Wednesday, 15 August, 2018

AHIP, Others React to DOJ Move Against ACA in Texas

Justice Department says heart of health law unconstitutional Press. All rights reserved. This material may not be published broadcast rewritten or redistributed
Celia Hoffman | 11 June, 2018, 07:35

The Justice Department said in a court filing late Thursday that it will no longer defend key parts of the Affordable Care Act, beginning with the unpopular requirement that people carry health insurance, but also including widely supported provisions that guarantee access for people with medical problems and limit what insurers can charge older, sicker adults.

The Trump administration's move drew strong criticism from defenders of the health care law and some legal scholars, who noted how unusual it is for the Justice Department not to defend federal law.

The Trump administration filed a brief in the case on Thursday, arguing that without the tax to encourage healthy people to sign up, the parts of the law guaranteeing coverage to people with previous health conditions - without charging them higher rates - should be struck down as well. O'Connor was appointed by George W. Bush and recently ruled that health care providers can not be forced to perform procedures that conflict with their religious beliefs. Bernard Sanders, I-Vt., to establish a single-payer health-care system, suggesting that would become the Democrats' agenda if they were to regain power.

Although the challengers had suggested that "a chain reaction of failed policymaking" would occur once the mandate was invalidated, the government lawyers said that the challengers could not show that striking down the mandate and the closely-tied coverage clauses "means that the ACA necessarily ceases to implement any coherent federal policy". It's unlikely that the entire law will be struck down.

Nicholas Bagley, a professor at the University of Michigan Law School who had been a Justice Department lawyer, says DOJ's move is troubling. The first, known as guaranteed issue, requires insurers to offer coverage to everyone regardless of their health background. In the tax law, Congress repealed the penalty for people who fail to have health insurance starting in 2019.

The lawsuit, filed in February by Texas and other GOP-led states, is in many ways a replay of the politically divided litigation that ended with the Supreme Court upholding the health care overhaul in 2012.

Senior House Democrats on health care committees called the administration's refusal to defend the federal health law a "stunning attack on the rule of law". Even President Donald Trump called it one of the law's "strongest assets" during an interview with "60 Minutes" shortly after he won the election.

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Sen. Susan Collins, R-Maine, who voted against the Republican repeal bills in the Senate a year ago, also expressed concern about the administration's new push, saying it "creates further uncertainty that could ultimately result in higher costs for millions of Americans and undermine essential protections for people with pre-existing conditions, such as asthma, cancer, heart disease, arthritis and diabetes". "As of 2019, therefore, the individual mandate will be unconstitutional under controlling Supreme Court precedent holding that 'the federal government does not have the power to order people to buy health insurance'".

The chances for that argument succeeding are viewed with deep skepticism by legal experts, in part because Congress itself indicated that the rest of ObamaCare could still stand without the mandate when it moved to repeal the tax penalty a year ago.

"At the very least it adds uncertainty at exactly the moment when plans are trying to set rates for next year", said Ceci Connolly, the chief executive of the Alliance of Community Health Plans. They will also have to contend with the following assertion from the Attorney General of the United States: "I have determined that the plaintiffs in Texas v". Chris Murphy, D-Conn., said in a statement. Before the ACA passed, insurers commonly refused coverage for people with cancer, heart failure, diabetes, arthritis and even less serious conditions.

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

"The Justice Department has an entrenched, long-standing and bipartisan commitment to defending congressional statutes if reasonable arguments can be made in their defense", he wrote for the Yale Journal on Regulation in March.

"It's highly unlikely NY would take away consumer protections it has put in place", said a spokeswoman for the state Health Plan Association. Judge Reed O'Connor was named to the court by President George W. Bush and has ruled against other aspects of the Affordable Care Act.

Ultimately, we'll all have to wait to see where the court sides on the argument, which is little comfort to the 130 million people with pre-existing conditions who could soon find themselves in a world of financial trouble.

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