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.

Timothy Jost and Harold Pollack weigh in on Medicare Extra

Yesterday, the Center for American Progress released a sweeping but incremental proposal to vastly expand Medicare and transition the U.S. to a more or less "all-payer" system, in which whatever private insurance remains (in employer plans, and Medicare Advantage-like plans) pays more or less the same rates and offers more or less the same benefits as a revamped Medicare, dubbed Medicare Extra. Medicaid and CHIP would also be folded in. Everyone would be covered.

It's a well designed proposal that's hard for a progressive not to like on the merits. But could Democrats ever pass anything like this? I asked Timothy Jost and Harold Pollack and got surprisingly different answers (I'll say that Pollack surprised me more than Jost). The article, with extensive input from both, is up at healthinsurance.org

POSTSCRIPT, 2/24: One thing is nagging me a bit as reaction to the article unfolds. Harold Pollack suggests that  "Democrats will be much more ruthless the next time around" -- they're done trying to placate not only Republicans but, to a certain extent, healthcare industry interests; they're virtually forced to go for broke if they get the chance. That strikes a deep chord with progressives; it breaks something loose in a progressive heart. Timothy Jost, on the other hand, throws cold water, ticking off the forces that will be aligned against a strong drive toward universal coverage and cost control. What fun is that? But Jost and Pollack's reactions are not as far apart as they appear. Jost does point out that if Democrats gain power any time soon they'll be under strong pressure from the activists a party depends on to go big. And Pollack, in comments that did not make it into the text (my bad?), said that he thinks there's a good chance Trump will be re-elected -- and also acknowledged that industry would hack some parts off before anything like this would ever get enacted.

Pollack's take on the politics the Medicare Extra plan surprised me. I thought he'd be as dubious about the prospects for success as Jost. The fact that he wasn't gives this article its charge, I think (along with the workable architecture of the Medicare Extra plan itself). But I'm also pretty sure that Pollack would be the first to acknowledge that Jost may well be right -- that our political system will prove incapable of putting through such sweeping and coherent reform.

Does the Alexander-Murray bill adequately protect vulnerable groups?

The changes to the ACA's Section 1332 state innovation waivers in the Alexander-Murray marketplace stabilization bill  have broad support, having been proposed by multiple HELP Committee hearing participants and endorsed by bipartisan outside advocates including  former acting CMS director Andy Slavitt, one of the ACA's most vocal defenders. These include providing for an expedited waiver process, an emergency waiver process, and the creation of "cookie cutter" waiver templates that multiple states may opt to adopt. (There are dissenters, however, as discussed below.)

Also a matter of broad consensus: easing the terms by which states meet the requirement that a waiver proposal be budget-neutral by 1) allowing states to combine Section 1332 waivers with Medicaid and CHIP waivers and using savings from one to offset extra spending on another, and 2) considering budget impact over the 6-year term of the waiver and a ten-year budget plan.

There is one alteration, though, that gets to the crux of the debate over state flexibility, and was probably a matter of intense negotiation. That is a change to the so-called "guardrails" pertaining to quality and affordability of coverage.

"Just a little procedural easing"....watch those ACA innovation waiver guardrails!

The Senate HELP Committee's efforts to pass an ACA stabilization bill are likely to hinge on the ACA's Section 1332 innovation waivers, according to Axios' David Nather:

How they'll give states more flexibility: They want to beef up the ACA's "Section 1332" waivers, but Democrats don't want to do anything that undermines the "guardrails" in those waivers — They can't reduce the number of people with health coverage, make insurance less comprehensive or affordable, or increase the deficit.

• Instead, they'll just try to ease the procedural rules, according to a Senate Democratic aide. The question is whether that will be enough for Republicans.

Just a little procedural easing, ladies and gentlemen! Recall, though, that the BCRA nominally left the ACA guardrails in place -- but effectively gave states carte blanche to knock them down "procedurally." Tim Jost explained back in June (my emphasis):

If I had $194 billion...spending the federal funds that CSR cutoff would waste

The CBO report on the effects of the federal government ceasing reimbursement of insurers for the Cost Sharing Reduction subsidies they are required to provide to qualifying ACA marketplace enrollees includes two projections tantalizing to Democrats.

First, if not executed until 2018, not mishandled by states and not coupled with other forms of sabotage (a lot of ifs!), CSR defunding need not harm individual market enrollees and will in fact provide a windfall to many (by about a million as of 2020, sustained through 2026).*

Second, this means of boosting coverage is colossally inefficient, in fact outright profligate. CBO projects that ending the CSR reimbursements will cost the Treasury $194 billion over ten years, $37 billion in 2026 alone (and so imagine the 20-year cost).

That's a lot of money for Republicans to spend to spite Democrats. To review, the ACA instructs the Treasury to reimburse insurers for CSR and built the cost of reimbursement into the funding baseline, though it quaintly leaves it to Congress to appropriate the money. Doing so has no impact on the deficit; refusing swells it by said $194 billion.

This suggests to me a rather perverse deal: Republicans, pay the money budgeted, and use the $194 billion in "savings" for tax cuts. The "savings"should just about cover the ACA's surtax on investment income for the wealthy, as CBO pegged the 10-year cost of repealing that tax at $172 billion). Sure, that's deficit-funded, but as Dick Cheney told us, deficits don't matter when Republicans are in control.

Of course, those who want the ACA to work and who want to expand coverage can think of better uses for the (otherwise wasted) money. We now have $194 billion in sugarplums dancing in our heads. I canvassed a handful of healthcare scholars as to what they'd do with the money.  A few possibilities:

Are New York's Essential Plan and Minnesota's MinnesotaCare threatened by CSR fund cutoff?

A question hath arisen on Twitter: if federal Cost Sharing Reduction (CSR) reimbursements to insurers are cut off, either by Trump administration fiat or court ruling, would New York and Minnesota's Basic Health Programs formed under the ACA lose the portion of their federal funding derived from CSR payments?

To review, the ACA gives states the option of establishing a Basic Health Program (BHP) for qualifying residents with incomes between 138% and 200% of the Federal Poverty Level -- the very population eligible for strong CSR in the ACA marketplace in a state with no BHP*.   A BHP is designed to have low premiums and high actuarial value -- though not necessarily higher than that provided by CSR. So far, Minnesota and New York are the only states to have formed BHPs.  New York's BHP, the Essential Plan, has minimal cost sharing and a maximum premium of $20 per month (for those in the 150-200% FPL range). MinnesotaCare premiums top out at $80 per month; the actuarial value is 94%, matching CSR for marketplace enrollees with incomes up to 150% FPL.

Section 1331 of the ACA provides for federal funding of BHPs according to this formula:

The amount determined under this paragraph for any fiscal year is the amount the Secretary determines is equal to 85 percent [amended to 95%] of the premium tax credits under section 36B of the Internal Revenue Code of 1986, and the cost-sharing reductions under section 1402, that would have been provided for the fiscal year to eligible individuals enrolled in standard health plans in the State if such eligible individuals were allowed to enroll in qualified health plans through an Exchange established under this subtitle.

Not drowning but waiving: Timothy Jost on how Democrats might compromise responsibly on ACA

There's news today -- good news -- of Democrats in both the House and Senate acknowledging flaws in the ACA and proposing their own fixes (House) or exploring bipartisan fixes with Republicans (Senate).

All reports of such discussions or proposals include a couple of no-brainers: 1) a permanent reinsurance program, such as those included in both the AHCA (the House repeal/replace bill) and the BCRA (the Senate iteration), and 2) permanent assurance that the ACA's Cost Sharing Reduction subsidies will be paid, which isn't a conceptual fix, just an agreed end to Republican sabotage.

There's scarce discussion of what Democrats would give up to get Republicans to drop their deadly assault on the ACA's core features and all Medicaid as well, that is, the assault against 1) the taxes that fund the ACA's extension of health insurance access; 2) the ACA Medicaid expansion; 3) the federal government's open-ended commitment to pay its agreed share to each state for all those who are determined eligible Medicaid; and 4) income-based private market subsidies funded at ACA levels, whether structured differently or not.

One possible field of compromise is in the structure of the ACA's Section 1332 "innovation waivers," which allow states to propose variations on ACA marketplace structure to HHS. Through these waivers, states can propose alterations to almost any ACA Marketplace feature -- including repealing the individual and employer mandates, changing subsidy structure and eligibility, and altering the Essential Health Benefits that every insurance plan is required to offer. The catch is that the state seeking a waiver must demonstrate -- and convince the Medicare actuary -- that its alternative scheme will cover as many people as comprehensively and as affordably as the default structure -- and do so without increasing the deficit. Critics complain that the option effectively boils down to "you can change everything, as long as you don't change anything." That's not true, but the guardrails are pretty tight.

The pre-existing condition smokescreen

In a snappy summary by Axios's David Nather of  the latest AHCA stall-out, this caught my eye:

The holdouts are mainly worried about weakening coverage for sick people. Rep. Ryan Costello of Pennsylvania: "Protections for those with pre-existing conditions without contingency and affordable access to coverage for every American remain my priorities for advancing healthcare reform, and this bill does not satisfy those benchmarks for me."

What this tells me is that the moderates will ultimately go along with ending the ACA Medicaid expansion and girdling all federal Medicaid spending with per capita caps.  I have long worried that Republican relative moderates will go squish on Medicaid if AHCA damage to the individual market is moderated past a certain threshold.

Now more than ever, the bottom line remains what Andy Slavitt said it was two months ago:

"What have you got to lose?" -- Republicans' latest lie about the ACA

As they gear up to repeal all or part of the ACA, Republicans in Congress are coming out with a new (or recycled) lie about the benefits they'll be taking away, with or without a replacement. The lie has some basis in truth, but it is a gross distortion.

Here's the ur-iteration as voiced by Sen. Johnny Isakson, R-Georgia, to Politico's Jennifer Haberkorn, who asked Isakson what might become of the roughly 20 million people who have gained coverage through the ACA. His response:

Most of those 20 million got bronze policies with a great big deductible and not much insurance, so I don’t know that there’s going to be a big backlash,..There are some minefields out there but we can deal with them.

In a note, Politico points out that "most people on the exchanges choose silver plans, which provide a higher level of benefits." But that only clears one level of the mendacity expressed here.

For starters, more than 60% of those who gained coverage through the ACA did so via the Medicaid expansion (though not in Isakson's Georgia, which has refused to implement it). Medicaid generally has no premium and covers all, or very close to all, out-of-pocket expenses. People who have obtained Medicaid coverage through the ACA express high levels of satisfaction -- 88% of new Medicaid enrollees were satisfied with their coverage, according to the Commonwealth Fund's 2016 tracking survey.

Give Republicans this: They know how to make insurers happy

After Aetna's threat to pull back from the ACA marketplace if its merger with Humana was contested by the Justice Dept came to light, I noted that even in CEO Mark Bertolini's Springtime for the ACA aria last April, there was an equivocal note. That is, 'this market can work if Congress does its work':

we see this as a good investment, hoping that we have an administration and a Congress that will allow us to change the product like we change Medicare every year, and we change Medicaid every year.

But we haven't been able to touch this product because of the politics. But if we can get to that point, we believe we are in a very good place to make this a sustainable program (my emphasis).

Why Bertolini might have thought "we can get to that point" in the foreseeable future, barring a Democratic blowout in the November elections, is anyone's guess.  Notwithstanding, that "if" gave him at least rhetorical pivot space. When Elizabeth Warren, Bernie Sanders and allied senators challenged the Aetna pullback this week, Aetna neatly foreclosed on the "if":

HHS embraces high deductibles

It's funny how a trend impinges on your consciousness: you think something is new, then it gradually dawns that it's been going on for some time. Such is the case (for me) with an emerging mode of compensating for the unaffordability of healthcare at U.S. prices.

On Tuesday CMS, apparently stung by news accounts of ACA marketplace customers whose plan deductibles were so high they found care inaccessible, put up a blog post touting many plans' provisions of some services that are covered before the deductible is reached:

On Thursday, I took a look at the benefit structure provided by Centene's Ambetter, an insurer that has "cornered the silver market" in several large cities, including Miami, Chicago and Seattle. Ambetter plans feature high deductibles and a relatively broad array of services offered beneath the deductible:

Timothy Jost Discusses an ACA Provision that Should Kill the King Suit

In the vast web of the ACA, there is only one provision that directly identifies the federal exchange as a creditor of subsidies. That provision is cited in the government's brief but did not come up in oral argument last week. It is one that should put to rest the claim -- acknowledged as a possibly winning argument by Justice Kennedy  -- that the ACA unambiguously authorizes the crediting of subsidies through the state exchanges alone.

I spoke on March 6 to Timothy Stolzfus Jost, a law professor at Washington and Lee University, about this provision, which he first highlighted in September 2011, immediately after one of the King masterminds, Jonathan Adler, published the nucleus of the King case. The exchange was prompted by an  IRS rule, proposed in August 2011 and finalized in May 2012, that authorized the federal exchanges to award premium subsidies.

The real world case against King: Should the Supreme Court impose "risks and uncertainties" on U.S. economy?

Leave aside for a moment the frankly ridiculous question of whether the text of the ACA authorizes premium subsidies to flow through the federal exchange. .Timothy Jost, surveying 30 amicus briefs filed to support the IRS' reading of the law to that effect, first covers those primarily engaging with the text of the law then turns to those from stakeholders that detail the real-world effects of gutting the ACA.

A note before looking at Jost's powerful survey of these pleadings. Some would argue that these real world effects are immaterial: either the law authorizes subsidies to be credited through Healthcare.gov or it doesn't. As I noted once before, though, the conservative justices who dissented against  the 2012 decision that upheld the constitutionality of the ACA  demonstrated their sensitivity to the real world effects of Supreme Court decisions in that very dissent.

Justices Scalia, Kennedy,Thomas and Alito argued that since the individual mandate was unconstitutional the whole law must be struck down because all its key provisions were interdependent and many of them would wreak economic havoc if left to operate with a core provision removed.  They were quite specific about the potential consequences of disfguring the law without killing it:

The ACA provision that should kill King, updated

[Update, 1/23: The ACA provision discussed below, which directs the federal as well as state exchanges to report to the Treasury tax credits provided to ACA private plan buyers, is treated in full in the government's respondents' brief against the King plaintiffs. The relevant paragraphs from the brief are posted at bottom.]
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July 29 - Ever since a three-judge panel of the D.C. Circuit Court found in Halbig v. Burwell that the ACA only authorizes subsidies to be paid for health insurance bought in state-run exchanges, not in state exchanges set up by the federal government, progressive reporters have been ransacking the record to  prove what they always knew: that the law's creators never intended to exclude federally run exchanges from the subsidy regime.  Today, Greg Sargent and Jonathan Cohn both published compelling circumstantial evidence to that effect.

It seems to me, though, that such circumstantial evidence should be unnecessary. The ACA includes a provision that ought to settle the issue -- on that the majority in Halbig egregiously misread. Health law scholar Timothy Jost highlighted the dispositive provision back in September 2011, two months after the IRS issued a rule spelling out that subsidies would be available through the federal exchange (at which point the brains behind the Halbig suit, Michael Cannon and Jonathan Adler, immediately began arguing in print that the IRS rule contradicted the ACA's text). With reference to the drafting error stipulating only that subsidies be credited through an exchange "established by a state," Jost asserted:

 we do not need to rely on the courts to correct this error. Congress corrected it itself.

Four days after Congress passed the Patient Protection and Affordable Care Act, it enacted the Health Care and Education Reconciliation Act of 2010. Section 1004 of HCERA amended section 36B(f) of the IRC to impose on exchanges established under section 1311(f)(3)—that is, state exchanges—and under section 1321(c)—that is federal exchanges, the obligation to report to the IRS and to the taxpayer information regarding tax credits provided to individuals through the exchange. In this later-adopted legislation amending the earlier-adopted ACA, Congress demonstrated its understanding that federal exchanges would administer premium tax credits.

In a subsequent post, Jost noted, "As a later-adopted statute, HCERA would take precedence over PPACA if there were a contradiction."

The ACA provision that should have killed Halbig

Ever since a three-judge panel of the D.C. Circuit Court found in Halbig v. Burwell that the ACA only authorizes subsidies to be paid for health insurance bought in state-run exchanges, not in state exchanges set up by the federal government, progressive reporters have been ransacking the record to prove what they always knew: that the law's creators never intended to exclude federally run exchanges from the subsidy regime.  Today, Greg Sargent and Jonathan Cohn both published compelling circumstantial evidence to that effect.

It seems to me, though, that such circumstantial evidence should be unnecessary. The ACA includes a provision that ought to settle the issue -- on that the majority in Halbig egregiously misread. Health law scholar Timothy Jost highlighted the dispositive provision back in September 2011, two months after the IRS issued a rule spelling out that subsidies would be available through the federal exchange (at which point the brains behind the Halbig suit, Michael Cannon and Jonathan Adler, immediately began arguing in print that the IRS rule contradicted the ACA's text). With reference to the drafting error stipulating only that subsidies be credited through an exchange "established by a state," Jost asserted:

 we do not need to rely on the courts to correct this error. Congress corrected it itself.

Four days after Congress passed the Patient Protection and Affordable Care Act, it enacted the Health Care and Education Reconciliation Act of 2010. Section 1004 of HCERA amended section 36B(f) of the IRC to impose on exchanges established under section 1311(f)(3)—that is, state exchanges—and under section 1321(c)—that is federal exchanges, the obligation to report to the IRS and to the taxpayer information regarding tax credits provided to individuals through the exchange. In this later-adopted legislation amending the earlier-adopted ACA, Congress demonstrated its understanding that federal exchanges would administer premium tax credits.

In a subsequent post, Jost noted, "As a later-adopted statute, HCERA would take precedence over PPACA if there were a contradiction."

SCOTUS: Federal government can't *deny* subsidies to refusenik states?

Yesterday, I suggested that if the conservative justices of the Supreme Court wanted to uphold the D.C. ruling in Halbig, denying the federal government the right to provide subsidies to people who buy health insurance on  healthcare.gov, they might deflect reluctance to upend the law by recourse to states' rights. That is, Roberts in particular  might actually approve on principle leaving it up to the states whether to fund subsidies offered on the ACA exchanges, as he did with respect to the Medicaid expansion. By email, TNR's Brian Beutler responded:

Here's a fun thought. What if Roberts determines that an unambiguous reading of the statute denies subsidies to states that do not set up their own exchanges, but that this constitutes YET ANOTHER unconstitutional exercise of the spending power, a la the Medicaid expansion, and that the subsidies must flow everywhere.