in the 2016 presidential election.

The CDC data also show:

  • Even with the reduction, one in eight Americans between 18 to 64 remained uninsured.
  • Of those with insurance, about one in five were covered by public plans and seven in ten were covered by private plans. Children fared better, with more than 95 percent covered by public or private plans.
  • About one in four Hispanics lacked coverage while 14.1 percent of non-Hispanic blacks, 8.9 percent of non-Hispanic whites and 6.1 percent of non-Hispanic Asians lacked coverage.
  • The number of people under age 65 covered under the Health Insurance Marketplace declined by about 1 million to 9.7 million.
  • The number of adults who lacked health insurance for more than one year declined from 32 million in 2010 to 14.9 million in the first quarter of this year.

 

 

 

 

ACA court case causing jitters in D.C. and beyond

http://www.modernhealthcare.com/article/20180831/NEWS/180839976

Image result for 2018 midterm elections

 

For months, congressional Republicans have ignored the Texas-led lawsuit seeking to overturn the Affordable Care Act. With the midterm elections looming, talk of the case threatened to reopen wounds from failed attempts to repeal the law. Not to mention that legal experts have been panning the basis of the suit.

But that’s all changing as the ACA faces its day in court … again. The queasy feeling of uncertainty that surrounded the law just one year ago is back. The level of panic setting in for the industry and lawmakers is pinned to oral arguments set for Sept. 5 in Texas vs. Azar. Twenty Republican state attorneys general, led by Ken Paxton of Texas, are seeking a preliminary injunction to halt enforcement of the law effective Jan. 1. Their argument is built around the Supreme Court’s 2012 ruling in which Chief Justice John Roberts said the law is constitutional because it falls under Congress’ taxing authority. The AGs have seized on the congressional GOP’s effective elimination of the individual mandate penalty in the 2017 tax overhaul as grounds to invalidate the law. 

They have the Trump administration on their side, in part. The Justice Department in June filed a brief arguing that the individual mandate as well as such consumer protection provisions as barring insurance companies from denying coverage to people with pre-existing conditions are unconstitutional. But the department stopped short of suggesting that the entire law be vacated.

Conservative U.S. District Judge Reed O’Connor will hear the case in Austin, Texas. O’Connor has already ruled against an ACA provision that prohibited physicians from refusing to perform abortions or gender-assignment surgery based on religious beliefs, and he is considered a wild card.

Even ACA supporters who downplay the legal standing of the case are bracing for the possibility that O’Connor will side with the plaintiffs, who ultimately see a path to the Supreme Court.

Republicans, meanwhile, are trying to head off a potential political storm. A coalition of Senate Republicans led by Sen. Thom Tillis of North Carolina introduced a bill to codify guaranteed issue for people with pre-existing conditions into HIPAA laws. But they left out the key mandate that insurers can’t exclude coverage of treatment for pre-existing conditions. That omission left health insurers scratching their heads and Democrats came out swinging, with Democratic Sen. Claire McCaskill of Missouri dubbing the measure “a cruel hoax.”

The politics around coverage protections will really start to matter for Republicans should O’Connor signal support for the plaintiff states, according to Rodney Whitlock, a Washington healthcare strategist and former GOP Senate staffer. “It ups the pressure considerably,” he said. “There’s no question it complicates things for Republicans if a decision comes down in October.”

Insurers are on the lookout for signs of what could happen next. If O’Connor’s decision comes down before open enrollment starts on Nov. 1, the GOP will feel increasing pressure to do something substantive, according to an industry official who asked not to be identified.

Although a ruling striking down the law wouldn’t necessarily impact the individual market in 2019, it would spark the kind of massive uncertainty that insurers hate and complained of last year during the GOP repeal-and-replace efforts.

America’s Health Insurance Plans filed an amicus brief urging the court to deny the request for a preliminary injunction, citing the massive impact such a move would have on insurers in the individual market, Medicaid managed care and Medicare Advantage plans.

“It creates a lot of impetus for federal or state action,” the insurance official said, noting that insurers would have to rely on HHS to interpret how the law’s regulations would apply going forward. If mounting court decisions start to drastically affect the law’s mandates, it would fall to HHS how to manage complicated questions around how to follow ACA rules.

HHS and Justice Department officials declined to comment. CMS Administrator Seema Verma in August told McCaskill when pressed at a Senate committee hearing that she would support legislation to protect pre-existing conditions, but she declined to specify how the CMS would respond administratively if the suit succeeds.

For now, lawmakers aren’t showing any willingness to take a bipartisan approach. The House GOP plans to introduce a companion bill to the Senate measure, Tillis told Modern Healthcare last week. Meanwhile Democrats have made hay over the fact that the protections in his legislation are incomplete. Tillis said leaving out the prohibition of coverage exclusions was not intentional and GOP senators would look again at the bill if the lawsuit advances.

He added that he envisions the legislation as just one piece that could build into a bigger overhaul effort, and wants to see protections of other popular provisions such as allowing people up to age 26 to stay on their parents’ health insurance.

“It’s similar to what we talked about last year,” Tillis said, referencing the 2017 repeal-and-replace efforts. “Any sort of court challenge that would cause a precipitous voiding of Obamacare would leave a lot of people in the lurch, and one of those areas is pre-existing conditions.”

Sen. Bill Cassidy (R-La.), who spearheaded the last major GOP effort to repeal and replace the ACA last year, also said he would want to look at more comprehensive legislation if the lawsuit advances. “I certainly would,” Cassidy said. “I can’t speak for all, but I do think there would be a drive to.”

How Republicans will move past messaging and into action remains to be seen, Whitlock said.

“If you think of the seminal moments of 2017, you think of pre-existing conditions and the Jimmy Kimmel test,” Whitlock said, referencing the talk show host’s attack on the repeal-and-replace effort following emergency heart surgery for his newborn son. “This was a big deal because people were concerned. It is a very important issue, and it’s also one that Republicans have tried to say in every bill that they’re trying to protect. They have been successful to varying degrees in making that case. But with the Texas lawsuit, there’s no protecting it. It says, throw out the entire ACA root and branch.”

And as nomination hearings for Supreme Court nominee Brett Kavanaugh get underway Sept. 4, Democrats will keep using the GOP’s dilemma as a cudgel. McCaskill, for instance, is leveraging the issue in her neck-and-neck race against Missouri Attorney General Josh Hawley, who is part of the lawsuit.

“How do you have a pre-existing conditions bill that says we’re not going to protect someone with a pre-existing condition?” she told reporters last week. “It’s embarrassing, it’s the Potomac two-step. Do they think nobody’s paying attention? They’re just trying to cover themselves politically, isn’t it obvious?”

And then there’s the other political dilemma for Republicans who want to show they can secure Obamacare’s protections: convincing their base that they still fundamentally oppose Obamacare even if they don’t want to talk about repeal-and-replace anymore.

“You can be sure there are folks out there who really desperately don’t want to see the Texas side laughed out of court,” Whitlock said. “It destroys the whole narrative about the lawsuit. It’s this bizarre dynamic where an obscure lawsuit that has no legal basis whatsoever leaves the opportunity to talk about” repeal.

He added: “There are people who are flat-earthers on ACA, still preaching complete and total repeal.”

 

 

Senators Consider Dueling Bills Over Texas Individual Mandate Litigation

https://www.healthaffairs.org/do/10.1377/hblog20180828.283008/full/?utm_term=Read%20More%20%2526gt%3B%2526gt%3B&utm_campaign=Health%20Affairs%20Sunday%20Update&utm_content=email&utm_source=Act-On_2018-08-05&utm_medium=Email&cm_mmc=Act-On%20Software-_-email-_-Individual%20Mandate%20Litigation%3B%20Housing%20And%20Equitable%20Health%20Outcomes%3B%20Simplifying%20The%20Medicare%20Plan%20Finder%20Tool-_-Read%20More%20%2526gt%3B%2526gt%3B

Litigation in Texas over the constitutionality of the individual mandate and, with it, the entire Affordable Care Act (ACA) is receiving more and more attention in Congress. On August 23, 2018, Republican Senators released new legislation that they believe would help blunt the impact of a ruling for the plaintiffs in Texas v. United States. The stated aim of the bill is to “guarantee” equal access to health care coverage regardless of health status or preexisting conditions. However, in the event that the court agrees with the plaintiffs—or even just the Trump administration—the legislation leaves significant gaps.

At the same time, Democratic Senators had their efforts to potentially intervene in the litigation rebuffed during the debate over a recent appropriations bill for the Departments of Labor, Health and Human Services (HHS), Education, and Defense. With a hearing on Texas scheduled for September 5, 2018—the same time as hearings are set to begin in Congress over the confirmation of D.C. Circuit Judge Brett Kavanaugh to the Supreme Court—attention on the case is only likely to increase.

Brief Background On Texas

In Texas, 20 Republican state attorneys general and two individual plaintiffs challenge the constitutionality of the individual mandate, which was zeroed out by Congress beginning in 2019. Without the penalty, the plaintiffs argue that the mandate is unconstitutional. Because the mandate cannot be severed from the rest of the law, they believe the entire ACA should also be struck down.

In June, the Department of Justice (DOJ) declined to defend the constitutionality of the individual mandate alongside the ACA’s provisions on guaranteed issue (42 U.S.C. §§ 300gg-1, 300gg-4(a)), community rating (42 U.S.C. §§ 300gg(a)(1), 300gg-4(b)), and the ban on preexisting condition exclusions and discrimination based on health status (42 U.S.C. § 300gg-3). These provisions collectively ensure that individuals with preexisting conditions cannot be charged more for their coverage or denied coverage or benefits based on health status or other factors.

The plaintiffs have asked Judge Reed O’Connor of the federal district court in the Northern District of Texas to enjoin HHS and the Internal Revenue Service (IRS) from enforcing the ACA and its implementing regulations—or, at a minimum, to strike down the law’s guaranteed issue and community rating provisions alongside the mandate. Judge O’Connor is considering ruling on the merits of the case (instead of issuing a preliminary injunction) and has scheduled a hearing on the motion for a preliminary injunction for September 5.

As noted above, the hearing will coincide with confirmation hearings for Judge Kavanaugh. Texas will likely be a focal point in the Kavanaugh proceedings because of the possibility that the case will reach the Supreme Court and because previous decisions suggest that Judge Kavanaugh believes that a President can decline to enforce laws that he or she believes to be unconstitutional.

The New Republican Legislation

Recognizing the potential impact of the Texas lawsuit, 10 Republican Senators released new legislation on August 23. The bill is sponsored by Senators Thom Tillis (NC), Lamar Alexander (TN), Chuck Grassley (IA), Dean Heller (NV), Bill Cassidy (LA), Lisa Murkowski (AK), Joni Ernst (IA), Lindsey Graham (SC), John Barrasso (WY), and Roger Wicker (MS). It is tied directly to the Texas litigation: Press releases acknowledge the September 5 hearing and state that “protections for patients with pre-existing conditions could be eliminated” if Judge O’Connor rules in favor of the plaintiffs.

The legislation would amend the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Although HIPAA offered significant new protections at the time it was passed, these protections were limited in terms of ensuring that people with preexisting conditions could access affordable, comprehensive coverage, particularly in the individual market. HIPAA established a minimum set of federal protections for certain consumers—for example, those who lost their group coverage—facing certain situations, such as job lock because of a new preexisting condition exclusion period. HIPAA also required guaranteed issue in the small group market and guaranteed renewability in the individual and group markets.

As mentioned, the DOJ has declined to defend the ACA’s provisions on guaranteed issue (42 U.S.C. §§ 300gg-1, 300gg-4(a)) and community rating (42 U.S.C. §§ 300gg(a)(1), 300gg-4(b)), and the ban on preexisting condition exclusions and discrimination based on health status (42 U.S.C. § 300gg-3). Thus, their position in the lawsuit implicates parts of four provisions of federal law: 42 U.S.C. §§ 300gg, 300gg-1, 300gg-3, and 300gg-4.

The legislation introduced by Republican Senators would restore only two of the four provisions that stand to be invalidated in Texas: 42 U.S.C. § 300gg-1 (guaranteed issue) and most of § 300gg-4 (guaranteed issue and rating based on health status). So the bill would prohibit the denial of coverage and rating based on health status, but it would not prohibit preexisting condition exclusions or rating based on other factors, such as age, gender, tobacco use, or occupation. This means that many individuals, including those with preexisting conditions, could still face higher premiums, higher out-of-pocket costs, and the denial of benefits because of a preexisting condition even after paying premiums for many months.

Implications 

The protections offered by the restoration of the two provisions included in the Senate GOP bill, § 300gg-1 and most of § 300gg-4, are largely illusory without the other parts of the ACA—community rating and the ban on preexisting condition exclusions—that are at risk in the lawsuit. Assuming the at-risk provisions are struck down and the new legislation is adopted, consumers would still face significant gaps. For instance, a woman with a history of cancer could purchase a policy under the new bill, but she could be charged more based on her gender and age, potentially pricing her out of the market. In addition, her policy could have a preexisting condition exclusion, meaning that any recurrence of cancer—or any other health condition—might not be covered at all; this could lead to much higher out-of-pocket costs and far less financial protection.

If Congress were to enact this bill today, it would largely be duplicative of existing law (and would do nothing to disturb the ACA). If Congress were to enact this bill in response to the Texas litigation, its effect would depend on how (if at all) a court would invalidate the ACA provisions in Texas. Would a court strike the entire provisions, including what was adopted under HIPAA and other federal laws? Or would a court simply strike the amendments that were made by the ACA?

If the latter, the new legislation might do even less than its authors think, because much of the bill is, in fact, devoted to readopting existing federal law that may not be at issue in Texas. These provisions were adopted before the ACA and touch on, for instance, genetic information nondiscrimination and long-standing exceptions to guaranteed issue.

No Vote On Manchin Resolution To Potentially Intervene In Texas

In July, Democratic Senators led by Joe Manchin (WV) introduced a resolution with the goal of intervening in Texas to defend the ACA’s protections for people with preexisting conditions. The resolution would authorize the Senate Legal Counsel to move to intervene in the case on behalf of the Senate and defend the ACA. During last week’s debate over an HHS appropriations bill, Senate leadership blocked a vote on the amendment.