High Court Upholds Health Law Subsidies

The Affordable Care Act survived its second Supreme Court test in three years, raising odds for its survival but by no means ending the legal and political assaults on it five years after it became law.

The 6-3 ruling stopped a challenge that would have erased subsidies in at least 34 states for individuals and families buying insurance through the federal government’s online marketplace. Such a result would have made coverage unaffordable for millions and created price spirals for those who kept their policies, many experts predicted.

Chief Justice John Roberts wrote the opinion for the court, joined by frequent swing vote Anthony Kennedy and the liberal justices Ruth Bader Ginsburg, Stephen Breyer, Sonya Sotomayor and Elana Kagen.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” wrote Roberts. “The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner.”

Consumer advocates were hopeful for this outcome.

“The first thing going on for a huge swath of people is relief that we didn’t blow up the system,” said Lynn Quincy, a health policy specialist at Consumers Union. “The law was never meant to work without this pillar in there,” she said of the subsidies.

But even a victory for the law closely identified with President Barack Obama leaves the health system with incomplete insurance coverage, rising costs and other uncertainties. The ACA itself still faces several lawsuits, although some believe Thursday’s decision will discourage judges from advancing the cases.

“It sends a message to the lower courts that they need to take a good, hard look at all the ACA litigation that’s out there and probably clean up and get rid of most of it,” said Timothy Jost, a law professor at Washington and Lee University and an expert on the health law.

Kaiser Health News interviewed Jost and other authorities before Thursday’s decision in a case known as King v. Burwell asking them to explain the implications of upholding the law.

Republicans controlling Congress are likely to advance new legislation amending or repealing the law, although it is even more likely to be vetoed by President Barack Obama if it gets to his desk.

The high court decision sets up the 2016 presidential election as the health law’s next big test, although by then it could be difficult to fully uproot even if Republicans take the White House.

“With another year and a half of business as usual under the ACA, if it’s a Republican as the next president, it’ll be that much more difficult to make changes,” said Joseph Antos, a health care economist at the American Enterprise Institute.

The case hinged on tax credits created by Congress to help middle-income consumers buy insurance through online marketplaces, also known as exchanges.

The subsidies are available through an exchange “established by the state,” according to the law.

Thirty-four states did not set up their own exchanges and rely instead on healthcare.gov, run by the federal government. Lawyers for the plaintiffs argued that, as a result, millions of consumers in those states should not receive tax credits to pay premiums.

Pulling the subsidies would have undermined the insurance market in those states to the point of likely failure, experts said. Unable to afford the coverage, many consumers would have dropped out. Those remaining would probably have been older and sicker, driving up premiums to unsustainable levels.

Eighty-five percent of those who bought insurance through healthcare.gov qualified for subsidies averaging $272 per month. The Department of Health and Human Services predicted 6.4 million people would have lost subsidies if the court ruled for the plaintiffs.

Those subsidies are effectively revenue for hospitals and health insurers, financing premiums and the cost of care. Both industries are relieved they were upheld.

“Providers will feel better,” said Peter Strack, a consultant with the Altarum Institute, which works closely with hospitals. “They don’t have to worry about this back and forth of, ‘Will I have the appropriate population covered?’”

A loss for the administration would have affected employer-based coverage as well, although not nearly as much, benefits lawyers said.

For large employers not offering health insurance, penalties are triggered when workers obtain subsidies in the marketplaces. No subsidies, no penalties, so employers could have dropped coverage without fearing fines.

Although employers are focused on complicated, health-law reporting requirements that take effect this year, their situation changes little in the wake of the decision, said Edward Fensholt, a benefits lawyer with brokers Lockton Companies.

“The working assumption has been, ‘We need to offer this coverage to our full-time employees or we’re going to risk these penalties,’” he said. “And that’s not going to change.”

ACA supporters said the lack of a reference to tax credits for the federal exchange was a drafting error and that Congress intended for subsidies to be available regardless of the platform. Lawyers for the plaintiffs said the government must follow the letter of the law.

The health law faces other legal cases, including objections from religious institutions to their role in providing birth control coverage and a suit by the House of Representatives contending that Obama’s delay in requiring employers to offer coverage was illegal.

But even if legal challenges to the law disappear, health insurers, doctors and hospitals face broad uncertainty.

Signups for 2015 exchange coverage were lackluster. At the end of March, a little more than 10 million people had enrolled and paid for insurance, less than the 13 million the nonpartisan Congressional Budget Office was projecting last year.

Health costs seem to be creeping up again in a system that is already the most expensive in the world.

In recent years large, self-insured employers have seen health-spending increases of 4 or 5 percent a year, said Dale Yamamoto, an independent actuary who works closely with such companies. So far this year those companies are seeing 6 or 8 percent, he said.

“Everyone I’m talking to — it sounds like they’ve started to go up this year,” he said. “If it’s going up for them, it’s probably going up on the individual side as well.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

When Turning 65, Consumers With Marketplace Plans Need To Be Vigilant In Choosing Health Coverage

Before the Affordable Care Act, older adults who couldn’t afford to buy their own health insurance would count the days until their 65th birthday, when Medicare would kick in. Now, 10,000 Americans hit that milestone every day, but for some who have coverage through the ACA’s insurance marketplaces, Medicare may not be the obvious next step.

“Consumers eligible for Medicare can keep or renew their marketplace plan,” said Medicare spokesman Alper Ozinal, as long as they don’t also join Medicare.

However, only a minority of those who have qualified for the health law subsidies that reduce their plans’ premium costs and cost-sharing will be able to keep that financial assistance once they become eligible for Medicare, Ozinal said. This option is available, he explained, only for people who would have to pay for Medicare Part A, the hospitalization benefit, but have not enrolled. That generally happens when seniors didn’t pay into Medicare for at least 10 years, which is sometimes the case for recent immigrants and people who may have come into the workforce late in their lives.

The majority of older adults — those eligible for free Part A coverage — cannot keep their subsidies when they qualify for Medicare, usually at age 65, according to an Internal Revenue Service spokesman.

Although seniors can pay full price to stay in their marketplace plans as long as they don’t enroll in Medicare, advocates say postponing the switch is   generally a bad idea. If they later decide to enroll, they will face late fees that will raise their premium costs, sometimes substantially.

Yet there are few guideposts to keep most consumers with marketplace insurance from making what could be an expensive mistake.  Except for people receiving  Social Security benefits before they turned 65, there’s  no reminder from the federal government or most state exchanges when it’s time to enroll in Medicare. There’s no warning to individual consumers when they become eligible for Medicare about the financial risks they could face if they don’t notify the marketplace and insurers to stop their subsidies. And there’s little help from the maze of conflicting marketplace and Medicare rules.

But there is a way to minimize the chance of problems, said Joe Baker, president of the Medicare Rights Center.

“The federal government should send a notice to everyone 64 years old saying you’re going to become eligible for Medicare at age 65 and here are your options, and some information about how to enroll, why to enroll and when you should enroll,” he said.

Determining whether marketplace coverage is better than Medicare depends very much on the individual, said Bonnie Burns, training and policy specialist for California Health Advocates, a nonprofit advocacy organization. For a small percentage of wealthy older adults, it may be cheaper to keep a marketplace plan rather than pay Medicare’s highest premiums for Part B, which covers outpatient care. But premiums should never be the only consideration, she said.

“It boils down to a comparison of benefits and costs,” Burns said. And that’s a difficult task since marketplace plans have different deductibles, cost-sharing, covered drugs and provider networks. Some plans restrict members to a limited number of providers, while traditional Medicare does not. And the calculation is also going to depend on whether you have chronic health conditions or if you are someone who doesn’t go to the doctor very often, she added.

Plus how much health care someone needs can also change over the years. In the final analysis, if someone is eligible for Medicare, Burns recommends signing up.

But whether they join Medicare or keep their marketplace policy, it is up to consumers to notify the marketplace and the insurer to stop the subsidies as soon as they qualify for Medicare. If they fail to do that and continue to receive subsidies after they became eligible for Medicare, they may have to repay that money when they file their taxes. If seniors with marketplace coverage also enroll in Medicare Part A, the government willeventuallycancel their marketplace plan if they don’t cancel it themselves.

Medicare rules established well before the marketplaces were created encourage people to sign up when they first become eligible — within the period from three months before and three months after their 65th birthday. People with job-based insurance or coverage through their spouse’s workplace, usually have until eight months after that insurance ends.

Enrolling later can result in penalties. People who would pay a monthly premium for Part A and sign up late may be charged an extra 10 percent in their premiums for  twice the number of years they could have had Part A but didn’t get it.

For Part B, beneficiaries may pay a 10 percent permanent penalty for every year they were late in signing up. Under some circumstances, there’s also a fee for postponing enrollment in a Medicare prescription drug plan.

“This is an area of great confusion,” said Burns. California Medicare counselors are reporting that people in marketplace plans are seeking help after their initial Medicare enrollment period has passed. “They didn’t understand the consequences of not signing up for Medicare,” she said.  “And some didn’t even know they should.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

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Please Vote Today for NNU and RoseAnn DeMoro in the 100 Most Influential People in Healthcare Poll

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The Role of Shame: The List of Senators that Voted for Fast Track

Yesterday, certain members of senate abdicated their responsibility to the American people by passing legislation that will limit their own ability to debate and amend trade deals. The content of secret deals, such as the TPP, aren’t fully known to the American people, and their access is limited even to our elected representatives. The following is a list of the Senators that voted to pass the TPA and Fast Track legislation through congress. They are listed in alphabetical order by state.

Democrats

Feinstein, Dianne

(D-CA)

Bennet, Michael

(D-CO)

Carper, Thomas

(D-DE)

Coons, Chris

(D-DE)

Nelson, Bill

(D-FL)

McCaskill, Claire

(D-MO)

Shaheen, Jeanne

(D-NH)

Heitkamp, Heidi

(D-ND)

Wyden, Ron

(D-OR)

Kaine, Timothy

(D-VA)

Warner, Mark

(D-VA)

Cantwell, Maria

(D-WA)

Murray, Patty

(D-WA)

Republicans

Murkowski, Lisa

(R-AK)

Sullivan, Dan

(R-AK)

Flake, Jeff

(R-AZ)

McCain, John

(R-AZ)

Boozman, John

(R-AR)

Cotton, Tom

(R-AR)

Gardner, Cory

(R-CO)

Rubio, Marco

(R-FL)

Isakson, John

(R-GA)

Perdue, David

(R-GA)

Crapo, Michael

(R-ID)

Risch, James

(R-ID)

Kirk, Mark

(R-IL)

Coats, Daniel

(R-IN)

Ernst, Joni

(R-IA)

Grassley, Chuck

(R-IA)

Moran, Jerry

(R-KS)

Roberts, Pat

(R-KS)

McConnell, Mitch

(R-KY)

Cassidy, Bill

(R-LA)

Vitter, David

(R-LA)

Cochran, Thad

(R-MS)

Wicker, Roger

(R-MS)

Blunt, Roy

(R-MO)

Daines, Steve

(R-MT)

Fischer, Deb

(R-NE)

Sasse, Benjamin

(R-NE)

Heller, Dean

(R-NV)

Ayotte, Kelly

(R-NH)

Burr, Richard

(R-NC)

Tillis, Thom

(R-NC)

Hoeven, John

(R-ND)

Portman, Rob

(R-OH)

Inhofe, Jim

(R-OK)

Lankford, James

(R-OK)

Toomey, Pat

(R-PA)

Graham, Lindsey

(R-SC)

Scott, Tim

(R-SC)

Rounds, Mike

(R-SD)

Thune, John

(R-SD)

Alexander, Lamar

(R-TN)

Cornyn, John

(R-TX)

Hatch, Orrin

(R-UT)

Capito, Shelley

(R-WV)

Johnson, Ron

(R-WI)

Barrasso, John

(R-WY)

Enzi, Michael

(R-WY)