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How a Revocation of the Patient Protection and Affordable Care Act Would Impact Elders

On December 14, 2018, Judge O’Connor of the Federal District Court in Fort Worth declared the Patient Protection and Affordable Care Act, or ACA, unconstitutional. His decision came in Texas v. Azar and has made headlines around the country. The ACA was championed by President Obama and provided healthcare reform for the 21st Century. Let’s take a look at what the ACA entailed, the legal rationale for O’Connor’s ruling, and how a revocation of the ACA would impact elders.

What are some key provisions of the Affordable Care Act?

The ACA was enacted in March 2010. The goals of the ACA were to make health insurance more affordable, expand Medicaid, and to lower the cost of health care overall. To achieve these goals, the ACA:

  • Prevented insurance companies from ending or denying coverage due to pre-existing conditions
  • Prevented insurance companies from ending coverage for customers needing expensive medical care
  • Prevented insurance companies from automatically pricing health insurance at a higher rate just because the covered individual is a woman
  • Provided for premium subsidies
  • Implemented industry practices to improve efficiency among health care providers
  • Expanded the availability of Medicaid coverage
  • Required health insurance to cover basic things like cancer screenings and preventative care
  • Allowed certain children to remain covered under their parents’ health insurance until age 26
  • Stipulated a tax penalty for those who did not have health insurance

Inside O’Connor’s ruling

To discuss the rationale of Judge O’Connor’s ruling, we must first look at the landmark ruling in National Federation of Independent Business v. Sebelius in 2012. In that ruling, the ACA was held constitutional. The court reasoned that the individual mandate, or the requirement that those without health insurance coverage face a tax penalty, is authorized under Congress’s Powers of Taxation. Chief Justice Roberts found the ACA constitutional by reasonably characterizing it as a tax. When the individual mandate and subsequent tax penalty was removed from the ACA by the Tax Cuts and Jobs Act, which became effective on January 1, 2018, the rationale of the ruling in National Federation no longer existed and the door was open to again challenge the constitutionality of the ACA.

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Many are hopeful the ACA will remain in place. In their favor is that if Judge O’Connor’s ruling makes it up to the Supreme Court, it will go before a court that has the same majority that has already upheld the law twice. Also, the case must first be heard by the U.S. Court of Appeals for the 5th Circuit and so wouldn’t reach the Supreme Court until next October – just in time for the 2020 presidential campaign. Many politicians or appointed officials may not want to deal with such a politically sensitive case so close to elections. Finally, many proponents rely on the legal concept of severability – just because one part of a law is struck down doesn’t mean the entire law must be struck down, unless it apparent from Congress’ intent that the entire law should be struck down. And who could argue that was Congress’ intent since they were the ones who struck down the individual mandate and left the rest of the law in place?

Opponents of the ACA hope the unconstitutionality ruling will stand, and argue that the ACA makes health insurance more expensive. Opponents also often argue that the government should stay out of the health care industry; health care companies are private industries and should be kept that way. Many initial opponents of the ACA are now supporters of the Act, including many Republican politicians.

How the ruling would affect elders

Millions could lose coverage and protections

Many seniors rely on the ACA marketplace and subsidies to purchase affordable insurance. The elimination of the ACA would mean a loss of health insurance for many seniors. Likewise, the ACA dictates that a health insurance cannot deny coverage to seniors due to pre-existing conditions. Seniors with pre-existing conditions many find it once again difficult or impossible to find private health insurance. Finally, seniors could lose their access to free preventative care through their health insurance.

Medicare and Medicaid

Elimination of the ACA would mean big changes for Medicare and Medicaid. ACA closed the doughnut hole – a coverage cap in drug costs. This hole would be reopened. Millions of recipients belong to accountable care organizations that were created under the ACA and the future of these organizations would be unclear.

The biggest effect would be the elimination of Medicaid expansion coverage. Declaring the entire ACA unconstitutional would eradicate federal authorization and funding for the expansion of Medicaid to a larger segment of low-income seniors. States would be forced to bear the full price of covering people under Medicaid expansion – those who would not qualify for coverage under pre-ACA criteria – instead of having the federal government pay 90% of the cost. Many states would likely repeal Medicaid expansion.

Conclusion

Barbara McAneny, president of the American Medical Association, said “Today’s decision is an unfortunate step backward for our health system that is contrary to overwhelming public sentiment. No one wants to go back to the days of 20% of the population uninsured and fewer patient protections, but this decision will move us in that direction.”

In response to the Azar decision, Senate Democrats drafted a resolution to intervene in the suit, to request consent for the Senate’s legal counsel to defend the ACA in court. The resolution did not pass. Several Democratic states, like California, plan to appeal Judge O’Connor’s ruling. The ruling did not issue an injunction. So for now, the ACA remains in place pending further litigation. This will likely be a hot topic going into 2019, and something ElderCounsel will keep an eye on to alert our readers to any new updates regarding this case going forward.

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