The ACA wars through a pandemic lens: Nicholas Bagley looks back

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I spoke to Nicholas Bagley, health law professor at the University of Michigan, about measures to limit Americans' out-of-pocket exposure for coronavirus treatment -- assuming that in the U.S., simply covering all OOP for everyone treated for the disease at government-set payment rates to providers is not going to happen.

My thought was that Bagley could speak to avoiding legal pitfalls in any such measures. But his sense is that in the current crisis, legal concerns pertain mainly to potential administrative actions  (for example,  Can the CDC Pay for Everyone's Coronavirus Testing?).

Given normal U.S. legislative sclerosis, seeking regulatory authority to do what needs to be done is often fertile ground for legal analysis. Right now, though, the cards may line up for decisive legislative action, as they do in this country when (and only when) Republican political survival depends on it. And while there are multiple constraints to regulatory action, "there are fairly few constraints on Congress's legislative power," Bagley said. "Congress doesn't quite have carte blanche, but close to it. The question is not what does the Constitution allow Congress to do. We should be asking, 'what do we think ought to happen?' And then we should do it."

Folding Medicaid into Medicare for America: Will states pay their share?

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One of the many sweeping transformations of U.S. healthcare mandated by the Medicare for America Act is the absorption of all Medicaid programs -- currently serving some 72 million Americans -- into a revamped Medicare serving all ages. That would occur six years after enactment.

Medicare for America would be available to Americans of all ages and incomes -- and free to everyone in a household with an income below 200% of the Federal Poverty Level (FPL). That's far above the eligibility threshold for Medicaid programs -- with the exception CHIP in some states, for which children in families with incomes as high as 400% FPL may be eligible. Families with incomes between 200% and 400% FPL would have to pay a percentage of income -- probably not higher than 4% -- to insure the whole family. The new program would include comprehensive disability services and 100% coverage for the medically frail and for chronic disease treatment, as well as dental, vision and hearing services.

State governments -- many of them sure to be deeply hostile -- would be subject to two major requirements: 1)  cede control of service for their Medicaid populations, and 2) reimburse the federal government with "maintenance of effort" payments equivalent to their current Medicaid responsibilities, adjusted annually for inflation. Those requirements are certain to be challenged in court, as was the ACA Medicaid expansion.

Should Democrats seek to kill the anti-ACA lawsuit with legislation? Bagley v. Jost

Progressive legal opinion is divided with respect to how Democrats should fight the latest ridiculous suit seeking to have the ACA declared unconstitutional, Texas v. U.S., The suit was upheld in December by an extremist U.S. District Court judge in Texas, Reed O'Connor, who stayed the ruling pending appeal.

The question: should the Democratic House simply join the defense against the suit in court, which it has opted to do, or also pass legislation that would render the suit moot if it became law? Taking opposite sides are two progressive stalwarts of the ACA's legal wars.

Health Policy Valentines 2018

Wait, no, this can't be my fifth year of #HealthPolicyValentines.* But yes: here is Love Knows No Repeal (2017),  Love in the Time of Obamacare (2016), love, 2015, and first love, 2014.

And who'd have thought we'd have at least two Trump-era V-days with the ACA unrepealed? But here we are...

Spite is served hot,
Revenge is served cold.
Trump cut off CSR,
We got cheap bronze and gold.

     *      *      *

Replace came up empty,
Repeal served up zeroes.
We love you, Little Lobbyists,
True national heroes.

     *      *      *

Heller was craven,
Capito, afraid.
Collins, McCain, Murkowski
saved our Medicaid.

*      *      *

Sabotage judo: States can turn individual mandate repeal to their advantage

With repeal of the ACA's individual mandate apparently imminent, health law scholar Nicholas Bagley urges states to mitigate the damage by...getting their own damn mandate:

Adopting mandates at the state level would help stabilize insurance markets, thereby keeping premiums in check and forestalling coverage losses. It would also provide a welcome source of revenue: Some people will still prefer to pay a penalty than buy insurance. Plus, the states don’t need to stick with the precise terms of the federal mandate, which has been reviled (from different quarters) both for heavy-handedness and its ineffectuality. Stiffer state-level penalties would still be unpopular, but at least they’d work better.

I'd like to suggest that states take this a step further. Why not use the revenue collected from the state mandate to partially fund a reinsurance program?  Reinsurance has repeatedly proven  to sharply reduce premiums  (leading Susan Collins to propose an underfunded federal program to offset the effects of mandate repeal).

CBO projects that mandate repeal will cost the federal government $5 billion per year in forgone penalty payments by 2020 and $6 billion per year by 2025 (while saving the government more than 10 times as much in premium subsidies). States can capture that revenue for themselves by implementing their own mandates. California, with 12% of the nation's population, might collect $600 million per year in 2020 (to the extent that mandate revenue is proportionate to population). New York, with 6% of the population, might pull in $300 million. Jersey might manage $135 million; Minnesota, $85 million. These are crude calculations, but they give some idea of scope.

Nicholas Bagley parses the oral arguments in King v. Burwell

Over at healthinsurance.org, I have an interview up with Nicholas Bagley, post-morteming today's oral arguments in King v. Burwell, the lawsuit aiming to gut the ACA exchanges. Bagley,  a former appellate attorney at DOJ and currentl health law professor at the University of Michigan, is co-author of two amicus briefs in support of the government in King, both addressing issues that Anthony Kennedy probed in some depth in today's hearing.

Kennedy lifted the spirits of ACA supporters early on by questioning whether the plaintiffs' claim that the law aimed to essentially force states to form their own health exchanges by not authorizing premium subsidies to be credited through the backup exchange would render the law unconstitutionally coercive.That was the upshot of one Bagley brief. But he then turned around and suggested that the law might be, in effect, both unambiguous (in denying credits through the federal exchange) and (potentially) unconstitutional.

Much later, Kennedy explored a more obscure point. While the Supreme Court generally holds that if a law is ambiguous, the courts should defer to the interpretation of the agency charged with implementing it, that might not be the case here:

The case against King, by Scalia, Kennedy et al

The plaintiffs in King v. Burwell claim that the ACA's creators intended to coerce states into setting up their own exchanges by authorizing state-established exchanges alone to credit subsidies to buyers -- denying that power to the backup federal exchange.

In response to this manifestly absurd assertion of intent, the law's supporters have pointed out that no one involved in the law's design, passage or implementation understood such coercion to exist; that laws that make federal grants to the states conditional on specific state action invariably spell out the consequences of non-participation; that the ACA's clear intent is to provide near-universal coverage; and that the ACA's core provisions were designed to be interdependent, so that denying subsidies to residents of some states would render the law inoperable.

On  all of these points, no participant has been so eloquent as the four dissenting Supreme Court justices in NFIB v. Sebelius, the suit challenging the law's constitutionality, who asserted that the entire law should be struck down.

In their dissent, Justices Scalia, Kennedy, Thomas and Alito argued repeatedly that to strike down any core provision -- e.g., the individual mandate or the Medicaid expansion -- was to thwart the intent of the law's creators and render the remaining parts of the law unworkable -- hence the imperative to strike down the whole law.

Abbe Gluck has highlighted the dissenters' most direct assertions of interdependence of parts, laying particular stress on their observation that the law's "system of incentives collapses if the federal subsidies are invalidated" because without the subsidies, "the exchanges would not operate as Congress intended and may not operate at all" (dissent, p. 60).

Equally striking is the dissenters' argument that making the Medicaid expansion fully voluntary, as the Court majority did, would also thwart Congress's manifest intent to provide universal coverage and would thus render the entire scheme unworkable.

Could the ACA exchanges go the way of the Medicaid expansion?

If the D.C. Circuit panel ruling in Halbig stands, and the state exchanges currently run by the federal government are deemed unable to grant subsidies to health plan buyers who qualify for them under the ACA's criteria, Nicholas Bagley posits that "the states with federally established exchanges will come under enormous pressure to establish their own exchanges." The federal government could make it easy for them, Bagley suggests, essentially allowing them to decree that they've "established" exchanges while letting Healthcare.gov continue to run them.  Thus the ACA would likely prove indelible after all:

True, not every state would accept the invitation to establish its own exchange, even if doing so were more or less a formality. But lots of states would, especially as voters started to howl about losing their tax credits. If so, even a bad outcome in Halbig might not matter that much in the end.

That quasi-forecast recalls the argument that all states will ultimately come round to accepting the ACA Medicaid expansion, albeit in their own sweet time (Arizona, the last state to implement Medicaid itself, did so 17 years after Congress established the program).

While this thought might be expected to soothe ACA proponents, for me it had the opposite effect. The Medicaid scenario might provide cover for the Supreme Court to uphold the D.C. Circuit panel in Halbig.

When Chief Justice John Roberts held in June 2012 that the ACA's individual mandate exceeded Congress's power under the Commerce Clause but was a legitimate exercise of Congress's taxing power, he justified the recourse to "the Government's alternative argument" by citing SCOTUS precedent that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” He would not thwart Congress's intent by destroying the law's ability to function if he could avoid it.

He showed no such reluctance, however, with regard to the ACA's requirement that states expand Medicaid eligibility to a new class of beneficiaries or else stand to lose federal funding for their existing Medicaid programs. He deemed that requirement coercive, and was joined by six other justices in striking the requirement down and making the Medicaid expansion voluntary for the states.