Harvard Law & Policy Review

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Repealing the ACA Would be a Step Backwards in Treatment of HIV

By Mark Satta*

“It was a holocaust…All of my peers died of AIDS, and I have no one to celebrate my past or my journey, or to help me pass down stories to the next generation. We lost an entire generation of storytellers with HIV.” Those are the words of David Mixner, a civil rights activist and author, who lived through the horror of the AIDS crisis in the 1980s and early 1990s in the United States—a time in which a diagnosis of HIV was, for most, a death sentence, and in which the treatment options for HIV/AIDS were extremely limited.

In the intervening years, medical advances have revolutionized the prospects for those diagnosed with HIV. It is no longer a death sentence. With the proper medical treatment, most people with HIV can live long and healthy lives. Furthermore, recent studies have shown that proper medical treatment can greatly reduce (and perhaps completely eliminate) one’s risk of transmitting HIV to others. We now have the medical tools needed to prevent new HIV infections and to help those currently infected with HIV lead healthy, flourishing lives.

But proper treatment for HIV is expensive and cost barriers have hampered progress in containing the virus and taking care of those living with HIV now.

The Affordable Care Act (ACA), passed under the Obama Administration, removed substantial cost barriers to treatment for many HIV positive people through measures such as the expansion of Medicaid and the banning of preexisting condition exclusions. A study from the Kaiser Foundation found that these measures resulted in a significant increase in the percentage of HIV positive people living in the United States who have the health insurance they need to afford treatment.

Provisions in the American Health Care Act (ACHA)—i.e. the GOP’s proposed ACA replacement—would shrink Medicaid funding and coverage and would allow insurance companies to deny health insurance to those with gaps of more than 63 days in their health insurance coverage. These changes run the risk of undoing much of the progress that has been made under the ACA to provide affordable health insurance and treatment for those with HIV. Even though this particular bill faced difficulties in the House of Representatives, most of the evidence suggests that any healthcare alternative proposed by the GOP is apt to contain similar provisions.

Recent new isn’t all bad for those fighting for HIV treatment and prevention. The Trump administration’s budget retains funding for valuable organizations used to fund HIV treatment like the Ryan White HIV/AIDS Program, which financially assists those with HIV who can’t afford treatment, and the President’s Emergency Plans for AIDS Relief (PEPFAR), which provides relief for those with HIV and AIDS globally.

But while these funds are not being cut, unless they are expanded, repealing the ACA will result in a larger group of people needing to share these limited resources. Thus, without compensating measures, repealing the ACA would constitute a step backwards in our ability to provide medical care for HIV positive people and in addressing the impact of HIV.

We should acknowledge the significant benefits that continued funding of programs like Ryan White will allow for, but we should also recognize both the imprudence and callousness of taking a step backwards in the treatment of HIV/AIDS, when instead we should be continuing to take steps forward.

We have the medical resources to keep HIV positive people healthy and to stop the spread of the disease, yet in 2014 there were over 6,700 deaths attributed directly to HIV and in 2015 there were still almost 40,000 newly diagnosed cases of HIV in the United States. And the burden continues to fall disproportionately on minorities like African Americans, Latinos, and gay and bisexual men.

The limits of our action contribute to the death and suffering of thousands of Americans living with HIV every year, to the prolongation of an unnecessary risk to thousands more, and to an increased burden on society generally as we expend resources on emergency and end of life care that could have been spent instead on preventative measures and earlier treatment.

In the 1980s, we lacked the knowledge and medical treatment needed to prevent the death of a generation of Mixner’s storytellers. But with groundbreaking advances in the medical field, the responsibility for the storytellers we lose in this generation lies with us. That potential loss is just one of many examples of the very real consequences that repealing the ACA will have on chronically ill Americans. And it is up to all of us to fight together to protect the interests of those in need of care.

*Mark is a 1L at HLS and an Online Editor for HLPR.

Photo Credit: Ted Eytan

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The Moral Foundations of the Insurance Mandate

By Tina Rulli*

Republicans’ new plan to replace the Affordable Care Act ditches the health insurance mandate, the requirement for individuals to purchase health insurance or pay a penalty. Instead, their American Health Care Act favors tax credits to incentivize people to purchase insurance.

There are many vantage points from which to assess the health insurance law, including legal, economic, and public health perspectives. My focus is on the moral foundations of the individual mandate, in part, because Republicans have taken moral umbrage at it as an instance of government overreach inconsistent with respect for individual liberty. Moral concerns should and do motivate public policy.

What Republicans fail to see is the moral logic behind the insurance mandate. We have a moral obligation to purchase health insurance because our hospitals and clinicians have a legal duty to provide emergency and acute care to people regardless of ability to pay based on the Emergency Medical Treatment and Labor Act (EMTALA). In 2013, the cost of uncompensated care was a whopping $84.9 billion.

When others have a duty to rescue, a duty to provide aid to those in serious need, individuals can incur obligations to lower the potential costs of rescue. This is a familiar duty: knowing that park services will provide costly tax-payer funded rescue if a mountaineer gets lost, mountaineers have an obligation to mitigate the risks they take by staying on well-traveled paths and out of avalanche areas and by carrying a GPS that makes them easily locatable. In 2011, when an 8.9 magnitude earthquake hit Japan, California surfers were warned to stay out of the path of the resulting tsunami. This was not just out of concern for their wellbeing, but also for the safety of their potential rescuers. When others have a duty to aid, we can incur obligations to mitigate the burden of rescue to them and others.

One might argue that we should drop the provision of free emergency and acute health care. But truly imagine what this would entail. Clinicians would be required to stand back while a car accident victim without health insurance bleeds to death, even though they could administer a simple life-saving blood transfusion. This is inconceivable in a compassionate and minimally decent society. We do not think that one owes one’s life for lack of insurance, whether due to personal negligence or financial hardship. Further, requiring clinicians to deny care would be a great burden to them. Compassionate clinicians, out of their own sense of decency and their allegiance to an ethical code that requires promotion of patient welfare, could not stand back and watch a person needlessly suffer or die.

Perhaps the stalwart moral libertarian would say: “You cannot mandate that I buy insurance, given that I am willing to refuse your free emergency care.” But $84.9 billion dollars in uncompensated costs suggests that such consistent moral libertarians are mythical beasts. People who fail to buy health insurance overwhelmingly accept free emergency and acute care in their time of need.

In short, there is a moral justification for the insurance mandate that the Republican plan overlooks. The moral foundation is an important component in rationalizing good policy to the public. Tax incentives send the wrong message: treating the purchase of health insurance as optional, rather than as a duty of reciprocity for a compassionate health care system that will not allow the most vulnerable to suffer or die for lack of insurance. Surely, conservatives can agree to holding people responsible for participating in a cooperative system whereby some people incur burdens in order to benefit others. This is the paradigm of individual responsibility. It was their idea in the first place.

For related reading, see here and here.

*Tina Rulli is an Assistant Professor in the Philosophy Department at the University of California, Davis.

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The ACA is working – and there is no replacement

By Jonathan Gruber, MIT*

One of the most contentious public policy issues of the early days of the Trump Administration is the future of the Affordable Care Act (ACA). President Trump and congressional Republicans decry the law as a failure and say that it must be repealed and replaced with something better. This line of argument is problematic in two different ways. First, the claim that the ACA is a failure is wrong. Second, there is no replacement that does not significantly worsen the U.S. health care system.

The ACA has accomplished the three main goals it set out to achieve. First, the law has significantly reduced the number of uninsured Americans (by about 20 million, according to latest estimates). Second, the law has stabilized a broken individual insurance market. Before the ACA, individuals without insurance from their employer or the government were subject to a discriminatory market where they could be denied insurance based on their health, or charged more based on their health or gender. The ACA ended this discrimination, bringing millions of uninsured into the new market. Third, the ACA has contributed to the most dramatic health care cost slowdown in measured U.S. history.

Such a positive assessment may strike some as odd given rhetoric to the opposite effect, but such rhetoric is subject to an important fallacy. Republican criticism compares the ACA to a perfect world, not to the world that it replaced. Consider, for example, premiums in the ACA health insurance exchanges. Much attention has focused on the fact that last year these premiums rose by 22 percent, on average. But there has been little focus on the fact that premiums were far below expectations when the law went into place, so that on net premiums are below where they would have been on average without the law. Relative to a world without the ACA, we are now a nation with higher insurance coverage and more stable and lower cost insurance markets.

That’s not to say that the ACA is perfect – far from it – but it is important to note that the ACA represents an improvement over the world that preceded it. And, more importantly, it is much better than current alternatives posed by Republicans.

While there are a number of alternative “replace” plans, all share three features. First, they significantly weaken the insurance market anti-discrimination protections of the ACA. Millions of individuals who now have access to insurance at prices independent of their health will suddenly see their coverage become unavailable or unaffordable. Second, these plans make insurance much less affordable for low-income Americans. Most proposals remove the Medicaid expansions that made insurance accessible for the first time to millions of low-income Americans, and all proposals replace the income-based tax subsidies of the ACA with universal flat tax credits that don’t vary with income. This means that low-income families will have to pay enormous shares of their income to afford insurance, while rich families get a flat tax credit that they don’t need. Finally, the plans repeal the tax increases on the wealthy that were used in part to finance the ACA.

The bottom line is that Republican alternatives make insurance unavailable and unaffordable for the lowest income and sickest Americans, while providing new benefits and tax breaks to the richest Americans. The result will be a dramatic reduction in insurance coverage in the U.S. among our most vulnerable citizens. This is not a “replacement”. This is a catastrophe.

*Prof. Jonathan Gruber is a professor of Economics at the Massachusetts Institute of Technology as well as the director of the Health Care Program at the National Bureau of Economic Research. Prof. Gruber was a key architect of both the 2006 Massachusetts health care reform and the 2010 Patient Protection and Affordable Care Act.

 

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Unhealthy Citizens, Unhealthy Democracy

 By Josh Carpenter*

The United States has two distinct health systems for the poor: generally, one for blue states and one for red states. One system provides health insurance to the disadvantaged through Medicaid expansion. Over 30 states have elected to expand Medicaid through the Affordable Care Act or opted for a modified version. Democrats in statehouses across the country have led this push, although Kentucky and Ohio are important exceptions.  Unfortunately, individuals in 19 states are being denied access to healthcare.

Consequently, the same person could be eligible for insurance in Arkansas, but over the border in Texas, she is uninsured and living in the “Coverage Gap.” This Coverage Gap largely falls along party lines. How did we get here and why does it matter?

In National Federation of Independent Business v. Sebelius (2012) the Supreme Court decided that states should not be mandated to expand their Medicaid eligibility thresholds as outlined by the Affordable Care Act (ACA). The Supreme Court’s decision to decouple Medicaid expansion—which guaranteed healthcare to individuals living below 135% of the Federal Poverty Line—from the remainder of the healthcare law devolved the decision to expand Medicaid to the states, leaving healthcare access for millions of Americans to the discretion of Governors and state legislatures. Many states decided not to expand Medicaid, most of them led by Republicans in the South. Consequently, the law became even more complicated and its impact, unevenly distributed.

When we deny health insurance to the poor, we create several troubling outcomes. Poor people suffer tremendous health disparities. In the Deep South, these disparities are particularly acute along racial and ethnic lines. African Americans, for example, experience disproportionately worse health outcomes than other races.

People without health insurance face significant barriers to accessing care, a problem exacerbated in rural areas with fewer treatment facilities. For example, one in four expectant mothers in rural Alabama receive inadequate prenatal care, contributing to Alabama’s high infant mortality rate. In fact, the average infant mortality rates in Alabama, Mississippi, and Louisiana are so high that they rival that of Botswana.

Denying health insurance to the poor also diminishes a sense of citizenship among the uninsured, stifling their willingness to engage in political participation. My doctoral research investigates the voting behavior of 332,000 Alabamians living in the Coverage Gap. I discovered that less than one-third of these citizens were registered to vote, symptomatic of the difficulties poor people face in registering to vote in Alabama. After conducting a randomized Get-Out-The-Vote field experiment, our intervention found that political mobilization among this population to be a tough sell.

The uninsured Alabamians I interviewed were neither ignorant nor apathetic. They were disconnected. The parameters of extant public policy were drawn to exclude them from receiving public benefits. Indeed, although they conceived of themselves as “outsiders” in electoral politics, they were committed spectators to the policies that those politics generated. Their state—my state—had legislated their social exclusion.

Policy designs have profound effects on subsequent democratic participation, particularly among the poor who live with limited healthcare access. The consistent disengagement of poor, uninsured citizens likely contributes to America’s low voter turnout.

We can and should do better to improve the health of America’s people as well as its democracy.

 

* Josh Carpenter is a DPhil candidate in Politics at Oxford University where he studies on a Rhodes Scholarship. He was the Co-founder and President of Bama Covered, a student-led, grassroots non-profit that informed Alabamians about the Affordable Care Act in 2014.

 

Image by Tomasz Sienicki [user: tsca, mail: tomasz.sienicki at gmail.com] – Own work, Public Domain, https://commons.wikimedia.org/w/index.php?curid=121371

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The Unintended Uninsured: The Affordable Care Act’s Coverage Gap

By Julian Polaris*

This is a golden age for access to healthcare in America. In 2015, over 90% of Americans had health coverage, the highest insurance rate in the 50 years the federal government has collected insurance data. This astonishing progress is due in large part to the Affordable Care Act (ACA): President Obama recently announced that 20 million people are covered thanks to the ACA. The victory is bittersweet, however: had the ACA been implemented as designed, an additional three million people would have insurance today. This is the story of the “coverage gap,” a crack in the ACA created by the Supreme Court and left unrepaired in nineteen states. A crack so wide that three million low-income people have fallen through it.

The ACA, as originally passed, aimed to increase access to health coverage in two main ways. First, the Act expanded Medicaid, the public health plan for people with low income. Previously, most states had limited Medicaid eligibility to specific groups like children and pregnant women. The ACA enlarged and standardized the Medicaid program to cover all people who earn up to 138% of the federal poverty level (FPL). The federal government picks up 90% of the cost of healthcare services for newly eligible beneficiaries, whereas costs in traditional Medicaid are split closer to 50-50.

Second, the ACA established the health insurance “exchanges,” portals in each state where consumers can shop for standardized plans that aren’t tied to a particular employer. Federal tax credits are available to subsidize exchange coverage for those earning 100 to 400% of the FPL.

These overlapping reforms created a seamless continuum of coverage for low-income Americans: everyone earning less than 138% of the federal poverty level is eligible for Medicaid, and subsidized exchange coverage is available to those who earn 100 to 400% FPL.

Then came the Supreme Court’s 2012 decision in NFIB v. Sebelius, best known for upholding the ACA’s central requirement that all Americans secure comprehensive health coverage or pay a penalty. The Court was less conciliatory when it came to the ACA’s Medicaid expansion, however, prohibiting the federal government from instituting a new nationwide eligibility standard and, instead, allowing each state to choose whether or not to expand Medicaid under the ACA’s terms. As of March 2016, 31 states (and DC) have chosen to do so.

Nineteen states have so far rejected the expansion. These states tend to be politically conservative, and their leaders justify non-expansion on familiar conservative grounds related to state budgets, the federal deficit, and distrust in public welfare programs. (See, for example, this explanation from Louisiana’s former governor Bobby Jindal.) President Obama has accused the states of refusing to expand coverage out of “political spite” as much as anything else.

The collateral damage in this ideological crossfire is the three million low-income people who should have health coverage, but don’t. They don’t qualify for their states’ existing Medicaid programs, which exclude childless adults and only cover parents with extremely low incomes (the median income cutoff is 44% of the poverty level, or less than $11,000 for a family of four). Perversely, these same people earn too little to qualify for subsidized coverage on the exchanges: the tax credits only kick in at 100% FPL because everyone below that was intended to be covered by the Medicaid expansion.

The ACA’s access reforms were designed to create a seamless continuum of affordable coverage. Instead, three million people are trapped in the coverage gap, stranded in a regulatory no man’s land between Medicaid and the exchanges.

The coverage gap could be addressed at either the federal or the state level. Congress could amend the ACA to extend the exchange tax credits all the way down the income ladder, but is extremely unlikely to do so. Since the ACA was enacted, Congress has prioritized attempts at repeal over attempts at repair.

This is why all eyes have been on the states. Each state can decide for itself whether to expand its Medicaid program to cover all low-income individuals, and most have already done so. Medicaid expansion allows more individuals to enjoy the benefits of health coverage (which I have previously catalogued here), and also benefits the states in the form of reduced costs and even new state revenue.

The Obama administration has gone to great lengths to make the expansion deal even more attractive for reluctant states. The federal Centers for Medicare & Medicaid Services (CMS) has granted “waivers,” which allow states to modify their Medicaid expansions with Republican-favored policies like beneficiary cost sharing or reliance on private insurance markets. CMS recently announced that the federal government will fund 100% of the costs for most healthcare services received by American Indians and Alaskan Natives who qualify for the state Medicaid program, a particularly powerful incentive in rural states with large Tribal populations. In the President’s 2017 budget proposal, he also extended additional federal funding to holdout states that agree to expand their Medicaid programs now, though Congress is not likely to approve that (or perhaps any) Obama proposal.

In red states that have adopted the expansion, Republican governors emphasize the moral imperative of providing health coverage for low-income people, and point to the billions of federal dollars available to pay for it. So far, however, nineteen states remain unconvinced.

Meanwhile, three million people are stuck in the coverage gap, accounting for a full 10% of America’s remaining uninsured population. Health coverage is a critical support for individual health and financial security, especially for low-income people who are already at higher risk for poor health and may struggle to pay for basic needs. The benefits of affordable and comprehensive coverage ripple out beyond the covered individual to family and friends, employers, and public institutions. Here’s hoping we can bridge the gap and restore the ACA’s promise of affordable coverage for all Americans.

 

* Julian Polaris is a recent Yale Law School graduate and an Associate in the Healthcare Division at Manatt, Phelps & Phillips, LLP, where he advises state governments, providers, and private payers on healthcare regulatory matters. This post was written in his personal capacity.

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By Tom Watts

Part 2 in a series on National Federal of Independent Business v. Sebelius:

Roberts and the four liberals upheld the individual mandate as valid under the Taxing Clause. The majority noted, “The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects.” It pointed out that the “penalty” (a) “does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code,” (b) has an amount “determined by such familiar factors as taxable income, number of dependents, and joint filing status,” and (c) is described “in the Internal Revenue Code and enforced by the IRS.” [Read more…] about

https://journals.law.harvard.edu/lpr/2012/06/29/572/