Front Steps and Columns of the Supreme Court

The Patient Protection and Affordable Care Act survives another suit.

Last week, the U.S. Supreme Court released its decision on Texas v. USA, the latest attempt to overturn the Patient Protection and Affordable Care Act (PPACA).

Some quick background: under Trump’s tax law signed in 2017, Congress eliminated the PPACA-mandated penalty individuals would be assessed if they did not get health insurance. As you may recall, the Texas lawsuit argued that, since the penalty was thrown out, it could not be considered a tax; therefore, the individual mandate was unconstitutional, and, the lawsuit argued, the whole PPACA was unconstitutional as well.

However, in their decision last Thursday, the Supreme Court justices did not consider the plaintiff’s argument at all. The majority of the court ruled that Texas and the 17 other Republican states that filed the lawsuit had no standing; they had no right to sue, because the plaintiffs suffered no harm. After all, they said, the penalty for not having insurance is now zero dollars.  

This was the third time a challenge to the PPACA has come before the Supreme Court. The legislation has also seen multiple attempts at repeal in Congress, including in 2017, when Republicans controlled both chambers of Congress and the White House. From comments made after the recent decision was announced, it appears that Republican lawmakers will no longer concentrate on repealing or significantly overhauling the PPACA, but will rather focus on pushing back on further expansion and subsidies.

A total of 31 million Americans have health coverage now through the PPACA, including over 11 million people enrolled in the exchanges and nearly 15 million people who are enrolled under the PPACA’s Medicaid expansion. Over one million exchange enrollees have enrolled during the special open enrollment Biden launched in February of this year.

States Consider Public Option and Telehealth Reimbursement
During the pandemic, nearly every state Medicaid office – and many commercial insurers – paid for healthcare visits conducted over the telephone during the pandemic; that is, audio-only visits. Now, state legislators are making decisions on whether their state Medicaid programs should continue to pay for those telephone visits, and at what reimbursement rate.

  • New Hampshire now requires telephone visits to be paid at the same rate as in-person visits, while Connecticut, Delaware, New York, Colorado, and other states have passed legislation that allows Medicaid to continue paying for telephone visits at least on some level.
  • In contrast, California’s legislature is currently arguing with the state’s governor, who does not want to pay the pandemic rate for telephone visits.
  • And in the meantime, Congress is considering making reimbursement permanent for Medicare telephone visits.

These decisions on state Medicaid and federal Medicare telehealth are important, since often, where Medicaid and Medicare go, so goes commercial and employer insurance.

On another note, it is unlikely that the Biden Administration will attempt to push a Medicare-like public health plan option at the federal level, though some Democrats in Congress keep asking for it. At the state level, however, 23 states have considered some type of government-run health plan.

Most recently, Nevada and Colorado have both passed public-option legislation. Nevada’s governor has already signed the legislation into law; Colorado’s governor is expected to sign. Both states will have private insurers managing the plans.

To date, however, Washington State is the only state that has passed and implemented a state public option with coverage that became effective Jan. 1, 2021.

Policy analysts will be watching how these state public options do, as a kind of experiment to see whether such a plan makes sense at the federal level.

Programming Note: Listen to Matthew Albright’s Legislative Update, sponsored by Zelis, every Monday during Monitor Mondays, 10 Eastern.

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