Medicaid Expansion in Texas: The Time is Now

The Legislature is back in session. A bill has been introduced to authorize Texas to accept the federal government's offer to pay for 90% of the cost of expanding Medicaid eligibility to include all Texans under the age of 65 (when Medicare kicks in) and whose income does not exceed 138% of the federal poverty level: HB 1730, introduced by Republican Representative Lyle Larson. Sen. Johnson's own companion bills are SB 118 and SB 119.

The case for expansion is made in a most compelling and entertaining video (10.5 minutes) by Senator Nathan Johnson (D-Dist. 16 (which covers a big chunk of Dallas)). Please watch it. Share it with your family. Send it to your friends. Get involved. We have already waited too long, left billions of federal dollars on the table, and worst of all, we've ignored the health care needs of 1 million Texans who would benefit from expansion. Let's make this happen this year.

And thanks to DFW Hospital Council CEO Stephen Love for passing the video on to me.

Free Webinar: Pres. Biden's First 100 Days of Health Policy

This looks like a good webinar:

Boston University's Center for Health Law, Ethics & Human Rights faculty discuss the first 100 days of President Biden’s term:

• Executive Orders,
• proposed bills, and
• other steps to tackle COVID, climate, and economic crises affecting health.

What has happened? What comes next? 

Thursday, March 11, 2021
1:00 - 2:30 p.m. EST

SPEAKERS
George Annas
Nicole Huberfeld
Wendy Mariner
Michael Ulrich

JOIN ZOOM MEETING
https://bostonu.zoom.us/j/93372687004?pwd=NXpoNm5wZW1YOEljeENyeWY2V3dVUT09

Meeting ID: 933 7268 7004
Passcode: 331167

Biden Administration Reverses Trump's Position on ACA SCOTUS Litigation

No surprise here. Siding with Texas and other red-state AGs in their attempt to get the entire Affordable Care Act tossed was inconceivable. The paper of record has the details (02-10-2021). 

In a two-page letter from the Office of the Solicitor General makes two simple assertions, with which neither the trial court nor 5th Circuit agreed:

1. When in 2017 Congress reduced to zero the monetary penalty imposed by the ACA on individuals who failed to secure health insurance coverage (the individual mandate, or the "play or pay" provision), the mandate didn't become unconstitutional by implication. The lawful choice between buying insurance coverage and not buying insurance coverage remained.
   
   
2. Even if the the Court disagrees with ¶ 1 and strikes down the mandate, the mandate is severable from the rest of the ACA, meaning the other provisions of this massive statute are left in place.

 

Pres. Obama's Inside Story on the Rocky Road to Obamacare

Here's a story worth reading: how the U.S. got -- if not universal health care -- something close after a century of trying and failing. For fans of sausage-making, it's a fascinating glimpse inside the factory, excerpted in the 11/02/20 issue of The New Yorker. The general story is well-known, but it is worth remembering how close we came to not getting an Affordable Care Act at all. 

With "about six in ten of the public say[ing] they or someone in their household suffers from a pre-existing or chronic medical condition, such as asthma, diabetes, or high blood pressure," the most popular provision remains the prohibition against discrimination by health insurers based upon preëxisting conditions. (Kaiser, 12/18/20) And now that the wildly unpopular individual mandate has been rendered completely toothless by the tax reform legislation in 2017, the favorable-over-unfavorable gap in public opinion is 19%, the largest it's been since enactment. 

Top 10 Health Stories of 2020: Nearly All Are Healthlaw-Related

 From The Commonwealth Fund (more details are here):

1. "COVID-19 hits the United States." The greatest public health (and public health law) crisis in a century.
2. "Pandemic takes a devastating toll on health." Public health measures alone don't protect against the virus. Compliance matters. 
3. "Economic fallout." COVID-19 has put pressure on every level of government. Some performed brilliantly, a few failed miserably, and for the rest the report card was mixed. 
4. "FDA authorizes coronavirus vaccine and distribution begins." A stunningly successful public-private partnership produced unprecedented results, though Pfizer -- the first to get FDA approval -- turned down federal funding. 
5. "Dramatic leapfrogging in telehealth." Regulators at both the federal and state levels proved to be fairly nimble in providing authorization and reimbursement for greatly expanded telemedicine services. This is probably one of many developments that won't go away after the virus has been controlled. Telemedicine will be part of the "new normal."
6. "Racial injustice protests draw attention to health disparities." It's not as if there are plenty of federal and state laws on the books to deal with discrimination in health care, but health disparities remain. There's a lot more work to do on this front.
7. "The future of the Affordable Care Act is still unknown." It is, once again, in the hands of SCOTUS. Chief Justice Roberts was the architect (and principal author) of the Court's two previous encounters with potentially ACA-killing litigation. With a revised lineup of Justices, will he provide the saving grace in Texas v. U.S.?
8. "Medicaid expansion continues at a slow and steady pace." Three states voted to expand Medicaid eligibility pursuant to the ACA; twelve continue to impede the ACA's promise of expanded coverage at virtually no cost to the states. Texas -- with the largest number and percentage of uninsured citizens in the U.S. -- remains a notable holdout. Consider the billions of federal dollars Texas providers have been denied during the COVID-19 crisis, which has seen provider and after provider, especially in rural areas, close up shop
9. "Joe Biden is elected president." We will soon have a resident in the White House who isn't trying to hobble the ACA and cast doubt on the bona fides of public-health authorities at every turn. 
10. "Biden appoints new health care team." With a few exceptions, the Trump cabinet was filled with amateurs with either no experience or a predisposition to cut back on enforcement of federal programs or both. The new cabinet and sub-cabinet appointees look to reverse the trend. 

Early Indications Are Leaning Toward a Favorable SCOTUS Decision for the ACA

One thing I learned as a Constitutional Law prof many years ago is to not give full faith and credit to the comments and questions of Justices during oral argument. Sometimes they are simply testing out ideas that they plan to write against when the dust settles. All that said . . . 

Early reports from today's oral argument in the Supreme Court suggest that Justices Sotomayor, Kagan, and Breyer may be joined by Chief Justice Roberts and Justice Kavanaugh in upholding the ACA against the attack mounted by 20 GOP-led states. Policy wonks decry the possibility that 20 million people in this country could lose their health insurance if the ACA is struck down, and millions more will lose coverage if other underwriting reforms go down the tubes, including the prohibition against discriminating on the basis of pre-existing conditions, the ban on annual and lifetime caps, and the option for children to be covered by their parents' health insurance until they turn 26. The Supreme Court doesn't get to make health policy, but consequences as Draconian as these have to figure into their reading of the law, especially in a case in which congressional intent controls the issues. 

There are two issues in play. The first is whether the individual mandate can survive Congress's decision in the 2017 tax law to reduce the penalty tax for failing to secure health insurance all the way down to $0. Without a tax, the plaintiffs have argued, the constitutional basis for the mandate disappears. Maybe. I seem to remember from Income Tax I (Summer 1975) that Congress has from time to time elected not to collect a tax, and the Court has upheld the regulation attached to the tax nonetheless. Even if I recollect incorrectly, it should be at least a close question whether Congress intended to wipe out the individual mandate when they reduced the tax. It seems supremely silly to me 

If the Court answers the first question in the affirmative, the second question shouldn't be close at all: whether the end of the individual mandate means the entire ACA should be tossed out as well. The question is one of severability, and it shouldn't even pass the smile test, although the district court and the Fifth Circuit opined that the ACA could not be saved if the individual mandate were taken out. 

Stay tuned . . . 

Nicholas Kristof: On the Right Side of History

Kristof's column in today's N.Y. Times is well worth a read. He's probably right that the Court, with or without Amy Coney Barrett on it, is unlikely to snatch the ACA away from 20 million people who are insured because of the law. It's a life-line for millions:

Census data show that even before the Covid-19 pandemic the number of uninsured Americans had risen by 2.3 million under Trump — and another 2.9 million have lost insurance since the pandemic hit. Most troubling of all, about one million children have lost insurance under Trump over all, according to a new Georgetown study.

The argument against the ACA is so weak (despite persuading the trial judge and a majority of the 5th Circuit panel that have ruled against the ACA), "only a lawyer could make it with a straight face," wrote Ruth Marcus in the Washington Post earlier this week. (Been there, said that here, here, and here.)

Questions for Judge Amy Coney Barrett

Over at The Commonwealth Fund, health-law prof and ACA expert extraordinaire Tim Jost properly focuses not on whether CJ Roberts got it right when he upheld the individual mandate as a proper exercise of Congress's powers under the Taxing Clause of the Constitution (Judge Barrett has argued that he did not) or when he upheld access to ACA premium tax credits for individuals enrolled in insurance plans through the federal exchange (ditto). 

The issues presently before the Court in California v. Texas are (1) whether the individual mandate is unconstitutional now that Congress has zeroed out the tax penalty in the 2018 tax reform bill and, if so, (2) whether the individual mandate provision is severable from the rest of the ACA. The district court (N.D. Tx., Fort Worth Div.) and the Fifth Circuit both answered (1) yes and (2) no, meaning the whole ACA has to be thrown out. Texas v. California, which has been consolidated with California v. Texas, raises a third issue: Whether the individual and state plaintiffs in this case have established Article III standing to challenge the ACA's individual mandate. In the unlikely event that Judge Barrett isn't confirmed before the Court decides these cases, the standing issue could conceivably give a Court split 4-4 on the first two questions a way out. Lack of Article III standing requires dismissal of the case at the district court level, effectively nullifying the two lower-court decisions.

As Tim Jost writes, 

Though she could be asked about standing or the mandate’s constitutionality, questions for Judge Barrett should mainly focus on severability: How much, if any, of the ACA should be invalidated if the mandate is found unconstitutional? (It does not matter much if the unenforceable mandate is invalidated if the rest of the ACA remains in place.) Would she disturb the Court’s long-standing presumption of severability? Cases recently decided by the Court with majority opinions written by Chief Justice Roberts and Justice Kavanaugh reinforce the presumption that if a provision of a statute is found unconstitutional, as much of the rest of the statute as possible should be found severable and preserved. She should be asked if she agrees with this doctrine.

Severability goes to the heart of these two cases. It is nearly inconceivable that she would tip her hand on this issue during the hearings. Democrats will fume and threaten not to vote to confirm, but most of them weren't going to vote for her confirmation anyway, and Mitch McC has enough Republican votes lined up to confirm the judge without the Dems.

Repeal and Replace (Redux and Redux and . . . )

The Washington Post has done a good job of summarizing the litany of promises made and then-candidate and now President Trump to replace the Affordable Care Act with the new and better national health plan. By my count, he has claimed on at least four occasions that a comprehensive plan was imminent. The time frames vary ("in two weeks," "maybe this Friday," etc.) but the brazenness of each claim does not. It's pretty clear there is no such a plan, there never was such a plan, and -- with three months left before the election -- there won't be such a plan. 

Instead, the administration nibbles away at this and that provision of the ACA, often with pushback from the federal courts. One last attempt to do away with the ACA is now in front of the Supreme Court (California v. Texas, No. 19-840), and Trump's DOJ has filed a brief in that case that argues for doing away with the ACA lock, stock, and barrel. The brief attempts to defend the indefensible -- a Fifth Circuit opinion that declared that Congress's intent when it repealed the penalty for the individual mandate was to repeal the entire ACA, although that is precisely what Congress neither did nor said.

In Texas, More People Are Losing Their Health Insurance as COVID Cases Climb

From a story by Ashley Lopez of Public Radio station KUT in Austin (and picked up by Kaiser Health Network):

Texas’ uninsured rate has been climbing along with its unemployment rate as COVID cases also surge in the state. Before the pandemic, Texas already had the highest rate and largest number of people without insurance among all states. And 20% of all uninsured children in the U.S. live in Texas.

The uninsurance problem has only gotten worse in Texas in 2020. According to recent data from Families USA, a consumer health advocacy group that supported the Affordable Care Act, 29% of Texas adults under 65 don’t have health insurance so far this year.

The group found that about 659,000 people in the state became uninsured between February and May as job losses soared. Texas is one of 13 states that has not expanded Medicaid under the ACA.

Thirty-seven states and D.C. have expanded Medicaid eligibility in response to a generous federal match under the ACA -- and that doesn't include Missouri, where voters are voting on Tuesday on Medicaid expansion. Texas is one of the holdouts, for reason that defy logic. We'll see if it continues to defy politics in November. In recent decades we've been a resolutely red state in statewide and presidential elections. Is this the year the politicians who have turned their backs on the poor and disabled individuals in this state are held to account for their heedless, heartless actions?

Health Affairs Blog: ACA Litigation Roundup

Katie Keith has finished an extremely useful three-part review of recent PPACA-related litigation:

• Part I (July 20): "This post summarizes the recent Affordable Care Act-related Supreme Court decisions and the latest in California v. Texas. A second post will discuss the status of long-standing ACA-related lawsuits and highlight newer lawsuits over ACA implementation. A third post will focus on the resolution of lawsuits over unpaid risk corridors payments."
  
• Part II (July 21): "This post covers a decision from the Court of Appeals for the Second Circuit holding that New York is preempted from making changes to ACA-governed risk adjustment transfers and a decision from the Court of Appeals for the Ninth Circuit holding that the ACA prohibits discrimination in plan benefit design under Section 1557 of the ACA."
  
• Part III (July 22): "In April 2020, the Supreme Court ruled that insurers were entitled to more than $12.2 billion in unpaid risk corridors payments. This post summarizes the latest on risk corridors litigation in the wake of that ruling. Two prior posts focused on other recent ACA-related Supreme Court decisions and ACA lawsuits in the lower courts."