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ACA ruling won't have immediate impact on Utahns' coverage, experts say

The HealthCare.gov website is photographed in Washington, Wednesday, Oct. 31, 2018. Despite a recent ruling from a federal judge declaring the Affordable Care Act unconstitutional, advocates and experts in the state agree that Utahns do not need to worry
The HealthCare.gov website is photographed in Washington, Wednesday, Oct. 31, 2018. Despite a recent ruling from a federal judge declaring the Affordable Care Act unconstitutional, advocates and experts in the state agree that Utahns do not need to worry about losing their coverage from the federal health exchange anytime soon.
Pablo Martinez Monsivais

SALT LAKE CITY — Despite a recent ruling from a federal judge declaring the Affordable Care Act unconstitutional, advocates and experts in the state agree that Utahns do not need to worry about losing their coverage from the federal health exchange anytime soon.

Full Medicaid expansion, which Utah voters approved in November and is a feature of the Affordable Care Act, is still set to take effect April 1 as originally scheduled.

Judge Reed O'Connor of the U.S District Court for the Northern District of Texas ruled Dec. 14 the body of the Affordable Care Act could not be severed from the individual mandate requiring that Americans purchase insurance, which Congress rendered moot a year ago by reducing the financial penalty for not having insurance to zero dollars.

O'Connor said the negation of that part of the law rendered the Affordable Care Act "invalid" and that it cannot constitutionally stand.

Tim Chambless, associate professor of political science at the University of Utah, said there is good reason to be skeptical that O'Connor's ruling will stand.

"You have one federal judge in Texas who already publicly voiced concern about the ACA — just one judge. I suspect on a three-judge panel appeal, it's going to be overturned," Chambless told the Deseret News.

The professor also said the ruling has for now changed nothing about the day-to-day implementation of the Affordable Care Act, the sweeping health care law that was passed in 2010 and is also known as "Obamacare."

"(O'Connor) did not invoke any type of executive action to … stop the implementation of the ACA. In other words, the status quo is what we're dealing with right now," Chambless said.

Chris Karpowitz, professor of political science and co-director of the Center for Study of Elections and Democracy at BYU, said the ruling has been the subject of "criticism from both sides of the aisle" and that "it's difficult to tell right now whether there will be anything to come from this in the end."

Matt Slonaker, executive director of the Utah Health Policy Project, an advocacy organization that helps people enroll in insurance plans, blasted the ruling as a "very clear case of judicial activism."

"I think it's a longshot it ever gets anywhere near being approved in the appellate phases," Slonaker said. But if it did, he added, "the consequences would be dramatic and catastrophic."

Slonaker noted that if the case ever reaches the Supreme Court, the five justices who upheld the Affordable Care Act's constitutionality in 2012 are still on the bench.

Lisa Klinger, health care reform and compliance director for Utah-based brokerage firm Leavitt Group, said in an email that the ruling "was surprising to me, and I think to many others."

"However, I suspect that some on the conservative side were not surprised. The plaintiffs chose to file in this court because they wanted this judge because he is a known conservative," said Klinger, an attorney, specifying she was only giving her personal perspective and not that of Leavitt Group.

Klinger says she sees the case being appealed all the way to the Supreme Court, and that if it makes it that far, it likely wouldn't be resolved until 2020.

The Affordable Care Act is the backbone legislation for multiple components of the United States health care system, including the federal health exchange on which about 8.45 million Americans purchased insurance plans this year and expanded Medicaid eligibility in most states.

It also enacted regulations allowing people to keep their children on their plan until they are 26 years old and prohibiting insurers from raising rates for patients with pre-existing conditions.

The law additionally enacted new taxes that have been the subject of strong criticisms from its political opponents, including congressional Republicans, who led dozens of efforts to curtail the law or in some cases repeal it while President Barack Obama was in office.

One portion of the Affordable Care Act — the individual mandate — has been a frequent point of contention among the law's critics. The mandate required Americans to purchase health insurance or face a financial penalty; last year, as part of a comprehensive tax reform bill, Congress reduced that penalty to zero.

In February attorneys general from 20 states, Utah's Sean Reyes among them, filed a lawsuit in federal court arguing that because the individual mandate had been gutted, what remained of it was unconstitutional and therefore so was the whole of the Affordable Care Act.

O'Connor ruled in their favor, evoking surprise from well-known national political figures and strategists, including Republicans.

The unexpected ruling does not do Republicans any political favors, because the Affordable Care Act has grown more popular over time, Karpowitz said.

"I think this puts Republicans in a difficult spot because they're torn between their stated opposition to Obamacare and the fact that if (the decision is not reversed), it will be problematic for people who are losing insurance," Karpowitz said.

Karpowitz said there is a significant possibility that "this decision will be overturned at the appellate court (level) or at the Supreme Court." He added that the argument the "entire law has to fail simply because Congress adjusted the penalty to zero for not having health insurance" is a finding that "at least some consider a big stretch."

O'Connor's ruling may also resurrect the issue of the Affordable Care Act's future as a significant issue voters will consider in 2020, much as it was for voters in the 2018 midterms, according to Karpowitz.

"This lawsuit puts the issue of health care front and center for the 2020 elections. It's something now that the presidential candidates will be expected to talk about," he said.

"Candidates for Congress will be expected to have views on what exactly they support, and that has been a challenge for Republicans, because it's easier to be against something than it is to put forward a plan that tries … to solve serious issues in our health care system."

Chambless said in light of O'Connor's ruling, "the (Trump) administration, the White House was wise enough … to say 'no, we're not going to halt administration bureaucratically.'"

"Nothing's changed right now," Chambless said.

That sentiment echoed the advisory put out on Twitter by Seema Verma, administrator of the Centers for Medicare and Medicaid Services, on the night of O'Connor's ruling.

"There is no impact to current coverage or coverage in a 2019 plan," Verma said.

Slonaker said it is also important for Utahns to know that not only is the federal health exchange guaranteed to stay fully operational in the near future, but also that "no matter what, we're going to roll out Medicaid expansion in 2019," implementing what Utah voters approved in November.

Kolbi Young, spokeswoman for the Division of Medicaid and Health Financing for the Utah Department of Health, also confirmed plans for implementation of Medicaid expansion in the state have not changed.

"We expect this ruling will be appealed to the Supreme Court. Pending the appeal process, the (Trump) administration has made clear that the ACA will stay in place pending appeal. Until there is a court ruling, we plan to continue our plans to implement full Medicaid expansion on April 1," Young said in a statement.

Enrollment numbers hold steady

The number of Utahns who got signed up for insurance coverage on the federal health exchange in 2018 was slightly higher than in 2017, according to data released by the federal government after the close of this year's open enrollment period.

The Centers for Medicare and Medicaid Services reported 194,813 Utahns enrolled in plans this year. That is compared to 194,118 in 2017, and represents an approximately 0.36 percent increase.

Slonaker said this year's results are a validation of the view that "there is just as much demand as ever for ACA insurance in Utah."

"It is good, affordable health care, and Utahns know it," Slonaker said in a statement. "In the face of congressional, legal, and administrative threats and undermining, the Affordable Care Act is still standing, and Utahns still realize how important it is to get covered."

Randall Serr, director of Take Care Utah, a network of nonprofits which help people sign up for health insurance, said the new data is cause for encouragement that Utahns are finding what they need on the exchange.

"We are really happy with these numbers," Serr said in a statement. "We work all year long to help Utahns access health care. Even with the confusion and repeal efforts Utahns came out in droves to sign up for health insurance through the marketplace."

Generally, health insurance experts see a larger number of enrollees as an important sign of the strength of the federal exchange, saying it shows relatively healthy people are among those signing up, helping insurers maintain their premiums at reasonable rates.

Nationally, the number of enrollments on the exchange did not keep pace as much as they did in Utah, as about 8.45 million Americans enrolled in plans for the coming year compared to the more than 8.7 million who did so in 2017.

Verma defended the exchange's overall performance, postulating that a robust economy may have somewhat subdued demand on the exchange.

"This administration has taken strong steps to promote a more competitive, stable health insurance market and these steady enrollment numbers are yet another sign that the administration's efforts are working," she said in a statement. "With the lowest unemployment rate in 50 years, it's possible that more Americans have employer based coverage, and don't need exchange plans."