Tagged The Health Law

Could Trump’s Push To Undo The ACA Cause Problems For COVID Survivors? Biden Thinks So.

The same day the Trump administration reaffirmed its support of a lawsuit that would invalidate all of the Affordable Care Act, Joe Biden sharply warned that the suit endangers millions of Americans.

The presumptive Democratic presidential nominee said the law is even more important now, more than a decade after it was enacted, as the COVID-19 epidemic sweeps the U.S. The virus has killed more than 130,000, and Biden noted that some who survive may have long-lasting health problems.

His speech in the battleground state of Pennsylvania focused on a legal challenge headed to the Supreme Court and the fallout if the court upholds a 2018 U.S. District Court decision that struck down the entire ACA, including preexisting condition protections that bar insurers from rejecting people with medical problems or charging them more.

“And perhaps most cruelly of all, if Donald Trump has his way, complications from COVID-19 could become a new preexisting condition,” Biden said.

The Trump administration has supported the challenge. A decision from the Supreme Court is expected next year, after the November presidential election.

But would a decision against the health law affect COVID-19 patients in the way Biden described?

We decided to check because it’s likely to come up a lot in the presidential electioneering. We reached out to the Biden campaign to find out the basis for his statement. A campaign spokesperson responded by reiterating the points made by the former vice president in his speech and sharing various news stories about COVID-19 and the preexisting condition coverage issue.

Several law and health policy experts noted that Biden is on fairly firm ground, though the issue — like many others in health care — is complicated.

First, A Little History

Before the ACA went into effect in 2014, insurers on the private market could reject applicants for coverage if they had any number of medical conditions, such as cancer, depression, heart disease — even high blood pressure, acne or plantar fasciitis. Consumers had to fill out forms listing their medical conditions when applying for coverage. An estimated 54 million Americans have a preexisting condition that could have led to a denial under pre-ACA rules, researchers estimate.

Also, at the time, some consumers had coverage cancelled retroactively once they fell ill with a serious or costly disease, as insurers would then comb through years of medical records looking for anything the consumer had failed to report as preexisting, even if it seemed to have little or nothing to do with the patient’s current medical concern.

Those rejections and cancellations mainly affected people who bought their own coverage, not those who got insurance through their jobs.

Job-based coverage, which is the main way most insured people get their plans, had some protections prior to the passage of the ACA. For example, the federal Health Insurance Portability and Accountability Act of 1996 said people who held health insurance continuously for at least a year could not face preexisting condition limits when they enrolled in a new employer plan, as long as they didn’t go uninsured for more than 63 days.

Those who didn’t meet that yearlong coverage requirement or went uninsured between jobs could find their medical conditions excluded for up to a year in a new group plan.

Before the ACA, insurers broadly defined preexisting conditions. Many included any condition for which a patient had received treatment, or even undiagnosed conditions for which a reasonable person should have sought treatment.

The ACA changed that. Among other things, it barred insurers from rejecting applicants based on their health, excluding coverage of preexisting medical conditions and charging sick people more than healthier ones. It also ended annual or lifetime dollar limits on coverage and said employers that offer insurance can’t make new workers wait more than 90 days for coverage to kick in.

Could COVID-19 Become A Preexisting Condition?

Biden’s comment raises the question of whether COVID-19 would be considered a preexisting condition in a future without the sweeping health law on the books.

Because the virus is so new, there’s no definitive answer on its long-term health effects.

But media reports note hospitals and physician groups are finding evidence that some recovered COVID patients suffer from lung damage, blood clots, neurological conditions, strokes or fatigue.

Researchers are now starting to follow patients to track long-term effects.

Given insurers’ history, it’s certainly reasonable to assume they would put what are now cropping up as potential COVID complications in the preexisting-condition category, said Sabrina Corlette, who studies the individual insurance market as co-director of the Center on Health Insurance Reforms at Georgetown University.

“There is a real concern that if those preexisting condition protections are overruled or taken down by the Supreme Court, people who have COVID-19 could be medically underwritten, charged more or be denied a policy,” said Corlette.

That is possible, said Joe Antos, resident scholar in health policy at the conservative American Enterprise Institute. But many of the people most likely to suffer complications from the coronavirus likely already had conditions like diabetes, asthma or heart disease that would already have put them in danger of being rejected for coverage under pre-ACA business practices, he added.

In other words, COVID-19 could simply find a place on a long list of other conditions that could disqualify consumers from obtaining insurance.

And even if the high court tossed out the ACA, insurers might choose to keep offering coverage to people with health problems, say some analysts, including Antos.

But this take triggers skepticism.

“Insurance companies have an obligation to shareholders, and that obligation is to maximize profits,” Corlette said. “They don’t do that by covering a lot of sick people when competitors are not doing it.”

The Biggest Unknown

Just how would Congress and the president react if the ACA is struck down?

Under a Biden presidency, coupled with Democrats holding the House and possibly winning the Senate, the ACA would definitely be replaced, the experts all agreed.

Under a second-term Trump administration, Republicans would face a dilemma because — even though the party has called for the law’s repeal since its enactment –— they have been unable to agree on how to replace it. Yet polls have consistently shown that parts of the law, especially the preexisting condition protections, are very popular with a wide swath of voters.

“They don’t want to come across as coming up hard against people who have health conditions,” said Antos.

Private practice attorney Christopher Condeluci, who served as tax and benefit counsel to the Senate Finance Committee when the ACA was drafted, agreed. He thinks Congress or the president would act to save the preexisting condition protections at least.

But how to do so is problematic. That provision is intricately tied with many other parts of the ACA, those aimed at getting as many healthy people to enroll as possible in order to spread costs out among the many, rather than the few.

The ACA did that partly by requiring most Americans to carry insurance coverage — the provision at the heart of the Texas lawsuit seeking to overturn the legislation. Restoring that requirement might be tricky, so the path forward for a split Congress or a second-term Trump presidency to come up with a solution quickly — or at all — if the Supreme Court tosses the entire law is a difficult one.

Our Ruling

Biden said that if Trump had his way, COVID complications could become a preexisting condition. He said this while discussing what might happen if the ACA is overturned by the Supreme Court. Though the statement can’t be definitively proven, there’s a lot of evidence backing it up.

First, some patients are showing at least short-term aftereffects of COVID-19, some of which could be costly. Some may prove long-term.

Second, insurers dislike costly medical conditions. Their business model is designed to have enough healthy enrollees to offset those with costly conditions. Before the ACA, they did that by rejecting people with medical conditions, charging them more or excluding coverage for those conditions. Some also temporarily delayed coverage for specific conditions in group plans offered by employers. Without the ACA, no federal law would prevent them from returning to these practices when selling plans on the individual market.

We rate Biden’s statement Mostly True.

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High Court Allows Employers To Opt Out Of ACA’s Mandate On Birth Control Coverage

The Supreme Court Wednesday settled — at least for now — a decade’s worth of litigation over the women’s health provisions of the Affordable Care Act, ruling 7-2 that employers with a “religious or moral objection” to providing contraceptive coverage to their employees may opt out without penalty.

The Trump administration was within its rights to exempt religious nonprofit agencies, like the lead plaintiff in the case – the Catholic order Little Sisters of the Poor – from having to participate in any way from facilitating contraceptive coverage for their employees. Wrote Justice Clarence Thomas in the majority opinion, “We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption

Women’s health groups were quick to decry the ruling – even though liberal Justices Stephen Breyer and Elena Kagan agreed with the outcome.

“The Supreme Court just ruled that your boss or your university can, based on their own objections, take away your birth control coverage,” tweeted Planned Parenthood Action Fund, the political arm of Planned Parenthood. “The fact that the Court allowed this attack birth control coverage under the ACA in 2020 — and which has benefitted over 62 million people — shows the war on our reproductive health care isn’t just about access to abortion. It’s everything.

The ACA itself did not require that contraceptives be covered. Rather, it called for preventive health services for women to be included in most insurance plans and left it to the Department of Health and Human Services to figure out which ones. In the Obama administration, HHS asked the Institute of Medicine (now the National Academy of Medicine) to recommend which services had enough scientific evidence backing them to be added, and FDA-approved methods of contraception were named by the institute.

That spurred bitter controversy, with some religious groups and business owners who object to certain types of contraceptives arguing that they should not be forced to provide the services to workers.

The Supreme Court ruled in 2014 that “closely held corporations” like the craft chain Hobby Lobby did not have to abide by the contraceptive coverage requirement. But that did not settle the issue completely.

From the start, the Obama administration exempted churches and other religious entities from the coverage requirement. Still, there was an outcry for relief from religious nonprofit groups such as hospitals and universities. And that battle has raged since Obama officials tried to find compromise after compromise, to no avail.

The last Obama rule allowed religious nonprofits to opt out of providing coverage directly by signing a form that would transfer the financial and administrative responsibility for coverage to their health insurer. But the organizations — including the Little Sisters of the Poor, which operates long-term care homes for low-income seniors — insist that the act of signing the form facilitates the coverage and makes them “complicit in sin.”

The Supreme Court took up the case — actually seven cases bundled together — in 2016. But with only eight justices on the bench following the death of Justice Antonin Scalia earlier that year, the court deadlocked 4-4 and sent the cases back to the lower courts, with orders to try to find a compromise that would allow employees to receive coverage without compromising the religious beliefs of the employers.

With the election of Donald Trump, the controversy continued, but in reverse. The Trump administration issued rules to give organizations with not just religious, but also moral, objections to birth control the ability to opt out. And it was sued by those who believe women should have the right to no-cost contraception, including state governments, whose leaders fear that if employers opt out, the states will end up paying more for state contraceptive programs and costs associated with unwanted pregnancies.

The addition of moral objection is a dramatic expansion, said Michael Fisher, who argued the case on behalf of Pennsylvania during the court’s oral arguments in May. Fisher said the provision was so broad that employers could deny contraceptive coverage because they morally object to women being in the workplace.

The decision is likely to have a political impact larger than its actual consequence – the loss of no-cost birth control for perhaps hundreds of thousands of women. While the court will not decide its broader case challenging the constitutionality of the Affordable Care Act before November’s election, it could boost the law’s fate back onto the electoral front burner.

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KHN’s ‘What The Health?’: High Court’s Surprising Abortion Decision


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The Supreme Court surprised both sides in the polarized abortion battle Monday by ruling, 5-4, that a Louisiana law requiring doctors who perform the procedure to have admitting privileges at a nearby hospital is an unconstitutional infringement of a woman’s right to an abortion.

As expected, the court’s four liberals in the case, June Medical Services v. Russo, said that the law did not provide any protections for women and merely made it harder for them to obtain an abortion and that it was nearly identical to a Texas law struck down in 2016. The four conservatives said the Louisiana law should be upheld, although that would have left the state with only a single abortion provider. The swing vote was Chief Justice John Roberts, who, in a concurring opinion, said he disagreed with the ruling in the Texas case but it is now precedent and thus should not be overturned.

This week’s panelists are Julie Rovner of Kaiser Health News, Alice Miranda Ollstein of Politico and Jennifer Haberkorn of the Los Angeles Times.

The panelists broke down the decision along several lines, including:

  • Why a court with five justices who have all voted to back abortion restrictions did not uphold the first major abortion law to come before it since Anthony Kennedy retired and was replaced by Brett Kavanaugh.
  • How the ruling could have gone much further than merely upholding the Louisiana law. The court had been asked to use the case to overturn Roe v. Wade in its entirety and to bar abortion providers from filing suit on behalf of their patients. The justices did neither.
  • Why Justice Roberts’ vote in this case does not suggest he will vote with abortion-rights supporters in other cases, but might offer a clue on how he will vote in the upcoming case challenging the constitutionality of the Affordable Care Act.
  • How this case could play at the polls in November.

“What the Health?” is taking a break on Thursday but will return July 9.


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