With the nomination of Brett Kavanaugh to the U.S. Supreme Court making headlines, the role of the courts in protecting — or limiting– access to healthcare is front and center. Here are some of the important healthcare issues that will likely be considered by the courts in the near future:
1. Pre-Existing Condition Protections
Last month, the Department of Justice announced its highly unusual decision that it would not defend the Affordable Care Act – the law of the land – because it now views pre-existing condition protections as unconstitutional. This is essentially an effort by the Administration to accomplish through courts what Congress has failed to do: repeal the Affordable Care Act.
The Supreme Court has already upheld the Affordable Care Act twice when it has been challenged, but the current lawsuit, Texas v. HHS, may land the law in the Supreme Court again. If so, pre-existing condition protections – or even the entire law- could be at risk.
The stakes are high: 133 million Americans have pre-existing conditions. If these protections were struck down, all of them would be stripped of their guarantee of access to affordable healthcare. Insurance companies could once again deny people access to coverage or charge them more because of conditions like cancer, diabetes, asthma, or high blood pressure.
Experts warn that the lawsuit could impact not only people who get coverage under the ACA, but also spill over into employer-provided coverage for some employees who may be changing jobs or work for smaller employers.
2. Medicaid Work Requirements
This January, the Trump Administration began encouraging states to implement work requirements for families and individuals who rely on Medicaid. These so-called work requirements are nothing more than a backdoor attempt to cut Medicaid. In Pennsylvania, the most recent bill to implement such requirements would cost the state $3.4 billion over 6 years and result in 85,000 people losing coverage.
Kentucky was the first state to approve work requirement, and its own projections estimated that 15% of people who rely on Medicaid would lose coverage. Three additional states have received approval from the Administration, 7 more have requested it, and many more (including Pennsylvania) are considering legislation that would implement work requirements.
However, these efforts have been challenged in court. This month, a federal judge blocked Kentucky’s plan, which was to go into effect next week. The judge ruled that the Trump administration’s approval of the plan had been “arbitrary and capricious” because it had not adequately considered whether the plan would “help the state furnish medical assistance to its citizens, a central objective of Medicaid.” The ruling in the Kentucky case is the first on this issue, but it will almost certainly not be the last; the question may wind up before the Supreme Court.
3. Cost-Sharing Reductions
Common Ground Healthcare Cooperative v. United States was certified as a class action suit regarding the Trump Administration’s decision to discontinue funding for cost-sharing reductions. The ruling as class action could be challenged and the litigation will be ongoing for several years.
This is important, as the Trump administration has talked about prohibiting strategies that offset the rate increases due to the loss of the CSR payments. If the Trump administration does this, it would mean that everyone would have to pay more for insurance. As this has been a hotly contested issue, Courts are likely to be involved. If the Courts decide for the Administration, the impact on the Affordable Care Act marketplace could be severe.