Washington Wire: December 2018

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Federal court rules that the ACA is unconstitutional: Texas v. Azar

On Friday, Dec. 14, we learned a federal judge had ruled in the case of Texas v. Azar that the Affordable Care Act is unconstitutional in its entirety. This news has alarmed many. HFA staff posted a number of updates to tell the community what we know at this point.
Most importantly, people should be aware that the court’s ruling does not affect their insurance coverage for now. The judge did not tell the government to stop enforcing the ACA, and in fact a Trump Administration official quickly tweeted that “The recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.” The U.S. Department of Health and Human Services followed up with a formal statement to the same effect.
In sum, the consumer protections of the ACA remain the law of the land, as does the ACA’s Medicaid expansion.
What is the concern, then, over the long run? The court’s ruling, if fully implemented, would dismantle the ACA in its entirety. The ACA’s protections for people with pre-existing conditions would evaporate: health plans would once again be free to deny coverage, or charge much higher premiums, based on applicants’ 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.
The ruling’s impact would also be felt 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 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 33+ states. Provisions that save money for Medicare enrollees would also expire.
Again, these are the consequences that could ensue if the court’s ruling were fully implemented as written. But the ACA’s consumer protections and other provisions remain in effect for the time being.
What will happen next? The parties defending the ACA in court – California and 16 other states – have vowed to appeal. On Dec. 17, these parties asked the judge to allow an immediate appeal of his ruling to the U.S. Fifth Circuit Court of Appeals. They also asked the judge to confirm that the ACA’s protections remain in full force pending further proceedings in the litigation. The judge will rule on these requests after Christmas.
Many legal experts (both pro- and anti-ACA) are highly critical of the court ruling and think it should and will be overturned. Some commentators predict the Fifth Circuit will reverse the ruling, while others foresee the case reaching the Supreme Court. Since earlier litigation over the ACA has sometimes produced unexpected results, we will continue to watch this matter closely.
HFA has joined with 36 other patient groups to issue a statement regarding the court ruling. We will continue to update you about the ongoing litigation, and we will continue our efforts to advocate for the affordable, quality coverage that we need, in all the forums available to us, at the state and federal levels.
Quick hits:

  • HFA joined with NHF to file comments on the FDA’s proposed Guidance for Industry: Human Gene Therapy for Hemophilia. The comments addressed: choice of endpoints for gene therapy trials, considerations for study design and monitoring, the importance of patient-centered and patient-reported outcomes, and more.
  • HFA joined numerous other patient advocacy organizations in opposing the U.S. Department of Homeland Security’s proposed rule on “public charge.” DHS has proposed to count lawful immigrants’ health status and their use of certain U.S. healthcare programs as negative factors during the immigration process. Reports suggest that the proposed rule is already having a chilling impact, with individuals foregoing Medicaid and other benefits out of fear of jeopardizing a family member’s immigration status. The coalition comments pointed out that DHS’s proposed rule would create dangerous barriers to care for legally present immigrants and for U.S.-citizen children living in families with blended immigration status.
  • HFA joined with coalition partners to file comments on HHS guidance regarding state applications to waive provisions of the ACA with respect to the sale of insurance policies on the state’s individual market. HFA together with NHF also filed supplemental comments addressing issues specific to the bleeding disorders community. Both sets of comments stressed the need to protect coverage and care for all, rather than allowing states to lower premiums for healthy individuals who can get by with skinny coverage, at the expense of people who live with expensive health conditions.
  • Congress and the President failed to reach agreement on a government spending bill. As a result, about ¼ of the U.S. government (agencies that didn’t already have funding in place) will halt work until a deal is reached. Most of the government functions that most directly touch people’s lives will continue despite the shutdown, as we explain here.