TexasFoldEm

As my regular readers know, I've been a strong proponent of encouraging states to pass laws locking in as many ACA "blue leg" protections as possible in the event that the ACA itself is actually struck down by the idiotic #TexasFoldEm lawsuit (again: the ruling by the 5th Circuit Court of Appeals is due to drop at any time).

However, I've also tried to make it clear that there would be a trade-off involved: If you're going to lock in all of those "Blue Leg" protections (Guaranteed Issue, Community Rating, Essential Health Benefits, No Annual/Lifetime Caps, etc), that will mean that the premiums/deductibles will be higher than they are without those protections.

This is precisely why so-called "short-term, limited duration" policies (aka #ShortAssPlans) and other non-ACA compliant policies cost so much less at the front end...they cherry pick their enrollees and don't cover the more expensive treatments many people require.

Personally, I still think states should lock in those protections anyway, since there's only two ways this can play out:

I haven't written about it in a few weeks, but the ruling from the 5th Circuit Court of Appeals could (and likely will) be released any day now, so it's a good thing that Abby Goodnough wrote this piece for the New York Times today:

How Pending Decision on Obamacare Could Upend 2020 Campaign

A federal appeals court’s ruling on the Affordable Care Act could be a huge headache for the president and take Democrats’ focus off Medicare for all.

A federal appeals court in New Orleans is preparing a ruling on the Affordable Care Act that could put the law’s future front and center in the presidential race, overwhelming the current Democratic debate over Medicare for all and reigniting the health care-driven worries that helped Democrats win back the House last year.

 

Long-time readers may remember that back in June 2018, the Trump Administration's Justice Dept. threw all precedence, decency and logic out the window by not only refusing to defend against the idiotic "Texas vs. Azar" lawsuit (aka #TexasFoldEm) brought by 20 Republican state Attorneys General...but went even further by actually agreeing with the plaintiffs that the Patient Protection & Affordable Care Act--which is, remember, the federal law of the land which the DoJ is supposed to defend--is unconstitutional.

At the time, there was one strange thing which was buried within the ugly implications of such a complete abdictation of duty by then-U.S. Attorney General Jeff Sessions: While the Trump DoJ did side with the plaintiffs on the case, they split from the plaintiffs as to what they thought the actual "solution" to the "problem" should be.

Regular readers may have noticed that this is my first blog entry in several days, which is unusual for me. I admit I've been mesmerized by the dramatic Trump/Ukraine/Impeachment saga which has exploded over the past few days.

I'm back in gear today, however, and I'm starting things off with my latest freelance piece over at healthinsurance.org. It's basically a summary explainer of where things stand re. 2020 ACA individual market premiums. As anyone who follows this site knows, the answer this year is basically...FLAT, at least nationally.

The irony of this, of course, is that the 800 pound gorilla in the room is the pending #TexasFoldEm lawsuit decision by the 5th U.S. Court of Appeals, which could potentially tear down the entire Affordable Care Act...and their decision in the case is expected to be released any time over the next five weeks...just ahead of the 2020 Open Enrollment Period.

I spent the past few weeks up to my ears in Medical Loss Ratio analyses, so a lot of ACA/healthcare developments slipped by or got backlogged. There were stories which are technically separate but which are pretty obviously joined at the hip...and the fact that they both came out right on top of each other is pretty telling.

First, this story by Paige Cunningham at the Washington Post:

The Health 202: White House may have given up on health plan it says it is writing

A former White House staffer and several congressional aides and activists say they’ve been told the Trump administration has moved away from seeking an Obamacare replacement and is instead focused on damage control should a judge rule next month to topple the entire law.

Last week, a blog post over at the Georgetown Center on Health Insurance Reforms called my attention to a seemingly bizarre change of stance by the Trump Justice Department as to what the final ruling should be in the idiotic #TexasFoldEm anti-ACA lawsuit being brought by 20 (now 18) Republican state attorneys general:

Now, DOJ is changing its position again. In supplemental briefings to the Fifth Circuit Court of Appeals, DOJ states that any invalidation of the ACA should “not extend beyond the plaintiff states….” As a remedy, DOJ argues that the court should invalidate the ACA only in the states that brought suit. In effect, if the court were to follow DOJ’s scheme it would mean striking down the ACA in the eighteen plaintiff states, but allowing it to remain intact in the thirty-two other states.

Last summer, there was a hell of a bombshell dropped on the judicial system when the U.S. Dept. of Justice, under then-Attorney General Jeff Sessions, announced that instead of defending the Affordable Care Act against the Texas vs. U.S. lawsuit (which is their job, after all), they were effectively throwing the case by not only refusing to defend the law in court, but actively agreeing with the plaintiffs that the absurd premise of their lawsuit was correct:

In March 2019, Linda J. Blumberg, Matthew Buettgens, John Holahan and Clare Wang Pan of the Urban Institute ran a detailed analysis to determine what the impact on healthcare coverage would be in every state if the Texas vs. U.S. lawsuit (aka Texas vs. Azar or #TexasFoldEm) caused the Patient Protection & Affordable Care Act (ACA) to be repealed with immediate effect.

They also attempted to calculate how much federal funding every state would lose each year if the ACA were to be repealed. Nationally, they concluded that the U.S uninsured rate would increase by nearly 20 million people, while the 50 states (+DC) would collectively lose out on nearly $135 billion in federal funding.

A few months back I posted a request for folks to vote for a healthcare panel I was hoping to be included at this summer's Netroots Nation conference in Philadelphia.

I'm happy to report that our panel did indeed make the final cut, and will be happening this Friday, July 12th:

FIX THE DAMN HEALTHCARE: SORTING OUT ACA 2.0, MFA, MED4AM AND MORE!

  • Friday, Jul. 12 4:30 PM, Room: 118C

The healthcare landscape is confusing and exciting in 2019. Reining in Big Pharma, strengthening the ACA, adding public options, “Medicare for America” or “Medicare for All”… the alphabet soup of plans can be confusing. Can improvements be implemented before 2021 at the federal level or is it all up to the states? And what about the latest lawsuit looming over everything? We’ll go beyond the slogans and into the details: How are the proposals similar and different, and what do patients, caregivers and other invested parties think.

via University of Michigan Law Professor and all-around mensch Nicholas Bagley (this is all via Twitter...I've reformatted to clean it up a bit):

The Justice Department has filed its supplemental brief with the Fifth Circuit. In it, the Department clarifies that a case or controversy still exists because, "critically," the government "continues to enforce the ACA."

The Justice Department nonetheless thinks that neither the House of Representatives nor the blue states have standing. And if the Fifth Circuit dismisses the appeal, the Department says that O'Connor's opinion should *not* be vacated.

Significantly, the Justice Department now says that it will continue to enforce the ACA "pending a final judicial determination of the constitutionality of the individual mandate as well as the severability of the ACA's other provisions."

Huh. This is an interesting development...

Republican attorneys general suing to strike down the Affordable Care Act asked the 5th U.S. Circuit Court of Appeals to delay oral arguments in the case, which are set to take place on July 9.

The Republican states said they need more time to file a supplemental brief on whether the U.S. House of Representatives and the Democratic states that are defending the landmark healthcare law have standing to intervene in the case and if not, what that means for the appeal. The Republican attorneys general asked to extend the July 3 deadline to file the brief by 20 days and reschedule oral arguments for after that date.

...The Democratic states and the House urged the court to deny the request, arguing that moving ahead with the case would reduce uncertainty in the healthcare sector.

...except that the court has already responded with a big, fat bucket of Nope:

Here's the transcript of the entire healthcare segment of Night One of the Democratic Candidate Presidential Debate:

HOLT: Senator Warren, you signed on to Bernie Sanders’ Medicare-for-all plan. It would put essentially everybody on Medicare and then eliminate private plans that offer similar coverage. Is that the plan or path that you would pursue as president?

WARREN: So, yes. I'm with Bernie on Medicare for all. And let me tell you why.

I spent a big chunk of my life studying why families go broke. And one of the number-one reasons is the cost of health care, medical bills. And that's not just for people who don't have insurance. It's for people who have insurance.

Jibbers Crabst on a stick. Any time University of Michigan Law Professor Nicholas Bagley begins his Twitter threads with a screenshot of legalese, it's bad news.

First, here's his full thread:

The panel in the Fifth Circuit that's about to hear Texas v. United States has just asked for further briefing on standing -- and in particular on whether the intervenor states and the House of Representatives can properly appeal the case.

— Nicholas Bagley (@nicholas_bagley) June 26, 2019

I'm neither an attorney nor a Constitutional expert, so this may not have any legal significance beyond confirming what everyone already knew about the Trump Administration. Then again, perhaps it will.

Just a little over two weeks from now, the United States Court of Appeals for the Fifth Circuit will be hearing oral arguments in the Texas vs. Azar case, otherwise known as #TexasFoldEm. As a reminder:

If the entire ACA were to be repealed:

  • 16 million people would lose Medicaid
  • 9 million people would lose subsidized private ACA exchange coverage
  • 850,000 would lose BHP coverage in Minnesota & New York
  • Medicare Part D donut hole? Reopened.
  • Children being allowed to stay on their parents plans until age 26? Gone.
  • Discrimination against those with preexisting conditions? Back.
  • Annual & lifetime limits on coverage? Back.
  • Caps on out of pocket expenses? Gone.

...and much, much more.

This Just In via mailing list...

The Fifth Circuit just officially calendared the argument for the afternoon of July 9th. Here’s the docket entry:

CASE CALENDARED for oral argument on Tuesday, 07/09/2019 in New Orleans in the West Courtroom -- PM session. In accordance with our policy, lead counsel only will receive via email at a later date a copy of the court's docket and an acknowledgment form. All other counsel of record should monitor the court's website for the posting of the oral argument calendars.. [19-10011] (SME) [Entered: 05/23/2019 11:08 AM]

While I have you, I’m attaching the excellent reply briefs filed yesterday by the growing coalition of ACA defender states led by California Attorney General Xavier Becerra as well as the brief from the U.S. House of Representatives. Both completely take apart every single one of the absurd legal arguments put forward by the Trump-Barr DOJ and Texas et al.

Once more for those in the back:

One More Time: If the entire ACA were to be repealed:

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