Trump Administration Files Formal Request to Strike Down All of Obamacare

The Trump administration formally declared its opposition to the entire Affordable Care Act on Wednesday, arguing in a federal appeals court filing that the signature Obama-era legislation was unconstitutional and should be struck down.

Such a decision could end health insurance for some 21 million Americans and affect many millions more who benefit from the law’s protections for people with pre-existing medical conditions and required coverage for pregnancy, prescription drugs and mental health.

In filing the brief, the administration abandoned an earlier position — that some portions of the law, including the provision allowing states to expand their Medicaid programs, should stand. The switch, which the administration disclosed in late March, has confounded many people in Washington, even within the Republican Party, who came to realize that health insurance and a commitment to protecting the A.C.A. were among the main issues that propelled Democrats to a majority in the House of Representatives last fall.

The filing was made in a case challenging the law brought by Ken Paxton, the attorney general of Texas, and 17 other Republican-led states. In December, a federal judge from the Northern District of Texas, Reed O’Connor, ruled that the law was unconstitutional.

A group of 21 Democratic-led states, headed by California, immediately appealed, and the case is now before the Fifth Circuit Court of Appeals in New Orleans. The House of Representatives has joined the case as well to defend the law.

Democrats wasted no time responding to the filing Wednesday. Xavier Becerra, the attorney general of California, a Democrat, said: “The Trump administration chose to abandon ship in defending our national health care law and the hundreds of millions of Americans who depend on it for their medical care. Our legal coalition will vigorously defend the law and the Americans President Trump has abandoned.”

The government’s brief did not shed light on why it had altered its earlier position, referring only to “further consideration and review of the district court’s opinion.”

Oral arguments in the appeals court are expected in July, with a possible decision by the end of the year, as the 2020 presidential campaign gets going in earnest. Whichever side loses is expected to appeal to the Supreme Court.

The Justice Department’s request to expedite oral arguments, granted last month, suggests that the administration is eager for a final ruling. In its application, it said that “prompt resolution of this case will help reduce uncertainty in the health care sector, and other areas affected by the Affordable Care Act.”

Democrats, seizing on the health law’s popularity and its decisive role in their winning the House last fall, are already using the case as a cudgel against President Trump as his re-election campaign gets started. The law’s guarantee of coverage for people with pre-existing medical conditions, in particular, remains very popular with voters in both parties as well as independents.

But Mr. Trump has appeared undaunted, tweeting in April that “Republicans will always support Pre-Existing Conditions” and that a replacement plan “will be on full display during the Election as a much better & less expensive alternative to Obamacare.”

Instead of providing specifics, though, Mr. Trump, members of his administration and other Republicans have focused on attacking the Medicare for All plans that some Democratic presidential candidates have sponsored or endorsed as a dangerous far-left idea that would, as Mr. Trump tweeted, cause millions of Americans “to lose their beloved private health insurance.”

As the administration and Texas noted in their briefs, Judge O’Connor’s ruling turned on the law’s requirement that most people have health coverage or be subject to a tax penalty.

But in the 2017 tax legislation, Congress reduced that penalty to zero, effectively eliminating it. Judge O’Connor, the plaintiff states, and now the Trump administration reasoned that, like a house of cards, when the tax penalty fell, the so-called individual mandate became unconstitutional and unenforceable. Therefore, the entire law had to fall as well.

Mr. Paxton, the Texas attorney general, whose office also filed a brief on Wednesday, said: “Congress meant for the individual mandate to be the centerpiece of Obamacare. Without the constitutional justification for the centerpiece, the law must go down.”

Whether that position will survive judicial scrutiny is another question. Nicholas Bagley, who teaches health law at the University of Michigan Law School, noted that only two lawyers signed the brief. That is highly unusual in a case with such a high profile, he said.

“This is a testament to the outrageousness of the Justice Department position, that no reasonable argument could be made in the statute’s defense,” Mr. Bagley said. “It is a truly indefensible position. This is just partisan hardball.”

Many legal scholars have also said that even before appellate judges wade into the more obscure pools of legal reasoning, they could reach a decision by addressing the question of congressional intent. If Congress had meant the erasure of the tax penalty to wipe out the entire act, such an argument goes, it would have said so.

If the Fifth Circuit overturns the O’Connor decision, there is no guarantee that the Supreme Court would take an appeal. The court has ruled on two earlier A.C.A. challenges, finding in favor of the act, although narrowing it.

Of course, the composition of the Supreme Court has since changed.

 

 

 

Cigna prevails in Texas hospital’s suit over $50M in unpaid claims

https://www.bna.com/cigna-prevails-texas-n73014481565/

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Cigna Healthcare defeated a lawsuit by a Houston hospital accusing it of underpaying hundreds of medical benefit claims.

Cigna didn’t abuse its discretion when it reduced benefit payments to North Cypress Medical Center Operating Co. Ltd after it learned that the hospital engaged in fee-forgiving—a practice where out-of-network providers charge patients less than what they owe under their health insurance plans, a federal judge in Texas held Aug. 7.

Multiple lawsuits challenging the billing and payment practices between out-of-network providers and health insurers have been filed in the past decade, when insurers started reducing or withholding payments to providers that engaged in fee-forgiving. Insurers such as Cigna, Aetna, and UnitedHealthcare allege this practice is fraudulent.

The ruling, which came after an eight-day bench trial, is a significant victory for Cigna in a long-running lawsuit by North Cypress, which sought to hold the insurer liable for at least $50 million in unpaid claims.

In 2016, Judge Keith P. Ellison held that Cigna violated federal benefits law by denying full payment of benefit claims.

Since then, the U.S. Court of Appeals for the Fifth Circuit issued a number of opinions in favor of insurers, including one where it reversed a $16.4 million judgment against Cigna in a case in which another small Texas-based hospital accused it of underpaying medical claims. Last week, the Fifth Circuit affirmed a ruling against the hospital in its lawsuit accusing Aetna Life Insurance Co. of underpaying medical claims in violation of the Employee Retirement Income Security Act and Texas law.

After the parties Cigna and North Cypress engaged in full discovery, the claims at issue were limited to the 575 benefit claims for which the hospital exhausted its administrative remedies. Cigna argued at trial that in these 575 claims, it didn’t apply its fee-forgiving protocol to reduce payments to 395 of them because they were for nonemergency services.

Cigna’s interpretation of its plans to require an out-of-network provider to collect the full portion of coinsurance from a patient was reasonable, Ellison said.

Ellison, who sits in the U.S. District Court for the Southern District of Texas, pointed out that Cigna had substantial evidence to support its determination that North Cypress engaged in fee-forgiving. Cigna had sent surveys to patients who had received treatment at North Cypress and it discovered that the hospital was discounting or forgiving out-of-network coinsurance, Ellison said.

 

 

HHS loses abortion lawsuit

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The D.C. Circuit Court of Appeals yesterday rebuffed the Trump administration’s effort to stop an undocumented teenager from getting an abortion, likely bringing an end to one of the stranger legal sagas of the Trump administration so far.

The D.C. Circuit ordered the Health and Human Services Department to let the woman visit an abortion provider immediately, saying the department had violated her constitutional right to obtain an abortion by refusing to let her leave the detention facility where she’s being held.

Go deeperRead the court’s 6-3 decision.

What’s next: HHS can leave it here, or appeal to the Supreme Court.

Be smart: File this case as potential fodder for future Supreme Court confirmation hearings. Because the ruling came from the full D.C. Circuit, it involves several judges who could be future Supreme Court nominees. The majority included Judges Sri Srinivasan and Patricia Millett, both of whom are seen as potential SCOTUS contenders under a Democratic president.

Undocumented 17-Year-Old Must Delay Abortion, Court Rules

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An undocumented 17-year-old caught in a legal standoff with the federal government must further delay plans for an abortion after an appeals court ruled on Friday that the Department of Health and Human Services had 11 days to find a sponsor to take custody of the teenager.

The decision by the United States Court of Appeals for the District of Columbia Circuit could put her health at risk, doctors say, especially now that she is about 15 weeks pregnant.

“While first-trimester abortion is over 10 times safer than childbirth, the risks gradually increase in the second trimester to those of childbirth,” Dr. Nancy L. Stanwood, the chief of family planning at the Yale School of Medicine, said in an email. Forcing her to wait, she added, “harms her physical health, period.”

Further complicating matters, the teenager only has about a month to get an abortion in Texas, where she is being held. The state has banned abortion after 20 weeks of pregnancy unless there is a medical emergency.

The teenager, referred to as Jane Doe in court documents, found out she was pregnant last month after she was apprehended while entering the United States without her parents.

She decided to end her pregnancy, but Texas law requires a minor to get parental consent or a judicial waiver to do so. She obtained a waiver, but the government prevented her from going to any abortion-related appointments, the American Civil Liberties Union said in court documents, and forced her to visit a religiously affiliated crisis pregnancy center where she was asked to view a sonogram.

An undocumented 17-year-old being held by the federal government is seeking an abortion.

President Trump has worked to restrict abortions since his first days in office by expanding the so-called global gag rule, which withholds American funding from international organizations that discuss or perform abortions; taking aim at Planned Parenthood funding; and appointing several leaders who are anti-abortion, including E. Scott Lloyd, the director of the Office of Refugee Resettlement at the health department, and one of the defendants in the Jane Doe case.

The federal government said that it was not its role to facilitate abortion, and that the teenager still had the option of returning to her home country.

“Ms. Doe has options for leaving federal custody — either by requesting a voluntary departure to her home country (which the federal government is willing to expedite if requested) or by being placed in the custody of a sponsor,” the defendants stated in a memorandum on Tuesday. “Given these options, the government is not causing Ms. Doe to carry a pregnancy to term against her will.”

On Wednesday, a federal judge ordered the government to allow the teenager to get an abortion.

Tanya S. Chutkan, the United States District Court judge who initiated the temporary restraining order, said she was “astounded” by the government’s position.

“She can leave the country or she cannot get her abortion, those are her options?”

The government next argued for the right to appoint the teenager with a sponsor, which would release her from government custody, and said in court documents that the process of securing a sponsor would not unduly burden the teenager’s right to an abortion.

On Friday, the appeals court agreed.

The health department has until Oct. 31 to find a suitable sponsor; if it does, Jane Doe would be able to have an abortion. If she is not released to a sponsor by then, the government has the option of appealing once more.

The 11-day timeline to find a sponsor “seems far-fetched,” said Brigitte Amiri, one of the A.C.L.U. lawyers representing the teenager.

Sponsors are typically family members, according to the health department’s website, who help care for a child who has entered the United States illegally without their parents — often because the child is fleeing an abusive or violent situation.

The vetting process, which includes a background check, can take months, Ms. Amiri said, and earlier attempts to find a sponsor for Jane Doe were unsuccessful.

“They kicked the can down the road, and in this case they kicked the woman down the road,” Dr. Stanwood said. “They are just delaying her care to no end but their own ideology.”

A spokesman for the Administration of Children and Families, which is part of the health department, said in a statement that the care of minors like Jane Doe was important.

“For however much time we are given, the Office of Refugee Resettlement and H.H.S. will protect the well-being of this minor and all children and their babies in our facilities, and we will defend human dignity for all in our care,” the statement said.

The teenager will be 16 weeks and five days pregnant at the end of October, according to the nonprofit legal organization Jane’s Due Process, which has been working with the A.C.L.U. If the appeals process continues into November, the teenager will reach the 20-week mark, which would prevent her from having an elective abortion in Texas.

The sooner the teenager can have the abortion, “the safer it will be for her,” said Dr. Hal C. Lawrence, the executive vice president of the American Congress of Obstetricians and Gynecologists, who practiced obstetrics for nearly three decades.

As the uterus gets bigger, he added, the walls of the uterus get thinner, which increases the possibility of perforation and puts women at risk of additional blood loss during an abortion.

Health risks aside, delaying an abortion can cause emotional trauma.

“Women don’t just wake up one morning and decide they’re going to have an abortion,” Dr. Lawrence said. “And so to make her continue to struggle and be denied access to something which is legal — all that does is increase the psychological stress for her, and that’s not healthy.”

The United States has one of the highest rates of maternal mortality in the developed world, and abortion has been shown to be safer for women than childbirth.

The A.C.L.U. is considering several options, including further appeals.

For the teenager, the process has been exhausting, Ms. Amiri said.

“She talks about feeling very tired.”

 

AMA leaders denounce Florida gun gag law and physician advocates double down on stance

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Police respond to the mass shooting at the Pulse night club in Orlando, Florida (Orlando Police Department photo)

AMA President Andrew Gurman said 2011 law “inserts the state into the patient-physician relationship and threatens open communication in exam room.”