Guest: Attorney, Author, Professor Nicole Huberfeld.

Discussion on the Litigating the ACA during the COVID CRISIS. Answering the hard questions: Why Trump Administration is Heading to the US Supreme Court on November 10th – to Try, Once Again – to Repeal the Affordable Care Act, When Millions of Americans Rely on it – and it is Now, More Than Ever, Critical to Have it…? And, Why South Carolina Senator Lindsay Graham, states he wants to “kill” the ACA  – at a time when all Americans, including South Carolinians needed it the most. Professor Huberfeld clarifies the ACA, what it brings to states that “adopt” it – and what it could bring to states like South Carolina in healthcare coverage for all those who want and need its coverage during COVID.

Watch Dr. Huberfeld in her previous appearance on the Affordable Care - on the issue of Healthcare Expansion.

#ACA  #AffordableCareAct  #ObamaCare  #COVID #MedicaidExpansion #NicoleHuberfeld

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Transcript:

hello and welcome to the legal edition i'm your host attorney mary kay elloian our show topic today litigating the aca liberty justice and health care for none discussion on the coveted crisis and why the trump administration is heading to the u.s supreme court to try once again to repeal the affordable care act when millions of americans rely on it and it is now more than ever critical to have it our guest is attorney and author nicole huberfeld she is a professor of health law ethics and human rights at boston university school of public health and professor of law at boston university school of law let's welcome attorney and professor nicole huberfeld welcome professor huberfeld thank you mary kay it's nice to see you again now the trump administration and the gop have tried to repeal obamacare or the affordable care act as it is known approximately 70 times and they have nothing to replace it with now on november 10th they are going before the u.s supreme court on this very issue can you explain what is happening in the u.s supreme court absolutely thank you for asking this important question so as you mentioned congress has attempted to repeal and sometimes replace the patient protection and affordable care act which we commonly call the affordable care act or the aca this law has been in place since 2010 so believe it or not we're actually celebrating the 10th anniversary of this law although it's only been implemented really in its completion for about six years because the major implementation date was january 1 2014 and so the effort in this case is to address a particular action of congress at the very end of 2017 so after president trump was elected and he had a republican congress to work with him there were a number of efforts to try to repeal the aca and replace it with other legislation during the course of 2017. each of those efforts failed until the tax cuts and jobs act was enacted the tax cuts and jobs act is a law that was a budget reconciliation law which means that it can only address money and because it can only address money it actually doesn't fall under the filibuster rules which are the rules that make it so that the senate has to count to 60 to make anything happen so a bare majority was all that was necessary so the tax cuts and jobs act did the thing that is at the heart of this litigation before the supreme court it set the penalty for failure to carry health insurance at zero dollars so even though the individual mandate as it's commonly called is still actually part of the aca the penalty for not having what the law calls minimum essential coverage is now zero dollars so that the irs effectively doesn't have a way to enforce the so-called individual mandate so a couple of months after the tax cuts and jobs act was enacted texas led about 18 other states really their attorney generals in litigation challenging the constitutionality of the affordable care act texas's theory is that because the affordable care act and specifically the individual mandate was upheld as an appropriate exercise of congress's taxing power back in 2012 in national federation of independent business versus sibelius and because now there is no money to collect as a tax because the penalty has been zeroed out the theory is now the individual mandate fails and the argument when the law was created was that it was necessary to have an individual mandate because if people were not required to buy health insurance they would wait until they needed it to purchase it and then immediately use it and that would be a very difficult situation for the risk pools that we use to make insurance work so just like you can't use you can't buy car insurance when you have an accident just like you can't buy homeowners insurance when your house catches on fire likewise we don't want people to buy insurance in the moment that they need it and so the idea was get people to buy insurance by having a mandate and then all of the protections that flow from the aca will make sense both from the insurer's perspective and from the consumer patients perspective and this covers over 23 million people this present the present coverage does it not correct so it's a combination of both commercial insurance and public insurance largely through medicaid eligibility expansion so the commercial insurance aspect of this in part in theory was driven by the individual mandate so when congress zeroed out the penalty texas said well this is no longer a tax and so therefore the law is now unconstitutional at least in one dimension and because you have argued in the past united states that all of this has to fit together we are also arguing that the law is not severable meaning if one part fails the entire law fails so that's in other words you throw out the baby with the bathwater so to speak well it's the severability question is one that arises in any case where you have to interpret one part of a complex law and usually the answer is we don't throw out the entire law unless it's clear that's what congress meant to have happen when the law was enacted in this case though there actually isn't a question as to severability if i can talk about that for a minute oh sure talk about severability because i think it's really important but i i think also too people need to understand that this doesn't just affect just these people that signed up for the affordable care act it has repercussions in all aspects in medicare and everything else and i think that's a big part of what people are unaware of absolutely and we should definitely talk about that um so so one piece of this is the question as to whether or not the individual mandate is unconstitutional if the individual mandate is held unconstitutional which is possible and frankly maybe not that controversial so far what we're seeing is that people are actually buying insurance regardless of whether or not there are teeth to the mandate however the court will also have to decide whether the law survives without the individual mandate and this question has been answered by both the supreme court and by congress the supreme court in 2012 actually decided that the law was severable in the context of the medicaid expansion because the court held medicaid expansion could not be mandatory that that was an unconstitutional exercise of congress's spending power and therefore states could choose whether or not to expand medicaid well that effectively severed medicaid expansion and then congress itself severed the individual mandates penalty when it enacted the tax cuts and jobs act so we actually have two expressions that are precedent setting as to whether or not the law is indeed severable so it would really be radical for the supreme court to decide that the law is not severable and the entirety of it needs to be struck down they are trying to have a new justice join the us supreme court and what they are trying to achieve that is the gop and the trump administration is to have this law struck down what do you feel would happen if in fact this law is struck down even though we know that it should that part is severable we know that what happens to all these americans that rely on it if in fact it is struck down yeah great question so there's a couple of pieces to that right one is drawing out the fact that the trump administration is not defending a u.s law so the department of justice joined texas and the other states which is itself unusual so i think it's worth noting that it is not common for the federal government not to defend its own law which is why the house of representatives has become one of the parties in the case because the house wants to defend the law since the department of justice is not so the reason i think that's notable is that it helps to underscore that the trump administration has actually been trying to undermine the law in a number of ways and the uh various ways in which the trump administration has been trying to undermine the law highlight that there are many consumer protections built into the aca that have been um arguably weakened to a degree during the trump administration and they are multitudinous there are commercial insurance protections so for example one that many people talk about is the prohibition on exclusion of people who have pre-existing conditions people refer to this in shorthand as the pre-existing condition law right they don't really know what that means what it reflects is that before the aca commercial insurers could exclude people from coverage if they had any kind of pre-existing condition and they did it wasn't merely theoretical it was a common practice for insurers to tell people we might let you get coverage you could buy it right you can pay us the premium but if you are pregnant and buying insurance then you won't get coverage for your pregnancy if you have diabetes and you're purchasing insurance you won't get coverage for your diabetes if you have cancer and you're buying coverage now you won't get coverage for your cancer so this was this had real meaning for people who were purchasing insurance often maybe thinking they couldn't when they did and not understanding perhaps that what it meant was they wouldn't get coverage for the very thing that mattered the most and caused the most financial risk for them so and wouldn't they also be charged more even if they could purchase it so that would be a path that some insurers engaged in so the the common practice for most commercial insurers is to want to engage in what we call individual risk rating right where you try to determine the actuarial risk of any individual insured what the aca requires is actually called community rating meaning most people get charged the same amount of money for the kind of commercial insurance they're purchasing you can be charged more for more people in your family so per person um there are age bands people who are more who are older can be charged a bit more people who smoke can be charged a bit more but largely the aca smooths all of that out and requires community rating rather than individual rating and so that makes it so that insurance is more affordable for people who do have pre-existing conditions and they can't be barred from purchasing insurance for having pre-existing conditions and their pre-existing conditions must be covered so that cost i would think that cost would make it unaffordable for most people if you had a pre-existing illness i would think most people couldn't afford that if if the affordable care act was not in place that's correct especially when we're talking about small group and individual insurance those markets were tiny and very expensive before the affordable care act those are the markets that are the most affected by the regulations the insurance regulations that come out of the aca employer-sponsored insurance frankly hasn't been touched that much by the aca most large employers ie employers who have more than 50 and really more than 100 employees they tend to provide insurance as an employer benefit as an employment benefit excuse me but small group and individual insurance historically has been extraordinarily expensive and unattainable for most people which is why many people would buy what we think of as catastrophic coverage meaning that the premium might not be super expensive but the deductible would be very high thousands of dollars out of pocket before the insurance would kick in and what they're doing is they're calculating a risk there right i can't afford a high cost premium i hope i don't get sick if i do get sick i better keep some cash under my pillow for that moment right so the aca made it so that those small group and individual insurance markets were much more accessible and the insurance purchased through those markets was actually much more predictable because the plans have to be what the aca calls qualified health plans meaning that not only can you not exclude people for having pre-existing conditions but also they cannot impose lifetime coverage caps there's a guaranteed issue provision making it so that even if you get sick you have to be offered insurance again when it's time for open enrollment provisions like this that make it so that insurance consumers are protected and to keep children on their parents plan until age 26 as well correct that's right and from what i understand it also closed the uh affordable care act close what is called the doughnut hole in medicare prescriptions for seniors can you talk about that yeah so the medicare donut hole is a feature of medicare part d the drug benefit in medicare that was included in part d for no reason other than to keep the cost of drug coverage down for the federal government and so what happens is after a certain amount of spending there is a gap in what medicare will cover in terms of prescription drug costs and then when the expenses get quite high coverage kicks back in again that's been referred to as the donut hole it was it's been that way since the george w bush administration created medicare part d the aca closed the doughnut hole over a period of time if the aca were to be repealed or in this case struck down into its entirety then that closure of the donut hole two would go away so seniors as a result would end up paying more correct prescriptions that's right they would end up paying more for their prescriptions you know it's it's untenable to me that the gop and the trump administration during a pandemic is out there trying to repeal health care for millions millions of americans who need it most who are out of work or unemployed not only does it seem immoral it seems totally illogical from the standpoint of wanting to even get reelected i am i just don't understand the philosophy behind denying americans who have paid into the system all these years who are taxpayers the benefit of the affordable care act when they are the most vulnerable it is striking that in this moment where one would think that even people who don't believe that government should have much of a role if any in health care right many people believe that health care is a private market that it's a private transaction and government should do as little as possible in health care rather than as much as possible right that's really the the conflict that you're that you're seeing here typically in an event like a pandemic a sense of solidarity arises yes that sort of eradicates that gap in belief systems and makes it so that people understand that we're not at fault for getting sick and so therefore because we are all vulnerable to becoming sick there's a reason to understand that this is a social benefit that we should all have and the trump administration has refused to change its stance on the aca even in the face of the pandemic so i can give you two examples of that that will make it more concrete one is about two-thirds of states rely on the federal health insurance exchange for people to purchase the small group and individual insurance we were talking about and when someone has something happen a life event that triggers special enrollment periods so that you can change your insurance mechanism so people have been losing jobs that is one of the things that triggers a special enrollment period and that special enrollment period doesn't last very long it lasts about six weeks and so many people miss their special enrollment period to switch from whatever their employer-sponsored insurance was to whatever they can purchase on the exchange one thing the trump administration could have done that would have been quite easy to do would have been to open enrollment on the federal exchange for people losing their jobs and therefore losing their health insurance during the pandemic but trump refused to open enrollment on the federal exchange so a handful of states have done that because some states actually run their own exchanges but it's very piecemeal right for most people in most states this has not been an option a second example is that medicaid expansion would be the most obvious way to cover people who have lost their jobs and have no source of income and no health insurance they're making zero dollars and so that would be a moment in which people absolutely qualify for medicaid but the trump administration has been opposed to medicaid expansion and frankly has also been undermining the medicaid program to a degree and so therefore there has been no encouragement for those 12 states that are still holding out for medicaid expansion to go ahead and expand medicaid to cover the people who are now facing a recession related to the pandemic on that vein i want to talk to you about uh senator lindsey graham i saw him the other day and he was on tv and he pretty much said that he hates the affordable care act and the reason he hates the affordable care act is because south carolina is getting a raw deal he says that 35 percent of all the federal funds are going to massachusetts new york in california is that or is that not true i can't really speak to where he got that number from but i can explain why regardless of the number it is not true so first of all south carolina is a state that has not expanded medicaid and one thing to understand about medicaid expansion under the aca is that the federal government actually pays 90 cents on each medicaid dollar for the expansion population so medicaid expansion is actually a good deal for states and study after study shows that the states that have in fact engaged in medicaid expansion either come out budget neutral or budget positive because it takes the cost of uncompensated care off the shoulders of the state and it helps people to be healthier so that there are other social program benefits that come out of it so south carolina is a non-expansion state there are a good number of uninsured people who would benefit tens of thousands of people at least who would benefit from medicaid expansion in south carolina but south carolina is allowing that federal money to not flow into the state so they're letting it pass by that does not mean that new york and massachusetts and california are getting all of the money they may be getting more money in terms of raw dollars but it's not just a matter of raw dollars it's also a consideration of the amount of money the taxpayers in each state pay to the federal government and then how that money is redistributed through federal programs like medicaid like social security and a state like south carolina tends to get two to three dollars back on every dollar that gets paid in through federal taxes so it is a gross misrepresentation of what's actually happening the larger population states like massachusetts new york and california have also not just higher populations greater per capita income which makes it so that they get less medicaid money from the federal government per medicaid enrollee because in part that formula is based on the per capita income of the state so they have a lower match from the federal government and they have more generous medicaid program programs which makes it so that each of those states is actually paying more money for their medicaid programs than a state like south carolina is if south carolina opted into medicaid expansion it would have a significant benefit from that choice and frankly what senator graham said just doesn't add up in terms of dollars and cents so why would they deny their own citizens the benefits that are out there from the affordable care act when everybody is suffering at this point time of pandemic and they're out of work why would they do that to their own constituents it makes no sense some states argue that they can't afford it and a state like south carolina that is not a wealthy state certainly would have to find room in its budget for that 10 cents on the dollar that comes with medicaid expansion so there are some costs that would in that budget line increase but the the thing that's missing from that usual description of the economic concerns that state legislators tend to have is that they will find savings in other places because most states have a way of compensating their hospitals for uh bad debt for for charity care so that they get some kind of state money for taking care of patients who can't take care of themselves that's a cost shift that happens with medicaid expansion so that the state stops having to spend that money and instead it comes from the federal government in truth many people also have noted and it isn't really a controversial thing to say there is no accident that if you were to overlay a map of the confederacy onto a map of the states that have opted out of medicaid expansion there are a lot of similarities so do you think there could be some racial bias in some of the some of these rules that have been coming about in these particular southern states yes uh i do and in fact i think that you can draw a through line from the kind of language they use to reject medicaid expansion such as able-bodied people do not need this kind of help from the government and they need to take care of themselves that that language has a long and very ugly history that goes straight back to slavery and how enslaved humans were sold as able-bodied for plantation owners so that able-bodied language combined with this sort of myth of individual responsibility and american individualism is very sticky and it certainly has become a deep and difficult part of the stigma that attaches to some of our social programs one of the other things that came to mind and i was hoping you could opine on this is the payroll tax holiday um what do you see with that particular event and medicare medicaid do you see any particular influence that might be ginned up because of this holiday to get people used to not paying payroll tax i think that the payroll tax holiday is a little bit of a gimmick it puts money in people's pockets now but it will come back around in the not too distant future and may make it more difficult for people to afford necessities when payroll taxes come back into existence the reason i ask that question is because a lot of these programs come from payroll taxes you know social security medicare um and we all know trump has said many times that he would like to get rid of social security um do you have any comment on that particular issue do you think that he has um not made a secret of the fact that he would like to get rid of some of our most long-standing social programs and it is possible that a payroll tax holiday would undermine those programs because they do rely on regular uh payment of taxes that come from payroll so it is a relatively minor way of undermining some of our social programs it occurs to me that i didn't circle back around to the question you asked about judge barrett's nomination yes please let's go there now okay so something to keep in mind about judge barrett's nomination is a it's very hard to read tea leaves when it comes to a new member of the supreme court uh and there is a lot of effort to try to figure out what a new person on the supreme court will do with any given set of issues i don't think it's fair to say that judge barrett will be very different from justice ginsburg justice ginsburg was deeply concerned with um interpreting the law to be equal and also equitable so in other words she didn't want people to be treated differently because of artificial factors like sex but she also wanted to ensure that people were treated equitably by government and so justice ginsburg is one of the justices who actually voted to uphold all aspects of the aca and demonstrated probably the best understanding of the aca of all of the justice's opinions in nfib versus sibelius the first aca supreme court case that understanding i think has to a degree come into its own for some of the other justices on the court chief justice roberts in particular has shown a developed understanding of what the law is and does judge barrett didn't show any understanding really of what the aca does during her hearings but that unto itself i don't necessarily think is problematic because frankly most people who don't study health and health law and health policy could really describe what the aca does with much clarity one of the things i wanted to say that during the hearing it was brought up that on some of the cases she had actually heard as a judge was to benefit big corporations over the average person so that that in and of itself i think it was 85 percent they said she had sided with corporate america over the individual whether it be a truck driver or whoever um so that was concerning for those that were questioning her where her um where her opinions lie in the spectrum of of individual versus corporation you know what's interesting about that though is that all the stakeholders were at the table when the aca was enacted and those stakeholders include industry and healthcare industry wants the aca to exist because the aca ensures that there is money flowing in that is predictable for hospitals for health insurers for every part every stakeholder every institution that provides health care the aca has actually stabilized sources of reimbursement for health care services so hospitals in states that are medicaid non-expansion states have been advocating for medicaid expansion since the law came into existence insurers don't want the trump administration to undermine uh the exchanges by allowing short-term plans and junk insurance to be sold because it makes it so that fewer people will participate in the exchanges so it isn't necessarily corporate versus individual but rather an approach to interpreting the law that will be very different barrett versus ginsburg in some ways it's sort of like justice thomas for thurgood marshall right the way that they perceive the law and what the role of law is and what the rule of law means is very different and that is the thing that will probably make the biggest difference not only in terms of the aca but in terms of other matters that may come before the court as well because judge barrett as far as i can tell is someone who tends to think that it these kinds of things are the job of the states and not the federal government so she might be more likely to strike down a law simply because it's federal and not state one things that concerns me about um where judge barrett is coming from is well she aligns herself with justice scalia originalist thinking and originalist thinking is if it's not in the constitution it really doesn't apply and there's no nothing in the constitution about health care that's true it is again i think a bit of a stretch to say just because someone clerked for a justice that means they will behave exactly like that justice but that is certainly a concern people have raised if they don't find justice scalia's originalism persuasive and many people do not find it persuasive right one of the other things i want to mention it was it was chief justice roberts that saved the affordable care act the last the last go round and what do you what do you predict this go round based upon that and of course john mccain saved it in the in the senate before when it came up do you have any idea where this court may be going based upon some of their their rulings whether they're going to uphold it or not do you have any idea i think there are a couple of ways the case could go um one of the questions in the case is whether the parties even have standing to challenge the aca it's possible the court could decide the parties don't have standing and then the whole thing goes away and that is not how the lower federal courts have held they have held that the states have standing because they have a somewhat attenuated economic interest in complying with the law and covering their own employees and the two individual plaintiffs in the case claim that they've bought insurance because of the aca regardless of the zero dollar penalty and therefore they're financially harmed so that may be enough for the supreme court to say the parties have standing but that is the first question in the case the next question is whether the individual mandate can remain part of the law it can remain given that it's been zeroed out in terms of the penalty for not carrying insurance i frankly wouldn't be surprised if the court decides that the individual mandate cannot stand without a penalty attached to it because part of the reasoning for allowing it to be an exercise an appropriate exercise the taxing power was that it actually raised money just as taxes do um and now it cannot raise money uh the next question is is the law severable and uh this is where i think many people are pointing to a recent opinion by justice kavanaugh where he said we have to look at this and sort of take it apart i believe he said with a scalpel right that we need to be able to understand what we do when we strike down part of a law and typically what it means is that we need to be careful not to strike down the entirety of a law if that isn't required so and and i believe judge barrett said something about that too during her hearings right that severability is an important consideration in interpreting any federal statute so if the supreme court held that the individual mandate should be struck down but that the law is in fact severable the next question that remains is whether the supreme court itself wants to do the work of figuring out what which parts of the law are severable or whether it's going to kick it back to lower federal courts for them to do the work of determining which parts of the law remain and which parts are struck down so there are a lot of sort of potential loose ends here none of it will probably be decided before june of next year so even though oral arguments are coming up on november 10th there will probably be a long period of time between the oral arguments and the actual decision in the case importantly in that period of time of course not only will we have an election but the aca continues to be the law of the land while the supreme court decides which means open enrollment will occur people will be able to purchase insurance nothing massive will occur during the course of that decision-making period on the part of the supreme court and congress can still change the law during that interim period and states can still join and be part of the aca if their constituents demand it that's right in fact there were two ballot initiatives over the summer one in missouri and one in oklahoma where states decided to expand medicaid by ballot initiative so that was important sort of democracy on the ground and yes congress could do the exact same thing all you need again is another budget reconciliation bill that reinstates a penalty for not purchasing insurance and that effectively moves the case and the penalty can be as little as a dollar right it could be yeah i mean that would collect money so it could legitimately be a penalty i mean technically technically yeah they do it all the time with wills somebody leaves a dollar yes the question is does it collect enough money to be considered a tax that raises money right and it seems the answer would be yes even if it were one dollar um now is there anything else you wanted to add about the um the aca and you know the people that you know so so strongly against it what they are misconstruing do you want to put that to rest i think there's a lot of misunderstanding about what the aca does and one of the interesting things about the ongoing debate about the aca is it appears to have increased the popular expectation that we will have some kind of health insurance coverage and i think that's part of the reason the president keeps saying i'm going to protect pre-existing conditions he has never put forth a plan to protect pre-existing conditions and every other action he has taken aside from stating that has indicated a desire to eradicate the aca and all of its protections for the 20 million plus people who have purchased insurance under the aca so it is difficult to believe that he has some secret plan to protect pre-existing conditions after four years of not describing a plan if the aca is to survive this election really matters and if people want to understand what it means to be vulnerable all they have to do is look at their neighbor in this moment where people have lost jobs because of the pandemic they've lost health insurance benefits people are getting sick the unpredictability that comes with this particular virus makes it very hard to assess risk and that is the very reason that we have health insurance so that we don't have to take on that financial burden in the moment that we are ill we can't drive down the street without car insurance so we shouldn't be walking down the street without health insurance sure seems like it yeah i want to thank you for all your insight and information this has been a great experience and uh we'll have to have you back on once uh the court rules thank you so much thank you mary kay glad to do it nice to see you same here i want to thank our guest professor nicole huberfeld for sharing her research and opinions on the affordable care act and recent litigation by the trump administration to take it all away i also want to thank you our viewers for tuning in for more information on today's topic and our guest visit us online at thelegaledition.com and remember this information is for general educational purposes is not legal or professional advice and don't forget subscribe online find us on facebook youtube instagram and twitter