TexasFoldEm

Last week it was noted by several healthcare policy experts that if and when a vaccine for the coronavirus (COVID-19) sweeping the entire planet is ever developed, under the Affordable Care Act, insurance companies would be legally required to cover the full cost of it for anyone enrolled in an ACA-compliant policy:

SEC. 2713. COVERAGE OF PREVENTIVE HEALTH SERVICES.

(a) In General.--A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for--

(1) evidence-based items or services that have in effect a rating of 'A' or 'B' in the current recommendations of the United States Preventive Services Task Force;

(2) immunizations that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved; and

About a month ago I wrote a flow chart, of sorts, explaining the different potential permutations of the absurd Texas vs. Azar (aka Texas vs. U.S., aka #TexasFoldEm) lawsuit which threatens the entire Affordable Care Act. Since then there's been a few more developments (actually, a few more non-developments), the timing of which change the potential landscape a bit.

Sometime this morning the Supreme Court is expected to announce whether they'll intervene in the case:

Hey everyone! The Supreme Court may announce at at 9:30am today its decision about whether to take the big Affordable Care Act case.
If it says yes, it'll hear argument in the fall (around the election!). If it says no, it'll take another three years or so to get a final answer.

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

Here's the catch, though:

If yes, they'll HEAR the case in the fall...but when would they announce their *decision*?

SHOT (if you can afford one):

!! Azar refuses to promise a coronavirus vaccine will be affordable for anyone:

"We would want to ensure that we work to make it affordable, but we can't control that price, because we need the private sector to invest.. Price controls won't get us there."

— Michael McAuliff (@mmcauliff) February 26, 2020

CHASER:

If the U.S. Preventive Services Task Force recommended a coronavirus vaccine, the ACA would require that all insurance plans cover it with no patient cost-sharing. (That wouldn't apply to short-term plans expanded by the Trump administration, which do not comply with ACA rules). https://t.co/OK7SOm22Wh

— Larry Levitt (@larry_levitt) February 26, 2020

A few minutes ago I noted that the Supreme Court has announced that they'll be considering whether or not to expedite a review of the Texas vs. Azar (#TexasFoldEm) lawsuit at a private conference on February 21st.

What's that mean? Well, when we last checked in on the status of the case, the 20 Democratic state Attorneys General, led by California AG Xavier Becerra, had requested that the Supreme Court intervene in the ongoing federal court process and fast-track the case from where it is right now (bouncing around within the 5th Federal Circuit Court of Appeals) to instead hear the case directly and issue a final ruling on whether or not the Affordable Care Act will be struck down before the November election.

Speaking of the Texas Fold'em lawsuit (officially Texas vs. U.S. or Texas vs. Azar) which, if ultimately upheld, could result in the entire ACA being struck down, there's been a small but important development this morning:

Supreme Court to consider taking ObamaCare case

The Supreme Court on Wednesday listed a closely watched case seeking to strike down the Affordable Care Act for discussion at the justices’ private conference on Feb. 21. 

The justices will consider whether to take up the case and on what schedule. 

There is at least some possibility they could decide to take the case this term, meaning a ruling would be issued by June. But most observers expect a ruling will not come until after the 2020 election, either because the court waits until the next term to hear it, or because it decides not to take up the case at all until lower courts have finished considering it. 

A new, if not surprising, development in the Republican Party's absurd "Texas Fold'em" lawsuit against the ACA:

Attorney General Becerra Leads Coalition Seeking Supreme Court Review of ACA Repeal Case

Friday, January 3, 2020

SACRAMENTO – California Attorney General Xavier Becerra today, leading a coalition of 20 states and D.C., filed a petition to the U.S. Supreme Court seeking review of the Fifth Circuit’s recent decision in Texas v. U.S. The decision held the individual mandate of the Affordable Care Act (ACA) unconstitutional and called into question whether the remaining provisions of the ACA could still stand, including those that protect and provide coverage to Americans with pre-existing conditions. Because this decision causes uncertainty that may harm the health of millions of Americans, as well as doctors, clinics, patients, and the healthcare market, Attorney General Becerra and his coalition are petitioning the Supreme Court to take up the case and resolve it before the end of the Court’s current term in June.  

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 as a result of the absurd Texas vs. U.S. (aka #TexasFoldEm) lawsuit.

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.

Here's my original post on yesterday's 5th Circuit Court of Appeals ruling in the absurd Texas vs. U.S. (aka Texas Fold'em) lawsuit.

The bottom line for What This Means is:

  • The ACA remains the law of the land and likely will remain that way for at least another year.
  • Having stated the above, the ACA is still indeed very much in jeopardy. Going forward, the case will follow one of two possible routes:
    • Officially, it's supposed to go back to the judge who ruled against the ACA in the first place a year ago to "reconsider" which parts of it can be "saved"...after which it would then go back to the 5th Circuit Court of Appeals, and then to the U.S. Supreme Court. That full process could take well over a year.​​​​​​​
    • However, it's possible that the Supreme Court will intervene and agree to take the case up instead of it going to the original judge first, which is what the defending states are now requesting. This full process...could still take up to a year, although it's conceivable that a final ruling would be issued before the election.

Well, as if Impeachment Day wasn't tense and historic enough already, the 3-judge panel of the 5th Circuit Court of Appeals has finally issued their decision on the Texas vs. U.S. (aka Texas vs. Azar, aka Texas Fold'em) lawsuit intended to strike down the entire Affordable Care Act:

Before KING, ELROD, and ENGELHARDT, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge:

 

This story ran a few weeks ago, but I'm just now getting a chance to write about it, and it's critically important given that the 5th Circuit Court of Appeals is still expected to issue their ruling in the absurd Texas vs. U.S. (aka #TexasFoldEm) lawsuit brought by 20 Republican state Attorneys General.

The GOP has spent a solid decade trying to tear down the Patient Protection & Affordable Care Act. They started even before the bill was passed or signed into law, of course, which is why it ended up passing without a single Republican vote in either the House or Senate. After that, they filed lawsuit after lawsuit (a handful with merit, others utterly baseless, such as the current one, which may have the thinnest case in history to ever make it so far in federal court), while simultaneously voting to repeal the ACA either partly or fully dozens of times.

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.

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