Texas Judge Rules Affordable Care Act Unconstitutional, But Supporters Vow To Appeal and On to the New Year!

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Now I am not a big fan of the Affordable Care Act, that is the way it was originally written but it was a step in the right direction if only the “idiots” in our Congress had considered the idea of financial sustainability and forcing our young struggling healthy people to sign on and pay for everyone else. So, then the Republicans decided to remove the Individual Mandate, a good first step to modifying and improving choice and the future of the ACA.

So, now another fly in the ointment as Julie Rovner points out as now a federal district court judge in Texas has threatened the future of the Affordable Care Act.

Judge Reed C. O’Connor struck down the law, siding with a group of 18 Republican state attorneys general and two GOP governors who brought the case. O’Connor said the tax bill passed by Congress in December 2017 effectively rendered the entire health law unconstitutional.

So, What’s At Stake In The Latest Affordable Care Act Court Battle

That tax measure eliminated the penalty for not having insurance. An earlier Supreme Court decision upheld the ACA based on the view that the penalty was a tax and thus the law was valid because it relied on appropriate power allowed Congress under the Constitution. O’Connor’s decision said that without that penalty, the law no longer met that Constitutional test.

“In some ways, the question before the Court involves the intent of both the 2010 and 2017 Congresses,” O’Connor wrote in his 55-page decision. “The former enacted the ACA. The latter sawed off the last leg it stood on.”

The decision came just hours before the end of open enrollment for ACA plans in most states that use the federal HealthCare.gov insurance exchange. It is not expected that the ruling will affect the coverage for those people. The final decision isn’t likely to be made until the case reaches the Supreme Court again.

The 16 Democratic state attorneys general who intervened in the case to defend the health law immediately vowed to appeal.

“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court,” said a statement from Xavier Becerra of California. “Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and wellbeing of all Americans.”

It is all but certain the case will become the third time the Supreme Court decides a constitutional question related to the ACA. In addition to upholding the law in 2012, the court rejected another challenge to the law in 2015.

It is hard to overstate what would happen to the nation’s health care system if the decision is ultimately upheld. The Affordable Care Act touched almost every aspect of health care, including Medicare and Medicaid, generic biologic drugs, the Indian Health Service, and public health changes like calorie counts on menus.

The case, Texas v United States, was filed in February. The plaintiffs argued that because the Supreme Court upheld the ACA in 2012 as a constitutional use of its taxing power, the elimination of the tax makes the rest of the law unconstitutional.

In June, the Justice Department announced it would not fully defend the law in court. While the Trump administration said it did not agree with the plaintiffs that the tax law meant the entire ACA was unconstitutional, it said that the provisions of the law guaranteeing that people with preexisting health conditions could purchase coverage at the same price as everyone else were so inextricably linked to the tax penalty that they should be struck.

The administration urged the court to declare those provisions invalid beginning Jan. 1, 2019. That is the day the tax penalty for not having insurance disappears.

The protections for people with preexisting conditions were one of the top health issues in the midterm elections earlier in November. While the issue mostly played to the advantage of Democrats, one of the Republican plaintiffs, Missouri Attorney General Josh Hawley, defeated Democratic incumbent Sen. Claire McCaskill. Another plaintiff, West Virginia Attorney General Patrick Morrisey, lost to Democratic incumbent Sen. Joe Manchin.

President Donald Trump was quick to take a victory lap, and pressed Senate Majority Leader Mitch McConnell, R-Ky., and the presumed incoming House Speaker Nancy Pelosi, D-Calif., to fix the problem. The president tweeted Friday night: “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!”

But congressional leaders were quick to point out that the suit is far from over. Of course it is as the Democratic dominated House takes on the subject of healthcare.

“The ruling seems to be based on faulty legal reasoning and hopefully it will be overturned,” said a statement from Senate Minority Leader Chuck Schumer, D-N.Y.

Many legal experts agreed with that assessment. “This is insanity in print, and it will not stand up on appeal,” tweeted University of Michigan Law School Professor Nicholas Bagley, an expert in health law.

Even some conservatives were left scratching their heads. “Congress acted last year to repeal the mandate, but leave everything else in place and the courts should have deferred to that,” tweeted former congressional GOP aide Chris Jacobs.

Obama pushes for ObamaCare enrollments after Texas judge deems law unconstitutional

Barack Obama took to social media Saturday to urge people to sign up for health care on the final day of Affordable Care Act enrollment. His appeal came a day after a Texas judge struck down the former president’s signature legislation as unconstitutional.

Aside from reminding people that Saturday would be the final day to enroll for affordable health care for 2019, Obama appeared to play down the significance of the ruling.

“You might have heard about a federal court decision on a Republican lawsuit trying to strike down the Affordable Care Act in its entirety,” he said in Facebook post. “As this decision makes its way through the courts, which will take months, if not years, the law remains in place and will likely stay that way.”

The ruling, he said, “changes nothing for now.”

Saturday was the last day of open enrollment. U.S. District Judge Reed O’Connor dealt a blow to Obama’s 2012 health care initiative on Friday after 20 states, including Texas, argued that they had been hurt by a jump in the numbers of people utilizing state-backed insurance.

“The remainder of the ACA is non-severable from the individual mandate, meaning that the Act must be invalidated in whole,” O’Connor, whose District Court is based in Texas, wrote in a 55-page opinion, according to Bloomberg.

But Past President Obama still encourages people to sign up for the ACA.

“OBAMACARE RULED UNCONSTITUTIONAL BY TEXAS JUDGE.”

President Trump immediately tweeted following the ruling, urging Congress to pass a “strong” health care bill that would cover pre-existing conditions — a component that Democrats have long criticized Republicans for ignoring.

“A lot of good people are fighting to ensure that nothing about your care will change. The ACA protects your pre-existing conditions, no matter how you get your insurance,” Obama said Saturday.

“But all of this should also be a reminder that Republicans will never stop trying to undo all that. If they can’t get it done in Congress, they’ll keep trying in the courts, even when it puts people’s pre-existing conditions coverage at risk.”

California and other several other stated with opposing views on ObamaCare are likely to challenge the new ruling through an appeal to the United States Court of Appeals for the Fifth Circuit.

Health Costs Bear Down On Families Who Don’t Qualify For ACA Subsidies

Steve Findlay pointed out that like millions of Americans in this final week of open enrollment for the Affordable Care Act marketplaces, Diane McCabe is shopping for health insurance.

“At my age, I can’t go without it, even though I’m healthy now,” says McCabe. She’s 62 and a self-employed real estate agent in Luzerne County, Pa. “But the process is frustrating, and the expense significant.”

That’s because McCabe is one of the 5 million people who buy their own coverage (either on or off the ACA marketplace) and pay the full cost. Her income is too high to qualify for a government subsidy that would help defray the cost of the premium.

McCabe this week settled on a $773-a-month policy that has a $4,000 deductible — the amount she’ll have to pay out of pocket before insurance kicks in. She estimates that will account for at least 15 percent of her income in 2019.

Under the ACA, people who earn up to 400 percent of the poverty level (about $48,500 for an individual and $100,400 for a family of four in 2019) are eligible for premium subsidies. Eighty-seven percent of the 10.6 million people with ACA plans this year received a subsidy.

The financial challenge for people like McCabe has come into much sharper focus during the past year, as insurance premiums have spiked.

These increasing costs plus rising deductibles and copayments have driven millions who don’t get a subsidy to drop their coverage or turn to cheaper, less comprehensive — and sometimes inadequate — insurance.

The Trump administration has highlighted the plight of the unsubsidized and said that its regulatory revamp of the health law will give consumers new, more affordable options.

Buyer Beware: New Cheaper Insurance Policies May Have Big Coverage Gaps

One of the key administration efforts is extending the use of short-term insurance plans that have lower premiums but don’t provide the full benefits that the ACA requires, such as continuous coverage of preexisting conditions or maternity care.

Those plans are not eligible for subsidies now, but, under regulations the administration proposed in October, subsidies could be available starting in 2020.

Critics counter that the administration’s approach runs a high risk of undermining core features of the ACA. And a legal battle over the administration’s proposed new rules is likely.

“The subsidy structure is unquestionably a problem,” says Chris Sloan, a director at Avalere Health, a policy and research think tank in Washington, D.C. “It’s a cruel reality for those above the income cutoffs. But it’s not clear that the administration’s actions are the best solution.”

Opponents of the Trump administration’s proposals contend they could lead young, healthy people to abandon ACA coverage and choose less comprehensive and expensive coverage — leaving more people who are older and sicker in the exchanges. That would result in steadily increasing costs for those plans, and could eventually destabilize the ACA marketplaces, policy analysts say.

Overall, about 4.4 million fewer people who buy coverage on their own were insured in 2018 compared to 2015, a decline from 18.8 to 14.4 million. Most of the decline occurred among people who don’t get subsidies.

On and off insurance

Cameron and Lori Llewellyn, of Dover, Del., say they have found insurance just too expensive.

In June 2017, Lori left a job that provided the family with good health coverage. She wanted to start her own business — a clothing boutique. Cameron is a self-employed construction contractor.

The Llewellyns tried to enroll in a plan through the ACA exchange in the summer of 2017. But Cameron’s income was too high to qualify for a subsidy. On the open market, they were quoted rates as high as $2,000 a month, with deductibles of $4,000 or more, for themselves and their 8-year-old daughter, Bryce.

They opted instead to go without coverage until the end of 2017. Then again, for this year, they ended up not qualifying for subsidies and decided to go without insurance.

“We just couldn’t justify the expense, especially with that high of a deductible,” Lori said. “But it wasn’t a comfortable situation. We wanted coverage for all the reasons people know they need it.”

For 2019, the Llewellyns are trying again. They have enrolled through the state ACA exchange in a policy with a premium of $1,286 and a $7,900 deductible, but with a subsidy that will cover the entire premium.

Spencer Ricks, 36, a self-employed attorney in Salt Lake City, is choosing a different path. He, his wife and their 3-year-old daughter bought ACA-compliant coverage in 2016. Their premium rose from around $600 in 2016 to $970 in 2017 with a $10,000 deductible.

Ricks was told his premium for 2018 for the same plan would be $1,200 with a $13,500 deductible. He pulled the plug on the family coverage and instead enrolled his wife — who was pregnant — in a plan costing $570 a month with a $5,000 deductible.

Health Insurers Are Still Skimping On Mental Health Coverage

Ricks and his daughter then joined a Christian Healthcare Ministry plan costing $157 a month, with a $10,000 deductible. For 2019, Ricks is enrolling the whole family is another religious-affiliated plan that’s skimpier in coverage than those sold on the ACA exchange; it costs $529 a month and has a $2,250 deductible.

The Religious Alternative To Obamacare’s Individual Mandate

But for 2019, the most prevalent alternative to an ACA plan for people who don’t get subsidies is likely to be a short-term plan.

Previously available for only 90 days — primarily to bridge gaps in coverage — the Trump administration expanded that time frame to 364 days.

The plans can be bought at any time, but sales are up now because more people are shopping during the ACA’s open enrollment, says Sean Malia, a senior director at eHealth, an online brokerage.

Melanie and Pete Howell, of Austin, Texas, are among eHealth’s newest customers. They had an ACA plan this year costing $1,100 a month with a $7,000 deductible. It covered the couple and their two children, ages 22 and 17.

The Howells’ income is too high to qualify for a subsidy. When their insurer notified them that the premium was going to be $1,400 a month in 2019, they opted for a short-term plan that will cost $380 a month with a deductible of $12,500.

The plan does not cover prescription drugs, and the Howells will pay 30 percent of the costs for doctor, emergency room visits and any surgical procedures.

“This buys us some time at a much more affordable price to figure out what to do for the longer term,” said Melanie Howell.

No easy solutions

Although both ACA critics and advocates say that addressing the high cost of coverage for non-subsidized families should be a priority, there are no easy bipartisan fixes in sight.

Many ACA supporters urge legislation that raises the threshold for subsides above 400 percent of poverty — to, say, 600 percent. But that stokes concerns of added federal spending.

Medicaid Expansion Takes A Bite Out Of Medical Debt

A more realistic approach, for now, could be to permit states to experiment with ways to help those over the 400 percent threshold, says Sabrina Corlette, a research professor at the Georgetown University’s Health Policy Institute.

For example, with federal government permission, eight states have already launched, or will in 2019, “reinsurance” programs that redeploy federal dollars to help insurers cover the costs of families with high medical expenses. The programs have kept premium costs down for both people who get subsidies and those who don’t.

Another proposal would permit states more leeway to restructure the ACA subsidies to provide less help to people with high-cost health care needs and more help to those not currently eligible for subsidies.

“Letting states try things out has bipartisan support,” says Corlette, “and there are mechanisms for that already in place. It would seem to have the best chance of yielding something useful to help this population [the unsubsidized] for now.”

ACA Sign-Ups Have Lagged For 2019. But What Does That Mean?

Alison Kodjak reported that Former President Barack Obama released a video earlier this week urging people to hurry up and shop for health insurance on the Affordable Care Act exchange.

“This year I’m giving it to you straight,” Obama says in the video. “It’s important to have health insurance in case, God forbid, you get really sick, or hurt yourself next year.”

As I have already stated the open enrollment ended in most states on yesterday and Obama made the case that people can find a good deal on coverage if they shop around.

“Most folks can find coverage for $50 to $100 per month. That’s probably less than your cell phone bill,” he says.

After the video was released, there was a bump in sign-ups. But overall this year, enrollment in the individual market is moving more slowly than in previous years.

At the end of last week, just over 4.1 million people had chosen a health plan on Healthcare.gov, according to the Centers for Medicare and Medicaid Services, which runs the website. That’s about half a million fewer than at this time last year, an analysis by the advocacy group Protect Our Care shows.

“I hate to panic but I do think we’re going to come in low on the federal exchange, says Rosemarie Day, CEO of Day Health Strategies. Day was the founding COO of Massachusetts’ state exchange, which launched in 2006, long before the Affordable Care Act became law.

She blames the lower enrollment on the Trump Administration’s decision to slash the advertising budget for open enrollment. Outreach, she says, is crucial to making sure that people who need insurance know where and when to get it.

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