March 26, 2019

The Update Desk: The Affordable Care Act

So, there's this court case, Texas vs. United States, that maintained that the Affordable Care Act would be unconstitutional because, as of 2019, the penalty for the individual mandate was $0 under president Trump's Christmas Tax Cut. The thinking of the Texas AG, and the 19 GOP states that joined the lawsuit, is that since the individual mandate penalty no longer exists, and because the tax key to the constitutionality of the ACA according to the Supreme Court, and since the whole shebang is tied up with an inseverability clause, it should be struck down. The lawsuit was filed about a year ago, and in December a conservative judge agreed.

Yesterday, the Justice Department made it officially known that it agrees with the decision of the lower court.
The DOJ said Monday that it agrees the decision should stand as the case works its way through the appeals process in the US Court of Appeals for the 5th Circuit. 
"The Department of Justice has  determined that the district court's judgment should be affirmed," the department said in a short letter to the appeals court. 
So, while Democrats are getting all riled up, and Republicans are getting all excited that a court may do what they were unable to do, with 60 failed votes and $87,000,000 wasted in the process, I thought I'd remind everyone what this could mean to America.

Back in 2017, I talked about what "repeal and replace later" would mean, beyond the elimination of protections for pre-existing conditions, which the DOJ also did not defend in the early days of the Texas suit.  Here are some of the things I thought of pretty quickly, back then:
  1. Immediately shut down and the 28 federally facilitated marketplaces and the five state-based marketplaces using the federal platform. 
  2. Cancel the coverage for individuals and families who were covered under the now-defunct marketplaces.
  3. Return any unused premium to them.
  4. Immediately repeal the voluminous taxes required under the Affordable Care Act, whether charged to a business, a health insurer, any medical facilities, and so on. This will of course require an immediate rewriting of the tax code just to get us back to where we were before the Affordable Care Act went into effect.
  5. Immediately repeal the individual mandate.
  6. Immediately kick over-aged dependents off their parents' policies in any location such coverage is not mandated under any other jurisdiction.
  7. Immediately remove the Medical Loss Ration (MLR) requirements, which dictate the percentage of health care premium dollars insurers must pay for benefits (base around 80%) and requires insurers to rebate premiums to insureds when they don't meet the MLR percentage.
  8. Immediately eliminate the full coverage for pre-existing conditions at no additional premium - let the games begin.
  9. Remove no-cost-sharing coverage for preventative care, including things like lead screening, mammograms and paps, prostate screenings, annual physicals, a whole host of lab tests, and countless other benefits - those can all go back to whatever pricing structure was in place before.
  10. Remove all subsidies which currently help people pay for coverage - all of them.  
  11. Similarly, remove all supports that are paid to insurance companies to help cover the costs of  insuring the people who got coverage under the ACA. 
  12. Eliminate requirements for 'essential benefits' including outpatient services; emergency services; hospitalization; pregnancy, maternity and newborn care; mental health and substance abuse, prescription drugs, and more.
  13. Immediately end all funding for Medicaid expansion.
  14. Immediately reintroduce annual and lifetime limits on benefits.
  15. Immediately increase the population of uninsured by the number of people covered under a marketplace (~10 million or so as of February 2017) and the number covered under Medicaid expansion, ~14 million)
And that's not an exhaustive list -- I forgot mental health parity regs which were enfolded into updates of the ACA along the way, for example. 

Now, some of those numbers have likely changed but the gist of this is that the Affordable Care Act was much, much more than just the individual mandate and protections for people with pre-existing conditions.  Sadly, that's something that politicians from both parties have been unwilling or unable to communicate well, and of course they continue to ignore lots of the other provisions, if for different purposes. 

The formal move by the DOJ this week to not defend the law of the land will embolden progressives on the Medicare-for-All bandwagon; sadly, it won't likely embolden anyone else to work to defend the other key provisions that also protected patients.  

As the president would say, SAD.

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