TexasFoldEm

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vs. U.S. lawsuit (aka Texas vs. Azar or #TexasFoldEm) caused the Patient Protection & Affordable Care Act (ACA) to be repealed with immediate effect.

They also attempted to calculate how much federal funding every state would lose each year if the ACA were to be repealed.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:

There seems to be something in the air this week...or perhaps it just takes roughly 3 months from the time a new legislative session starts for the first legislation to work its way through the process. Whatever the reason, Washington, Connecticut and now Nevada have all made major moves towards codifying ACA patient protections at the state level in the even the ACA itself is repealed:

The Nevada Senate has passed a bill that would enact state-level health care protections for people with pre-existing conditions.

State Sen. Julia Ratti says the legislation aims to bring about protections that are already in place under the Affordable Care Act. The Democrat told lawmakers last month that people are worried about their health care access.

She says Nevada should make sure these protections are in place at the state level if the federal provisions are rolled back.

State senators approved the measure on Monday in a unanimous vote.

The measure stipulates that insurers cannot deny a person health care coverage due to a pre-existing condition.

From last August:

The #TexasFoldEm case uses the World's Flimsiest Excuse to try and eliminate the Affordable Care Act's critical health insurance coverage protections for the 130 million Americans who have pre-existing conditions.

In response, Republican Senators Tillis, Alexander, Grassley, Ernst, Murkowski, Cassidy, Wicker, Graham, Heller and Barrasso have introduced a new bill which they claim would ensure pre-existing coverage protections. Unfortunately, it...doesn't.

I've been out and about all day and will also be unable to update the blog all day Saturday, so I'll keep this one short. Besides, several others, including Jeffrey Young of the Huffington Post have already written up good overviews of this garbage:

via the Hopping Mad podcast:

8 April 2018 – We have hopped and moved the show we planned to have this week back to next week in order to have the ACA expert, Charles Gaba (ACASignups.net, @Charles_Gaba) on to update everyone on the latest chaos surrounding the ACA.

Because of the recent ruling by a Federal judge in the Northern District of Texas, the ACA is back on uncertain ground. No one is surprised. Trump is swerving all over the place first into the total, immediate destruction of the ACA and then veering back to say that his incredible new plan will come out right after he is re-elected. Even McConnell isn’t humoring Trump this time, which should be your first clue. But don’t worry, “preexisting conditions will be covered.” Of course, insurance companies will be able to charge whatever they feel like in order to issue the coverage but Trump is positive that will work for everyone. Well, at least all the billionaires. The rest of us can just use the hospital emergency room, right?

(sigh) I was planning on writing up an in-depth analysis of the 2019 ACA Open Enrollment Period report which was just released by CMS a few hours ago.

Instead, in a bit of sick irony, I have to spend the evening writing about this (via Nicholas Bagley):

The Trump Administration Now Thinks the Entire ACA Should Fall

In a stunning, two-sentence letter submitted to the Fifth Circuit today, the Justice Department announced that it now thinks the entire Affordable Care Act should be enjoined. That’s an even more extreme position than the one it advanced at the district court in Texas v. Azar, when it argued that the court should “only” zero out the protections for people with preexisting conditions.

A big shout-out to Josh Dorner for providing a roundup of the current status of a five different lawsuits (six, really, although two of them are on the same topic in two different states) fighting back against GOP/Trump Administration sabotage of the Affordable Care Act, including:

There's also the various CSR reimbursement payment lawsuits filed by various insurance carriers. Those should have been a fairly minor issue only relating to about $2 billion in payments dating back to the 4th quarter of 2017...but as I explained in detail here, these suits may instead turn into an even more massive headache for the Trump Administration, and rightly so.

As I noted a few weeks ago, I haven't written a whole lot about the idiotic (but terrifyingly so) TexasFoldEm lawsuit in awhile. Part of this is because I was out of the country over the holidays; part is because there hasn't been a whole lot of movement on the case since right-wing federal Judge Reed O'Connor ruled that the ACA was unconstitutional using a legal argument so thin it hula hoops with a Cheerio.

Anyway, when I last checked in, a coalition of Attorneys General from 16 states (plus the District of Columbia) had formally filed to appeal Judge O'Connor's ruling, and the U.S. House of Representatives had also formally voted to intervene on behalf of defending the ACA from the lawsuit, which was filed last year by a coalition of 18 Republican Attorneys General, plus two Republican Governors.

Pages