AHIP, Others React to DOJ Move Against ACA in Texas

If a federal judge in Texas agrees with the Department of Justice’s (DOJ) move to not defend the constitutionality of the Affordable Care Act (ACA), millions of Americans could lose their healthcare coverage or face higher premiums for having preexisting conditions, a legal professor wrote Friday in a blog post for The Commonwealth Fund.

And America’s Health Insurance Plans (AHIP), an association for the nation’s health insurers, issued a statement saying that the end of the individual mandate should not mean a loss of consumer protections for patients.

In a surprise action Thursday night, the Trump administration said it is mostly siding with 20 Republican-led states that brought a suit against the ACA, saying it is unconstitutional.

The brief was filed in Texas v. Azar, a case brought in February by Texas and 19 other Republican-led states.

Texas wants the provision of the ACA requiring individuals to have health insurance declared unconstitutional. In 2012, the Supreme Court held that the insurance mandate was unconstitutional as a nationwide mandate. With President Trump’s tax reform package in December 2017 removing the individual mandate requirement as a tax penalty, the last remaining reasoning to having a mandate fell apart, the suit argues.

Fifty-two million Americans with preexisting conditions are at risk or denial of coverage or higher premiums, wrote Timothy S. Jost, JD an emeritus professor at the Washington and Lee University School of Law. Insurers would be able to charge higher premiums for patients with chronic conditions, in certain occupations, women or older people.

Jost wrote that the development puts health insurers in a quandry, since they are now setting rates for the individual market in 2019. Insurers in some states have already raised rates, citing changes to the market. Jost wrote that “is hard to escape the conclusion that the brief is an attempt to use the courts to do what Congress was unwilling to do: repeal major consumer protections of the ACA.”

In a statement, AHIP said it agrees with the administration that “a preliminary injunction should not be granted to the plaintiffs. We also agree that the Affordable Care Act’s (ACA) provisions affecting Medicaid, Medicare Advantage, and Medicare Part D should remain law. However, we believe that a declaratory judgment would have the same destabilizing effect as a preliminary injunction, and therefore should not be granted.”

“Zeroing out the individual mandate penalty should not result in striking important consumer protections, such as guaranteed issue and community rating rules that help those with pre-existing conditions. Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019.”

On Friday, Democratic members of the House of Representatives were furious.

Energy and Commerce Ranking Member Frank Pallone, Jr., New Jersey, Education and the Workforce Ranking Member Bobby Scott, Virginia, and Ways and Means Ranking Member Richard Neal, Massachusetts, said the move by the DOJ breaks with the department’s tradition of defending federal laws, regardless of whether it supports the underlying policies. “Our Constitution requires the executive branch to faithfully execute the laws passed by Congress," they wrote in a statement. "The brief filed by the Trump Administration yesterday represents a shocking break from precedent and relies on legally dubious, partisan claims to argue against the constitutionality of the current law.