With Eye on Texas Case, Health Policy Experts Prepare for Possible Jolt

A Texas legal challenge to the Affordable Care Act could have a significant impact on Maryland consumers, the companies that provide health coverage here and the state as a whole, members of a legislative workgroup said on Wednesday.

The panel, the Health Insurance Consumer Protections Workgroup, met in Annapolis to begin working through the issues that would arise if the U.S. Court of Appeals for the 5th Circuit overturns the ACA. The group plans to meet at least monthly between now and January, and members expect to provide a report to the General Assembly by the end of the year, in time for next year’s legislative session.

Among the dozens of issues certain to surface should the ACA be found unconstitutional, according to policy experts:

• People with pre-existing conditions would no longer be guaranteed coverage;
• Parents would lose the ability to keep their adult children on their policies until they are 26;
• Annual and lifetime coverage caps could return, threatening care for people with chronic illnesses

“We would be turning back time,” said Wayne Wilson, vice-president of Government Programs & External Relations at Kaiser Permanente, in an interview. “We would have an unstable insurance market and people would dramatically suffer from not being able to have quality, affordable health care that is sustainable.”

Wilson is one of several industry representatives to serve on the workgroup. The panel also includes legislative staffers, a consumer advocate, high-level officials from the Attorney General’s office and the Maryland Insurance Administration, and others.

Twenty states sued the federal government in 2018. The suit alleges that the Affordable Care Act, which was upheld by the Supreme Court in a historic ruling, is no longer constitutional because the federal Tax Cuts and Jobs Act, which passed in late 2017, eliminated the Obama-era fine on people who lack health insurance.

Lawyers for Texas and the other states bringing suit contend the so-called “individual mandate” to purchase health insurance was “essential” to the Affordable Care Act, and without it the entire law is no longer valid.

Although the federal government is technically a defendant in the case, the Trump administration declared that it will not defend the ACA. Virginia and 16 other states have stepped in to urge the New Orleans-based Fifth Circuit to uphold the law.

A ruling is expected this fall.

Maryland has its own case, State of Maryland v. United States of America et al, filed by Attorney General Brian E. Frosh (D) last year. That suit seeks a declaratory judgment that the ACA is constitutional. It also seeks to block the White House from seeking to dismantle the health care law.

This year the General Assembly approved two measures — SB 868 and HB 697 — declaring that “it is in the public interest to ensure that the health care protections established by the federal Affordable Care Act continue to protect Maryland residents in light of continued threats…”

It now falls to the workgroup to compare current state law with the ACA to figure out where Maryland’s consumer protections might need bolstering.

Beth Sammis, a citizen representative on the panel and the head of a consumer group, Consumer Health First, urged the panel to get busy “on the hard work” of preparing a robust report that the General Assembly can use if ACA opponents prevail.

“If the Affordable Care Act is overturned, there are going to be lots and lots of policy decisions that are going to have to be made,” she said.

“My fear is that — unless we have codified these consumer protections by that point — they are all going to get swept up into all of the other policy debates, and the consumer protections will be lost.”

If the ACA is swept away, the health insurance marketplace will lose the federal financial incentives that have been used to make policies more affordable. Without those incentives, industry representatives say, fewer people will have coverage, potentially driving up premiums for employers who provide coverage and individuals who purchase plans on their own.

“The market is really based on participation,” Kaiser Permanente’s Wilson said. “We maintain greater affordability by [having] greater participation.”

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