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June 13, 2018

The Trump administration wants to strike down ACA's consumer protections. Physician groups (and some Republicans) are pushing back.

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    Some Republican policymakers are speaking out against the Trump administration's argument that a federal court should strike the Affordable Care Act's (ACA) protections for individuals with pre-existing medical conditions in a lawsuit challenging the law's constitutionality.

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    The Department of Justice (DOJ) in a brief filed in a federal court Thursday said it will not defend the ACA in a suit filed in February by a group of 20 Republican-led states. The suit claims that a recently enacted tax reform law that beginning in 2019 zeros out the individual mandate's tax penalty for remaining uninsured has rendered the individual mandate unconstitutional.

    The lawsuit also argues the ACA does not include a so-called "severability clause," that would allow the rest of the law to stand if part of the law is struck down. As a result, the lawsuit claims that if part of the ACA is invalidated, the whole law should be invalidated.

    DOJ in the brief largely agreed with the 20 states challenging the ACA's constitutionality, saying the individual mandate will no longer be constitutional once the tax penalty is eliminated in 2019.

    DOJ also argued that, as a result of the individual mandate no longer being constitutional as of 2019, some of the ACA's consumer insurance protections also will not be valid. In particular, DOJ in the brief said the ACA's ban on insurers denying people health coverage or charging them higher premium rates based on pre-existing medical conditions, as well as limits on how much insurers can charge people based on gender and age, would no longer be constitutional.

    However, DOJ in the brief said many of the ACA's other provisions could stand without the individual mandate, because certain provisions can be deemed legally distinct from the individual mandate. For example, DOJ in the brief did not argue that the ACA's Medicaid expansions should be suspended.

    GOP lawmakers push back

    But some Republican policymakers have pushed back on DOJ's arguments, saying they support keeping protections for individuals with pre-existing conditions intact.

    For instance, Senate Health, Education, Labor, and Pensions (HELP) Committee Chair Lamar Alexander (R-Tenn.) in a statement issued Tuesday called DOJ's arguments in the case "as far-fetched as any [he's] ever heard." He said, "Congress specifically repealed the individual mandate penalty, but I didn't hear a single senator say that they also thought they were repealing protections for people with pre-existing conditions."

    In separate remarks, Senate Majority Leader Mitch McConnell (R-Ky.) also said "everybody" in the Senate "is in favor of maintaining coverage for pre-existing conditions," adding, "There is no difference in opinion about that whatsoever." However, the Democratic Senatorial Campaign Committee on Tuesday said McConnell "lied" in those remarks, pointing to past GOP-backed legislative efforts that would have altered the ACA's protections for individuals with pre-existing conditions.

    Physician groups urge DOJ to defend the ACA

    In related news, a coalition of the United States' largest physician groups on Saturday in a joint statement urged the administration to defend the ACA in the lawsuit, Forbes reports.

    The groups that issued the joint statement were the:

    • American Academy of Family Physicians;
    • American Academy of Pediatrics;
    • American College of Obstetricians and Gynecologists;
    • American College of Physicians;
    • American Osteopathic Association; and
    • American Psychiatric Association.

    The groups in the statement said the elimination of patient protections enacted under the ACA "could result in millions of people facing limited access to health care coverage and higher cost as a result of insurers being allowed to return to discriminatory coverage and pricing practices." They added, "As physicians who provide a majority of care to individuals for physical and mental conditions, we can speak clearly that these insurance reforms and protections are essential to ensuring that the more than 130 million Americans, especially the more than 31 million individuals between the ages of 55 and 64, who have at least one pre-existing condition are able to secure affordable health care coverage."

    The groups called on DOJ to "reconsider its decision" not to defend the ACA in the lawsuit and called on all stakeholders to "seek policy solutions that increase access to affordable health care that provides all individuals, regardless of their gender, race, and health status, reasonable protections against discrimination in coverage and pricing."

    Azar seeks to clarify administration's argument

    HHS Secretary Alex Azar during testimony before the Senate HELP Committee on Tuesday sought to clarify that DOJ's arguments in the case represent "a constitutional and legal position," rather than a "policy position." Azar added that the administration "share[s] the view of working to ensure that individuals with pre-existing conditions can have access to affordable health insurance."

    Sen. Maggie Hassan (D-N.H.) then asked Azar whether he would "encourage the … administration to change its position." Azar responded, "We do believe in finding solutions on the matter of pre-existing conditions and the matter of affordability, regardless of the litigation" (Baker, "Vitals," Axios, 6/13; Diamond, "Pulse," Politico, 6/13; Hellmann [1], The Hill, 6/12; Haberkorn, Politico, 6/12; Goldstein/McGinley, Washington Post, 6/12; Hellmann [2], The Hill, 6/12; Japsen, Forbes, 6/11; Physician groups' statement, 6/9; Diamond, "Pulse," Politico, 6/12).

    Just updated: Your cheat sheets for understanding health care's legal landscape


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