On June 7, the Department of Justice announced that it will not defend key provisions of the Affordable Care Act (ACA) in a lawsuit challenging the law’s constitutionality. The lawsuit filed by Texas and 19 other states, argues that since the Tax Cuts and Jobs Act reduced the penalty for not purchasing insurance to $0, it no longer raises revenue, and is therefore no longer constitutional under the tax powers of Congress. Furthermore, they argue that if the court strikes down the individual mandate, the rest of the ACA must also be struck down. The Department of Justice response argues that the individual mandate is unconstitutional but other provisions of the ACA should remain intact. The Administration further asserts that two critical protections for people with pre-existing conditions, guaranteed issue and community rating provisions, are unenforceable. Guaranteed issue is the provision that prevents denial of coverage based on health status and community rating helps keep insurance affordable for people with health conditions. California and sixteen other states have filed a motion to intervene, which would allow them to defend the law. Peter Berns, CEO of The Arc submitted a declaration in support of California’s motion to intervene. Read The Arc’s statement here.
On May 23, the Congressional Budget Office (CBO) released a report titled “Federal Subsidies for Health Insurance Coverage for People under Age 65: 2018-2028.” The report projects premiums for nongroup marketplace plans to increase by an average of 15 percent. The repeal of the individual mandate to have health insurance that was included in the Tax Cuts and Jobs Act of 2017 is a major contributor to the projected increase. The exit of people with lower health care costs from health insurance markets leads to higher premiums for those who remain. Additionally, enactment of a proposed rule expanding the use of time limited plans could lead to further exits and higher premiums.
On April 9, the Centers for Medicare and Medicaid Services (CMS) released a final rule weakening consumer protections in the Affordable Care Act. The final rule increases the amount by which insurers can increase premiums without regulatory approval, from 10% to 15%. Furthermore, it exempts student health plans from this process. The rule also broadens the circumstances when plans are allowed to spend less than 80% of premiums on providing care without being required to reimburse beneficiaries. Additionally, it allows states to narrow the scope of essential health benefits that plans are required to cover. Learn more about the final rule here.
On January 5, the Employee Benefits Security Administration released a proposed rule expanding the availability of association health plans (AHPs). While these plans are prohibited from discriminating or charging more based on pre-existing conditions, they are not required to cover the essential health benefits generally required by the Affordable Care Act (ACA), such as rehabilitative and habilitative services, and mental health and substance abuse services. This rule has the potential to destabilize the individual and small group health insurance markets, leaving people with disabilities and chronic health condition with skyrocketing premiums.
On October 12, President Trump issued an executive order aimed at weakening protections in the Affordable Care Act (ACA). The order instructs agencies to identify and consider ways in which plans can be offered that do not meet the ACA’s requirements. These changes, if implemented, have the potential to drive up the cost of plans that provide adequate benefits and coverage for people with disabilities and chronic health conditions. See The Arc’s statement here.
Later that day, the White House announced that it would stop cost-sharing reduction payments. The ACA requires insurance companies to substantially reduce out-of-pocket expenses for beneficiaries with incomes under 250% of the poverty level and provides for reimbursement from the federal government. According to the Congressional Budget Office, this decision is likely to increase the number of uninsured Americans, premiums, and the federal deficit. For more information, see The Arc’s blog post.
Last week, Senate Majority Leader Mitch McConnell (R-KY) cancelled plans to hold a vote on the Graham-Cassidy bill. With Fiscal Year (FY) 2017 having ended on September 30, Congress can no longer use that fiscal year’s budget reconciliation process to pass the bill with a simple majority vote. It now requires 60 votes. This victory would not have been possible without the disability community. Had this bill become law, it would have:
- Capped growth in per capita Medicaid spending at below the cost of providing services;
- Replaced premium tax credits and Medicaid Expansion funds with a block grant that grows more slowly than current law and expires after 2026;
- Redistributed funds away from states that accepted Medicaid expansion; and
- Allowed states to let insurers sell plans that cover fewer services and charge more based on health status or disability.
The Senate Finance Committee hearing on the Graham-Cassidy-Heller-Johnson Proposal on September 25 was marked by high attendance of disability advocates. Protesters from ADAPT started a chant of “No cuts to Medicaid, save our liberty” and their arrests delayed the start of the hearing by 15 minutes. Senator Robert Casey (D-PA) mentioned The Arc’s advocacy and showed the stack of letters with stories from our advocates across the country.
While the cancellation of the vote on the “Graham-Cassidy” bill closed the door on Congress’s best opportunity to pass this legislation for now, there are still major challenges ahead. The 115th Congress can write two more budgets, one each for FY 2018 and FY 2019. With each budget, there is an opportunity for one reconciliation bill which requires only a simple majority to pass in the Senate. The reconciliation bill for FY 2018 will most likely focus on tax cuts. It is possible that Congress will attempt to cut Medicaid, Medicare, Supplemental Security Income, or other programs that pay for basic livings needs of people with disabilities as a way to offset revenue reductions. Additionally, Congress could attempt to pass an Affordable Care Act Repeal with Medicaid per capita caps and major tax legislation in one package. In summary, fewer pathways now exist to cut program that cover basic living expenses, but threats still remain. See article above for Congressional efforts to develop a new budget resolution similar to the most recent efforts which allowed for consideration of major Medicaid cuts and repeal of the Affordable Care Act in 2017.
The growing Senate interest in the Graham-Cassidy-Heller-Johnson bill last week has derailed bipartisan efforts by the Senate Finance Committee to reauthorize the Children’s Health Insurance Program (CHIP). The bipartisan leadership of the Senate Health, Education, Labor, and Pensions Committee has also ended efforts to stabilize the health insurance market places by extending the programs that help make health insurance affordable for people and making other small changes to the Affordable Care Act. These two efforts are critical to maintaining affordable health insurance for children and people in the individual health insurance market and The Arc urges Congress to address these critical issues.
Over the weekend, the Graham-Cassidy-Heller-Johnson proposal was revised. The new version appears to make adjustments to the funding provisions designed to benefit certain states. It also allows more state flexibility to waive requirements in the law such the essential health benefits, prohibiting discrimination based on disability, age, and other factors, covering preventive services without cost-sharing, charging people with pre-existing conditions higher premiums, and other provisions. It is unlikely that the bill will be scored by the Congressional Budget Office in time for a vote this week. The new version does not appear to alter the Medicaid per capita cap provisions which cuts and caps the traditional Medicaid program. The Arc continues to oppose this proposal and is deeply concerned about the impact it will have on people with disabilities who rely on the Medicaid program for access to health care and long term supports and services.
Today, September 25, at 2:00 PM EDT, the Senate Finance Committee is holding a hearing to consider the Graham-Cassidy-Heller-Johnson Proposal. Witnesses will include: Senator Lindsey Graham (R-SC); Senator Bill Cassidy (R-LA); former Senator Rick Santorum (R-PA); Dennis G. Smith, Senior Advisory for Medicaid and Health Care Reform, Arkansas Department of Human Services; Teresa Miller, Acting Secretary, Department of Human Services, Commonwealth of Pennsylvania; Cindy Mann, Former Deputy Administrator and Director of the Center for Medicaid and CHIP Services, Centers for Medicare & Medicaid Services, United States Department of Health and Human Services; and Dick Woodruff, Senior Vice President, Federal Advocacy, American Cancer Society Cancer Action Network. The is the first hearing on the legislation. Visit the Committee web site for more information or to access the hearing live today. Read The Arc’s written testimony here.
While the Congressional Budget Office announced it will not have time to analyze the health care coverage impact of the bill before the September 30 deadline, it is expected to release a report this week on the fiscal implications of the bill. Avalere released an analysis showing that there will be a total reduction of $215 billion between 2020 and 2026 compared to current law with all but 16 states seeing funding reduced. Kaiser Family Foundation estimates there will be a reduction of $160 billion compared to current law with all but 15 states losing funding. Overtime the overall cuts to the Medicaid program would total over $4 trillion through 2036. Cuts to the traditional Medicaid program would be more than $1 trillion over two decades.
The Senate has until September 30 to pass the Graham-Cassidy-Heller-Johnson bill with a simple majority vote. After that date, the legislation will require 60 votes to pass, unless Congress passes a budget resolution for fiscal year 2018 that contains reconciliation instructions intended to address health care. Last week, Majority Leader McConnell (R-KY) said that he intended to have a Senate vote this week. The vote is expected to be very close. If successful, expectations are that the bill would go immediately to the House floor for passage and then to the President for signature. This would be a devastating blow to people with disabilities and their families who have worked so hard this year to prevent block grants and per capita caps from destroying the Medicaid program – a program which provides basic health care and long term supports which make it possible for millions of people to live as independently as possible in their communities. The Washington Post printed a letter to the editor from The Arc’s Marty Ford expressing these concerns.
Today is the national call-in day to mobilize disability advocates to stop the Graham-Cassidy health care bill. We must act again to protect Medicaid and defeat this dangerous legislation. We need you to call today to tell your Senator to oppose this bill.