Attacks on the ACA

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Texas v. US

On Dec. 14, 2018, a federal district judge in Texas issued a decision declaring the “individual mandate” of the Affordable Care Act (ACA) –  the individual coverage requirement – unconstitutional due to the Republican tax cut bill that zeroed out the penalties.  Even more drastically, the court declared the entire ACA unconstitutional rather than just the provisions it had found unconstitutional.  Among other things, this would end the ACA’s protections for people with pre-existing conditions, including disabilities.

The case has been appealed to the Fifth Circuit Court of Appeals. On March 25, 2019, a coalition of more than 20 states, led by California, filed a brief arguing in favor of the constitutionality of the ACA.  On April 1, a number of disability organizations, including CPR, filed a brief with the Court describing the importance of the ACA to people with disabilities and asking the court to find the ACA constitutional.

On May 1, 2019,  the Department of Justice (DOJ) filed a brief on behalf of the Trump Administration.  DOJ for the first time argued that the entire ACA should be struck down, including the protections for people with pre-existing conditions.  In the district court, DOJ had argued that the individual mandate to have health insurance coverage was unconstitutional but that the court should “sever” that section of the ACA and uphold the rest of the law.  This article provides a good description of DOJ’s brief and what it means.   

Oral argument is scheduled in this case for July.  This case will likely be decided late this summer, and then head to the Supreme Court this fall.  The district court has issued a “stay” on its decision to strike down the ACA during the lawsuit. That means that the ACA remains in effect while the case is litigated through the court system.

Texas v. United States: Defending Discrimination

The Texas v. US decision is part of the broader effort to weaken and get rid of the ACA. The lawsuit was brought by a group of states challenging the Constitutionality of the individual mandate.  DOJ not only refused to defend critical parts of the ACA, but also actively requested that the court invalidate the ACA requirements that guarantee coverage for everyone and stop insurers from charging people with disabilities higher costs.   In Congress, a number of House committee chairs have sent letters asking for documents and other information about the change in the Administration’s position in the case.

No injunction has been issued and the decision hasn’t changed anything yet.  The ACA is intact, the insurance Marketplaces remain in place.  As the Department of Health and Human Services (HHS) has stated, “HHS will continue administering and enforcing all aspects of the ACA as it had before the court issued its decision. This decision does not require that HHS make any changes to any of the ACA programs it administers or its enforcement of any portion of the ACA at this time.”

The reasoning of the decision doesn’t follow traditional legal interpretations.  The case is winding its way through the legal system, and will be appealed, likely in the new year.   A coalition of states and DC have also intervened in the case to defend the ACA.  

Other courts may also rule on the issue, and we expect the matter will ultimately go to the Supreme Court, though this process will take some time.  Again, as of now, there’s no impact to current coverage or coverage in a 2019 plan.

If “guaranteed coverage,” protections for people with pre-existing conditions, or the ACA as a whole are ultimately eliminated, millions of Americans may lose their health insurance or no longer be able to afford it.  Where coverage is available, people with disabilities may be required to pay more for their coverage.  So long as these issues are up in the air, it creates confusion and anxiety for the public, and insurers have a strong incentive to raise costs to protect themselves from the uncertainty of the effects of these efforts on the marketplace.

Resources

On March 2019 DOJ Filing

Trump Administration Asks Court To Strike Down Entire ACA , Health Affairs (3/26/19)

Briefs Filed in Texas v. US

Opening Brief from Coalition of Attorneys General Defending the ACA

General Background on the Case

Texas v. United States Oral Arguments In July, Health Affairs (4/12/19)

Statement from the Department of Health and Human Services on Texas v. Azar (12/17/18)

Potential Impact of Texas v. U.S. Decision on Key Provisions of the Affordable Care Act, Kaiser Family Foundation (3/26/19)

Justice in Aging Statement on Affordable Care Act Decision in Texas (12/21/18)

National Health Law Program Says Texas Judge’s Decision on Affordable Care Act is ‘Fatally Flawed’ (12/17/18)

Federal Judge Strikes Down Entire ACA; Law Remains In Effect, Health Affairs (12/15/18)

A Federal Judge has Ruled the Affordable Care Act Unconstitutional. So Now What Happens?, USA Today (12/17/18)

The Trump Administration Joins a Lawsuit to Shred Obamacare, The Economist (6/8/18)

Overview of  Attack on the Affordable Care Act (ACA)

On January 20, 2017, the same day that he was inaugurated, President Trump issued an Executive Order stating that his Administration would try to repeal the ACA as quickly as possible.

Although Congress was not able to repeal and replace the ACA through the formal law-making process, the President and various agencies in the Executive Branch have taken significant steps to change and undermine different sections of the ACA. All of these attacks have the same effect: they make it more expensive and harder for people with disabilities and other pre-existing conditions to get health care.

What are Pre-Existing Conditions?

The ACA made it illegal for health insurers to discriminate against people based on pre-existing conditions, which includes any health issues that you have before you get that insurance. Before the ACA, an insurance company could deny people or charge them more for coverage if they had any medical condition or disability. As a result, people with disabilities had fewer options for health insurance, and they had to pay more money than people without disabilities for the same services. Under the ACA, health insurers must treat people equally. They are not allowed to deny coverage, impose higher costs, or limit access to services for people with pre-existing conditions. And yet, the current Administration is trying many different ways to bring back this form of discrimination against people with disabilities.

Sham Plans: Devastating the Individual Marketplace

There are certain types of plans that do not need to obey the law under the ACA. The Trump Administration is trying to make it easier for younger and healthier people to get these plans because they are “cheaper.” The Administration is now changing the requirements for states to offer:

These skimpier plans appear to cost less than traditional insurance plans because they are not what most people would consider to be insurance plans (see FamiliesUSA’s fact sheet on these “sham” plans). Here’s why we’re concerned:

  • The plans do not need to cover all of the benefits that people need
    • They can take away entire categories of services like mental health care or rehabilitative care
    • They can charge more for certain services if they choose not to remove them from the plans
    • The plans can set arbitrary limits for how many times you can receive a service over the year or over your lifetime, and then you can lose your insurance when you hit that amount
  • These plans can require people with pre-existing conditions or people with disabilities to pay more each month for coverage than “healthier” people
  • People who do not have pre-existing conditions are more likely to buy these limited plans because they appear to cost less. However, these price tags are misleading for these people as well, because the out-of-pocket costs are much higher and unlimited.

Shutting Down Subsidies

The ACA provides multiple forms of financial assistance for low-income people to be able to access healthcare. First, the ACA expanded the Medicaid program so that it could cover all people below a certain income level. However, one of the earliest attacks to the ACA allowed states to choose whether or not to follow this law, so millions of people in states that did not expand Medicaid cannot access affordable health care.

For people whose income is higher than the level that would allow them to receive Medicaid but still low enough that insurance would otherwise be too expensive, there are two types of financial assistance that the government provides. One of these subsidies is the Advance Premium Tax Credits (APTC), which help people cover the costs of the monthly payment to their private insurance companies. The other is the Cost-Sharing Reduction (CSR), which helps people pay for the additional costs of their medical care that their insurance does not cover.

In October of 2017, the Trump Administration announced that it would stop paying for CSRs. The ACA still requires insurance companies to reduce these out-of-pocket costs for the people who get their coverage, but the federal government will no longer help insurance companies pay for these subsidies. As a result, many insurers increased costs for their plans to make up for the difference. These higher costs made insurance unaffordable for many people whose income is not low enough to receive assistance, but not high enough to pay such steep monthly costs.

Protecting the ACA and Pre-Existing Condition Coverage in the 116th Congress

A number of bills have been introduced in this Congress to protect the ACA, including the consumer protection provisions.  Examples include:

  • H.R. 986, the Protecting Americans with Preexisting Conditions Act of 2019, that would require the Administration to rescind the Section 1332 guidance that allowed states to waive certain requirements of the law, weakening standards for affordability,
    comprehensiveness and even what qualifies as “coverage;” 
  • H.R. 987, the Marketing and Outreach Restoration to Empower Health Education Act of 2019 or  MORE Health Education Act, to restore outreach and enrollment funding to assist consumers in signing up for health care, which has been dramatically reduced;
  • H.R. 1010, reversing the recent expansion of Short-Term, Limited Duration Insurance (junk insurance plans);
  • H.R.  1143, the “Educating Consumers on the Risks of Short-Term Plans Act of 2019,” requiring short-term, limited duration insurance to disclose the risks to prospective consumers, including disclosure that it may not cover preexisting conditions, may not cover the costs of medical services, and that coverage may be cancelled if the individual seeks treatment for a pre-existing condition. 

The President's Budget for FY 2020

On March 11, 2019, the Trump Administration released a budget that if passed by Congress, would damage important programs and hurt people with disabilities and their families. The proposal includes big cuts to Medicaid, similar to the 2017 proposals to repeal the Affordable Care Act (ACA) and cut and cap Medicaid that we successfully fought. This budget request includes replacing both the Medicaid expansion and ACA subsidies with a block grant, and converting the rest of Medicaid into a per capita cap, which would result in huge cuts to the program. If enacted, states would receive less federal funding for Medicaid, leading to restricted eligibility, cuts to services, and growing waiting lists.  The proposal also includes extends the use of work requirements across the country.  It also cuts Medicare and Supplemental Security Income (SSI), among many other reductions to important programs.  The Presidential budget is a request to Congress and a proposal for consideration. It’s only a step in the complicated process of funding the federal government, but this budget would increase poverty along with the number of people without insurance while it shrinks funding for crucial services, all punishing national policies for people with disabilities and our families. The FY 2020 budget proposal signifies the President’s intent to slash programs that assist people with disabilities and to cut them off from critical community supports.

Trump’s 2020 Budget: Revisiting “Repeal and Replace” and Adding New Cuts to Medicare and Medicaid,  Families USA (3/12/19)

Trump Budget Would Take Medicaid Away From People, Nationwide, Who Don’t Meet Work Requirements, CBPP (3/12/19)

Trump Proposes Cuts to Medicaid, Other Disability Programs, Disability Scoop (3/12/10)

First Look at President’s Budget, Association of University Centers on Disabilities (AUCD) (3/12/19)

Repeal and Replace: Before 2019

Immediately after the Trump administration took office, Republicans in Congress began trying to end the Affordable Care Act. Throughout 2017, there were multiple proposals to cancel out the ACA’s provisions that provide basic protections for consumers, such as those that expanded Medicaid to all low-income adults and those that require insurers to allow people with pre-existing conditions to access affordable coverage.

Those proposals mostly failed in Congress before they could become laws, with the exception of the repeal of the individual mandate through the tax reform.  In November of 2017, Congress made dramatic changes to our current tax system. One critical change was the elimination of the tax for people who do not buy insurance. The ACA still requires people to have health insurance, but there is no penalty for not obeying the law. While the Trump Administration claims that this change will save people money, the majority of these “savings” would come from the 7 million people who would lose access to Medicaid over the next ten years. At the same time, this change encourages teh development of skimpier health plans.  

But they still keep trying. For example, on June 19, 2018, the Republicans in the House of Representatives released a  budget plan that would have the same devastating effects as the ACA repeal efforts before:

  • The plan would end Medicaid expansion, taking away insurance from millions of low-income adults and preventing states who did not already expand Medicaid to this population from ever doing so
  • It would also take away funding for the subsidies to low-income families who rely on the individual marketplace in their states to buy insurance
  • And it would allow insurers to go back to discriminating against people with pre-existing conditions, charging them more or denying them coverage

What’s the Effect? Higher Costs for Everyone

When people with fewer health care needs stop buying full coverage, insurance companies need to raise the price of coverage for the people who know they need to access health care services throughout the year. People with pre-existing conditions and people with disabilities end up facing the same problems as before the ACA, where they have fewer choices and more expensive health care. People who buy these limited plans are not much better off, since they have to pay much more for health care services as issues come up that they cannot predict. When they develop chronic conditions, their insurance does not cover the care they need, and they need to pay for these services on their own.

This disconnected, discriminatory, and misleading system hurts everyone, but it is immediately threatening for people with disabilities. Learn about how you can act now to stop these efforts to take health care away from those who need it!

Resources

ACA Repeal Bills Would Do Much the Same Damage as Judge’s Decision to Strike Down the Law, CBPP (12/17/18)

Sabotage Watch: Tracking Efforts to Undermine the ACA, CBPP (2018)

Five Ways the Trump Administration and Republican Leaders Have Sabotaged Health Insurance Enrollment, FamiliesUSA (Dec. 2018)

Health Care Threat Tracker, FamiliesUSA (2017)

Pre-existing Conditions and Medical Underwriting in the Individual Insurance Market Prior to the ACA, Kaiser Family Foundation (12/12/16)

Response to the Federal Government, Consortium for Citizens with Disabilities (7/12/17)

The Trump Administration’s Hidden Attacks on the Affordable Care Act, The Washington Post (1/5/18)

Proposals for Insurance Options that Don’t Comply with ACA Rules: Trade-Offs in Cost and Regulation, Kaiser Family Foundation (4/18/18)

Short-Term Plans Do Not Cover Life-Saving Mental Health and Substance Use Treatment, Families USA (6/19/18)

Unpacking the Final 2019 Payment Notice, Part IPart II, and Part III, Health Affairs (4/10/18)

Protecting Medicaid and the ACA, Consortium for Citizens with Disabilities

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