Update on ACA Lawsuit

The death of eminent Supreme Court justice Ruth Bader Ginsburg on September 18^th brought renewed attention to the fate of the Affordable Care Act. As previously reported, a lawsuit challenging the constitutionality of the ACA (California v. Texas) is pending in the Supreme Court. Because Justice Ginsburg was considered a likely vote to uphold the ACA, in a divided court, her death gives rise to heightened concern over the possible outcome of the case. Here’s a refresher about the lawsuit, and a rundown of what we know for now.

Background. In 2018, a group of plaintiffs led by the Texas Attorney General sued to invalidate the ACA. Their argument hinges on a law Congress passed in 2017 that zeroed out the ACA’s individual mandate penalty: with the penalty set at $0, the plaintiffs argue, the ACA’s mandate for people to purchase health insurance can’t be considered a tax, and it is therefore unconstitutional. Furthermore, according to the plaintiffs, the individual mandate is so essential a part of the ACA that once it is struck down, the entire law must fall. Many legal experts (across the political spectrum) think these anti-ACA arguments are extraordinarily weak – and yet a trial court and an appeals court have so far largely sided with the plaintiffs. California v. Texas is now before the Supreme Court for review.

There is a lot at stake for people with bleeding disorders (and other serious health conditions). A sweeping ruling against the ACA in California v. Texas would end the ACA’s protections for individuals with pre-existing conditions. If the Court invalidates the ACA, health plans could once again deny people coverage or charge them much higher premiums based on their health status. Tax credits that help people buy insurance on the individual market would disappear, as would the requirement that health plans cover essential health benefits.

Such a ruling could also have an impact far beyond the individual insurance market and the ACA Exchanges. Large employers would no longer have to offer insurance to their employees. Health plans could re-introduce annual and/or lifetime caps on benefits; would not have to limit patients’ yearly out-of-pocket costs; would not have to allow parents to keep their children covered up to age 26; and more. The ACA’s Medicaid expansion would disappear, eliminating coverage for many millions of people in 36+ states – just as COVID-related job losses have made Medicaid coverage more important than ever. Provisions that save money for Medicare enrollees (such as those closing the Part D “doughnut hole”) would also expire.

Next steps? A major political battle has erupted over the Supreme Court seat formerly held by Justice Ginsburg. President Trump has nominated Judge Amy Coney Barrett to fill that slot; her nomination goes to the U.S. Senate for approval. Meanwhile, oral argument in California v. Texas is expected to take place as scheduled, on November 10, 2020, whether or not a new justice has been seated. Observers do not expect the Court to publish a decision in the case before Spring 2021.

Key takeaways:

• The ACA remains in effect for now. ACA protections for people with pre-existing conditions remain the law of the land. Beginning November 1, the ACA Exchanges (healthcare.gov) will allow individuals to sign up for 2021 health plans. (Enrollment in Medicaid continues to be available 365 days a year for eligible individuals.) Take action during this Fall’s open enrollment period to get the comprehensive health coverage you need for 2021!
• HFA continues to advocate for affordable, quality health coverage, in all available forums. HFA is participating in the Supreme Court case, having joined with nineteen other patient and health advocacy groups to file anamicus curiae (“friend of the court”) brief describing the devastating impact that patients would face if the ACA is struck down. HFA also continues to press for patient-friendly health reforms in Congress and with federal health agencies.
• You, too, have a part to play. If these issues are important to you, make sure to exercise your rights as citizens. Check to make sure that you are registered to vote, and learn more about voting in your state, at HFA’s Legislative Action Center. Make your voice heard this Fall!

Quick Hits:

• Telehealth has expanded dramatically in recent months, becoming an important method of care delivery during the pandemic. Patient advocates are eager to preserve the benefits of telehealth going forward: to ensure access, enable high quality care, promote equity, and protect patients. Toward these ends, 30+ patient advocacy groups (including HFA) released principles to guide policymakers as they consider how to permanently integrate telehealth into the U.S. health care system.
• House Democrats resumed negotiations with Treasury Secretary Mnuchin over COVID relief legislation. On September 28^th, Speaker Pelosi released a scaled-down version of the May 2020 House-passed HEROES Act. Among other things, the revised bill would restore federal unemployment benefits, increase federal funding for state Medicaid programs, and create a special enrollment period for people who have lost coverage and jobs due to COVID. Because a wide gulf separates the House from the Senate (where a much smaller COVID bill won 52 votes in early September), observers are however pessimistic about the chances that Congress will pass a COVID relief package before the election.
• The U.S. Department of Health and Human Services issued a final rule allowing states to create programs to import certain prescription drugs from abroad. The importation programs are a long way from implementation and will face numerous legal challenges. In addition, the rule will not allow individual consumers to import prescription drugs, nor will it allow the importation of high-cost biologic drugs.  Six states (including Colorado, Florida, and Vermont) have drug importation waivers already pending with HHS.
• The Administration published the text of its long-heralded executive order on drug pricing (first announced in July 2020). The order directs HHS to “test payment models” that would tie the price that Medicare pays for certain Part B and Part D drugs to the lower prices paid in other developed countries. The order does not lay out a timetable for HHS to implement these policies; the order, moreover, despite its lack of specificity, has drawn strong opposition from pharma, the U.S. Chamber of Commerce, and many lawmakers.
• The Administration issued another health care executive order on September 24^th, professing that “it has been and will continue to be the policy of the United States” to protect people with pre-existing conditions. This is an accurate description of U.S. policy, so long as the ACA stands – but the Administration is asking the Supreme Court to overturn the ACA and its patient protections. Meanwhile, the executive order by itself does not change existing law or create new legal requirements (that power is vested in Congress).
• In state Medicaid news, Medicaid expansion coverage in Nebraska starts on October 1st (23 months after it was mandated by voters through a state ballot referendum).  Nebraska has asked for federal approval to limit coverage to a basic tier of benefits for enrollees who fail to comply with work reporting requirements or health and wellness protocols. Also in September, CMS announced that it was indefinitely delaying its review of Tennessee’s proposal to convert its Medicaid program into a block-grant program that could limit benefits, increase premiums, and create administrative hurdles like work reporting requirements.

Source: Hemophilia Federation of America