“That policy judgment is theirs to make,” the opinion says.
The ruling came the same week the administration and the state of Arkansas asked the Supreme Court to take two cases involving another cornerstone of the administration’s efforts to tilt health policy in a more conservative direction. For the first time in the half-century of Medicaid as safety-net insurance, HHS has allowed states to compel some people to work or prepare for a job in exchange for the health benefits.
In February, the D.C. Circuit unanimously struck down the work requirements as conflicting with Medicaid’s purpose. The Department of Justice is now asking the high court to review during its next term the constitutionality of work requirements in New Hampshire, as well as in Arkansas.
Meanwhile, the administration is scheduled to file a legal response Monday in a lawsuit on behalf of the city of Chicago over the administration’s decision this spring not to open ACA marketplaces for people to buy health plans — often with federal subsidies — during the coronavirus pandemic.
Taken together, the legal developments reflect some of the ways in which the administration’s efforts to unravel Democratic health policies have migrated from ideological fights in Washington and statehouses into the federal courts.
The stakes would be significant at any time for America’s patients and the health-care industry. But they are particularly high amid a pandemic, which has sickened 3.6 million Americans and left millions without jobs or health benefits.
Opposition to the ACA has been central to President Trump’s political identity, and it has permeated many HHS decisions during his tenure. The short-term, limited-duration health plans are essentially a sidestep of required health benefits and consumer insurance protections built into the sprawling 2010 health care law that is at the core of President Barack Obama’s domestic policy legacy.
The health plans at issue in Friday’s circuit court ruling were originally intended as a bridge for people between jobs or with other needs for brief coverage.
Near the end of the Obama administration, these short-term plans were limited to three months, out of concern they might siphon customers from ACA marketplaces. In 2018, the Trump administration rewrote the rules, saying customers could purchase them for just under a year at a time and then renew them twice.
The majority opinion was written by Judge Thomas B. Griffith, an appointee of President George W. Bush, and joined by Judge Gregory G. Katsas, a Trump appointee. The ruling says Congress has not precluded HHS or other departments from deciding how long such short-term health plans should last. And it says HHS and other departments’ balancing of “the cost and benefits of expanding the length of [such] policies is in the departments’ bailiwick.”
In a dissent, Judge Judith W. Rogers, an appointee of President Bill Clinton, writes that the plans were intended merely as a stopgap, not anyone’s main insurance. Increasing the availability of such plans is part of Trump’s goal of repealing the ACA, Rogers says, adding that they “leave enrollees without benefits that Congress deemed essential” and tend to pull young, healthy customers out of ACA insurance marketplaces.
The result, she writes, is “recreating the same problems in the health insurance market that the ACA was designed to solve.”
In asking the Supreme Court to review Medicaid work requirements, the Justice Department is focused on cases involving two of the many states for which HHS has approved what proponents call “community engagement” rules. In 2018, Arkansas became the first to impose such rules, and about 18,000 residents lost coverage before a lower court judge invalidated the program in March 2019. New Hampshire passed similar rules that were halted by the same judge. Both rulings were upheld by the D.C. Circuit.
In urging the high court to review the cases, Justice lawyers argue the circuit court’s “conclusion that work and skill-building requirements specifically are impermissible objects of experimentation . . . cannot be squared with history.”
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