DOJ Argues ACA Pre-existing Condition, Individual Mandates Unconstitutional

09 Jun 2018 | SOURCE: Healthcare Dive

DOJ Argues ACA Pre-existing Condition, Individual Mandates Unconstitutional | DAS Health

The Department of Justice on Thursday night declined to defend the Affordable Care Act in the U.S. District Court for the Northern District of Texas, instead filing a brief arguing that broad swaths of the law, including the provision compelling payers to cover those with pre-existing conditions and the individual mandate, are unconstitutional.

The brief argues the Supreme Court upheld the constitutionality of the individual mandate on the basis of the penalty being considered a tax. With Congress zeroing out the penalty starting in 2019 in the Tax Cuts and Jobs Act, the individual mandate, community rating and guaranteed issue provisions of the Affordable Care Act cannot stand, DOJ said.

The case probably will not be resolved this year, with the District Court decision likely to be appealed first to the 5th Circuit Court of Appeals and then to the Supreme Court.

DOJ’s decision is the latest in a slate of moves by the Trump administration aimed at weakening the Affordable Care Act, after failing to repeal it in Congress. Payers now face even more uncertainty as they set premiums for 2019.

Other efforts by the administration, including rulemaking around short-term, limited duration health insurance and association health plans are likely to be finalized soon.

“Although Plaintiffs speculate as to a chain reaction of failed policymaking that could occur once the individual mandate is struck down, they cannot show that striking down the individual mandate, guaranteed-issue, and community-rating requirements means that the Affordable Care Act necessarily ‘ceases to implement any coherent federal policy,’” DOJ writes.

The insurance lobby, America’s Health Insurance Plans, said that it will file an amicus brief that opposes the GOP “state plaintiffs’ request for emergency relief, and provides more detail about the harm that would come to millions of Americans if the request to invalidate the Affordable Care Act is granted in whole or in part.” The group added that 2019 premium rates are already spiking higher due to the zeroing out of the individual mandate, and that further disruption would induce more uncertainty.

“Zeroing out the individual mandate penalty should not result in striking important consumer protections, such as guaranteed issue and community rating rules that help those with pre-existing conditions. Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019,” AHIP said in a statement.

California Attorney General Xavier Becerra and 15 other attorneys general filed a brief opposing the lawsuit Thursday.

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