KHN’s ‘What the Health?’: Georgia Turns the Senate Blue

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Surprise Democratic victories in Georgia’s two runoff elections this week will give Democrats control of the Senate, which means they will be in charge of both houses of Congress and the White House for the first time since 2010. Although the narrow majorities in the House and Senate will likely not allow Democrats to pass major expansions to health programs, it will make it easier to do things such as pass fixes for the Affordable Care Act.

Meanwhile, the speedy development and approval of vaccines to protect against covid-19 is being squandered by the lack of a national strategy to get those vaccines into people’s arms. Straightening out and speeding up vaccinations will be a major priority for the incoming administration of President-elect Joe Biden.

This week’s panelists are Julie Rovner of Kaiser Health News, Anna Edney of Bloomberg News, Alice Miranda Ollstein of Politico and Mary Ellen McIntire of CQ Roll Call.

Among the takeaways from this week’s podcast:

  • The Georgia election results will make it easier for some of Biden’s Cabinet picks to be confirmed, including Xavier Becerra, his choice to head the Department of Health and Human Services.
  • Among the ACA fixes that congressional Democrats may seek is a restoration of a small penalty for people who do not have health coverage. That could negate the case before the Supreme Court now that was brought by Republican state officials.
  • One strategic error in the covid vaccine distribution efforts was that the release of the vaccine was not coupled with a major messaging campaign to explain what the vaccine does and dispel fears about it.
  • Late last month, a federal court blocked the Trump administration from implementing a plan to tie what Medicare pays for some drugs to the prices in other countries. It’s not clear if the Biden administration will continue the legal fight to keep the program, but the president-elect has suggested he is more interested in bringing down drug prices by negotiating with manufacturers.
  • The Trump administration has sued retail giant Walmart, alleging it unlawfully dispensed opioids from its pharmacies.

Also, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read too:

Julie Rovner: The New York Times’ “One Hospital System Sued 2,500 Patients After Pandemic Hit,” by Brian M. Rosenthal

Alice Miranda Ollstein: Politico’s “Congress Using COVID Test That FDA Warns May Be Faulty,” by David Lim and Sarah Ferris

Mary Ellen McIntire: Bloomberg News’ “The World’s Most Loathed Industry Gave Us a Vaccine in Record Time,” by Drew Armstrong

Anna Edney: STAT News’ “How It Started: A Q&A With Helen Branswell, One Year After Covid-19 Became a Full-Time Job,” by Jason Ukman

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Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN’s ‘What the Health?’: 2020 in Review — It Wasn’t All COVID

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COVID-19 was the dominant — but not the only — health policy story of 2020. In this special year-in-review episode of KHN’s “What the Health?” podcast, panelists look back at some of the biggest non-coronavirus stories. Those included Supreme Court cases on the Affordable Care Act, Medicaid work requirements and abortion, as well as a year-end surprise ending to the “surprise bill” saga.

This week’s panelists are Julie Rovner of KHN, Joanne Kenen of Politico, Anna Edney of Bloomberg News and Sarah Karlin-Smith of Pink Sheet.

Among the takeaways from this week’s podcast:

  • The coronavirus pandemic strengthened the hand of ACA supporters, even as the Trump administration sought to get the Supreme Court to overturn the federal health law. Many people felt it was an inopportune time to get rid of that safety valve while so many Americans were losing their jobs — and their health insurance — due to the economic chaos from the virus.
  • Preliminary enrollment numbers released by federal officials last week suggest that more people were taking advantage of the option to buy coverage for 2021 through the ACA marketplaces than for 2020, even in the absence of enrollment encouragement from the federal government.
  • The ACA’s Medicaid expansion had a bit of a roller-coaster ride this year. Voters in two more states — Oklahoma and Missouri — approved the expansion in ballot measures, but the Trump administration continued its support of state plans that require many adults to prove they are working in order to continue their coverage. The Supreme Court has agreed to hear a challenge to that policy. Although lower courts have ruled that the Medicaid law does not allow such restrictions, it’s not clear how the new conservative majority on the court will view this issue.
  • Concerns are beginning to grow in Washington about the near-term prospect of the Medicare trust fund going insolvent. That can likely be fixed only with a remedy adopted by Congress, and that may not happen unless lawmakers feel a crisis is very near.
  • The Trump administration has sought to bring down drug out-of-pocket expenses for Medicare beneficiaries. Among those initiatives is a demonstration project to lower the cost of insulin. About a third of Medicare beneficiaries will be enrolled in plans that offer reduced prices in 2021. But the effort could have a hidden consequence: higher insurance premiums.
  • Many members of Congress began this session two years ago with grand promises of working to lower drug prices — but they never reached an agreement on how to do it.
  • President Donald Trump, however, was strongly motivated by the issue and late this year issued an order to set many Medicare drug prices based on what is paid in other industrialized nations. Drugmakers detest the idea and have vowed to fight it in court. Although some Democrats endorse the concept, it seems unlikely that President-elect Joe Biden would want to spend much capital in a legal battle for a plan that hasn’t been carefully vetted.
  • The gigantic spending and COVID relief bill that Congress finally approved Monday includes a provision to protect consumers from surprise medical bills when they are unknowingly treated by doctors or hospitals outside their insurance network. The law sets up a mediation process to resolve the charges, but the process favors the doctors. Insurers are likely to pass along any extra costs to consumers through higher premiums.

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Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Xavier Becerra en sus propias palabras: “La atención de salud es un derecho”

El presidente electo Joe Biden nombró al fiscal general de California, Xavier Becerra, para dirigir el Departamento de Salud y Servicios Humanos (HHS) de los Estados Unidos. Becerra, quien sería el primer secretario latino del HHS, ha tomado algunas posiciones innovadoras en atención de salud, especialmente desde que se convirtió en fiscal general, en 2017.

Becerra ha demandado a la administración Trump docenas de veces por temas de atención médica, control de la natalidad, inmigración, cambio climático y más, con California liderando la defensa de la Ley de Cuidado de Salud a Bajo Precio (ACA) ante la Corte Suprema de Estados Unidos. Becerra también ganó un importante acuerdo legal contra Sutter Health, después de acusar al gigante de la atención de salud sin fines de lucro de usar su dominio del mercado en el norte de California para aumentar los precios de manera ilegal.

El año pasado, Becerra le dijo a KHN que sus puntos de vista han sido moldeados por su experiencia como hijo de inmigrantes mexicanos. Al describir el aborto espontáneo de su madre, dijo que todos deberían poder ir al médico: “Para mí, la atención médica es un derecho”, dijo. “He sido un defensor del pagador único toda mi vida”.

Aquí hay más de lo que le dijo a KHN sobre sus puntos de vista sobre la atención médica en los últimos años:

A principios del año pasado, Becerra le contó a Samantha Young, corresponsal política de California Healthline, sobre su experiencia como hijo de inmigrantes y cómo eso moldeó su carrera legal y política.

Hace dos años, Becerra participó del podcast “What a Health?”, que conduce Julie Rovner, corresponsal principal de KHN en Washington, en donde habló sobre su énfasis en la atención de salud como fiscal general.

El mes pasado, Becerra habló con Samantha Young sobre su defensa de la Ley de Cuidado de Salud a Bajo Precio (ACA) ante la Corte Suprema de los Estados Unidos.

Esta historia fue producida por KHN, que publica California Healthline, un servicio editorialmente independiente de la California Health Care Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Xavier Becerra in His Own Words: ‘Health Care Is a Right’

President-elect Joe Biden has tapped California Attorney General Xavier Becerra to lead the U.S. Department of Health and Human Services. Becerra, who would be the nation’s first Latino HHS secretary, has taken some ground-breaking positions on health care, especially since he became attorney general in 2017.

He has sued the Trump administration dozens of times on health care, birth control, immigration, climate change and more, with California leading the defense of the Affordable Care Act before the U.S. Supreme Court. Becerra has also won a major legal settlement from Sutter Health after accusing the nonprofit health care giant of using its market dominance in Northern California to illegally drive up prices.

Becerra told KHN last year that his views have been shaped by his experience as the son of Mexican immigrants. Describing his mother’s miscarriage, he said that everyone should be able to go to the doctor: “For me, health care is a right,” he said. “I’ve been a single-payer advocate all my life.”

Here’s more of what he told KHN about his views on health care in the past few years:

Early last year, Becerra told Samantha Young, California Healthline’s state politics correspondent, about his experience as the child of immigrants, and how that shaped his legal and political career.

Becerra joined KHN chief Washington correspondent Julie Rovner on her “What the Health?” podcast two years ago about his emphasis on health care as attorney general.

Last month, Becerra spoke with Samantha Young about his defense of the Affordable Care Act before the U.S. Supreme Court.

This story was produced by KHN, which publishes California Healthline, an editorially independent service of the California Health Care Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN on the Air This Week

KHN Midwest correspondent Lauren Weber discussed COVID-19 surges in Wisconsin with Wisconsin Public Radio’s “Central Time” on Nov. 13.

California Healthline correspondent Angela Hart and editor Emily Bazar discussed how the Supreme Court case about the Affordable Care Act could affect California with the CalMatters and Capital Public Radio’s “California State of Mind” podcast.

KHN chief Washington correspondent Julie Rovner discussed open enrollment for ACA marketplace plans with Maine Public Radio’s “Maine Calling” on Monday.

KHN Midwest correspondent Cara Anthony discussed protections against race-based hair discrimination with KTVU Fox 2 on Tuesday.

KHN senior correspondent Liz Szabo discussed COVID vaccine candidates with Newsy on Tuesday.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Red States’ Case Against ACA Hinges on Whether They Were Actually Harmed by the Law

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Attorneys for GOP-controlled states seeking to kill the Affordable Care Act told the Supreme Court last week that at least some of the 12 million people who newly enrolled in Medicaid signed up only because of the law’s requirement that people have insurance coverage — although a tax penalty no longer exists.

The statement drew a rebuke from Justice Sonia Sotomayor, who said it belies reason. Several health experts also questioned the argument that poor people apply for Medicaid not because they need help getting health care but to meet the ACA’s individual mandate for coverage.

The point is vital to the Republicans’ case to overturn the ACA, an effort supported by the Trump administration. The states are trying to prove they were harmed by the 2010 health law — and thus have “legal standing” to challenge its constitutionality. They argue their Medicaid spending increased because of the mandate, even though Congress eliminated the tax penalty for not having health coverage in 2019. Even when the penalty existed, most poor people were exempt because of their low income.

Under the ACA, states can opt to expand Medicaid eligibility to all adults earning less than 138% of the federal poverty level, or about $17,600 for an individual. States and the federal government share the cost of their care.

If the states cannot prove they have standing, the justices can toss their case without ruling on its merits. The case also involves two individuals who purchased private insurance from Texas and are suing to have the law overturned.

The Medicaid costs issue was one of several ways Texas and other GOP-controlled states participating in the lawsuit say they were harmed by the ACA even after the individual mandate penalty was reduced to zero. Several justices, including conservatives Clarence Thomas and Amy Coney Barrett, posed questions about whether the states had standing.

The case heard last Tuesday, California v. Texas, was the third time the high court has taken up a major suit on the ACA. Republican attorneys general in 18 states and the Trump administration want the entire law struck down, a move that would threaten coverage for more than 20 million people, as well as millions of others with preexisting conditions, including COVID-19.

Even if the court rules the states have legal standing, the ACA opponents must prove the elimination of a penalty makes the entire law unconstitutional.

The Republican states assert that since the law was upheld under Congress’ taxing powers by the Supreme Court in 2012, once the tax penalty is gone, the entire law must fall, too.

A group of Democratic-controlled states led by California and the Democratic House of Representatives are urging the court to keep the law in place.

Sotomayor raised serious doubts about the plaintiffs’ Medicaid argument and whether the states had suffered injury.

“At some point, common sense seems to me would say: Huh?” Sotomayor told Kyle Hawkins, Texas’ solicitor general, who is leading the GOP states’ legal fight. She questioned whether it seemed reasonable that once Medicaid enrollees are told there is no tax penalty for people who don’t have coverage they would “enroll now, when they didn’t enroll when they thought there was a tax? Does that make any sense to you?”

Hawkins defended his case, saying states need to show that only one person signed up for Medicaid because of the individual mandate. “There’s a substantial likelihood of at least one person signing up for a state Medicaid program, which, of course, would cause at least one dollar in injury and satisfy the standing requirement,” he said.

He cited a Congressional Budget Office report issued in 2017, when lawmakers were considering the change in the penalty. It said some people would continue to buy insurance or seek coverage “solely because of a willingness to comply with the law,” even if the individual mandate penalty were eliminated.

Few surveys have asked Medicaid enrollees why they signed up for the program.

One of them, by University of Michigan researchers that same year, posed the question to 1,750 adults who had become eligible for Medicaid in the state as a result of the ACA expansion. The most common reasons respondents gave for enrolling were that they had lost other health coverage and had a medical condition that required care. Just 2% of respondents cited the need to avoid the individual mandate tax penalty.

With the tax penalty eliminated, legal and health policy experts said, it’s likely the share of respondents signing up for Medicaid because of the health coverage mandate has dropped closer to zero.

Richard Kay, a law professor emeritus at the University of Connecticut, said it’s clear most people don’t seek coverage because of the individual mandate — particularly since there is no longer a financial penalty. But there could be a few who still do.

“Do you stop at a stop sign if you are in the country and no one is around for miles?” he said. “It’s not impossible that some people get insurance just because the law requires them.”

Kay said there is no precise guidance on how courts decide whether a plaintiff has been penalized enough to prove it has legal standing. “It’s a very confused area of the law,” he said.

Pratik Shah, a Washington, D.C., attorney who represents America’s Health Insurance Plans, a trade group fighting to preserve the law, said the plaintiffs in the case have not proved standing.

“It does not make logical sense,” he said of the argument that state budgets were harmed by people signing up for Medicaid even after the individual mandate penalty was eliminated.

“It’s hard to see how the 2017 amendment to the health law would have forced more people into Medicaid,” he said. “If they weren’t signed up before, they would be less likely to get it without the penalty.”

The court is expected to rule on the case by the end of June.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN on the Air This Week

KHN Editor-in-Chief Elisabeth Rosenthal discussed how to manage unexpected health care costs with CBSN on Wednesday.

KHN chief Washington correspondent Julie Rovner discussed the Affordable Care Act case before the Supreme Court with WBEZ’s “Reset” and WDET’s “Detroit Today” on Tuesday and with WHYY’s “Radio Times” on Wednesday.

KHN partnerships editor and senior correspondent Mary Agnes Carey discussed the ACA Supreme Court case on Newsy’s “Morning Rush” on Tuesday and on Connecticut Public Radio’s “Where We Live” on Nov. 6.

On Thursday, KHN correspondent Rachana Pradhan discussed with Newsy the challenges President-elect Joe Biden faces in trying to seat Food and Drug Administration leadership quickly to deal with the pandemic.

KHN senior correspondent Sarah Jane Tribble discussed KHN’s “Where It Hurts” podcast with Kansas Public Radio’s “KPR Presents” on Nov. 1.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN’s ‘What the Health?’: Transition Interrupted

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Five days after the election was called for President-elect Joe Biden, President Donald Trump has not conceded — and instead ordered his administration not to begin the transition of power. That could have serious ramifications for health care, particularly as nearly every state is experiencing a spike in COVID-19 cases.

One piece of good news is that early results for a coronavirus vaccine made by Pfizer look promising. But that vaccine, even if it is approved soon, won’t likely be ready for wide distribution for several months.

And for the third time in eight years, the Supreme Court heard a case that could invalidate the Affordable Care Act. Judging from the oral arguments, though, it appears the justices are likely to leave most or even all of the law intact.

This week’s panelists are Julie Rovner of Kaiser Health News, Joanne Kenen of Politico, Stephanie Armour of The Wall Street Journal and Shefali Luthra of the 19th News.

Among the takeaways from this week’s podcast:

  • The transition teams advising Biden cannot officially contact current government officials. But many team members have long-standing relationships with people in the government and were talking to those officials before the election, so they have a good sense of what is happening in the administration.
  • The pandemic further complicates the handoff. The new administration will need to hit the ground running to distribute any coronavirus vaccine, so communication with Trump administration officials would be beneficial for the Biden team.
  • Two members of Biden’s COVID task force, Drs. Vivek Murthy, former surgeon general, and David Kessler, former commissioner of the Food and Drug Administration, have been briefing the former vice president since March on the threats of the coronavirus.
  • Since Democrats may not control the Senate — and if they do have control, it will be by the slimmest majority — Biden may be forced to make changes to health policy through executive actions and regulations. That will limit his ambitions.
  • Still, even these smaller moves can have major results, such as allowing Planned Parenthood to again participate in federal health programs to expand the number of providers from which low-income women can seek care.
  • The Pfizer vaccine requires extremely cold temperatures for storage, complicating the logistics for distribution. It is an obstacle but not an insurmountable one for most areas in this country.
  • Supreme Court justices signaled this week they might not strike the Affordable Care Act in its entirety. Several of the conservatives, including Justice Brett Kavanaugh, who was appointed by President Donald Trump, suggested that any ruling that the mandate to have insurance is unconstitutional does not have to doom the rest of the law.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read too:

Julie Rovner: KHN and The Washington Post’s “In Medical Schools, Students Seek Robust and Mandatory Anti-Racist Training,” by Elizabeth Lawrence

Joanne Kenen: KHN’s “Trump’s Anti-Abortion Zeal Shook Fragile Health Systems Around the World,” by Sarah Varney

Stephanie Armour: KHN’s “Biden Plan to Lower Medicare Eligibility Age to 60 Faces Hostility From Hospitals,” by Phil Galewitz

Shefali Luthra: Stat News’ “With a Meteoric Rise in Deaths, Talk of Waves Is Misguided, Say Covid-19 Modelers,” by Elizabeth Cooney

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Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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California Stands to Lose Big if US Supreme Court Cancels Obamacare

SACRAMENTO, Calif. — Of any state, California has the most to lose if the U.S. Supreme Court overturns the Affordable Care Act.

Health care coverage for millions of people is at stake, as are billions in federal dollars. Yet Democratic California leaders don’t have a plan to preserve the broad range of health care programs the state has adopted since it aggressively implemented Obamacare — including initiatives that go far beyond the federal health care law.

“We have made great strides and we don’t want to go back,” said Katie Heidorn, executive director of the nonprofit Insure the Uninsured Project. “This is real and we have to get our ducks in a row.”

The Supreme Court heard arguments Tuesday in the case, now known as California v. Texas. Texas and 18 Republican attorneys general are challenging the law, with backing from President Donald Trump and his administration. They argue that Obamacare is unconstitutional because the law cannot stand without the tax penalty that accompanies the individual mandate, which is the requirement to have health coverage. The Republican-controlled Congress zeroed out the mandate’s tax penalty as part of the 2017 tax bill, which the Republican attorneys general say rendered both the mandate and the rest of the law unconstitutional.

California Attorney General Xavier Becerra is leading the defense and says the law can stand without the mandate.

Legal experts predict the court is unlikely to rule until spring 2021, at the earliest. It could strike down the law entirely or keep parts of it, such as the ability for states to expand Medicaid to more adults, which has brought health insurance to roughly 12 million Americans. Or, the justices could preserve the law as is.

Even as legal experts say the addition of three Trump-nominated justices to the Supreme Court since the last time it weighed in on the law amounts to a legal wild card, Becerra is optimistic.

“We feel pretty confident that, as in the past, when the justices look to the fundamentals of the Affordable Care Act, they’re going to find that it is constitutional,” Becerra told California Healthline. “It would be near impossible right now to keep a state’s head above water without the Affordable Care Act.”

Democratic Gov. Gavin Newsom’s administration agreed the situation would be “catastrophic” for California if the law, or core parts of it, are overturned.

The state enthusiastically embraced Obamacare, and it gets more money than any other state under the law. It expanded its Medicaid program, called Medi-Cal, adding nearly 4 million enrollees as of June. It was the first to create a health insurance exchange, Covered California, which offers tax credits to help qualified Californians pay for coverage. Currently, about 1.5 million people are enrolled.

Since 2014, when the major provisions of the law took effect, California has cut its uninsured rate to historic lows — down to about 7% from 17% — and health insurance premiums for those buying coverage on the individual market are rising slower than before. The statewide average premiums for Covered California plans in 2020 and 2021 have increased less than 1%.

But if the court finds the law unconstitutional, about 5 million residents could lose health coverage, and the state stands to lose an estimated $27 billion in federal funds annually.

Of that, Medi-Cal would lose $20 billion and Covered California would lose nearly $7 billion, according to the state Department of Finance. Public health agencies, which also receive federal Obamacare funding, would also take a nearly $50 million hit.

California also offers much more than Obamacare provides, such as state subsidies to help low-income and middle-class families pay for their Covered California plans. It also covers full Medicaid benefits for unauthorized immigrants up to age 26. And as the Trump administration cut funding for outreach and enrollment, Covered California has continued to plow more money — $157 million this year — into such efforts.

Should Obamacare be struck down during a deepening financial and public health crisis, Newsom administration officials and lawmakers say California could not afford to continue its Medicaid expansion on its own. Millions of other low-income residents on Medi-Cal could face cuts to their benefits and insurance markets could be destabilized, sending insurance premiums soaring, state lawmakers warn.

And Covered California would be in peril, said Covered California Executive Director Peter Lee.

Lee told lawmakers in October that coming up with a replacement strategy would be a waste of time because the state couldn’t make up for such a monumental loss in funding.

“Talking about contingency plans is like talking about adding a few lifeboats to the Titanic,” he said. “We are not spending time on contingency plans, I’ll be really frank about that.”

Instead, Democratic lawmakers say they’d be forced to make painful health care cuts because, unlike the federal government, states can’t operate with budget deficits. And legislative leaders say they wouldn’t be able to finance the far more ambitious health care agenda they are eyeing under a Joe Biden-Kamala Harris administration.

“Peter Lee is right. I don’t know how we’d pivot and replace resources that should be coming to us from the federal government, because we’re in a budget crisis brought on by the pandemic,” Senate President Pro Tem Toni Atkins told California Healthline.

“We’ve gone from a $26 billion budget reserve and surplus in March to a $54 billion deficit, so this would put us in an impossible situation to continue to move forward creating more access from a health care perspective,” Atkins said.

Powerful lawmakers who lead the health committees in the state Senate and Assembly said they fear California would have to rescind programs approved just last year, including the state subsidies for low- and middle-income Californians.

To date, roughly 40,000 low- and middle-income people have benefited from those subsidies, expected to cost $240 million this year, according to Covered California.

Most likely, lawmakers said, the state would no longer be able to afford its 2019 expansion of Medi-Cal to unauthorized immigrants between ages 19 and 25, which is expected to cost roughly $100 million per year. About 75,000 unauthorized immigrants in that age group signed up for the program this year, according to the Department of Health Care Services.

California has codified other parts of Obamacare into state law that don’t require major state spending. These laws would preserve protections for some Californians should the federal law be invalidated.

For instance, state-regulated plans must cover dependents up to age 26, and this year Newsom approved laws prohibiting them from imposing annual or lifetime coverage limits. Also, state-regulated insurers are required to cover preventive care such as mammograms and vaccines.

But millions of Californians in plans regulated by the federal government would lose those protections.

“We’ve passed some bills that do a little patchwork, but it’s a fraction of what’s needed,” said state Sen. Richard Pan (D-Sacramento), who chairs the Senate Health Committee. “People with preexisting conditions are going to be in big trouble.”

Because the Supreme Court likely won’t issue its ruling for months, Newsom administration officials and lawmakers said they have time to come up with a plan should Obamacare be deemed unconstitutional. If necessary, they could call a special legislative session and Democratic lawmakers, with a supermajority in the legislature, could enact emergency legislation.

Dr. Robert Ross is a member of the Healthy California for All Commission, which is studying the feasibility of enacting a state-based single-payer system. He said the commission, with deep health policy expertise, also could be well poised to respond.

“All the lofty aspirations to do something that transformative turn to dust if the Affordable Care Act is blown up,” said Ross, president of the California Endowment, a foundation that focuses on expanding health care access among Californians. “We’d be having an entirely different, sobering conversation, and I’d hope our commission could put ideas in front of the governor for consideration.”

Samantha Young of California Healthline contributed to this report.

This KHN story first published on California Healthline, a service of the California Health Care Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Listen: The ACA in Court Again

Julie Rovner, chief Washington correspondent for KHN, participated in a discussion on KQED’s “Forum” about the arguments before the Supreme Court on Tuesday in a case that is challenging whether the Affordable Care Act is constitutional. You can hear the conversation and listeners’ questions here.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Fiscal general de California: los jueces deben ver que ACA es “indispensable”

Sacramento.- Cuando la Corte Suprema de los Estados Unidos esté escuchando el martes 10 un caso que podría decidir el destino de la Ley de Cuidado de Salud a Bajo Precio (ACA), California liderará la defensa de la ley federal que impacta en casi todos los aspectos del sistema de salud del país.

Por lo general, es tarea del gobierno federal defender una ley federal, pero la Administración Trump quiere que ACA, también conocida como Obamacare, se revoque.

Por eso, el fiscal general de California, Xavier Becerra, respaldado por más de 20 estados, defiende la ley contra el desafío presentado hace dos años por una coalición de funcionarios estatales republicanos.

Becerra ha sido uno de los adversarios más formidables de Trump: ha llevado a la administración a los tribunales decenas de veces por sus políticas, que van desde la inmigración y el control de la natalidad hasta el cambio climático. Se le considera uno de los principales contendientes para llenar la vacante del Senado que se abrirá ahora que la senadora por California Kamala Harris ha sido elegida vicepresidenta.

“Tan enérgicamente como un presidente y su administración están luchando para destruir la Ley de Cuidado de Salud a Bajo Precio, nosotros estamos luchando para salvarla para todos los estadounidenses”, dijo Becerra a los periodistas en una conferencia de prensa el lunes 9.

Si el tribunal anula toda la ley, el impacto se sentiría ampliamente. La ley proporciona seguro médico a más de 23 millones de estadounidenses. Permite a las personas que califican comprar seguros a través de los mercados estatales y el federal, y recibir subsidios.

También ha recomendado  a los estados expandir sus programas de Medicaid a más personas; previene que las compañías de seguros nieguen cobertura a personas con afecciones médicas preexistentes; prohíbe los límites de por vida en la cobertura; agrega beneficios a Medicare; y permite que los hijos permanezcan en los planes de sus padres hasta los 26 años.

El tema central en California vs. Texas es la multa fiscal federal por no tener seguro médico, como exige la ley. En 2017, el Congreso liderado por los republicanos redujo esta multa a cero, pero mantuvo intacta al resto de la ley, una medida que, según Becerra y otros expertos en leyes, muestra la intención del Congreso de apoyarla.

Sin embargo, funcionarios estatales republicanos dicen que la pérdida de la penalidad invalida el mandato de tener un seguro, así como toda la ley.

Becerra dijo que es posible que el tribunal determine que los impugnadores no tienen legitimidad para demandar al gobierno porque nadie ha sido perjudicado por una multa que cuesta cero.

Aunque la corte ha ratificado dos veces esta ley, la composición de la corte ha cambiado desde su último fallo sobre ACA en 2015. Desde entonces, Trump ha nombrado a tres jueces conservadores. Dos reemplazaron a otros conservadores, pero Amy Coney Barrett, quien fue confirmada a fines de octubre, ocupa el asiento de un ícono liberal, la jueza Ruth Bader Ginsburg.

Abbe Gluck, directora del Centro Salomón de Derecho y Políticas de Salud de la Escuela de Derecho de Yale, dijo que si el tribunal cree que el requisito del seguro médico es inconstitucional sin la penalidad, debería simplemente declarar inválida esa sección de la ley, pero no anularla por completo.

Pero “he aprendido que nunca se puede predecir lo que sucede en la corte cuando se trata de la Ley de Cuidado de Salud a Bajo Precio”, dijo Gluck. “Por eso hay más preocupación, porque el estatuto se ha vuelto tan fundamentalmente importante para una quinta parte de nuestra economía y para la atención médica de prácticamente todos los estadounidenses”.

Becerra habló con Samantha Young de California Healthline sobre su defensa del Obamacare y el enorme alcance de la influencia de la ley. La entrevista ha sido editada por extension, y para mayor claridad.

¿Cuáles son las posibilidades de que la Corte Suprema derogue la Ley de Cuidado de Salud a Bajo Precio?

Confiamos en que no solo verán la lógica legal detrás de esto, sino también la sabiduría y el éxito práctico de la Ley de Cuidado de Salud a Bajo Precio, lo cual pesa mucho a favor de que los jueces reconozcan no solo que es legal, sino indispensable. Cuando los jueces examinen los fundamentos de la Ley de Cuidado de Salud a Bajo Precio, encontrarán que es constitucional.

La composición de la Corte Suprema de los Estados Unidos ha cambiado desde la última vez que se pronunció sobre ACA. ¿Por qué cree que estos jueces decidirán de la misma manera?

Eso no debería cambiar el hecho de que los fundamentos de la ley siguen siendo los mismos. Los fundamentos de ACA son sólidos y funcionan. Espero que nueve jueces que revisan la misma ley observen ese precedente.

¿A qué debe prestar atención el público durante los argumentos orales?

Algo interesante de observar es cómo la corte interpreta las acciones tomadas por el Congreso en 2017, cuando aprobaron el proyecto de ley de exención de impuestos y redujeron a cero la tarifa o multa por el mandato individual. Ahora, estamos ante un presidente y al menos una cámara en el Congreso que está preparada para defender la Ley de Cuidado de Salud a Bajo Precio. ¿Cómo podría considerar el tribunal el hecho de que otro Congreso podría restablecer parte de ese mandato?

¿Cómo se relaciona esto con el argumento legal de que haber reducido a cero el mandato de alguna manera provocó la inconstitucionalidad de toda la ley? Creo que es una cuestión que el tribunal tendrá que examinar.

¿Qué pasará si la Corte Suprema de los Estados Unidos declara inconstitucional la Ley de Cuidado de Salud a Bajo Precio?

Volverán las preocupaciones. La atención preventiva de Medicare desaparecería. Los días en que los estadounidenses no tenían que preocuparse por la bancarrota por haber pisado un hospital prácticamente se esfumarían.

Tengo tres hijas. Hubo un tiempo que, como adultas, las tres estaban en nuestra cobertura de atención médica. Eso desaparecería porque la disposición que permite que los hijos adultos menores de 26 años permanezcan en la cobertura de los padres desaparecería. Y podría seguir y seguir.

¿Podrían los estados, incluido California, darse el lujo de intervenir por su cuenta?

No sé si hay algún estado que tenga la capacidad de reemplazar lo que hace la Ley de Cuidado de Salud a Bajo Precio. Es casi imposible. Parte de eso se debe a que no podemos replicar algunas de las cosas que puede hacer el gobierno federal. No tenemos esa jurisdicción federal, no tenemos esa amplitud y profundidad de alcance.

Si el tribunal anula ACA, ¿el Congreso no puede aprobar protecciones parciales que cuenten con el apoyo de los republicanos, como la cobertura de afecciones preexistentes?

Hemos escuchado a los republicanos decir “revocar y reemplazar” durante más de 10 años, y ha sido una retórica vacía desde el principio. Para los padres que tienen hijos con afecciones médicas preexistentes, no es reconfortante que alguien les prometa que reemplazarán un derecho que saben que ahora tienen para que sus hijo vayan al hospital. Y, ¿por qué desecharías eso por una promesa vacía que ya lleva 10 años?

La mayoría de los estadounidenses dirían: sigue construyendo sobre la base de la Ley de Cuidado de Salud a Bajo Precio. Mejorémosla, pero no descartemos lo que ha funcionado.

¿Cómo sabe que la Ley de Cuidado de Salud a Bajo Precio está funcionando?

Mi antiguo distrito congresional en Los Ángeles se encontraba entre los distritos congresionales con más cantidad de personas sin seguro de salud de la nación. En cuestión de años, una vez que entró en vigor la Ley de Cuidado de Salud a Bajo Precio, la tasa de personas sin seguro en ese distrito se redujo en un 50%. Fue simplemente astronómico.

La Ley de Cuidado de Salud a Bajo Precio hizo posible que las familias trabajadoras pudieran obtener cobertura y eso es enorme. Ese es el tipo de carga que se quita del alma.

¿Cree que tener a Joe Biden como presidente y a Kamala Harris como vicepresidenta en la Casa Blanca llevará a una mejora en la Ley de Cuidado de Salud a Bajo Precio?

Como candidato a presidente, Joe Biden dijo que se basaría en el éxito de la presidencia de Obama-Biden y se aseguraría que sigamos aumentando el número de estadounidenses con acceso a una atención médica asequible. Lo bueno es que finalmente tienes a alguien en la parte superior del tótem que dice que lo vamos a mejorar. Por eso esta elección fue tan importante.

Esta historia de KHN fue publicada primero en California Healthline, un servicio de la California Health Care Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Justices Bound to See ACA as ‘Indispensable,’ Says Californian Leading Defense

SACRAMENTO — When the U.S. Supreme Court hears a case Tuesday that could decide the fate of the Affordable Care Act, California will be leading the defense to uphold the federal law that touches nearly every aspect of the country’s health care system.

It’s usually the federal government’s job to defend a federal law, but President Donald Trump’s administration wants this law, also known as Obamacare, to be overturned.

So California Attorney General Xavier Becerra, backed by more than 20 other states, is defending the law against the challenge brought by a coalition of Republican state officials two years ago.

Becerra has been one of Trump’s most formidable adversaries, taking the administration to court scores of times over its policies, ranging from immigration and birth control to climate change. He is considered one of the leading contenders to fill the Senate vacancy that will open now that Sen. Kamala Harris of California has been elected vice president.

“Just as vigorously as a president and his administration are fighting to destroy the Affordable Care Act, we are fighting to save it for every American,” Becerra told reporters in a press conference Monday.

Should the court overturn the entire law, the impact would be felt widely. The law provides health insurance to more than 23 million Americans. It allows qualified people to buy subsidized insurance through federal or state insurance exchanges; permits states to expand their Medicaid programs to more people; prevents insurance companies from denying coverage to people with preexisting medical conditions; bans lifetime limits on coverage; adds benefits to Medicare; and allows children to stay on their parents’ plans up to age 26.

At issue in California v. Texas is the federal tax penalty for not having health insurance, as the law requires. The Republican-led Congress in 2017 zeroed out the penalty but kept the rest of the health law intact, a move Becerra and some other legal experts say shows congressional intent to support the law. The Republican state officials, however, say the loss of the tax invalidates the mandate to have insurance — as well as the entire law.

Becerra said it’s possible the court may determine that the challengers don’t have standing to sue the government because no one has been harmed by a zero-tax penalty.

Although the court has twice upheld the federal health care law, the composition of the court has changed since its last ACA ruling in 2015. Trump has appointed three conservative judges since then. Two replaced other conservatives, but Amy Coney Barrett, who was confirmed in late October, took the seat of a liberal icon, Justice Ruth Bader Ginsburg.

Abbe Gluck, faculty director of the Solomon Center for Health Law and Policy at Yale Law School, said that if the court believes the health insurance requirement is unconstitutional without the penalty, it should just hold that section of the law invalid but not overturn the entire law.

But “I have learned that you can never predict what happens in court when it comes to the Affordable Care Act,” Gluck said. “And that is why there is this heightened sense of concern, because the statute has become so fundamentally important to one-fifth of our economy and the health care of virtually all Americans.”

Becerra talked to California Healthline’s Samantha Young about his defense of Obamacare and the far-reaching influence of the law. The interview has been edited for length and clarity.

Q: What are the chances the Supreme Court could overturn the Affordable Care Act?

We’re confident they will see not just the legal logic behind it, but the wisdom and the practical success of the Affordable Care Act — all of which weigh heavily in favor of the justices recognizing that it’s not only legal but indispensable. When the justices look to the fundamentals of the Affordable Care Act, they’re going to find that it is constitutional.

Q: The makeup of the U.S. Supreme Court has changed since it last ruled on the ACA. Why do you think these justices will rule the same way?

That shouldn’t change the fact that the fundamentals of the law have remained the same. The fundamentals of the ACA are grounded, they’re solid, and they work. I would hope that nine justices reviewing the same law would look at that precedent.

Q: What should the public pay attention to during the oral arguments?

One thing interesting to watch is how the court interprets the actions taken by Congress in 2017 when they passed the tax break bill and zeroed out the individual mandate fee or penalty. Now, we’re looking at a president and at least one house in Congress that’s prepared to defend the Affordable Care Act. How might the court look at the fact that another Congress could reinstitute part of that mandate?

What does that do to the legal argument that having zeroed out the mandate somehow triggered the unconstitutionality of the entire law? I think that’s a question the court will have to examine.

Q: What happens if the U.S. Supreme Court declares the Affordable Care Act unconstitutional?

The worries return. Preventative care under Medicare would be gone. The days when Americans don’t have to worry about going personally bankrupt for having visited a hospital would pretty much be gone.

I’ve got three daughters. There was a time when all three of them as adults were on our health care coverage. That would be gone because the provision that allows adult children under the age of 26 to remain on a parent’s coverage would disappear. I could go on and on.

Q: Could states, including California, afford to step in on their own?

I don’t know if there’s any state who has the capacity to replace what the Affordable Care Act does. It’d be almost insurmountable. Part of that is because we can’t replicate some of the things that the federal government can do. We don’t have that federal jurisdiction, we don’t have that breadth and depth of reach.

Q: If the court overturns the ACA, can’t Congress pass piecemeal protections that have Republican support, such as coverage for preexisting conditions?

We have heard Republicans say “repeal and replace” for more than 10 years, and it’s been empty rhetoric from the beginning. I’ve gotta tell you that for parents who have children with preexisting medical conditions, it is no comfort to have someone promise you that they will replace a right that you know you now have for your child to visit a hospital. And, why would you throw that away for an empty promise that’s 10 years old?

Most Americans would say, Keep building on the Affordable Care Act. Let’s make it better, but don’t scrap what’s worked.

Q: How do you know the Affordable Care Act is working?

My former congressional district in Los Angeles ranked among the most uninsured congressional districts in the nation. In a matter of years, once the Affordable Care Act took place, the uninsured rate in that congressional district had gone down by 50%. It was just astronomical.

The Affordable Care Act made it possible for working families to secure coverage and that’s huge. That’s the kind of burden that’s lifted off your soul.

Q: Do you think having a President Joe Biden and a Vice President Kamala Harris in the White House will lead to an improved Affordable Care Act?

As a candidate for president, Joe Biden said that he would build on the success of the Obama-Biden presidency and make sure that we continue to increase the number of Americans who have access to affordable health care. The good thing is you finally have someone at the top of the totem pole who says we’re going to make it better. And that’s why this election was so important.

This KHN story first published on California Healthline, a service of the California Health Care Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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It’s Open Enrollment. Here’s What You Need to Know

California’s annual health insurance enrollment season for individuals and families kicks off this week against a dramatic backdrop: the hotly contested presidential election; a pandemic raging out of control in much of the U.S.; and, on Nov. 10, a Supreme Court hearing of a case that could end the Affordable Care Act and strand millions without coverage.

The massive unemployment caused by the pandemic has already stripped employer-based health insurance from millions nationwide and induced severe financial anxiety as families struggle to pay rent and buy food.

One question hovering over enrollment for 2021 health plans is whether the large-scale loss of medical coverage will generate a surge of sign-ups, or if more pressing financial worries for many people will push insurance lower down their priority list.

“People have so many things to deal with: They’ve lost jobs, they’ve lost a lot of income, and in California they’re also facing fires. I don’t think health insurance has been top of mind for people,” says Cheryl Fish-Parcham, director of access initiatives at Families USA, a consumer health care advocacy organization.

But Peter Lee, executive director of Covered California, the state’s ACA marketplace, is confident it will match the 40% increase in new sign-ups it had for 2020 coverage.

“It is clear that COVID is on Californians’ minds,” he says. “You cannot have COVID on your mind without also having coverage on your mind.”

A Supreme Court decision on the future of the ACA probably won’t come until well into next year, and it is unlikely to affect your 2021 coverage. “So people should feel confident in looking for a health plan,” says Sara Collins, vice president for health care coverage and access at the Commonwealth Fund.

If you are 65 or older, you probably qualify for Medicare, the federal program for seniors, which is entirely separate from the ACA exchanges and broader individual market. Open enrollment for the private Medicare Advantage plans and Part D drug plans is also underway and ends Dec. 7. Insurance agents can usually help you with Medicare, and you can get advice by calling 1-800-434-0222.

If you are under 65, live in the Golden State and want to buy insurance for you and your family, start with Covered California. It’s the only place you can get federal and state assistance to cover some or all of your premiums.

The enrollment period for Covered California, and for the individual market outside the exchange, started Nov. 1 and runs through Jan. 31. In states whose exchanges are operated by the federal government, the enrollment window shuts Dec. 15.

If you lost coverage and need it for the month of December this year, you can still get it through Covered California if you sign up by Nov. 30. For regular annual coverage that starts Jan. 1, you must sign up by Dec. 15. If you miss that deadline, you can still get coverage starting Feb. 1 if you enroll by the final Jan. 31 deadline.

Many people leave money on the table because they aren’t aware of the financial assistance or think they earn too much to qualify. But you don’t need to be poor to get aid.

The federal subsidies, which are tax credits typically provided in the form of reduced monthly premiums, are available to individuals with annual income up to about $51,000 and a family of four with income up to nearly $105,000.

California has supplemented the federal aid with state-funded assistance that extends further into the middle class: up to around $76,500 for an individual and $157,000 for a family of four.

If you log on to Covered California’s website,, you can check how much financial help you qualify for and compare health plans. Or, an insurance agent or certified enroller can do the legwork work for you — at no charge. You can find one on the website. You can also call Covered California directly at 800-300-1506.

If your income is below 138% of the federal poverty level, you will probably qualify for Medi-Cal, the government insurance program for people of limited means. The Covered California website — or an enroller — will let you know if you do and walk you through signing up. You can also contact your county’s Medi-Cal office. If you don’t qualify for Medi-Cal, your children might, because the income threshold is higher for them.

If you are looking for exchange-sponsored coverage, click the “shop and compare” tab on the Covered California website, which takes you to a screen that asks your age, income, ZIP code and family size and shows the health plans available, their premiums and your aid amount.

The website also provides quality ratings of the participating health plans. And you can check for plans that have your doctors in their networks — though, as the website warns, that information is not always up to date.

Comparison shopping on the website is straightforward, because at each of the four levels of coverage — bronze, silver, gold and platinum — benefits are uniform from insurer to insurer. So once you’ve decided which metal tier is best for you, you only need to think about the price and whether your providers are in the network.

If you have a Covered California health plan already, shop around rather than automatically renew the one you’re in. “The best deal last year is not necessarily the best deal this year,” says Anthony Wright, executive director of Health Access California.

Covered California announced a 0.5% average statewide premium increase last month, but actual rate changes vary across the state and among carriers.

Anthem Blue Cross, for example, will hike rates by a statewide average of 6%, and the Oscar Health Plan of California by 7.6%, while Blue Shield of California will cut rates by an average of 2.4% and the L.A. Care Health Plan by 4.6%.

If you switch to the lowest-cost plan in your current metal tier, you could reduce your premium by as much as 7.4%, according to Covered California.

Keep in mind that the lowest premium, a bronze plan, is not necessarily the wisest — or cheapest — choice.

Tom Freker, a Huntington Beach insurance agent, counsels people not to buy bronze, because its higher deductibles and coinsurance rates could cost more than a higher-premium plan if you fall ill or have a serious accident.

Freker recommends you enroll in Covered California rather than the off-exchange market, even if you don’t initially qualify for aid. That’s because if your income drops and you report it to the exchange, you might then qualify and get a break on premiums for the rest of the year or a tax credit the following April, he says.

If your income rises during the year you also should report it, so your monthly premium subsidy is reduced, helping you avoid a potentially hefty tax bill come April.

Your initial aid amount, if you qualify, will be based on your projected 2021 income. In this period of pandemic-driven furloughs, slashed hours and job loss, that might be difficult to predict.

Maria Weston, a massage therapist in Long Beach, said her income has fluctuated week to week since the pandemic started and is down about 50% overall.

Her priority for 2021 was to find a less expensive option, so she switched to a cheaper silver plan last month (current enrollees were allowed to make their health plan choices starting Oct. 1).

Weston’s new health plan will save her nearly $1,700 a year on premiums. “I could put that in my retirement account — or eat,” she says. “One of the two.”

This KHN story first published on California Healthline, a service of the California Health Care Foundation.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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‘An Arm and a Leg’: David vs. Goliath: How to Beat a Big Hospital in Small Claims Court

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When Jeffrey Fox and his wife got an outrageous medical bill for a simple test, he said to his wife, “No way am I paying this.” In a classic — and hilarious — David vs. Goliath story, Fox takes on a huge hospital, and wins.

He’s a bit of an expert in using small claims court to get satisfaction and shared detailed instructions with the rest of us.

Fox doesn’t only take on big opponents. He said even his small wins are a way to get better at standing up for himself.

It’s pretty good practice for us all.

Want more? Here are some extras:

Our episode Can They Freaking DO That?!? describes how some folks have used just the threat of small claims court to get outrageous bills lowered.

Law professor Christopher Robertson describes some of the legal theory behind this method in this post from a Harvard Law School blog.

Fox posted documents from his case and a brief narrative.

Finally, here’s this episode transcript.

“An Arm and a Leg” is a co-production of Kaiser Health News and Public Road Productions.

To keep in touch with “An Arm and a Leg,” subscribe to the newsletter. You can also follow the show on Facebook and Twitter. And if you’ve got stories to tell about the health care system, the producers would love to hear from you.

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Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN on the Air This Week

KHN chief Washington correspondent Julie Rovner discussed the current surge in COVID-19 cases, health policy in the election and the Affordable Care Act case before the Supreme Court with NPR’s “All Things Considered” on Sunday and WBUR’s “On Point.”

Columnist and California Healthline senior correspondent Bernard Wolfson discussed the possible impact of Judge Amy Coney Barrett and the Supreme Court on the ACA with KPCC’s “Take Two” on Tuesday.

KHN senior Colorado correspondent Markian Hawryluk discussed how health care may shape the U.S. Senate race in Colorado with Colorado Public Radio’s “Colorado Matters” on Thursday.

KHN senior correspondent Sarah Jane Tribble discussed KHN’s “Where It Hurts” podcast and COVID-19 in rural America with NPR’s “Weekend Edition” on Oct. 17. 

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN’s ‘What the Health?’: As Cases Spike, White House Declares Pandemic Over

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White House chief of staff Mark Meadows said this week that “we’re not going to control the pandemic,” effectively conceding that the administration has pivoted from prevention to treatment. But COVID-19 cases are rising rapidly in most of the nation, and the issue is playing large in the presidential campaign. President Donald Trump is complaining about the constant news reports about the virus, prompting former President Barack Obama to say Trump is “jealous of COVID’s media coverage.”

Meanwhile, as the case challenging the constitutionality of the Affordable Care Act heads to the Supreme Court on Nov. 10, open enrollment for individual health insurance under the law begins Sunday.

This week’s panelists are Julie Rovner of Kaiser Health News, Joanne Kenen of Politico, Tami Luhby of CNN and Anna Edney of Bloomberg News.

Among the takeaways from this week’s podcast:

  • Whichever candidate wins the presidency next week will have a heavy lift in mounting a strong public response to battle COVID-19. Polls suggest about a third of people do not believe some of the basic science about the virus or its prevention, such as that using masks can help stem transmission.
  • Dr. Scott Gottlieb, who once served as Food and Drug Administration commissioner under Trump, called for a temporary national mask mandate in his column in The Wall Street Journal. He suggested that masks should not be a political issue.
  • Gottlieb’s column has been supported by other commentators who suggest that masks need to become a social and cultural norm and compare the debate over their use to similar debates in the past about seat belts, smoking bans and harsh punishments for driving while intoxicated. Those measures all faced opposition from people who complained about civil liberties but gradually became accepted. The difference now is that public health advocates are looking for a quick acceptance of masks.
  • Part of the resistance to wearing face masks is that many people don’t understand their purpose and presume masks are for their own protection. But public health officials advocate masks as a way to protect others, especially vulnerable people, from any virus a mask wearer might shed, often without even realizing it.
  • Drugmakers and health experts are rolling back expectations about the timing of a COVID vaccine as the trials seek more data. One issue may be that not enough people in the placebo groups have contracted the coronavirus. That could be because people who volunteer for such an endeavor may be more aware of health issues and cautious about the disease.
  • Once a vaccine is approved, FDA and other federal health officials will face a number of complicating issues. Among them: How should trials of other vaccine candidates continue and how should the vaccine be distributed?
  • Enrollment for insurance plans on the Affordable Care Act’s marketplaces begins Sunday, but many consumers could be forgiven for not knowing that. There is precious little marketing or advertising for the plans, and some people think the Supreme Court is going to overturn the ACA, anyway, and its plans will go away. That’s not known yet and it may well be summer 2021 before there is an answer on that.

Also this week, Rovner interviews KHN’s Anna Almendrala, who reported the latest NPR-KHN “Bill of the Month” installment, about a patient who did everything right and got a big bill anyway. If you have an outrageous medical bill you would like to share with us, you can do that here.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read, too:

Julie Rovner: The New York Times’ “A Chance to Expand Medicaid Rallies Democrats in Crucial North Carolina,” by Abby Goodnough

Joanne Kenen: The New Yorker’s “A President Looks Back on His Toughest Fight,” by Barack Obama

Tami Luhby: KHN’s “Florida Fails to Attract Bidders for Canada Drug Importation Program,” by Phil Galewitz

Anna Edney: The Wall Street Journal’s “Health Agency Halts Coronavirus Ad Campaign, Leaving Santa Claus in the Cold,” by Julie Wernau, James V. Grimaldi and Stephanie Armour

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Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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A $10,000 Obamacare Penalty? Doubtful.

“Because our family couldn’t afford health insurance, Obama/Biden penalized us about $10,000, then took that $10,000 and used it to pay for others’ free Obamacare. Trump ended that theft.”

In a Facebook post, Oct. 20, 2020

A viral Facebook post claims that former President Barack Obama’s health insurance law penalized a family a large amount of money for not buying health insurance and that President Donald Trump was responsible for stopping the practice.

This story was produced in partnership with PolitiFact. It can be republished for free.

The post features writing on the back of a car windshield that says, “Because our family couldn’t afford health insurance, Obama/Biden penalized us about $10,000, then took that $10,000 and used it to pay for others’ free Obamacare. Trump ended that theft.”

The post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about  PolitiFact’s partnership with Facebook.) We found a similar post on Instagram.

The post appears to refer to the individual mandate penalty, a tax under the Affordable Care Act placed on those who chose not to get health insurance. At the end of 2017, Republican-backed tax legislation, also supported by Trump, zeroed out the fine. Beginning in 2019, people could no longer be penalized for not having health insurance. Thus, the mandate hasn’t been in effect for about two years.

But $10,000 — the hefty amount this family was supposedly penalized for not having health insurance — raised questions for us. And was that money really used to pay for other people’s health insurance? We decided to look into it.

The History of the Individual Mandate

The ACA was implemented in 2010 during the Obama administration. The aim of the health care law — often referred to as Obamacare — was to ensure everyone had health insurance.

To that end, the law used what health policy experts call a “carrot-and-stick” approach. For low-income and middle-income individuals who had difficulty affording health insurance, the government would provide tax subsidies to reduce the cost of insurance — that was the carrot. And to make sure everyone enrolled in a health insurance plan, those who didn’t sign up were fined, under what was known as the individual mandate provision. That was the stick.

The individual mandate, which didn’t kick in until 2014, was unpopular with the American public, according to polling at the time. A 2017 KFF poll showed that 55% of Americans supported the idea of eliminating the requirement that everyone must have health insurance or pay a fine. (KHN is an editorially independent program of KFF.)

Although one of Trump’s key campaign promises was to repeal and replace the ACA, efforts to do so failed in 2017 when the Republican-held Senate failed to get the votes it needed.

Instead, in their 2017 tax bill, Republicans set the penalty for the individual mandate to $0. Starting in 2019, Americans no longer had to pay a fine for not having health insurance. Trump signed the 2017 tax bill into law. So, it is true that Trump and congressional Republicans were responsible for neutralizing the penalty.

However, experts pointed out that the individual mandate is still in place, it’s just that the penalty is set to $0. In fact, the end of the penalty is behind the justification for a court case attempting to overturn the ACA, brought by Republican attorneys general and supported by the Trump administration. The plaintiffs argue that the health care law is no longer constitutional because the penalty no longer “produces at least some revenue” for the federal government. The Supreme Court will hear oral arguments on the case Nov. 10.

The Math

The viral social media posts claim that the family “couldn’t afford health insurance” and was penalized $10,000.

Health policy experts told us that while the social media post doesn’t give all the specifics needed to know if this was absolutely true, it seems unlikely a penalty would be this high.

One issue is the post doesn’t specify whether the $10,000 penalty was incurred in one year or over multiple years. It also doesn’t say how many individuals were part of the family.

Assuming the $10,000 penalty was incurred in one year, multiple experts told us that the family would have had an annual income above $400,000 and at least one person would have had to be uninsured for the entire year. That math is based on the penalty structure in place in 2018, the last year the mandate was enforced.

In 2018, the penalty was calculated one of two ways. The fine was the greater of the two results:

  • $695 for an adult and $347.50 for a child, up to a max of $2,085 per family annually, or
  • 2.5% of family income above a certain tax filing threshold (KFF estimated the tax filing threshold was $10,650 for a single individual or $21,300 for joint filers in 2018).

The first way to calculate the penalty obviously doesn’t apply since the max was $2,085 per year. So, the second would be the only way to get a $10,000-a-year penalty. To arrive at such a number, you would have to take 2.5% of the family’s income. In this case, 2.5% of a $400,000 income gets you close to $10,000.

And experts said it is highly unlikely that a family with a $400,000 income would have had difficulty affording health insurance.

“So I would highly doubt the veracity of what is written on that car windshield,”Karen Pollitz, a senior fellow in health reform and private insurance at KFF wrote in an email. “People with that much income almost always have job-based health benefits and, if not, generally are inclined to insure themselves very well in order to protect assets — otherwise, if hospitalized and uninsured, they could owe many multiples of the penalty amount in medical bills.”

Jonathan Oberlander, a health policy professor at the University of North Carolina-Chapel Hill, also pointed out that a $10,000 penalty would have been rare.

“Very few American families would have paid anything close to that amount in penalty for not having insurance — the average penalty per person in 2017 was around $700,” Oberlander wrote in an email. “Moreover, only a small percentage of Americans ever paid the penalty for not having health insurance — in 2017, 4.6 million persons,” or about 1% of the population. (In 2017, 325 million people lived in the U.S., according to the Census Bureau.)

It’s also unclear whether it would have just been cheaper for the family to pay for health insurance rather than incur a $10,000 penalty, said Matthew Fiedler, a health policy scholar at the Brookings Institution.

“It depends on the ages of the members of the family, where they live, what year (or years) we are talking about, and the family’s income,” Fiedler wrote in an email. “There are conceivable scenarios where the family could have found a bronze plan for $10k or less. But there are also plenty of plausible scenarios where they could not have. Without knowing more about the family’s circumstances, it’s just hard to say with any confidence.”

Where Did the Penalty Money Go?

Experts also told us that the post’s assertion that the penalties paid for not having health insurance were directly applied to fund other people’s health insurance was off the mark.

The individual mandate penalties were assessed during each annual tax filing, and then payments were made the year after there was a lapse in insurance coverage.

Those penalties were collected just like any other tax payment.

“As a strict accounting, keep in mind, everything gets dumped into the Treasury regardless of the source, and then it is appropriated out of the Treasury by Congress,” said Edmund Haislmaier, a senior research fellow in health care policy at the Heritage Foundation. “It’s not like money goes into one account and then another.”

So, while it’s certainly possible that the penalty money could have been used to help pay for some of the ACA subsidies for other people, the money also could have gone to any other number of things the government pays for, like the military, disaster relief or education.

“You don’t know exactly where your taxes or penalties go,” said Evan Saltzman, an assistant professor in economics at Emory University. “Maybe a small share went to Obamacare, but that’s a stretch. You can’t track where every dollar you spent on your taxes is going.”

It’s also misleading to say that other individuals received “free Obamacare” from the penalty payment. The experts said that while Medicaid expansion, which was a part of the ACA, does provide health care coverage for low-income people who are eligible, those who bought insurance on the marketplace would still likely have paid for some part of their coverage after subsidies were applied.

Our Ruling

A viral social media post claims that a family was penalized $10,000 for not being able to afford health insurance. It also claimed the penalty money was taken to pay for others’ “free ObamaCare” and Trump stopped that practice.

It is true that Trump and Congress did zero out the individual mandate requirement, so people could no longer be penalized for not having health insurance. But after that, skepticism abounds.

For instance, it’s very unlikely that a family would face a $10,000 penalty in one year. Moreover, if such a family did face this penalty for not having health insurance, they would likely be in a high-income bracket for which health insurance tends to come from an employer or be affordable. And the charge that the penalty was used to provide “free coverage” for others doesn’t fit with federal accounting processes.

Experts said, though, that the lack of specifics about this family’s situation makes it difficult to be completely definitive.

We rate this claim Mostly False.


Census Bureau, QuickFacts United States,  accessed Oct. 27, 2020

The Commonwealth Fund, “The Effect of Eliminating the Individual Mandate Penalty and the Role of Behavioral Factors,” July 11, 2018

Email interview with Christine Eibner, the Paul O’Neill Alcoa chair in policy analysis at Rand Corp., Oct. 23, 2020

Email interview with Jonathan Oberlander, professor of health policy and management at the University of North Carolina-Chapel Hill, Oct. 25, 2020

Email interview with Karen Pollitz, senior fellow in health reform and private insurance at KFF, Oct. 26-27, 2020

Email interview with Matthew Fiedler, fellow with the USC Brookings-Schaeffer Initiative for Health Policy at the Brookings Institution, Oct. 26, 2020

5th Circuit Court of Appeals’ technical revisions of opinion, accessed Oct. 27, 2020

H.R.1 — 115th Congress (2017-18), accessed Oct. 27, 2020, “Individual Shared Responsibility Provision — Reporting and Calculating the Payment,” accessed Oct. 27, 2020

KFF, “Explaining California v. Texas: A Guide to the Case Challenging the ACA,” Sept. 1, 2020

KFF, Individual Mandate Penalty Calculator, Nov. 17, 2017

KFF, “Kaiser Health Tracking Poll — November 2017: The Role of Health Care in the Republican Tax Plan,” Nov. 15, 2017, “Fact Check: Trump, Congress DID End Tax Penalty for Non-Insured, but $10,000 Penalty NOT Likely,” Oct. 22, 2020

Phone interview with Edmund Haislmaier, Preston A. Wells Jr. senior research fellow at the Heritage Foundation, Oct. 23, 2020

Phone interview with Evan Saltzman, assistant professor in economics at Emory University, Oct. 23, 2020

PolitiFact, Repeal Obamacare Trump-O-Meter, July 15, 2020

Rand Corp., “How Does the ACA Individual Mandate Affect Enrollment and Premiums in the Individual Insurance Market?” published in 2015

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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If Trump Wins, Don’t Hold Your Breath Waiting for That ACA Replacement Plan

If President Donald Trump wins reelection next week, it seems unlikely he will unveil the health plan he’s been promising since before his election in 2016. Still, other aspects of health care could be featured in his second-term agenda.

Not having a replacement plan for the Affordable Care Act may be just fine with many of his supporters and conservatives. Most Republicans don’t want the federal government to remake the nation’s health system, said Grace-Marie Turner, of the conservative Galen Institute. “It’s a different philosophy from Democrats, who think it needs to be a big program,” she said. “Conservatives, we think of it in a more targeted way.”

Trump, of course, repeatedly promises something big. “We will have Healthcare which is FAR BETTER than ObamaCare, at a FAR LOWER COST – BIG PREMIUM REDUCTION,” he tweeted Oct. 12 — hardly the first time he’s made a similar promise. “PEOPLE WITH PRE EXISTING CONDITIONS WILL BE PROTECTED AT AN EVEN HIGHER LEVEL THAN NOW. HIGHLY UNPOPULAR AND UNFAIR INDIVIDUAL MANDATE ALREADY TERMINATED. YOU’RE WELCOME!”

But Trump needs a contingency plan if the Supreme Court accepts his argument that the ACA should be overturned. The justices are scheduled to hear the case the week after Election Day. Administration health officials have pledged to have an alternative if the high court does as they ask. But they have refused to publicly share any details.

In September, Trump unveiled a package of health care proposals at a speech in North Carolina. The “America First Healthcare Plan” is less than an actual plan, though. It’s a vague set of claims about things that have not happened yet — like bringing down prescription drug prices — along with a laundry list of some of his administration’s lesser accomplishments on health issues, such as the initiative to help Americans with severe kidney disease and efforts to improve the availability of health care in rural areas.

As part of that overall health plan, Trump issued an executive order declaring “it has been and will continue to be the policy of the United States … to ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.” But there is nothing in the order — or in the broader outline — to ensure that would be the case if the ACA were struck down. It would take congressional action to guarantee that.

The current court controversy over the ACA arose because Congress in its 2017 tax bill eliminated the financial penalty for not having health insurance. But Congress didn’t have the votes to get rid of the mandate itself under the rules for the tax bill. Republican state officials then sued, arguing that since the Supreme Court had once upheld the ACA’s mandate, calling it a tax, once the penalty was gone, the law should also be invalidated.

Trump frequently heralds his actions, erroneously saying he killed the mandate and arguing that he got rid of the most detested part of the law.

“He likes to use words, but I don’t think there’s been a substantive policy yet,” said Len Nichols, a health policy professor at George Mason University. “I have no clue what he would do” in a second term “other than trying to repeal the ACA.”

One thing Trump accomplished in his first term is a set of potentially far-reaching regulatory actions, many of which have been challenged in federal courts. Those include allowing states to implement work requirements for people who receive Medicaid health benefits and requiring hospitals and other health providers to make their negotiated prices available to the public.

Legal analysts have doubted the administration’s authority to implement many changes Trump has proposed. But considering Trump has appointed hundreds of federal judges, including Supreme Court justices, the legal landscape may be changing and more of those proposals could be allowed to proceed.

Still, Trump faces uphill battles on some of his preferred health initiatives, even if Republicans control Congress.

For example, said Dan Mendelson of the consulting group Avalere Health, “I would expect that if he’s reelected there would be a drug pricing agenda he continues to push.” Among his proposals is having Medicare pay for drugs based on what the medicines sell for in countries that negotiate prices. That would be complicated, Mendelson said, by the fact that “the broader Republican Party doesn’t want to move to a regulatory model in this country.”

But the Galen Institute’s Turner said not to discount the changes Trump has made, such as allowing broader sales of short-term health plans that are less expensive but offer fewer benefits than ACA plans. She said to expect actions in a similar vein in a second term. “He really has done a lot, using his executive authority, based on trying to make markets work better and give people more choice,” she said. “They are strategic, targeted approaches to specific problems.”

He’ll certainly have a specific problem if the ACA is struck down. Americans losing their insurance won’t want to wait to find out if he has a plan.

HealthBent, a regular feature of Kaiser Health News, offers insight and analysis of policies and politics from KHN’s chief Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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What Happens to Medicaid Drug Policy if the ACA is Overturned?

The repeal of the ACA could mean loss of Medicaid coverage for up to 15 million that were enrolled in the ACA Medicaid expansion group prior to the COVID-19 pandemic; however, repeal could also mean significant changes to Medicaid prescription drug policy with implications for state and federal spending for prescription drugs for non-expansion Medicaid enrollees.

Colorado Initiative Would Further Limit Access in Middle America’s ‘Abortion Desert’

Colorado voters are deciding a ballot question that seeks to limit how far into pregnancy an abortion can be legally performed. While the measure would change the law only in Colorado, it would resonate throughout the Rocky Mountain states and Midwest amid an intensifying national fight, fueled by a Supreme Court vacancy, over the future of abortion.

In 1967 — six years before the Supreme Court’s Roe v. Wade decision protected the right to an abortion in the U.S. — Colorado became the first state to pass a law widening access to legal abortion. More than 50 years later, it remains one of just seven states without gestational limits on the procedure, making Colorado one of the few options for people nationwide who need abortions later in pregnancy.

Proposition 115 seeks to change that. It would outlaw abortion in the state after 22 weeks. The proposition makes an exception to save the life of the pregnant person, but none for cases of rape or incest or to protect the health of the pregnant individual or fetus.

But the impact of the measure also would be felt by neighboring states where people have little or no access to abortion. Kelly Baden, vice president of reproductive rights at the left-leaning policy group State Innovation Exchange, called the surrounding region an abortion desert.

“Colorado really plays an important role in the region in being a haven for access for people who live in those highly restrictive states, some of which neighbor us, like Kansas, Nebraska — that whole swath of the Midwest from the Dakotas on down to Texas,” Baden said.

A study published in the Journal of Medical Internet Research in 2018 found the Midwest has fewer abortion clinics per capita than any other U.S. region, with 92 facilities across 10 states.

Colorado providers have stepped in, and approximately 1 in 10 abortions are performed on people from out of state. A billboard on Interstate 70 welcomed visitors from Utah with the message “Welcome to Colorado, where you can get a safe, legal abortion.”

Colorado voters have rejected three abortion-related ballot measures since 2008, which advocates pointed to as evidence that the state’s residents are fine with the status quo.

“Colorado has already voted on ridiculous abortion restrictions multiple times and said, ‘We don’t want them.’ It’s insulting that these extremists keep trying,” said Whitney Woods, speaking on her own behalf while on maternity leave from Planned Parenthood of the Rocky Mountains.

Over the past decade, however, those measures have been rejected by smaller and smaller margins, said Bob Enyart, a spokesperson for Colorado Right to Life — one of several groups pushing for Proposition 115 to pass.

“Coloradoans increasingly voted to recognize each unborn child as a person from 2008 to 2010 to 2014,” said Enyart.

Indeed, 2008’s Amendment 48, which proposed redefining personhood in the state constitution as starting at conception, received support from 27% of voters. Six years later, that support grew to 35% for Amendment 67.

A recent poll by 9News in Denver and Colorado Politics showed that voters are more evenly divided about the new proposition, with 45% saying they’ll vote no, 42% planning to vote yes, and a crucial 13% still undecided.

Randi Davis, a mom in Aurora, is one voter whose own experience illustrates how personal and nuanced the question can be. When she was pregnant, Davis was advised to have an abortion, as her baby’s odds of survival were slim to none. She said she opted against abortion and went on to give birth to a full-term stillborn baby.

“I’m not necessarily for abortion,” Davis said. “However, I do believe every woman should have their own choice to abort for whatever reason.”

She said she’s voting against the proposition.

Dr. Thomas Perille heads the medical advisory team for the Coalition for Women and Children (also known as Due Date Too Late), the group that petitioned to put Proposition 115 on the ballot and calls abortions later in pregnancy “too extreme.” Perille contends the new proposition “bears no relation” to the previous measures, giving it a better chance of passing.

“Those were bans on abortion, and Prop 115 is a reasonable restriction of abortion after fetal viability,” he said.

Abortion-rights activists worry that bans of abortions after the first trimester aim to gradually shift public opinion and gain traction to fully outlaw the procedure.

“They’re hoping that they can slide this under the radar and really cast it as a compromise between anti-abortion and pro-choice voters,” said Fawn Bolak, spokesperson for ProgressNow Colorado. “But that’s not what this is. This is a violation of Roe v. Wade.”

Perille said that, while first-trimester abortions are “relatively safe,” late abortions pose a “substantial risk” to the people having them. Advocates for the initiative said studies show the risk of death to the pregnant person from an abortion increases with each week of gestation.

Opponents point to another study that shows legal abortions overall tend to be safer and pose less of a threat to pregnant people’s lives than childbirth.

Colorado isn’t the only state voting on an abortion initiative this election cycle. Voters in Louisiana are considering a constitutional amendment that says nothing in the state constitution can be interpreted as protecting a right to, or requiring funding of, abortion.

The measure’s advocates say that, if Roe v. Wade is overturned, the legality of abortion in Louisiana would be up to state lawmakers. Opponents say the measure, if it passes, would eliminate legal access to abortion in the state if Roe v. Wade is dismantled.

“Constitutions are supposed to be about preserving and enshrining freedom, but this amendment takes away freedom and rights while allowing the government to tell people what they can and cannot do with their body,” said Michelle Erenberg, executive director for Lift Louisiana, a group that advocates for abortion rights.

Abortion-rights advocates also point out that Louisiana passed its own 22-week abortion ban a decade ago, and worry that Colorado could follow a similar path toward even greater restrictions.

The decisions before voters in Colorado and Louisiana come amid renewed attention nationwide on abortions since Supreme Court Justice Ruth Bader Ginsberg’s death last month. Senate Republicans are now pushing through President Donald Trump’s nominee, Judge Amy Coney Barrett. That has led voters and activists on both sides of the issue to become heavily focused on what Barrett’s appointment could mean for the future of Roe v. Wade.

Abortion opponents contend it’s not clear that Barrett’s confirmation would doom Roe.

“We have seen no evidence that Amy Coney Barrett has ever recognized that the unborn child is a person or has a right to life,” Enyart said. “We are concerned that she may disagree with the Roe opinion merely as a matter of process, not morality.”

But The Guardian recently reported on Barrett’s previous involvement with an anti-abortion organization, noting she signed a newspaper ad that called Roe “barbaric,” which put abortion-rights advocates on edge.

Erika Christensen, who helped pass New York’s Reproductive Health Act, said she is concerned but added that these new threats to abortion rights have become a rallying point for advocates.

Baden agreed, saying the renewed energy is particularly strong locally.

“We need to turn to the state level, and do whatever we can to prepare for what might come one day, be it from the Supreme Court or from another Trump executive order, or something else coming,” she said. “Roe is the floor, not the ceiling, right?”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN on the Air This Week

KHN chief Washington correspondent Julie Rovner discussed the impact of the election and the upcoming Supreme Court challenge on the Affordable Care Act with New Hampshire Public Radio’s “The Exchange” and WNYC’s “The Brian Lehrer Show” on Wednesday. Rovner also spoke with Newsy’s “Morning Rush” on Thursday about the roles of health care and COVID-19 in the presidential campaign.

KHN Midwest correspondent Lauren Weber discussed COVID vaccine distribution with “Newsy Reports” on Oct. 16.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN’s ‘What the Health?’: A Little Good News and Some Bad on COVID-19

Can’t see the audio player? Click here to listen on SoundCloud.

For the first time in a long time, there is some good news about the coronavirus pandemic: Although cases continue to climb, fewer people seem to be dying. And there are fewer cases than expected among younger pupils in schools with in-person learning. But the bad news continues as well — including a push for “herd immunity” that could result in the deaths of millions of Americans.

Meanwhile, the Trump administration is doubling down on efforts to allow states to require certain people with low incomes to prove they work, go to school or perform community service in order to keep their Medicaid health benefits. The administration is appealing a federal appeals court ruling to the Supreme Court and just granted Georgia the right to impose a work requirement.

This week’s panelists are Julie Rovner of Kaiser Health News, Margot Sanger-Katz of The New York Times, Paige Winfield Cunningham of The Washington Post and Alice Miranda Ollstein of Politico.

Among the takeaways from this week’s podcast:

  • Opinions seem to be slowly shifting on opening schools around the country. As fall approached, many people were hesitant to send their children back to school because they feared a resurgence of coronavirus infections, but early experiences seem to show that there has been little transmission among young kids in classrooms.
  • Even with good results in those school districts that have reopened, however, the debate about whether schools should be conducting in-person learning is quite polarized. President Donald Trump repeatedly calls for all schools to resume, while groups, such as unions representing teachers and other employees, are more likely to be calling for continued online learning.
  • California, which had a strong resurgence of the virus during the summer, is seeing signs of success in fighting back. The state has been among the most aggressive in shutting down normal activities to reduce case levels. It devised a county-specific method to determine closures, restrictions and reopenings — and it appears to be working.
  • A proposal by some researchers to move the country toward a “herd immunity” plan, in which officials would expect the virus to spread among the general population while also trying to protect the most vulnerable — such as people living in nursing homes — is gaining support among some of Trump’s advisers. Public health advocates are raising alarms because it would likely lead to hundreds of thousands more deaths. They also fear the administration’s focus on restoring normalcy would by default move in this direction.
  • Federal researchers this week announced that nearly 300,000 excess deaths have been recorded this year and much of it is attributed to COVID-19 or the lack of other health care by people who could not or did not seek treatments because they were frightened by the pandemic.
  • With the Senate poised to confirm Amy Coney Barrett, who opposes abortion, to the Supreme Court within days, the fate of the landmark Roe v. Wade decision is in question. If the court overruled that decision, abortion policies would likely fall back to individual states. A recent report on the effects of such a scenario finds that a huge swath of the South and the Midwest would be left without a local facility offering abortion services.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read too:

Julie Rovner: Cook’s Illustrated’s “The Best Reusable Face Masks,” by Riddley Gemperlein-Schirm, and The Washington Post’s “Consumer Masks Could Soon Come With Labels Saying How Well They Work,” by Yeganeh Torbati and Jessica Contrera

Margot Sanger-Katz: The Hill’s “Republicans: Supreme Court Won’t Toss ObamaCare,” by Peter Sullivan

Paige Winfield Cunningham: The Wall Street Journal’s “Some California Hospitals Refused Covid-19 Transfers for Financial Reasons, State Emails Show,” by Melanie Evans, Alexandra Berzon and Daniela Hernandez

Alice Miranda Ollstein: ProPublica’s “Inside the Fall of the CDC,” by James Bandler, Patricia Callahan, Sebastian Rotella and Kirsten Berg

To hear all our podcasts, click here.

And subscribe to What the Health? on iTunesStitcherGoogle PlaySpotify, or Pocket Casts.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Want to protect people with preexisting conditions? You need the full Affordable Care Act.

In this perspective published by the Washington Post, KFF Executive Vice President for Health Policy Larry Levitt explains why the popular Affordable Care Act provisions that ensure people with pre-existing conditions can access affordable health insurance can’t easily be preserved if other related provisions are overturned.

Abortion at SCOTUS: Potential Cases this Term and Possible Rulings

A new KFF issue brief examines the implications of a Supreme Court with a solid conservative majority. Two abortion cases have pending requests for Supreme Court review: Dobbs v. Jackson Women’s Health Organization and FDA v. ACOG. If the Court chooses to take these cases, abortion laws and who can legally challenge them could beMore

UVA Health Still Squeezing Money From Patients — By Seizing Their Home Equity

Doris Hutchinson wanted to use money from the sale of her late mother’s house to help her grandchildren go to college.

Then she learned the University of Virginia Health System was taking $38,000 of the proceeds because a 13-year-old medical bill owed by her deceased brother had somehow turned into a lien on the property.

“It was a mess,” she said. “There are bills I could pay with that money. I could pay off my car, for one thing.”

Property liens are the hidden icebergs of patient medical debt, legal experts say, lying unseen, often for decades, before they surface to claim hard-won family savings or inheritance proceeds.

An ongoing examination by KHN into hospital billing and collections in Virginia shows just how widespread and destructive they can be. KHN reported a year ago that UVA Health had sued patients 36,000 times over six years for more than $100 million, often for amounts far higher than what an insurer would have paid for their care. In response to the articles, the system temporarily suspended patient lawsuits and wage garnishments, increased discounts for the uninsured and broadened financial assistance, including for cases dating to 2017.

Those changes were “a first step” in reforming billing and collection practices, university officials said at the time.

However, UVA Health continues to rely on thousands of property liens to collect old bills, in contrast to VCU Health, another huge, state-owned medical system examined by KHN. VCU Health pledged in March to stop seizing patients’ wages over unpaid bills and to remove all property liens, which are created after a creditor wins a court judgment.

Working courthouse-by-courthouse, VCU Health now says it has discovered and released 45,000 property liens filed against patients just in Richmond, its home city, some dating to the 1990s. There are an estimated 35,000 more in other parts of the state. Fifteen thousand of those have been canceled and they are working on the rest, officials said. These figures have not been previously reported. The system is part of Virginia Commonwealth University.

VCU Health’s total caseload is “a huge number” but perhaps not astonishing given the energy with which many hospital systems sue their patients, said Carolyn Carter, deputy director of the National Consumer Law Center.

Despite having suspended patient lawsuits, UVA Health has continued to create property liens based on older court cases, court records show. The number of new liens is “small,” said UVA Health spokesperson Eric Swensen.

An advisory council of UVA Health officials and community leaders is expected to deliver new recommendations by the end of October, Swensen said. The council, whose schedule has been slowed by the coronavirus crisis, has discussed property liens, Don Gathers, an activist and council member, said in an interview this summer.

Nobody knows how many old or new UVA Health liens are scattered through scores of Virginia courthouses. The health system, which has sued patients in almost every county and city in the state, has failed to respond to repeated requests over two years to disclose the number and value of its property liens.

But in Albemarle County alone, which surrounds the university’s Charlottesville home, “there are thousands” of UVA Health judgments filed in the land records, which creates a lien, said Circuit Court Clerk Jon Zug.

Not just Virginia homes are at risk. UVA Health lawyers search the nation for property or other assets owned by patients with outstanding bills and have filed liens in Maryland, West Virginia, Ohio and Florida, court records show.

The system put a lien on a Nevada vacation condo owned by Veronica Musie’s family a decade ago over a $30,600 hospital bill, said Musie, who lives in northern Virginia. The family has since paid the debt.

Virginia property liens expire after 20 years. But UVA Health often renews them. Since 2017, just in Albemarle County, it has renewed more than three dozen liens. That means the medical system could seize families’ home equity until 2039 for bills dating to the last century.

UVA Health and other medical systems rarely force the sale of a home to claim money. Instead, they wait for families to refinance or sell, taking their cut at the settlement table. But with 6% simple interest accumulating year after year after the court judgment, as allowed by Virginia law, the final amount owed can be much more than the original charges.

UVA Health treated Hutchinson’s brother for heart disease in the early 2000s. The unpaid bill was $24,868. The system laid claim to their mother’s home because he was one of her heirs. The claim is up to $38,000 now, she said, because of interest charges. Hutchinson has been disputing it for more than a year.

VCU Health and its MCV Physicians affiliate estimate that eliminating two decades of property liens in courthouses across the state, which they began to do last year after KHN published its reports, won’t be finished until spring.

Richmond was especially problematic. Because releasing 40,000 Richmond liens by hand would have been impractical, VCU Health got a judge’s permission to do it with computer code.

Creditors such as UVA and VCU don’t need addresses to create liens. All they have to do is file a judgment in county or city land records. If debtors own any property there, title companies won’t approve a sale until the debt is paid, often with home equity.

Often owners don’t know debts exist until paralegals unearth them when homes are sold, property pros say. Old debts can create liens on newly acquired real estate.

“It could be your grandmother’s house, and as soon as you’ve inherited it, and you’ve got judgments, those [liens] are now attached,” said Richmond Court Clerk Edward Jewett.

Frequently debtors own no property, so judgments in the land records expire without hospitals or other creditors getting anything.

VCU and MCV had no idea how many liens they had placed across the state until they began investigating last year after KHN’s inquiries, officials said.

“It’s an incredibly manual process” to cancel the claims, partly because computer systems at many courthouses prohibit an easy tech solution, said Melinda Hancock, VCU Health’s chief administrative and financial officer. But it’s worth it to remove a burden on patients, she said, adding, “This is an outdated collections practice whose time has come and gone.”

But many medical systems still do it, consumer debt experts say, noting that obtaining a complete picture of hospital property liens is impossible.

Land and judgment records are held by thousands of local court clerks, often using separate computer systems. Records are difficult or impossible to obtain in bulk.

“There is not a good nationwide study that I know of that looks at how widespread this is, how many consumers are affected, what’s the average size of a lien,” said Erin Fuse Brown, a law professor at Georgia State University who studies hospital billing.

Mike Miller and Kitt Klein are among those hoping UVA Health follows VCU Health in canceling thousands of property liens. They fear a $129,000 judgment won by UVA in 2017 against Miller will cost them the equity in their home in Quicksburg, Virginia.

They make about $25,000 a year. Miller, a house painter, was insured but received out-of-network radiation at UVA that doctors said was necessary to treat his lung cancer.

After KHN wrote about his case a year ago, benefits firm WellRithms analyzed his UVA bill and found that a commercial insurer would have paid a little more than $13,000, not $129,000, for the treatment.

“We know all [health care] providers bill a lot, but usually ‘a lot’ is three to six times what reasonable prices would be,” said Jordan Weintraub, vice president of claims for WellRithms. Trying to collect 10 times as much, she said, “is really out there.”

UVA Health does not comment on individual patient cases, Swensen said.

KHN found last year that UVA frequently sued patients for far more than what the system could have collected from insurance.

Early this year Miller and Klein emailed UVA President James Ryan, asking for help in reducing or eliminating the judgment. His office phoned in February, saying it would review the case.

“I became very emotional, filled with gratitude,” Klein said. “I couldn’t talk.”

Months went by with no contact. Recently a lawyer from the office of Virginia Attorney General Mark Herring offered to settle the case for $120,000, Klein said, reducing the bill by only $9,000. They don’t have the money. Miller’s cancer has returned. Interest is mounting at 6%.

University officials do not comment on legal matters or individual cases, a Ryan spokesperson said. Herring’s office did not respond to requests for comment.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Al sopesar los temas de salud, la mayoría de los votantes se inclinan hacia Biden

Al menos la mitad de los votantes prefiere el enfoque de la atención médica del ex vicepresidente Joe Biden al del presidente Donald Trump, lo que sugiere que la preocupación por reducir los costos y manejar la pandemia podría influir en el resultado de esta elección, según revela una nueva encuesta.

Los hallazgos, de la encuesta mensual de KFF, indican que los votantes no confían en las garantías del presidente de que protegerá a las personas con condiciones preexistentes de las compañías de seguros si la Corte Suprema anulara la Ley de Cuidado de Salud a Bajo Precio (ACA).

Un mes antes de que el tribunal escuche los argumentos de los fiscales generales republicanos y la administración Trump a favor de revocar la ley, la encuesta muestra que el 79% del público no quiere que el Supremo cancele las protecciones de cobertura para los estadounidenses con afecciones preexistentes. La mayoría de los republicanos, el 66%, dijo que no quiere que se anulen esas garantías.

Además de dejar a unos 21 millones de estadounidenses sin seguro, revocar ACA podría permitir a las compañías de seguros cobrar más o negar cobertura a las personas porque tienen condiciones preexistentes, una práctica común antes que se estableciera la ley, y que un análisis del gobierno reveló en 2017 que podría afectar hasta a 133 millones de estadounidenses.

Casi 6 de cada 10 personas dijeron que tenían un familiar con una condición preexistente o crónica, como diabetes, hipertensión, o cáncer, y aproximadamente la mitad dijo que les preocupa que un ser querido no pueda pagar la cobertura, o la pierda por completo, si se anulara la ley.

La encuesta revela una preferencia sorprendente por Biden sobre Trump cuando se trata de proteger a las personas con condiciones preexistentes, un tema que el 94% de los votantes dijo que ayudaría a decidir por quién votar. Biden tiene una ventaja de 20 puntos: un 56% prefiere su enfoque, contra un 36% para Trump.

De hecho, el sondeo muestra una preferencia por Biden en todos los problemas de atención médica que se plantean, incluso entre los mayores de 65 años y en temas que Trump ha dicho que eran sus prioridades mientras estuviera en el cargo, lo que indica que los votantes no están satisfechos con el trabajo del presidente para reducir los costos de la atención médica, en particular. El apoyo a los esfuerzos de Trump para reducir el precio de los medicamentos recetados ha disminuido, y los votantes ahora prefieren el enfoque de Biden, del 50% al 43%.

La mayoría de los votantes dijeron que prefieren el plan de Biden para lidiar con el brote de COVID-19, 55% a 39%, y para desarrollar y distribuir una vacuna para COVID, 51% a 42%. Trump ha delegado en gran medida la gestión de la pandemia a los funcionarios estatales y locales, al tiempo que prometió que los científicos desafiarían las expectativas y producirían una vacuna antes del día de las elecciones.

Cuando se les preguntó qué tema era más importante para decidir por quién votar, la mayoría de los encuestados señaló a la atención médica. El 18% eligió el brote de COVID-19 y el 12% mencionó el cuidado de salud en general. Casi una proporción igual, el 29%, optó por la economía.

La encuesta se realizó del 7 al 12 de octubre, después del primer debate presidencial y el anuncio de Trump de que había dado positivo para COVID-19. El margen de error es más o menos 3 puntos porcentuales para la muestra completa y 4 puntos porcentuales para los votantes.

(KHN es un programa editorialmente independiente de KFF).

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Majority of Voters Tilt Toward Biden as Health Issues Weigh Heavily

At least half of voters prefer former Vice President Joe Biden’s approach to health care over President Donald Trump’s, suggesting voter concern about lowering costs and managing the pandemic could sway the outcome of this election, a new poll shows.

The findings, from KFF’s monthly tracking poll, signal that voters do not trust assurances from the president that he will protect people with preexisting conditions from being penalized by insurance companies if the Supreme Court overturns the Affordable Care Act. (KHN is an editorially independent program of KFF.)

Coming a month before the court will hear arguments from Republican attorneys general and the Trump administration that the health law should be overturned, the poll shows 79% of the public does not want the court to cancel coverage protections for Americans with preexisting conditions. A majority of Republicans, 66%, said they do not want those safeguards overturned.

In addition to leaving about 21 million Americans uninsured, overturning the ACA could allow insurance companies to charge more or deny coverage to individuals because they have preexisting conditions — a common practice before the law was established, and one that a government analysis said in 2017 could affect as many as 133 million Americans.

Nearly 6 in 10 people said they have a family member with a preexisting or chronic condition, such as diabetes or cancer, and about half said they worry about a relative being unable to afford coverage, or lose it outright, if the law is overturned.

The poll reveals a striking preference for Biden over Trump when it comes to protecting preexisting conditions, an issue that 94% of voters said would help decide who they vote for. Biden has a 20-point advantage, with voters preferring his approach 56% to 36% for Trump.

In fact, it shows a preference for Biden on every health care issue posed, including among those age 65 and older and on issues that Trump has said were his priorities while in office — signaling voters are not satisfied with the president’s work to lower health care costs, in particular. Support for Trump’s efforts to lower prescription drug costs has been slipping, with voters now preferring Biden’s approach, 50% to 43%.

A majority of voters said they prefer Biden’s plan for dealing with the COVID-19 outbreak, 55% to 39%, and for developing and distributing a vaccine for COVID-19, 51% to 42%. Trump has largely left it up to state and local officials to manage the outbreak, while promising that scientists would defy expectations and produce a vaccine before Election Day.

Asked which issue is most important to deciding whom to vote for, most pointed to health care issues, with 18% choosing the COVID-19 outbreak and 12% saying health care overall. Nearly an equal share, 29%, selected the economy.

The survey was conducted Oct. 7-12, after the first presidential debate and Trump’s announcement that he had tested positive for COVID-19. The margin of error is plus or minus 3 percentage points for the full sample and 4 percentage points for voters.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KFF Health Tracking Poll – October 2020: The Future of the ACA and Biden’s Advantage On Health Care

The poll examines the public’s views on the Supreme Court case to overturn the Affordable Care Act and its protections for people with pre-existing conditions. Less than a month from the results of the 2020 presidential election, this poll examines the top issues for voters (the economy, the coronavirus pandemic, health care, criminal justice and policing, among others) as well as which candidate, Biden or Trump, they think has the better approach to handle key health care policy areas.

KHN’s ‘What the Health?’: Democrats May Lose on SCOTUS, But Hope to Win on ACA

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Republicans appear to be on track to confirm Judge Amy Coney Barrett to the Supreme Court before Election Day, cementing a 6-3 conservative majority on the high court regardless of what happens Nov. 3. Democrats, meanwhile, lacking the votes to block the nomination, used the high-profile hearings to batter Republicans for trying to overturn the Affordable Care Act.

Meanwhile, a number of scientific journals that typically eschew politics, including the prestigious New England Journal of Medicine, threw their support to Democratic presidential candidate Joe Biden, citing what they call the Trump administration’s bungling of the coronavirus pandemic.

This week’s panelists are Julie Rovner of Kaiser Health News, Mary Ellen McIntire of CQ Roll Call, Shefali Luthra of The 19th and Sarah Karlin-Smith of Pink Sheet.

Among the takeaways from this week’s podcast:

  • The lack of progress on a bipartisan coronavirus relief package is making both Democrats and Republicans nervous as they approach Election Day without something to help voters.
  • During hearings on the nomination of Judge Amy Coney Barrett for the Supreme Court, Democrats were consistently on message, seeking to focus public attention before the election on the threat that Republicans pose to the Affordable Care Act as the law goes before the court next month. Four members of the Senate Judiciary Committee, which will vote on the nomination, are up for reelection. Also on the committee is Sen. Kamala Harris, the Democrats’ vice presidential candidate.
  • The public health optics of the hearing were jarring for some viewers. Although the committee chairman said the room was set up to meet federal health guidelines, Republican senators often did not wear masks, including Sens. Thom Tillis (N.C.) and Mike Lee (Utah), who both were diagnosed with COVID-19 after attending a White House celebration for Barrett.
  • The lack of masks could add to confusion about public health messages. And voters sometimes find it insulting that politicians play down risks that the public is called upon to assume.
  • Barrett’s testimony did not change many perceptions of her. Although she was extremely careful not to reveal her personal views on issues that could come before the court, including the ACA and abortion, both Democrats and Republicans highlighted her strong conservative credentials.
  • Scientific American and the New England Journal of Medicine have published stinging critiques of the current administration’s policies on science and medicine. Although it’s not clear what impact the editorials will have, they are a sign of the further politicization of public health.

This week, Rovner also interviews Dr. Ashish Jha, dean of the Brown University School of Public Health. Jha talked about the challenges public health professionals have faced in trying to deal with the COVID-19 pandemic.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read too:

Julie Rovner: The Atlantic’s “How to Tell If Socializing Indoors Is Safe,” by Olga Khazan

Shefali Luthra: The New York Times’ “A $52,112 Air Ambulance Ride: Coronavirus Patients Battle Surprise Bills,” by Sarah Kliff

Mary Ellen McIntire: KHN’s “Making Money Off Masks, COVID-Spawned Chain Store Aims to Become Obsolete,” by Markian Hawryluk

Sarah Karlin-Smith: Politico’s “Health Officials Scrambling to Produce Trump’s ‘Last-Minute’ Drug Cards by Election Day,” by Dan Diamond

Also mentioned in this week’s podcast:

Bill of the Month update: KHN’s “Moved by Plight of Young Heart Patient, Stranger Pays His Hospital Bill,” by Laura Ungar

Scientific journal endorsements: The New England Journal of Medicine’s “Dying in a Leadership Vacuum

Scientific American Endorses Joe Biden,” by The Editors

To hear all our podcasts, click here.

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Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Outnumbered on High Court Nomination, Democrats Campaign for a Different Vote

Democrats on the Senate Judiciary Committee know that, barring something unexpected, they lack the votes to block President Donald Trump from installing his third justice in four years on the Supreme Court and creating a 6-3 conservative majority.

They also know that, in a normal year, by mid-October Congress would be out of session and members home campaigning. But 2020 is obviously no normal year. So, while the rest of Congress is home, Democratic Judiciary members are trying something very different in the hearings for nominee Amy Coney Barrett. Rather than prosecuting their case against Barrett, currently a federal appeals court judge, they are refighting the war that helped them pick up seats in 2018 — banging on Republicans for trying to eliminate the Affordable Care Act.

Conveniently, the ACA is relevant to the Supreme Court debate because the justices are scheduled to hear a case that could invalidate the law on Nov. 10 — exactly a week after Election Day.

As California Sen. Kamala Harris, a member of the Judiciary Committee and the Democratic vice presidential candidate, put it to Barrett on Tuesday, “Republicans are scrambling to confirm this nominee as fast as possible because they need one more Trump judge on the bench before Nov. 10th to win and strike down the entire Affordable Care Act. This is not hyperbole. This is not hypothetical. This is happening.”

Said Sen. Richard Durbin (D-Ill.), also on Tuesday: “We really believe the Supreme Court’s consideration of that case is going — could literally change America for millions of people.”

To be sure, Republicans too were playing to their electorate during the questioning of Barrett, as they expounded on her conservative credentials on issues such as gun rights.

Nonetheless, Democrats were uniformly disciplined in their assault on her potential vote in the ACA case. They chided both Barrett and the Republicans who are rushing her nomination to the floor literally days before a presidential election. In addition, Democrats criticized Republicans for spending time on a nonemergency nomination while continuing to ignore the need for financial and other relief for the COVID-19 pandemic.

And they raised what in more normal times would be the featured talking point for Democrats: the threat to abortion and other reproductive rights from Barrett, who before her elevation to the federal bench publicly opposed abortion and taught law at Notre Dame, one of the nation’s preeminent Catholic universities.

“For many people, and particularly for women, this is a fundamental question,” said Sen. Dianne Feinstein (D-Calif.), the committee’s top Democrat.

Barrett, like every other Supreme Court nominee for the past three decades, declined to offer positions that could suggest which way she might rule on hot-button issues, including abortion and the ACA.

She repeatedly cited what has come to be called the “Ginsburg rule” — after the justice she would replace, Ruth Bader Ginsburg — saying “no hints, no previews, no forecasts.”

Still, Democrats suggested that she may have tipped her hand on the Affordable Care Act case. In pointing out that the issues in the case, now known as California v. Texas, are different from the previous cases upholding the health law in 2012 and 2015, she said the current case will turn on “severability.”

She was referring to the question of whether, if one portion of a law is found to be unconstitutional, the rest of the law can stand without it. In the current ACA case, a group of Republican attorneys general — and the Trump administration — are arguing that when Congress reduced the ACA’s penalty for not having insurance to zero, the requirement to be covered no longer had a tax attached, and therefore the law is now unconstitutional. They based their argument on Chief Justice John Roberts’ 2012 conclusion that the ACA was valid because that penalty was a constitutionally appropriate tax.

The law’s opponents say the rest of the law cannot be “severed” and must therefore fall, too. A federal district judge in Texas agreed with them.

But merely saying the case turns on severability suggests that Barrett has already prejudged major parts of the case, Democrats said. Sen. Chris Coons (D-Del.) noted, “You don’t get to the question of severability if you haven’t already determined the question of constitutionality.”

Barrett insisted repeatedly that despite an article she wrote in 2017 suggesting that the 2012 case upholding the law was wrongly decided, “I have no animus to nor agenda for the ACA,” as she told Sen. Amy Klobuchar (D-Minn.) on Wednesday.

In their rare show of unity of message, Democrats made clear that their primary audience in these hearings was not their Senate colleagues, but the voting public. While this battle looks lost, they hope to win the War of Nov. 3.

HealthBent, a regular feature of KHN, offers insight and analysis of policies and politics from KHN’s chief Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN’s ‘What the Health?’: Trump vs. COVID

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President Donald Trump’s COVID-19 diagnosis — and that of two dozen or more other officials in the White House and Capitol Hill — has scrambled an already confusing autumn. The president’s illness has thrown into doubt the remaining two presidential debates, and positive tests for several Republican senators may threaten the effort to push through a new Supreme Court justice before Election Day.

Meanwhile, it looks increasingly unlikely Congress will approve another round of economic relief before the election, even though that would be good for the president’s political fortunes and could help Democrats, too. And the Food and Drug Administration and the Centers for Disease Control and Prevention continue to fight for scientific credibility.

This week’s panelists are Julie Rovner of Kaiser Health News, Alice Miranda Ollstein of Politico, Kimberly Leonard of Business Insider and Erin Mershon of Stat News.

Among the takeaways from this week’s podcast:

  • Trump’s physician, Dr. Sean Conley, has been heavily criticized for his lack of transparency about the president’s health while battling the coronavirus. Conley repeatedly said federal rules under the HIPAA law limited his ability to answer reporters’ questions. That’s because HIPAA (the Health Insurance Portability and Accountability Act of 1996) requires a patient’s consent to release medical information.
  • Nonetheless, Trump’s COVID diagnosis renews questions about whether the public has a right to know the details of a president’s health status, especially this year when both candidates are older than 70. Trump’s opponent, former Vice President Joe Biden, has released only limited information, too.
  • Trump’s decision to unilaterally call off negotiations on a coronavirus relief package baffled and concerned Republican lawmakers and strategists because it undermines their narrative that the Democrats have refused to budge during talks.
  • Although the president has said he would support smaller stimulus bills that would help specific industries or consumers, it’s not clear what Congress would be willing to push out before the election. So, many Republican lawmakers are turning their attention to the upcoming hearings on the Supreme Court nomination of Amy Coney Barrett to rally support.
  • The widespread cases of COVID-19 tied to the White House highlight the president’s messages about masks, social isolation and other protective measures and have the potential to alienate voters, especially those who have lost loved ones or know people who have been afflicted with the disease.
  • Trump’s comments after coming home from the hospital urging the public to not be afraid of the virus or let it “dominate your life” have tapped into frustration by many people who have suffered from the economic consequences of the pandemic and are eager to put the issue behind them.
  • In the vice presidential debate Wednesday, Democratic Sen. Kamala Harris was criticized by Vice President Mike Pence for undermining public confidence in a vaccine when she said she wouldn’t take it if it were being pushed by Trump and not endorsed by public health officials. It’s a tricky issue for Democrats who believe Trump is using the vaccine trials to generate political support and his promise of approval by Election Day is politicizing the process. Yet, they know the public is eager for a successful vaccine.

This week, Rovner also interviews Amy Howe, co-founder of SCOTUSblog and host of the “SCOTUStalk” podcast. Howe explains what the Supreme Court might do with the latest case challenging the constitutionality of the Affordable Care Act.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read too:

Julie Rovner: The Atlantic’s “Trump’s Doctor Comes From a Uniquely American Brand of Medicine,” by Eleanor Cummins

Alice Miranda Ollstein: The New York Times’ “How Much Would Trump’s Coronavirus Treatment Cost Most Americans?” by Sarah Kliff

Kimberly Leonard: Business Insider’s “Meet the 30 Leaders Under 40 Who Are Transforming the Future of Hhealthcare in 2020,” by Lydia Ramsey Pflanzer

Erin Mershon: Kaiser Health News’ “Not Pandemic-Proof: Insulin Copay Caps Fall Short, Fueling Underground Exchanges,” by Markian Hawryluk

To hear all our podcasts, click here.

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Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN on the Air This Week

KHN senior correspondent Sarah Jane Tribble appeared on Newsy’s “Morning Rush” on Thursday to discuss rural hospital closures and KHN’s brand-new “Where It Hurts” podcast.

KHN chief Washington correspondent Julie Rovner appeared on Newsy’s “Newsy Tonight” program on Wednesday to fact-check the health claims made by President Donald Trump and former Vice President Joe Biden during Tuesday’s debate.

Rovner also appeared on WGN’s “Midday News” on Sept. 25 to discuss the impact of the death of Justice Ruth Bader Ginsburg on the Affordable Care Act.

KHN senior correspondent Phil Galewitz discussed Pinellas County’s important role in the presidential election in the swing state of Florida with WUSF’s “Florida Matters” on Tuesday.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Biden’s in the Ballpark on How Many People Have Preexisting Conditions

The first minutes of Tuesday’s presidential debate immediately turned to how President Donald Trump’s Supreme Court nominee to replace Justice Ruth Bader Ginsburg could undo the Affordable Care Act and its protections for people with preexisting conditions.

“There’s 100 million people that have preexisting conditions,” said former Vice President Joe Biden, the Democratic nominee, arguing that those patients could lose coverage protections if the federal health law were declared unconstitutional by the high court.

Protecting guarantees of coverage for people with medical issues is a key campaign issue. It’s among the ACA’s most popular provisions, and polling indicates that most Americans support keeping these protections in place.

Biden, who worked with then-President Barack Obama on the ACA’s enactment, is a strong supporter of the law. Trump, meanwhile, has called repeatedly for the law to be repealed and is backing a lawsuit by a group of Republican state attorneys generals trying to overturn it. The Supreme Court will hear oral arguments in the case Nov. 10.

The ACA guarantees that those with preexisting conditions cannot be denied coverage by health insurers. Despite promises that he will protect people with medical issues, Trump has not offered an alternative proposal to do so. He issued an executive order on health care Sept. 24 that included a commitment to preserving that safeguard, but legal experts said the executive order holds no enforcement power.

After Biden’s comment at the debate, Trump retorted, “There aren’t a hundred million people with preexisting conditions.”

We thought it was important to figure out if this number was right, especially as the ACA’s future hangs in the balance.

Estimates Vary

The Biden campaign provided us with several pieces of evidence to back up the candidate’s 100 million statistic, including a September article in The New York Times, a 2017 issue brief from the Department of Health and Human Services during the Obama administration and a 2018 estimate from Avalere, a health care consulting firm.

We consulted several health policy experts who also pointed us to the HHS brief and the Avalere estimate. They also cited a 2019 analysis from KFF, a nonpartisan health policy organization. (KHN is an editorially independent program of KFF.)

The HHS issue brief, published in January 2017, estimated that between 61 million and 133 million Americans have a preexisting condition.

The number varies based on how a preexisting condition was defined.

In the more conservative estimate of 61 million, a preexisting condition was defined as an illness or condition, such as cancer, cystic fibrosis or heart failure, that would qualify a person for a high-risk insurance pool. High-risk pools were in place before the ACA to help people with serious and expensive-to-treat illnesses gain health coverage. They were operated by some states, as well as by the federal government, but generally covered very few people and were a drain on government budgets.

But that 61 million number doesn’t include everyone who has a preexisting condition, said Linda Blumberg, an institute fellow in the Health Policy Center at the Urban Institute.

“That’s because it’s only capturing the conditions that people had which were in high-risk pools prior to the ACA,” said Blumberg. “We know from a lot of studies that we’ve done that insurance companies would write people up or deny them coverage for conditions that wouldn’t necessarily put you in a high-risk pool.”

Before the ACA, health insurance companies could deny you coverage for a condition as mild as seasonal hay fever.

“Insurance companies had tools they could use to protect themselves from risky people,” said Sabrina Corlette, co-director of the Center on Health Insurance Reforms at Georgetown University in Washington, D.C. “They would dig through your medical history, and if they found something that might impose additional costs for them, they could do a variety of things.”

Corlette said those tools included the ability to deny coverage outright, charge individuals with preexisting health conditions higher premiums, or decide to offer them health insurance, but not cover the preexisting condition or the body part affected.

With that larger definition, the number HHS offered is 133 million people.

More recent estimates cite similar figures.

A 2018 analysis by Avalere, a health care consulting firm, estimated that 102 million Americans have preexisting conditions. A 2019 analysis by the left-leaning Center for American Progress suggested 135 million people.

And a 2019 analysis by KFF found that 54 million people have a preexisting condition that would likely make them completely uninsurable.

“The 54 million estimate is who wouldn’t have been able to be covered at all,” explained Cynthia Cox, director for the program on the ACA at KFF and one of the authors of the analysis.

“But, I think realistically, there are certainly over 100 million people who have a condition that would have caused them some trouble to get insurance on the individual market,” said Cox. “The 100 million includes both the 54 million who wouldn’t get coverage at all as well as the millions of others who might have had an exclusion or might have had to pay a higher premium.”

Based on the HHS estimate, Blumberg said, she would consider Biden’s 100 million figure conservative.

“If anything, he’s somewhat on the low side,” she said. “I think he was being cautious with range and that is appropriate.”

Why It Matters

While the number of individuals who have a preexisting condition varies based on the analysis, it’s clear that many Americans have a condition that could make it difficult to get comprehensive health insurance — or any insurance at all — if the ACA were overturned, said the experts.

And that’s the real point.

“It’s easy to forget what was common practice before the ACA for insurance companies to use various tactics to dictate coverage,” said Corlette. “So, the 100 million, 133 million, 54 million numbers are almost immaterial. The fact is, a heck of a lot of people will face these tactics from insurance companies if these protections disappear.”

Jonathan Oberlander, a health policy professor at the University of North Carolina-Chapel Hill, agreed that the different numbers shouldn’t obscure the central idea: “The ACA provides strong consumer protections and access to health insurance for persons with preexisting conditions, and if the ACA goes away, so, too, will those protections, jeopardizing health coverage for millions of Americans.”

However, not all think that the ACA will be overturned if Trump is successful in getting his nominee, Amy Coney Barrett, confirmed as a new Supreme Court justice.

“The Supreme Court isn’t going to overturn the ACA,” said Joseph Antos, a health policy scholar at the right-leaning American Enterprise Institute. “The Supreme Court has an unbroken history since the 1700s of not expanding upon the specific case that is brought before them, so the idea that somehow preexisting condition protections will be tossed out by the Supreme Court is fairly absurd.”

Whoever is elected Nov. 3 will have to deal with the court’s decision. Although the arguments come next month, it’s unlikely a ruling will be issued until 2021.

Our Ruling

The experts all agreed that Biden was certainly in the ballpark with his estimate of 100 million people having preexisting conditions. His figure was even a little low based on a range provided in an HHS report, said one expert.

But a wide range of people — from 54 million to 135 million — could be affected, according to our reporting. Also, it is unclear how many people with preexisting conditions would be at risk of losing their insurance entirely, or facing higher costs or having their conditions excluded from coverage. Though Biden’s number is certainly within this range, he would need to provide more detail to support such a definitive number.

We rate Biden’s claim Mostly True.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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KHN’s ‘What the Health?’ Replay: What’s at Stake When High Court Hears ACA Case

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The “What the Health?” panelists are taking a break for two weeks. But since the Supreme Court recently scheduled arguments in the case challenging the constitutionality of the Affordable Care Act, it seemed like a good opportunity to replay an episode from March, when the law turned 10.

As the “What the Health?” panelists point out in this episode, that’s a milestone that many considered unlikely. The past decade for the health law has been filled with controversy and several near-death experiences. But the law also brought health coverage to millions of Americans and laid the groundwork for a shift to a health system that pays for quality rather than quantity.

Yet the future of the law remains in doubt. Many progressive Democrats would like to scrap it in favor of a “Medicare for All” system that would be fully financed by the federal government. Republicans would still like to repeal or substantially alter it. And GOP officials have brought the case asking the Supreme Court to invalidate the entire law. Those arguments will be heard on Nov. 10.

This special episode, which first aired March 19, also includes a discussion between “What the Health?” host Julie Rovner and Kathleen Sebelius, who was secretary of Health and Human Services during the development, passage and implementation of the health law. KHN published a transcript of that interview.

Rovner, Joanne Kenen of Politico and Mary Agnes Carey of KHN, who have all covered the law from the start, discuss the ACA’s past, present and future.

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Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


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Back to the Future: Trump’s History of Promising a Health Plan That Never Comes

Ever since he was a presidential candidate, President Donald Trump has been promising the American people a “terrific,” “phenomenal” and “fantastic” new health care plan to replace the Affordable Care Act.

But, in the 3½ years since he set up shop in the Oval Office, he has yet to deliver.

In his early days on the campaign trail, circa 2015, he said on CNN he would repeal Obamacare and replace it with “something terrific,” and on Sean Hannity’s radio show he said the replacement would be “something great.” Fast-forward to 2020. Trump has promised an Obamacare replacement plan five times so far this year. And the plan is always said to be just a few weeks away.

The United States is also in the grips of the COVID-19 pandemic, which has resulted in more than 163,000 U.S. deaths. KFF estimates that 27 million Americans could potentially lose their employer-sponsored insurance and become uninsured following their job loss due to the pandemic. (KHN is an editorially independent program of the Kaiser Family Foundation.) All of this makes health care a hot topic during the 2020 election.

This record is by no means a comprehensive list, but here are some of the many instances when Trump promised a new health plan was coming soon.

2016: The Campaign Trail

Trump tweeted in February that he would immediately repeal and replace Obamacare and that his plan would save money and result in better health care.

By March, a blueprint, “Healthcare Reform to Make America Great Again,” was posted on his campaign website. It echoed popular GOP talking points but was skimpy on details.

During his speech accepting the Republican nomination in July, Trump again promised to repeal Obamacare and alluded to ways his replacement would be better. And, by October, Trump promised that within his first 100 days in office he would repeal and replace Obamacare. During his final week of campaigning, he suggested asking Congress to come in for a special session to repeal the health care law quickly.

2017: The First Year in Office

January and February:

Trump told The Washington Post in a January interview that he was close to completing his health care plan and that he wanted to provide “insurance for everybody.”

He tweeted Feb. 17 that while Democrats were delaying Senate confirmation of Tom Price, his pick to lead the Department of Health and Human Services, the “repeal and replacement of ObamaCare is moving fast!”

And, on Feb. 28, in his joint address to Congress, Trump discussed his vision for replacing Obamacare. “The way to make health insurance available to everyone is to lower the cost of health insurance, and that is what we are going to do,” he said.

March: Eyes on Congress — And Twitter

House Republicans, with backing from the White House, were the ones to introduce new health legislation, the American Health Care Act (AHCA). The repeal-and-replace bill kept in place some of the more popular provisions of the ACA. Some conservative Republicans said the bill didn’t go far enough, deriding it as “Obamacare Lite” and refusing to vote on it.

On March 9, Trump tweeted, “Despite what you hear in the press, healthcare is coming along great. We are talking to many groups and it will end in a beautiful picture!”

Later that month, as efforts to pass the AHCA continued to stall, Trump updated his earlier promise.

“And I never said — I guess I’m here, what, 64 days? I never said repeal and replace Obamacare. You’ve all heard my speeches. I never said repeal it and replace it within 64 days. I have a long time,” said Trump in his remarks from the Oval Office on March 24. (Which was true; he had said within 100 days.) “But I want to have a great health care bill and plan, and we will. It will happen. And it won’t be in the very distant future.”

April and May: A Roller-Coaster Ride of Legislation and Celebration, Then …

After an intraparty dust-up, the House narrowly passed the AHCA on May 4. Despite tepid support in the Republican-controlled Senate, Trump convened a Rose Garden celebratory event to mark the House’s passage, saying he felt “so confident” about the measure. He also congratulated Republican lawmakers on what he termed “a great plan” and “incredibly well-crafted.”

Nonetheless, Senate Republicans first advanced their own replacement bill, the Better Care Reconciliation Act, but ultimately voted on a “skinny repeal” that would have eliminated the employer mandate and given broad authority to states to repeal sections of the ACA. It failed to gain passage when Sen. John McCain (R-Ariz.) gave it a historic thumbs-down in the wee hours of July 28.

September and October: Moving On … But Not

Trump began September by signaling in a series of tweets that he was moving on from health reform.

But on Oct. 12, he signed an executive order allowing for health care plans to be sold that don’t meet the regulatory standards set up in the Affordable Care Act. The next day, Trump tweeted, “ObamaCare is a broken mess. Piece by piece we will now begin the process of giving America the great HealthCare it deserves!”

Roughly two weeks later, on Oct. 29, Trump got back to the promise with this tweet: “… we will … have great Healthcare soon after Tax Cuts!”

2019: More Talk, More Tweets

March and April: A Moving Target

It seems that 2018 was a quiet time — at least for presidential promises regarding a soon-to-be-unveiled health plan. It was reported that conservative groups were working on an Obamacare replacement plan. But in 2019, Trump again took up the health plan mantle with this March 26 tweet: “The Republican Party will become ‘The Party of Healthcare!’” Two days later, in remarks to reporters before boarding Marine One, Trump said that “we’re working on a plan now,” but again updated the timeline, saying, “There’s no very great rush from the standpoint” because he was waiting on the court decision for Obamacare. This was a reference to Texas v. U.S., the lawsuit brought by a group of Republican governors to overturn the ACA. It is currently pending before the Supreme Court.

Backtracking from his earlier promises to repeal and replace Obamacare within his first 100 days in office, Trump on April 3 tweeted: “I was never planning a vote prior to the 2020 Election on the wonderful HealthCare package that some very talented people are now developing for me & the Republican Party. It will be on full display during the Election as a much better & less expensive alternative to ObamaCare…”

June 16:

In an interview with ABC News, Trump again said a health care plan would be coming shortly.

“We’re going to produce phenomenal health care. And we already have the concept of the plan. And it’ll be much better health care,” Trump told George Stephanopoulos. When Stephanopoulos asked if he was going to tell people what the plan was, Trump responded: “Yeah, we’ll be announcing that in two months, maybe less.”

June 26:

But then, timing again changed as Trump promised a sweeping health plan after the 2020 election. “If we win the House back, keep the Senate and keep the presidency, we’ll have a plan that blows away ObamaCare,” Trump said in a speech to the Faith and Freedom Coalition’s Road to the Majority conference.

Oct. 3:

He reiterated this post-2020 election pledge in a speech to Florida retirees. “If the Republicans take back the House, keep the Senate, keep the presidency — we’re gonna have a fantastic plan,” Trump said.

Oct. 25:

Trump told reporters that Republicans have a “great” health care plan. “You’ll have health care the likes of which you’ve never seen,” he said.

2020: ‘Two Weeks’

Feb. 10:

During a White House business session with governors, Trump commented on the Republican governors’ lawsuit to undo the ACA and whether protections for preexisting conditions would be lost: “If a law is overturned, that’s OK, because the new law’s going to have it in.”

May 6:

During the signing of a proclamation to honor National Nurses Day, Trump again said Obamacare would be replaced “with great healthcare at a lesser price, and preexisting conditions will be included and you won’t have the individual mandate.”

July 19:

Trump told Chris Wallace in a Fox News interview that a health care plan would be unveiled within two weeks: “We’re signing a health care plan within two weeks, a full and complete health care plan that the Supreme Court decision on DACA gave me the right to do.”

July 31:

With no sign of a plan yet, reporters asked Trump about it at a Florida event. Trump responded that a “very inclusive” health care plan was coming and “I’ll be signing it sometime very soon.”

Aug. 3:

Pushing the timeline once again, Trump said during a press briefing that the health care plan would be introduced “hopefully, prior to the end of the month.”

Aug. 7:

Citing his two-week timeline once again, Trump said during a press briefing that he would pursue a major executive order in the next two weeks “requiring health insurance companies to cover all preexisting conditions for all customers.” Trump also said that covering preexisting conditions had “never been done before,” despite the ACA provisions outlining protections for people who have preexisting conditions being among the law’s most popular components. The Trump administration has backed the effort to overturn the ACA — including these protections — now pending before the Supreme Court.

Aug. 10:

In response to a reporter’s question about why he was planning to issue an executive order when the ACA already protects those with preexisting conditions, Trump said: “Just a double safety net, and just to let people know that the Republicans are totally strongly in favor of … taking care of people with preexisting conditions. It’s a second platform. We have: Preexisting conditions will be taken care of 100% by Republicans and the Republican Party.”

Just before publication, we asked the White House for more information regarding when exactly the plan might be unveiled. The press office did not respond to our request for comment.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.


This story can be republished for free (details).

Listen: ACA Heading to Supreme Court — Again

Julie Rovner, KHN’s chief Washington correspondent, joins “SCOTUStalk” podcast host Amy Howe to talk about the upcoming Supreme Court hearing on the Affordable Care Act.

The two look at the law’s history before the court — it will be the seventh hearing in eight years on the ACA or one of its provisions — and what issues might be important to the justices, including whether Republican state officials bringing the case have standing or whether their argument that the elimination of the tax for people who don’t get insurance dooms the entire law.

The court’s decision will have widespread effects: More than 20 million people have gained coverage under changes set forth in the law. You can listen to the podcast here on Acast or on Spotify.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

With DACA Ruling, Did Supreme Court Grant Trump New Powers To Reshape Health Care?

President Donald Trump came into office vowing to repeal and replace Obamacare. While he successfully neutralized the health care law’s requirement that everyone carry insurance, the law remains in effect.

When Fox News host Chris Wallace noted that Trump has yet to put forward a replacement plan, Trump told him to stay tuned.

“We’re signing a health care plan within two weeks, a full and complete health care plan that the Supreme Court decision on DACA gave me the right to do,” Trump said July 19 on “Fox News Sunday.”

“The Supreme Court gave the president of the United States powers that nobody thought the president had.”

Trump said he would “do things on immigration, on health care, on other things that we’ve never done before.”

We wanted to know if the Supreme Court really did that. So we ran the president’s words by a number of people who study constitutional and administrative law. We heard several reasons why the Supreme Court might not have said what Trump thinks it said.

The Likely Source

We asked the White House press office for the basis of Trump’s assertion and never heard back. Several law professors pointed to a National Review article by University of California-Berkeley law professor John Yoo, best known as authoring a legal justification that led to waterboarding enemy combatants during the George W. Bush administration.

In the article, Yoo argues that when the Supreme Court ruled against the administration’s rollback of Deferred Action for Childhood Arrivals, or DACA, the court made it more difficult for new presidents to unwind the policies of their predecessors.

How might this give Trump new power?

In theory, Trump could enact a policy, even one judged illegal by the courts, and the person who follows him into office would need to jump through a number of hoops to undo it.

Yoo wasn’t sure if Trump could use the argument to make sweeping changes in health care, saying it “depends on what the administration policy actually says.”

But as Yoo sees it, should Trump establish a new program, the ruling “requires his successor to follow a burdensome process, which could take a year or more, to repeal it.”

Many legal experts disagree with Yoo’s interpretation. Before we go there, we need to recap the court’s DACA decision.

Court Sends DHS Back to the Drawing Table

President Barack Obama created DACA on the grounds that every administration has to allocate limited prosecution resources. Obama argued that it was more important to deport violent criminals, drug dealers and thieves than people who had come into the country illegally when they were little. So long as they had committed no serious offenses and met other criteria, they could apply to avoid deportation.

Under Trump, the Department of Homeland Security moved to end DACA. Supporters of the program sued, saying that under the Administrative Procedure Act, that action was arbitrary. In its June 18 ruling, a 5-4 majority on the Supreme Court agreed.

The ruling describes how Homeland Security Secretary Kirstjen Nielsen got in a procedural bind when she inherited the decision of her predecessor (Acting Secretary Elaine Duke) to end the program. She erred, Chief Justice John Roberts wrote, because instead of making the case for ending DACA as her own decision, she came up with new reasons to justify the earlier move.

“Because Nielsen chose not to take new action, she was limited to elaborating on the agency’s original reasons,” Roberts wrote. “But her reasoning bears little relationship to that of her predecessor and consists primarily of impermissible ‘post hoc rationalization.’”

The court didn’t say Homeland Security couldn’t change the policy. It said the Administrative Procedure Act requires an agency to consider the key options it faces and explain why it chose the one it picked. With DACA, it said the change needed to show a fuller vetting of its choices.

No New Power Created

So while Trump technically lost that case, he is using the ruling (and Yoo’s theory) to voice confidence that he can do things no one thought possible.

Legal scholars give several reasons that might be off the mark. Broadly, they say the court’s ruling changed nothing.

“It’s a straightforward application of long-standing administrative law doctrine that dates back at least to President Ronald Reagan,” said Cary Coglianese, director of the Penn Program on Regulation and a professor of law at the University of Pennsylvania. “Agencies have to explain why they are doing something. They have to look at the plausible alternatives and give a reason for the one they selected.”

Justice Brett Kavanaugh also did not see a new take on an old law. In his dissenting opinion, he called the ruling on the Administrative Procedure Act “narrow.”

In a similar vein, the court left intact the specific power behind DACA of selective enforcement of the law.

“That’s an ordinary part of executive branch practice, and nothing in the Supreme Court’s DACA decision should be read to authorize anything beyond that simple practice,” said Yale University law professor Cristina Rodríguez.

The path to undoing this sort of executive action may not be as long as Yoo described. The court spelled out how Nielsen could have ended DACA without much delay, said Eric Freedman, professor of constitutional law at Hofstra University Law School.

“If she had considered other possible solutions, what she did would have been fine,” Freedman said. “She would have complied with the Administrative Procedure Act and no one would have enjoined her.”

There is also something unusual about DACA itself that makes it less of a model for other steps Trump might take.

The program was in place for quite a while before Trump tried to end it. As a result, about 700,000 people ultimately counted on it. The court said that reliance on the program should have factored into the decision to end it.

A new policy from Trump wouldn’t have time to accumulate that critical mass.

“Anything Trump does now will be enjoined tomorrow,” said Josh Blackman at the South Texas College of Law. “So there will be no reliance, and the next administration could do what it wanted.”

Blackman said the court’s ruling did create some murkiness around challenging the legality of an unwanted policy. But he said an agency could justify a change strictly for reasons of policy, not law.

Lastly, the DACA decision was about a policy not to enforce the law in certain circumstances. Robert Chesney at the University of Texas Law School said that focus also limits the scope of the ruling.

“If Trump wants to create new rules, the example does not fit in the first place,” Chesney said.

A “full and complete health care plan” and major immigration changes would likely require new government actions. Without new laws from Congress, that would be out of reach.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

KHN’s ‘What the Health?’: The Trump Administration’s War on Fauci

Can’t see the audio player? Click here to listen on SoundCloud.

Not only does the Trump administration lack a comprehensive plan for addressing the ongoing coronavirus pandemic, it spent much of the past week working to undercut one of the nation’s most trusted scientists, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases. Reporters were given “opposition research” noting times when Fauci was allegedly wrong about the course of the pandemic, and Peter Navarro, a trade adviser to President Donald Trump, published an op-ed in USA Today attacking Fauci personally.

Meanwhile, the Supreme Court may not hear the case challenging the constitutionality of the Affordable Care Act before the November elections, although its existence is likely to serve as fodder for Democrats up and down the ballot.

And lower courts have been active on the reproductive health front since the high court declined to fully exercise its anti-abortion majority. Federal judges in Tennessee and Georgia blocked abortion bans, while one in Maryland blocked an administration rule requiring insurance companies that sell plans on the Affordable Care Act exchanges to send customers a separate bill for abortion coverage if it is offered.

This week’s panelists are Julie Rovner of Kaiser Health News, Alice Miranda Ollstein of Politico, Paige Winfield Cunningham of The Washington Post and Erin Mershon of Stat News.

Among the takeaways from this week’s podcast:

  • Despite rosy pronouncements by federal officials that testing efforts in the country are progressing well, many states still report problems getting supplies they need, and delays in getting test results are making contact tracing all but impossible.
  • The testing problems create major hurdles to opening schools on time, as testing and contact tracing have been prerequisites to open schools safely.
  • Researchers are complaining that the Trump administration’s decision to have hospitals report their coronavirus data to HHS, instead of the Centers for Disease Control and Prevention, may make it difficult for them to study aspects of the outbreak.
  • Groups that oppose abortion see efforts by Chief Justice John Roberts to moderate decisions this year as a signal he may not be receptive to their arguments to overturn Roe v. Wade, which legalized abortion nationally. The chance to get one more conservative on the court to replace one of the current liberals could galvanize more support for President Donald Trump’s reelection campaign.
  • On the issue of abortion, House Democrats surprised some people by keeping the Hyde Amendment — which outlaws federal spending for abortions in nearly all cases — in the HHS appropriations bill. That was likely an effort to protect vulnerable Democrats in conservative districts.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read, too:

Julie Rovner: The New Yorker’s “How Trump Is Helping Tycoons Exploit the Pandemic,” by Jane Mayer

Alice Miranda Ollstein: The New York Times Magazine’s “Why We’re Losing the Battle With Covid-19,” by Jeneen Interlandi

Erin Mershon: The New York Times’ “Bottleneck for U.S. Coronavirus Response: The Fax Machine,” by Sarah Kliff and Margot Sanger-Katz

Paige Winfield Cunningham: Politico’s “Inspector General: Medicare Chief Broke Rules on Her Publicity Contracts,” by Dan Diamond and Adam Cancryn

To hear all our podcasts, click here.

And subscribe to What the Health? on iTunesStitcherGoogle PlaySpotify, or Pocket Casts.

Next Showdown in Congress: Protecting Workers vs. Protecting Employers in the Pandemic

Congressional leaders are squaring off over the next pandemic relief bill in a debate over whom Congress should step up to protect: front-line workers seeking more safeguards from the ravages of COVID-19 or beleaguered employers seeking relief from lawsuits.

Democrats want to enact an emergency standard meant to bolster access to protective gear for health care and other workers and to bar employers from retaliating against them for airing safety concerns.

Republicans seek immunity for employers from lawsuits related to the pandemic, an effort they say would give businesses the confidence to return to normal. The Senate is scheduled to reconvene later this month.

The debate reflects a deepening schism between the major political parties, with Democrats focused on protecting lives and Republicans focused on protecting livelihoods.

Democratic House Speaker Nancy Pelosi expressed frustration over efforts to pass an emergency worker-protection standard, which keeps running into GOP resistance.

“They’re saying ‘Let’s give immunity — no liability — for employers,’” Pelosi said. “We’re saying the best protection for the employer is to protect the workers.”

Nearly 98,000 health care workers have contracted the novel coronavirus, according to Centers for Disease Control and Prevention data that the agency acknowledges is an undercount. KHN and The Guardian have identified more than 780 who have died and have told the personal stories of 139 of them.

In May, the House passed a $3 trillion relief bill that would require the Occupational Safety and Health Administration to put in place an emergency standard that would call on employers to create a plan based, in part, on CDC or OSHA guidance to protect workers from COVID-19.

It would cover health care workers and also those “at occupational risk of exposure to COVID19.” The measure would allow workers to bring protective gear “if not provided by the employer.” Similar rules in place in California health care workers have come under fire for offering little added protection.

In action, the new measure would allow OSHA inspectors to request to review an employers’ plan and hold them accountable for following it, said David Michaels, former U.S. assistant secretary of Labor and OSHA administrator, who has called for such a standard. Federal guidance is currently optional, not required.

“Many employers want to be law-abiding,” Michaels said, “and they know they risk enforcement and possibly a monetary fine if they don’t attempt to do this.”

Top Democrats, including presumptive presidential nominee Joe Biden, have called for better worker protections, while GOP leaders have called for stronger employer protections.

Senate Majority Leader Mitch McConnell has insisted that the next pandemic relief bill include immunity for employers against coronavirus-related lawsuits.

“If we do another bill, it will have liability protections in it for doctors, for hospitals, for nurses, for businesses, for universities, for colleges,” McConnell said July 1. “Nobody knew how to deal with the coronavirus,” he said, and unless they’ve committed gross negligence or intentional harm, those parties should be protected from an “epidemic of lawsuits.”

He has proposed a five-year period of immunity from December 2019 through 2024. (McConnell’s office declined to comment for this story.)

Such a measure could derail lawsuits already filed by grieving family members such as Florence Dotson, the mother of 51-year-old certified nursing assistant Maurice Dotson, who died in April. Her son cared for nursing home residents with COVID-19 in Austin, Texas, and did not have proper personal protective equipment (PPE), her suit alleges. He later died of complications from the virus.

Another lawsuit alleges that an anonymous New York nurse requested but was denied proper PPE when she was assigned to care for a patient in intensive care with COVID-19 symptoms but who was tested for the virus only after death. The nurse, who contracted COVID-19 shortly after, is seeking $1 million in damages.

U.S. workers in every industry have filed more than 13,300 COVID-related complaints with OSHA, records show, demonstrating widespread concern over their lack of protection at work. Twenty-three complaints reference a fear of retaliation, including among hospital workers who say they were pressured to work while sick.

The agency has closed investigations into those complaints but is investigating 6,600 more open complaints. OSHA has so far issued one citation against an employer, a spokesperson confirmed.

Employers are also struggling, evidenced by layoffs and an 11% unemployment rate, which the Congressional Budget Office projects will hit 16% in the coming weeks.

States have taken some matters in their own hands during months of federal inaction. At least 25 states have created some degree of legal immunity for doctors or facilities, through new laws or executive orders, according to the National Conference of State Legislatures.

Officials in Virginia and Oregon have taken steps to enact their own heightened worker-protection rules related to the virus.

The effort to pass an OSHA rule to protect workers from infectious diseases dates to 2010, when regulators saw the need to better protect health care workers after the H1N1 flu pandemic.

Michaels, the former OSHA director under President Barack Obama, said the effort has stalled out under the Trump administration. Trump administration OSHA officials have defended their track record, saying adequate rules are in place to protect workers.

But a similar push succeeded in California in 2009. State officials passed a plan requiring health care employers to create a plan to protect health care workers from airborne viruses.

The California measure went further, requiring hospitals and nursing homes to stockpile or be prepared to supply workers with an N95 respirator — or an even more protective device — if treating patients with a virus like COVID-19.

Workplace safety experts in California, though, said it hasn’t worked as intended.

As more than 17,600 health care workers have become sick and 99 have died in the state, it’s become apparent that health care employers did not have plans in place, said Stephen Knight, executive director of Worksafe, a nonprofit focused on workplace safety.

“This was just a massive missed opportunity and one that cost people their lives,” Knight said. “People are just dying … with frightening regularity.”

California nurses who died after caring for COVID patients without an N95 respirator include Sandra Oldfield, 52, who wore a less-protective surgical mask while caring for a patient who wasn’t initially thought to have the virus.

A complaint to OSHA about a lack of N95 respirators that preceded her death put her hospital, Kaiser Permanente Fresno Medical Center, in violation of the state’s standard, the state labor department confirmed.

However, alternative guidance is now in place because of global PPE shortages, according to the California Department of Industrial Relations. Kaiser Permanente, which is not affiliated with KHN, confirmed that the patient was not initially thought to have COVID-19 and that the company has followed state, local and CDC guidance on patient screening and use of PPE.

Hospital officials, who have come out against a national OSHA standard, said the plans that were in place did not account for the scope of the current pandemic and global supply chain breakdown.

“It is not for a lack of caring or trying to keep our workers safe,” said Gail Blanchard-Saiger, vice president for labor and employment with the California Hospital Association.