Trump Administration Takes New Aim At Obamacare’s Pre-Existing Protections

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The effort probably won’t succeed, but it could put health care back in the political debate.

The Trump administration on Thursday officially threw its support behind a new, seemingly far-fetched legal challenge to the Affordable Care Act, arguing that the law’s protections for people with pre-existing conditions are unconstitutional.

The lawsuit, now before a federal district judge in Texas, comes from officials in 20 conservative states. And its prospects for success look slim. The Supreme Court has already rejected two legal challenges to the law, the second on a 6-3 decision that came with a strongly wordedruling from Chief Justice John Roberts.

State attorneys general will step in to defend the law from this new challenge. And they will not have difficulty making their case.

The lawsuit’s key argument is that Congress intended for the pre-existing condition protections to work in tandem with the law’s individual mandate, the provision that people have insurance or pay a penalty. Now that Congress has decided to zero out the penalty, as Republicans did last year as part of the 2017 tax cut, the pre-existing conditions have to go, too.

That would mean insurers would no longer be subject to “guaranteed issue” (a requirement that they sell policies to anybody, regardless of medical status) or “community rating” (a prohibition on charging higher premiums to people with pre-existing conditions).

The problem, many scholars have noted, is that Congress has taken action since it passed the Affordable Care Act leaving pre-existing protection in place even as it reduced the individual mandate penalty to zero. Whether or not that was a smart policy move, it is clearly what Congress intended ― and Congress gets to make those kinds of decisions.

“If Congress had wanted to repeal the guaranteed issue and community rating provisions of the law, it would’ve done so ― but it didn’t,” Nicholas Bagley, a law professor at the University of Michigan, told HuffPost. 

Even some lawyers who supported previous lawsuits against the Affordable Care Act, such as Ilya Solmin from George Mason University Law School, think this latest lawsuit is weaker. 

“There is a big difference between a court choosing to sever a part of a law, and Congress doing so itself,” Solmin wrote at the Volokh Conspiracy blog. “And in this case, Congress has already effectively neutered the individual mandate, while leaving the rest of the ACA in place.”

All of that suggests there’s a good chance the lawsuit never even gets to the high court.

But the administration’s decision could be significant for two other reasons.

One is that it deviates from the usual Justice Department tradition under which its lawyers defend even laws that the sitting president and his party oppose. It’s part of the president’s duties, under Article II of the Constitution, that “he shall take care that the laws be faithfully executed.”

On Thursday, three career attorneys from the Department of Justice asked to remove themselves from the case. That is highly unusual, leaving legal observers like Bagley to speculate that the lawyers may have felt they could not in good conscience sign onto the brief.

The Trump administration’s move is not without precedent. In 2011, President Barack Obama’s Justice Department declined to defend the Defense of Marriage Act (DOMA) in court. Critics at the time warned that failing to defend an existing law might set a bad precedent, and some of Obama’s own advisers opposed the decision.

Still, DOMA, which prohibited same-sex couples from getting federal benefits, raised important questions about basic human rights and was already constitutionally suspect. The Supreme Court would go on to strike it down just two years later.

“Unlike DOMA, the question here is not a question of major constitutional significance that produced deep divisions,” Yale law professor Abbe Gluck said Thursday evening. “There is no great moral question for [the Justice Department] to engage here.”

The other significance of Thursday’s action is not legal. It’s political.

The Trump administration’s contempt for Obamacare is no secret. And although the president and his supporters have sometimes said they believe in protections for people with pre-existing conditions, they have repeatedly taken action ― like trying to pass repeal legislation or rolling back the Affordable Care Act’s regulations on what plans must cover ― that seek to undermine or obliterate those protections entirely.

Those GOP efforts sparked a tremendous backlash. But the effort to get a repeal bill through Congress ended in the fall. It’s possible that those memories have faded from public consciousness a bit, and that may even help explain Trump’s gradually, if modestly, improving approval numbers in the polls.

The decision to jump into this health care case, on the side of the plaintiffs out to gut protections for people with pre-existing conditions, could put the issue back in the public eye. That could work well for Democrats, who have made clear they believe health care is a winning political issue for them again.

“After years of Republicans trying to repeal the protections stopping insurance companies from denying coverage to people with pre-existing conditions, now Trump says the protections are unconstitutional. Republicans always had to defend those votes in this election, but now they have to defend his decree too,” said Jesse Ferguson, a Democratic strategist who works with health care advocacy groups.

Spokespersons for the Democrats’ House and Senate campaign committees made clear that Republicans will have to defend this decision and that the GOP “will face serious blowback in the midterms.”

The move could be particularly important in two key Senate races. The original brief in the lawsuit included, as co-counsel, a pair of state attorneys general: Josh Hawley of Missouri and Patrick Morrisey of West Virginia.

Hawley is challenging Democratic Sen. Claire McCaskill, while Morrisey is challenging Democratic Sen. Joe Manchin. Missouri and West Virginia are relatively conservative states, difficult for Democrats to hold, and McCaskill, in particular, is thought to be vulnerable.

But polls have shown protections for pre-existing conditions to be exceedingly popular, even among Republican voters. A chance to show voters that Hawley and Morrisey would get rid of those protections could help keep those two seats in Democratic hands.




Valerie Jarrett Calls Roseanne Barr’s Racist Tweet A ‘Teaching Moment’

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The former White House aide responded to Barr’s tweet during an MSNBC town hall.

Former Obama aide Valerie Jarrett called actress Roseanne Barr’s racist comments about her a “teaching moment” during MSNBC’s “Everyday Racism in America” town hall on Tuesday. 

Earlier in the day, Barr wrote on Twitter, “Muslim brotherhood & planet of the apes had a baby=vj,” in reference to Jarrett, who is black and was born in Iran to American parents. Barr apologized and deleted the tweet on Tuesday. 

At the event, hosted by Joy Reid and Chris Hayes, Jarrett addressed the post. “First of all, I think we have to turn it into a teaching moment. I’m fine. I’m worried about all the people out there who don’t have a circle of friends and followers coming to their defense,” she said, according to a clip released by MSNBC.  

Hours after a backlash against Barr’s comment began, ABC President Channing Dungey called Barr’s tweet “repugnant” and announced that the network was canceling the hit revival of her sitcom. Jarrett said that Bob Iger, the CEO of ABC’s parent corporation, the Walt Disney Co., reached out to let her know about the cancellation of “Roseanne.” 

“He wanted me to know before he made it public that he was canceling the show,” Jarrett said, according to NBC News

She called that decision the right move. Many were surprised by the decision to cancel the “Roseanne” revival, given that Barr has made problematic comments for years without consequence. 

Barr’s co-stars and collaborators publicly denounced her tweet, and talent agency ICM Partners dropped her as a client, a spokesman for the company confirmed for HuffPost on Tuesday.

“We are all greatly distressed by the disgraceful and unacceptable tweet from Roseanne Barr this morning,” ICM Partners wrote in a note to employees. “What she wrote is antithetical to our core values, both as individuals and as an agency. Consequently, we have notified her that we will not represent her. Effective immediately, Roseanne Barr is no longer a client.”

Jarrett also referred to President Donald Trump during the town hall, saying, “Tone does start at the top.”

“We like to look up to our president and feel as though he reflects the values of our country, but I also think every individual citizen has a responsibility to,” she said during the MSNBC event. “And it’s up to all of us to push back.” 

Jarrett’s full comments will be aired during MSNBC’s “Everyday Racism in America” town hall at 9 p.m. Tuesday. 

Obamacare Premiums Will Be Way Higher Next Year. They Didn’t Have To Be.

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The messy health insurance exchange market was starting to settle down before Trump came along.

If you buy your own health insurance, gird yourself for another round of big premium increases next year.

Health insurance companies have begun submitting requests for rate hikes to state regulators in a handful of states, and it’s not looking pretty based on information that Maryland, VirginiaOregon and Vermont have already made public. Double-digit premium increases again appear to be on the horizon for many consumers.

And according to what these insurers are telling states, those rate hikes wouldn’t be nearly as big if not for actions President Donald Trump and the GOP-led Congress have taken.

The biggest change was the repeal of the financial penalty for people who don’t comply with the Affordable Care Act’s individual mandate. Although the mandate may have been less effective than the health law’s authors expected, insurers are nervous that taking away that incentive to get covered will result in fewer healthy customers, meaning less revenue to cover the costs of the sicker people who will remain in the market. That alone will account for 10 percent premium increases overall, according to the Congressional Budget Office.

In addition, the Trump administration is working to relax federal regulations to permit insurance companies to offer policies that don’t abide by the Affordable Care Act’s protections for people with pre-existing conditions and offer skimpier benefits. Insurers are concerned that healthy people will flock to these cheaper products, weakening the precarious balance between healthy and sick people in the exchange markets.

In the absence of efforts to undermine the market, we would be seeing a period of relatively small premium increases.Cynthia Cox, Henry J. Kaiser Family Foundation

The combined result of these actions will be much higher health insurance costs in 2019. On average, the new policies Trump and Congress have enacted will add $1,013 to unsubsidized annual premiums next year, an increase of 16.4 percent above what rates would have been, according to an analysis published Friday by the liberal Center for American Progress.

It didn’t have to been this way. After three years of overall poor financial performance among health insurers on the exchanges that drove big premium hikes, the marketplace had mostly stabilized in 2017, according to a Henry J. Kaiser Family Foundation analysis published Thursday.

“In the absence of efforts to undermine the market, we would be seeing a period of relatively small premium increases, driven mostly by the underlying growth in health care costs,” said Cynthia Cox, the lead author of the Kaiser Family Foundation report. “I wouldn’t be surprised if we’re in for another year of double-digit premium increases. And if that does happen, it would be in large part due to policy changes that are happening.”

Premiums for policies available on the Affordable Care Act’s health insurance exchanges have been rising since they began in 2014. What’s changed is who’s running them and how they’re managing a system that provides health coverage to nearly 12 million people.

Rates have risen each year of the exchanges’ existence, and cumulatively are more than 50 percent higher this year than they were four years ago. That’s according to a separate Kaiser Family Foundation analysis that looks at the average premium for the “benchmark” plans used to establish the value of the tax credit subsidies available to exchange customers who earn between the federal poverty level and four times that amount, or $12,060 to $48,240 for a single person.

But the reasons for these increases have changed over time.

During the first two open enrollment periods for exchange customers for 2014 and 2015, many Americans who previously bought their insurance directly ― as opposed to getting it from a job or a government program like Medicaid ― were stunned to see prices that generally were higher than before.

That mostly was the result of the Affordable Care Act requiring insurers to accept customers with pre-existing conditions (who tend to be more expensive to treat) and establishing a basic set of benefits that includes coverage for things often left out in the past, such as maternity care and prescription drugs, Cox said.

In 2016 and 2017, insurers implemented big price increases after realizing they hadn’t charged enough the previous two years to cover their expenses, and to make up for the end of Affordable Care Act programs designed to protect insurance companies from unexpectedly high costs.

As the Kaiser Family Foundation determined, rate hikes would’ve been smaller this year and in future years ― even though prices would’ve remained high ― if the market had been left as it was, Cox said.

“The 2017 premium increase was a one-time market correction that was needed in order for insurers to regain profitability, and the 2018 and possibly 2019 premium increases are due to something else,” Cox said. “They would’ve regained that profitability by now and it’s the political or policy changes that are driving premium increases.”

"Medical loss ratio" is a measure of the financial performance for health insurance companies. The number is h

“Medical loss ratio” is a measure of the financial performance for health insurance companies. The number is higher when a larger percentage of premiums collected is spent on medical care. After rising over the 2014-2016 period, the average medical loss ratio for insurers on the health insurance exchanges nearly returned to its pre-Affordable Care Act level in 2017.

Something else happened instead. Premiums rose a lot for this year. The Trump administration significantly cut back on enrollment efforts. Sign-ups fell on the health insurance exchanges. And the uninsured rate began climbing last year after falling to a historic low.

Health insurance companies instituted big premium increases for 2018 in anticipation of Trump’s plan to cut off billions of dollars in repayments the federal government owed health insurers covering the lowest-income exchange customers. Insurers also reacted to Trump’s comments in 2017 that hinted his administration wouldn’t fully enforce the individual mandate.

As the evidence from the open enrollment period for 2018 indicates, the Affordable Care Act’s subsidies will protect most people in this market from the rate hikes. The way they’re structured, the subsidies rise along with the premiums and tax credit recipients’ share of the premiums is capped at a percentage of their income.

Eighty-three percent of the 11.8 million people who enrolled in an exchange plan qualified for subsidies. It’s the remaining 17 percent of unsubsidized exchange customers and the several million more people who bought their policies directly from an insurer would are exposed to the increasingly higher rates.

The Trump administration argues that these are the people who will benefit from the availability of new types of coverage that don’t meet Affordable Care Act standards. And that’s likely true for healthy people who don’t need the coverage as much but earn too much income to be eligible for tax credits. Plus, the end of the mandate penalties makes it so people can choose these other policies and not face fines.

While that means there will be winners from these policy changes, they will weaken the exchange markets, which is especially bad news for people with incomes too high for subsidies but who have pre-existing conditions.

“The combination of no individual mandate plus plans that may be attractive to healthy people and aren’t attractive to sick people can mean that the market can deteriorate progressively over time,” Cox said. Even so, the subsidies will keep enough healthy, low-income people in the pool to prevent the exchanges from collapsing, she said.

Voters tell pollsters that health care costs are a major issue for them going into this year’s congressional elections and Democrats are aggressively campaigning against Trump’s “sabotage” of the Affordable Care Act.

There’s likely little relief on the way from the federal government, but several states are attempting to stabilize their local markets. The New Jersey and Vermont legislatures have approved state-based individual mandates like the one in force in Massachusetts since 2007. And states including Alaska, Maryland, Minnesota and Wisconsin have passed laws designed to mitigate premium increases.




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