Texas Affordable Care Act Decision Flawed; ACA is Still the Law of the Land
Medicare Rights Center /
In a radical departure from established legal doctrine, a federal judge in Texas issued a ruling against the Affordable Care Act (ACA) on December 14, claiming that the entire law must fall. At the center of the lawsuit, brought by a coalition of Republican-led states, was the ACA’s individual mandate and penalty for failure to be insured. Congress repealed this penalty in last year’s tax bill. As a result, the lawsuit claimed the ACA was invalid. Unfortunately, the district court in Texas agreed with this flawed analysis, although legal scholars have denounced it across the ideological spectrum.
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What Striking Down The Affordable Care Act Would Mean For Seniors
Howard Gleckman / Senior Contributor / Forbes
US District Judge Reed O’Connor’s Friday night decision to strike down the entire Affordable Care Act would damage the well-being of older adults, those 50-64 nearing Medicare, and frail elders and younger people with disabilities who are receiving long-term care benefits under Medicaid.
Texas Judge Rules ACA Unconstitutional
The judge says the Affordable Care Act individual mandate is unconstitutional and can't be separated from the rest of Obamacare.
By Allison Bell | December 17, 2018 at 10:07 AM
A lower court judge in Texas has issued a ruling that could lead to all of the Patient Protection and Affordable Care Act of 2010 (PPACA) — the main part of the Affordable Care Act (ACA) statutory package —being tossed out.
U.S. District Judge Reed O’Connor said last Friday that the PPACA provision requiring many individuals to own health coverage is now an unconstitutional requirement for people to buy health coverage, not a tax that complies with the U.S. Constitution.
Because PPACA contains no “severability clause,” or provision that lets the rest of PPACA survive if one part of PPACA is nullified, all of PPACA is invalid, O’Connor writes in an opinion explaining his ruling on the case, Texas et al. v. USA (Case Number 4:18-cv-00167-O).
“All told, Congress stated three separate times that the individual mandate is essential to the ACA,” O’Connor writes. “That is once, twice, three times and plainly. It also stated the absence of the individual mandate would ‘undercut its “regulation of the health insurance market.”
The ACA package is made up of PPACA and a second law, the Health Care and Education Reconciliation Act of 2010 (HCERA). O’Connor does not mention HCERA in his opinion.
O’Connor refers to the “900-plus pages” of the ACA legislative text, but, in his opinion, he appears to write only about the ACA provisions relating directly to health insurance, not, for example, about the sections that relate to funding for efforts to fight flu pandemics and subsidize training for health care providers who work with older patients. He refers to the non-major medical insurance provisions, collectively, as “hundreds of minor provisions.”
O’Connor was appointed to be a judge by President George W. Bush.
The U.S. Supreme Court ruled earlier that the ACA individual mandate was integral to the ACA, and that it was constitutional, because it was a tax that was protected by the federal Anti-Injunction Act.
Congress included a provision in the Tax Cuts and Jobs Act of 2017 that set the individual mandate penalty at $0. Texas and other states sued, arguing that the elimination of the penalty had converted the individual mandate provision into a bare requirement to buy coverage. Texas and the other plaintiffs asked the court to throw out all of the ACA.
The administration of President Donald Trump has asked the court to throw out only the ACA provisions that the administration Sees as being closely related to the purpose of the individual mandate, such as the ACA ban on the use of personal health information other than age in insurer decisions about whether to sell coverage, and the ACA ban on use of personal health information other than age, location, tobacco use and wellness program participation in health coverage pricing decisions.
O’Connor issued the ruling at a time when health insurers have already locked in benefits and prices for 2019 health coverage and are almost done with ordinary applicant enrollment for 2019 coverage.
The ACA individual major medical open enrollment period started Nov. 1 in most of the country and is set to end tomorrow in most of the country.
Will this really take effect now?
Bloomberg is reporting that White House officials told it they expect the effects of the ruling to be put on hold while the ruling is appealed.
Seema Verma, the administrator of the Centers for Medicare and Medicaid Services, emphasized in a tweet that the decision is still moving through the courts.
“The exchanges are still open for business and we will continue with open enrollment,” Verma said in the tweet. “There is no impact to current coverage or coverage in a 2019 plan.”
Congress might be able to reverse the broad effects of the ruling by setting the individual mandate penalty at $10, or some other value other zero, or by adding a severability clause to PPACA.
Matt Eyles, president of America’s Health Insurance Plans (AHIP), said in a statement that he believes the district court ruling is misguided and wrong.
“This decision denies coverage to more than 100 million Americans, including seniors, veterans, children, people with disabilities, hardworking Americans with low incomes, young adults on their parents’ plans until age 26, and millions of Americans with pre-existing conditions,” Eyles said in the statement.
Eyles said he expects the new ruling to be just the first step in a lengthy legal process.
“AHIP will continue to engage as this decision is appealed,” Eyles said. “Putting aside this decision, health insurance providers will continue to work hard to ensure the people they serve have confidence that their coverage remains a strong and stable resource to improve their well-being and security.”
Josh Blackman, a law professor, has posted a public copy of the opinion here.
— With information from Tom Korosec and Kartikay Mehrotra of Bloomberg.
Agents who have been selling health insurance for several years – you sure have hit a series of tough speed bumps recently with all of the ACA chaos going on, haven’t you? While these disruptions can certainly be scary, they can also serve unique chances to revitalize and revolutionize the way you do business.
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Succeeding in the midst of the chaos requires proactive efforts to seek out opportunity and summon the bravery to act. To make the most of this disruption, here are some tips upon how to go about entering the Medicare market:
Connect with experts
Find a trustworthy, knowledgeable FMO who specializes in the Medicare market to do some of the thinking for you. This will help relieve you of the stress in fully educating yourself upon a brand new market and shift your perspective outside of what you do on a day-to-day basis.
Get the most out of the market
If you really want to capitalize on your investment in the Medicare market, you should take time to identify opportunities that aren’t necessarily close to home. In today’s day and age, technology allows for agents who live in rural communities in Wyoming, for example, to serve health insurance products to shoppers in Florida. Visit the National Insurance Producer Registry website to learn just how easy it is to get licensed in additional states.
Identify which carriers you want to represent
Contract work and commissions can vary with each carrier, so it's important to conduct some research before making any decisions upon the carriers you wish to represent. Check out online communities like Insurance-Forums and speak with agents in your local chapter of the National Association of Health Underwriters (NAHU) to get feedback and reviews on the best Medicare Advantage and Medicare Supplement carriers in your target states.
Certify to sell Medicare Advantage and PDP
If you wish to sell Medicare Advantage (Part C) or Medicare Prescription Drug (Part D) plans, a basic health insurance license is unfortunately not enough. The Centers for Medicare and Medicaid Services (CMS) requires that all licensed sales representatives, agents and brokers also complete a CMS certification program and receive certification before they can start marketing those two Medicare products. If you need help, an FMO can also help you certify to sell Medicare Advantage and Medicare Prescription Drug products.
Look to your centers of influence
The relationships you’ve made in the industry, whether that be with CPAs or marketing firms, are valuable sources of information. They can also serve as referral generators, so be sure to keep dialog going about trends and clients.
Keep your current clients in the loop
When you see a disruption on the horizon, communicate it with your existing base of customers and address any fears or concerns they might have. Don’t forget - competitors may also be willing to leverage disruption by going after your clients, so be sure to keep them up-to-date with what they need to know to maintain trust!
Seek out inspiration and get creative
See the glass half full. Look for a creative solution to the obstacle in front of you. It may derive from an unlikely source, so never stop learning! Read the news, hire an FMO, and be open to being influenced by what people in the Medicare market may have to say.
Change will almost always feel uncomfortable. Although the ACA chaos may seem like too much to handle right now, the good news is that it’s all going to be okay. Something great is right around the corner and you have to have the tenacity to seize it.
Make the most of the commotion and give one of our expert marketers a call today at + 1 (800) 998-7715 to learn more about how you can enter the Medicare market.