Category Archives: Pre-existing condition

ACA Declared Unconstitutional: Now What?


In another example of how cruel and inhumane the radical Conservative/Libertarian Republican Party has been regarding health care, a Federal judge in Texas late Friday, struck down the Affordable Care Act as unconstitutional.

The judge, Reed O’Connor, appointed by George W. Bush, struck down the law on the grounds that its mandates requiring people to buy health insurance is unconstitutional and the rest of the law cannot stand without it, as reported yesterday in the New York Times.

According to the Times article, the ruling was over a lawsuit filed earlier this year by a group of Republican governors and state attorneys general. States led by Democrats promised to appeal the decision, which will not have immediate effect.

However, the Times reports, it will make its way to the Supreme Court, where the survival of the law and the health of millions of Americans will be in doubt.
Judge O’Connor said, the Times quoted, that the individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’s tax power.” In addition, the judge said, “the individual mandate is unconstitutional” and that the remaining provisions of the ACA are invalid.

The main issue, pointed out in the Times piece, was whether the law’s mandate still compelled people to buy coverage after Congress zeroed out the penalty as part of the tax overhaul this year.

20 states, led by Texas, argued that with the penalty zeroed out, the mandate had become unconstitutional, and that the rest of the law could not be severed from it, the Times wrote.

The Justice Department under former Attorney General Sessions, declined not to defend just the individual mandate, but the pre-existing conditions provision as well.

A spokesman for California attorney general Xavier Becerra said that California, and other defendant states, would challenge the ruling with an appeal in the US Court of Appeals for the Fifth Circuit in New Orleans.

Becerra’s statement, reported by the Times, said the following, “ Today’s ruling is an assault on 133 million Americans with pre-existing conditions, on the 20 million Americans who rely on the ACA’s consumer protections for health care, on America’s faithful progress towards affordable health care for all Americans…The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court.”

The chief plaintiff in the case, Texas attorney general Ken Paxton, applauded the decision, and was quoted in the Times in a statement, “Today’s ruling enjoining Obamacare halts an unconstitutional exertion of federal power over the American health care system.”

Meaning that the American “health care system” can only be a private insurance-based system that allows companies to profit off some people’s health, or lack thereof. He is upholding the “right” of insurance companies, drug companies, medical device manufacturers, and others to profit at our expense and to play with the lives of millions of Americans who will lose what coverage the ACA gave them.

This also means, that any attempt to enact Medicare for All/single payer health care will result, at some future date, to a judge or court striking it down as unconstitutional.

Simply put, Conservative jurisprudence believes that the Constitution enshrines free-market health care.

The Times added that Paxton also said, “Our lawsuit seeks to effectively repeal Obamacare, which will give President Trump and Congress the opportunity to replace the ‘failed’ [quotes added] social experiment with a plan that ensures Texans and all Americans will again have greater choice (to be ripped off and overcharged) about what health coverage they need and who will be their doctor.”

In other words, Mr. Paxton wants the American health care system to stay where it is, so long as companies can make money from it.

Here are a few takeaways from the rest of the Times’ article:

• If the judge’s decision stands, about 17 million Americans will lose their health insurance, according to the Urban Institute. This includes millions who gained coverage through Medicaid expansion, and millions more who receive subsidized private insurance through the ACA marketplaces.
• Insurers will also no longer have to cover young adults up to age 26 under their parents’ plans
• Annual and lifetime limits on coverage will again be permitted
• And there will be no cap on out-of-pocket costs
• Also gone will be the law’s popular protections for people with pre-existing conditions

This last takeaway was front and center of the Democrats midterm campaigns, and while most Republicans insisted that they did not want to withdraw those protections, the article reported that most were silent after the ruling.

Without those protections, insurers could deny coverage to such people or charge them more; they could also return to charging them based on age, gender or profession, according to the Times.

The Kaiser Family Foundation, the Times noted, estimated that 53 million adults from 18 to 64 — 27 percent of that population would be rejected for coverage under practices in effect before the ACA.

Larry Levitt, senior vice president of the Kaiser Family Foundation wrote on Twitter, “If this Texas decision on the ACA is upheld, it would throw the individual insurance market and the whole health care system into complete chaos…But the case still has a long legal road to travel before that’s an immediate threat,” the Times quoted.

Democrats attacked the decision as absurd. Incoming House Speaker Nancy Pelosi said that when the party took control of the House next month, it would “move swiftly to formally intervene in the appeals process to uphold the lifesaving protections for people with pre-existing conditions and reject Republicans’ effort to destroy the Affordable Care Act.”

Healthcare Dive.com, in reporting Friday about the decision, wrote that a decision had been waiting in the wings since September, when the Justice Department asked Judge O’Connor to wait until the individual market’s open enrollment period ended, which was also a convenient time for Republicans running in the midterms.

Healthcare Dive.com also stated that the decision would be appealed to the conservative Fifth Circuit, and possibly to the Supreme Court, where advocates worry that it will be struck down.
Providers such as the American Hospital Association (AHA) and American Medical Association (AMA) urged a stay until a higher court could take it up.

One state not a part of the defendants was Maryland, according to Healthcare Dive.com. Maryland’s Democratic Attorney General, Brian Frosh, brought its own case seeking a reaffirmation of the ACA’s constitutionality.

Attorney General Frosh argued that Maryland residents who became insured under the ACA would be harmed if the law was unconstitutional or eliminated. About 150,000 people in Maryland gained insurance through the ACA marketplace in 2018, and more than 300,000 are insured through the state’s expanded Medicaid program.

The Maryland case is still ongoing.

So now what?

In the short-term, nothing will change, as mentioned in the two articles above. However, in the long-term, there will be serious consequences, just as Larry Levitt said on Twitter Friday.

But more importantly than chaos in the insurance market and health care system, millions of Americans will once again be at the mercy of insurance companies, be denied coverage for pre-existing conditions, including pregnancy, cancer, and a whole host of illnesses, be denied life-saving drugs, or rejected for surgeries, etc.

And among those millions, many will die needlessly because of the greed of the insurance companies and the actions of a Cowboy judge.

What does this mean?

Allow me to put on a different hat here and offer an opinion as to what may transpire in the future, since none of us are clairvoyant. As someone who studied both American history and American government and politics, in my opinion, we will not see universal health care in this country unless and until, to use a medical metaphor, this Conservative/Economic Libertarian virus is eradicated from the American political system, or at least is brought under control.

I do not say this lightly, nor am I being flippant here. Let’s face facts. The Republican Party stands in the way of the adoption of rational, universal health care for all Americans because they are the defenders of a rapacious, greedy Capitalist health care system that demands that investors, shareholders, insurers, manufacturers, and service providers and consultants, be allowed to profit by the health and welfare of the American people.

However, as also reported in the New York Times on Sunday, the ACA could be hard to knock down, despite the judge’s ruling, according to legal scholars quoted in the article.

Yet as Ezra Klein writes in Vox.com, Republicans have refocused Democrats on building what they failed to build in 2010: a universal health care system simple enough and popular enough that it is safe from constant political and legal assault. And that means some version of Medicare-for-all. Democrats are promising swift action once they take over the House in a few weeks, so we wait and see how that will turn out.

But on the other hand, as I have pointed out in previous posts, both those penned by myself, and those that I reposted from other sources, the medical-industrial complex is pushing back hard against any move to alter this broken system.

Two recent posts, Healthcare Lobbying Group Double-Crossing Democratic Voters and Establishment looks to crush liberals on Medicare for All – POLITICO highlights the attempt by the health care industry to keep the status quo, or at least to convince Democratic politicians who might be opposed to full single payer health care, to offer alternatives that will allow the insurance companies to profit from providing coverage to only those who are not sick, which is called adverse selection.

There are some people in this country who argue that what we need is not less competition in health care, but more. However, this misses the point. Whether or not there is more or less competition is not the reason why our health care system is broken. The reason why it is broken is because there is competition in the first place. No other Western country has this problem, and they all have some form of universal, single payer health care.

So, the prognosis for the future of universal health care is cloudy, if not downright gloomy. Advocates for single payer, improved Medicare for All must take a sober hard look at reality and formulate a strategy to meet this new and regrettable challenge. And they must do so with a clear eye and mind on the realities of the political landscape, and not be lulled into thinking that just because polls indicate approval by voters, that enacting Medicare for All will be easy or accomplished quickly. We have enemies, and one of them is Reed O’Connor.

Additional Reading:

Judge Rules Obamacare unconstitutional, endangering coverage for 20 million
Obamacare ruling delivers new shock to health system

 

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Midterm Mashup

Well, the 2018 Midterm elections are over, and the analysis is beginning as to what this all means.

For those who wanted to send a message to the Russian puppet in Washington, the election meant that the House of Representatives will be controlled for the next two years starting in January by the Democrats.

For the Republicans, it means a greater control of the Senate, with at least one race, the one in my current state of Florida undecided and headed for a recount, as per state law.

However, there were many defeats for the party of Obama, Bill Clinton, Jimmy Carter, LBJ. JFK, Truman and FDR. Andrew Gillum lost to a nobody for governor of Florida who is connected to the Orangutan by an umbilical cord. Beto O’Rourke made a valiant, if futile effort against the worse person to hold a Senate seat, Lyin’ Ted Cruz. And a few Democratic senators lost seats in Indiana, Missouri and North Dakota.

But as far as health care is concerned, the change in the leadership of the House of Representatives means that the ACA is safe for another two years. and Medicare and Medicaid will not be cut, as the Senate Majority Leader has indicated he wanted to do.

Medicaid, in particular, came out of the Midterms a little better than expected before the election, as the following posts from Healthcare Dive, Joe Paduda, and Health Affairs reported this morning.

First up, Healthcare Dive, who reported that Red states say ‘yes’ to Medicaid . Idaho, Utah, and Nebraska said yes to expansion; Montana said no.

Joe Paduda echoed that in his post, “And the big winner of the 2018 Midterms is…Medicaid“. However, Joe stated that results in Montana were not final; yet, they had decided to expand Medicaid two years ago, but the vote was temporary, and yesterday’s vote was to make it permanent.

And lastly, Health Affairs reported in “What the 2018 Midterm Elections Means for Health Care” that besides blocking repeal of the ACA, Democrats may tackle drug prices, preexisting conditions protections, Opioids, Medicare for All, Surprise bills (unexpected charges from a hospital visit). regulatory oversight, extenders such as MACRA, Medicaid Disproportionate Share Hospital (DSH) payments, and Medicaid expansion, especially since gubernatorial wins in Maine, Kansas, and Wisconsin will make expansion more likely in those states.

Mad Dog Attacks Public Transport

Tom Lynch of LynchRyan’s Workers’ Comp Insider blog, wrote an article this morning that follows on the heels of my post from yesterday about the Justice Department not defending portion of the Affordable Care Act (ACA).

According to Tom, the GOP finally figured out how to fight the ACA, and he discusses three events beginning with February of last year in which the GOP-led Congress attacked the ACA. The three events are:

February 2017 – tax cut law that zeroed out the penalty for not having insurance.

February 2018 – getting 20 states to sue the federal government and contend that repeal of the penalty obviates the individual mandate making the entirety of the ACA unconstitutional.

And just last month, as I wrote yesterday, got the Justice Department to not defend the government in the suit.

Tom continues to say that if the 20 states win, pre-existing conditions, which the ACA protects, goes out the window. There are about 133 million Americans under the age of 65 who fall into that category. I am one of them.

Insurance companies are not happy either, Tom reports, and the trade association for the health insurance companies, America’s Health Insurance Plans, supports the provision under the ACA, and is quoted thus: “Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019,” according to a statement released by AHIP.

Finally, Tom asks the question — what happens if the 20 states win their suit? His answer, the 1.25 million Americans with Type 1 diabetes are waiting for an answer.

Yet, they and others don’t really have to wait for an answer, because the answer is staring us right in the face, but we refuse to see it, or even acknowledge its presence. Instead, we keep doing the same things over and over again, thinking the free market has the answer.

That is patently not true. A real, comprehensive, universal single payer system or an improved Medicare for All system that does not force those who are ill and don’t have a lot of money to pay for parts of the coverage, either the medical portion, or the 20% not now covered by Medicare, is the answer. Anything less is just a dog chasing a bus, catching that bus, and the dog and bus getting hurt.

Justice Dept. Says Crucial Provisions of Obamacare Are Unconstitutional – The New York Times

The following article should alarm every decent American, especially those who wants to see every American have health care that does not eat into their life savings or cause them to go into debt.

Your humble author is one of them and may also be affected if this draconian decision is upheld by the courts and the Supreme Court. Thanks Bernie Bots and Steiners…thanks for giving us Justice Gorsuch by not voting or not voting for the Democratic candidate two years ago.

For what this will mean to Americans, here is Dr. Don McCanne’s take on it:

“Amongst the more important provisions of the Affordable Care Act were the requirements for guaranteed issue and community rating. For individuals with preexisting conditions, insurers could not deny them coverage nor could they charge them higher premiums than are charged for others in the same age group. This corrected two of the most serious defects in the individual insurance market that existed before enactment of ACA and made insurance available to many who otherwise could not purchase the plans.

Now Attorney General Jeff Sessions says that he will no longer defend these provisions. If the courts uphold his position, individuals with significant health care needs may find insurance with adequate benefits to be either unaffordable or not even available to them. Then concepts such as “universal” or “affordable” become moot.

How does this compare to our traditional Medicare program? The courts have already ruled that Part A of Medicare – the hospital benefit -is mandatory and must be accepted if the individual also accepts Social Security benefits. However, this does not apply to Part B – the physician benefits – nor to Part D – the drug benefits. Thus the courts have ruled that the government can require certain mandates in health care, but it also demonstrates that our current Medicare program needs to be improved, for this and for a great many other reasons. So a single payer, improved Medicare for all should be able to pass constitutional muster.

Once we have an improved Medicare that covers everyone, instead of thinking of it as some sort of unwanted government mandate, most of us would think of it as an automatic program ensuring health care financing for all of us – one that we have earned though our individual contributions based on ability to pay – guaranteed, affordable health care forever.”