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Feds Push to Nix Obamacare but Tout Its Benefits During Pandemic

June 26, 2020, 8:07 PM

The Trump administration is pushing the U.S. Supreme Court to throw out Obamacare while simultaneously touting federal efforts to get people covered by the law during the Covid-19 pandemic.

The actions appear to send mixed messages about the legality and effectiveness of President Barack Obama’s signature health-care law.

The Justice Department told the high court late Thursday that the Affordable Care Act must be struck down in its entirety. A separate GOP coalition led by Texas said the pandemic isn’t a valid reason to uphold the law.

Meanwhile, the Department of Health and Human Services Thursday announced a spike in Obamacare enrollees as a result of the coronavirus. Nearly a half million people signed up after losing job-based coverage. The increase in sign-ups outside of the normal open enrollment period was higher than during any other year.

The briefs to the Supreme Court were filed the same day Texas Gov. Greg Abbott (R) walked back the state’s reopening after experiencing a wave of new coronavirus cases. Harris County, which includes Houston, signified it is at a Level 1 emergency Friday because of Covid-19 infections in the area.

House Speaker Nancy Pelosi (D) admonished the Trump administration for trying to “rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis.” In a statement, she called the government’s move “an act of unfathomable cruelty.”

But the HHS insists that the Obamacare special enrollment provisions, or SEPs, are ensuring people who lost jobs can get coverage, as the agency has said since the beginning of the pandemic.

“These enrollment numbers show that individuals who lost their jobs or experienced other qualifying life events due to the COVID-19 pandemic are using existing SEPs to enroll in coverage,” it said in a statement.

The administration has also declined to open the federal Obamacare exchanges to let uninsured people sign up during the pandemic, although several states that have their own exchanges have done so. Instead, the administration is requiring health providers that receive Covid-19 assistance to give those patients testing or treatment for free.

That policy is fraught with confusion, however. People with short-term plans can’t be charged co-payments for testing, but they can be charged for any Covid-19 treatments.

Wiggle Room

The Justice Department tried to leave wiggle room in its argument to the Supreme Court to keep certain provisions in place. It said the scope of relief should be limited to only the provisions shown to injure the two individuals who challenged the law, along with a coalition of Republican-led states.

“It seems like the administration is trying to preserve the ability to cherry pick the parts of the law that they like and want to keep later,” said Katie Keith, a health law professor at Georgetown University.

The Justice Department is arguing those two individuals should be freed from some of the ACA’s provisions that “preclude them from obtaining insurance plans they prefer and that increase their costs of obtaining coverage,” according to its brief.

The ACA contains a number of provisions that regulate the terms and premiums of health-insurance plans. Some of those provisions force insurance carriers to meet certain coverage requirements and offer essential benefits, the department said.

The problem with the department’s argument, however, is that it wants the court to “find the entire ACA to be invalid without entering a declaratory judgment, without entering an injunction against its enforceability,” said Timothy Jost, an emeritus professor of Washington and Lee University.

The administration’s legal logic would give it “free rein to stop enforcing, to abandon any provision that they don’t like,” he said. “They can say tomorrow no more Medicaid expansion, no more premium tax credits, the whole act is invalid.”

To contact the reporters on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com; Sara Hansard in Washington at shansard@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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