In the latest twist in the ongoing tussle over the Affordable Care Act, Maryland is now asking a federal court to vouch that the ACA is constitutional, trying to buffer the sprawling health-care law against both Trump administration maneuvers undermining it and a Texas lawsuit alleging it is no longer legal.
Depending on how the cases play out, the pair of lawsuits potentially set up rival rulings to work their way through the appellate courts.
The action by Maryland’s Democratic attorney is, in essence, a mirror to a legal challenge to the law by the Republican attorney general of Texas and GOP counterparts. The Texas case aiming to kill the ACA is brought by Republicans and is before a conservative judge. The Maryland case to save the law is brought by a Democratic attorney general before a more liberal court where most of the active judges are appointees of President Barack Obama.
Maryland Attorney General Brian E. Frosh filed the lawsuit in District Court Thursday, contending that if the ACA ceased to exist it would hurt state residents who have gained insurance under the law, the state’s health-care system and public finances.
“Maryland has fundamentally altered its healthcare delivery, healthcare payment, and insurance regulatory schemes in reliance on the provisions of the Affordable Care Act,” he wrote.
The complaint names as defendants the U.S. government and three senior members of the administration: Attorney General Jeff Sessions, Health and Human Services Secretary Alex Azar, and IRS Commissioner Charles Rettig.
The suit is unusual in that it is asking a lower court judge to uphold a law the Supreme Court has ruled constitutional twice in the past half-dozen years.
The new suit also reinforces that state governments increasingly have become warriors in a tug of war over the ACA’s fate. While 17 Republican attorneys generals and two GOP governors are siding with Texas in its litigation, 17 Democratic attorneys general have won standing in that case to argue the law should be preserved.
Maryland has not taken sides in the Texas case. The state has a Republican governor, Larry Hogan. Frosh was a longtime Democratic state legislator before he was elected attorney general.
Frosh said in an interview Thursday that Maryland “would welcome” other states joining in its litigation, but said, “we are prepared to do it on our own,” noting that it is unclear whether a judge would allow states to take part in two ACA lawsuits at the same time.
The dueling litigation is the latest manifestation of how polarizing – and unsettled — the ACA remains more than eight years after it was pushed through Congress by Democratic majorities in 2010, becoming one of the signature domestic achievements of Obama’s presidency.
Congressional Republicans, who have long made the law’s repeal a central rallying cry, tried repeatedly last year to dismantle its central features but were thwarted by divisions within the party. Since then, President Trump and senior aides have been acting piece by piece to carry out his campaign promise to demolish the ACA, doing what they can through executive powers.
The Texas lawsuit revolves around lawmakers’ main anti-ACA achievement: weaving into a massive tax bill last December a provision eliminating the enforcement of the law’s requirement that most Americans carry health insurance. Under this change, the law’s tax penalty will end in January.
In its suit, Texas notes the Supreme Court’s 2012 ruling upholding the law hinged on an interpretation that the ACA penalty was allowed within Congress’s authority to set taxes. Texas contends that, with the penalty soon gone, there is no longer a tax and that the entire law is then unconstitutional.
Maryland’s new suit argues the opposite. Lowering the penalty to zero, it contends, does not actually remove the tax. And even if a court disagreed, the suit says, that part of the law could be legally separated from the rest, including its most popular aspect that forbids insurers to charge more to people with pre-existing medical conditions – or refuse to insure them in the first place.
The suit singles out Sessions for criticism over the Justice Department’s unusual legal position in the Texas case. In June, Justice told the Texas judge that it would not defend the ACA, even though the department typically fights for existing laws when they are challenged. The position reflects the administration’s “open hostility to enforcement of the Affordable Care Act,” the Maryland suit alleges.
It points out that the administration has eliminated a subsidy for insurers to help offset discounts the law requires on out-of-pocket costs for lower-income customers. And when the administration this year made it easier for Americans to buy inexpensive insurance that excludes ACA insurance benefits and insurance protections, the suit said, the president “proclaimed that it ‘a truly historic step in our efforts to rescue Americans from Obamacare and the Obamacare nightmare.'”
In the interview, Frosh said he was filing the suit now “because Jeff Sessions and Donald Trump are trying to kill the Affordable Care Act. They’ve been trying since Trump was sworn-in, and the Justice Department flipping its role, instead of defending the constitutionality of the law attacking it, is, I think a breach of their duty. And it will do great harm.”
The suit notes that about 150,000 Marylanders signed up for coverage this year in ACA health plans, and more than 300,000 have gained insurance through the state’s expansion of Medicaid under the law. With fewer people uninsured, it says, the law has, in turn, lowered the burden on Maryland hospitals for patients who have no way to pay their bills.
A Justice spokeswoman declined to comment on Maryland’s suit, saying that the department does not discuss pending litigation.
|You are reading The Health 202, our must-read newsletter on health policy.|
|Not a regular subscriber?|
AHH, OOF and OUCH
AHH: Sen. Dianne Feinstein (D-Calif.) issued a cryptic statement saying she received a letter concerning Supreme Court nominee Brett M. Kavanaugh that she has referred to federal investigators. The disclosure plunged the fight over Kavanaugh’s confirmation into “deeper chaos,” our Post colleagues Seung Min Kim and Elise Viebeck report.
“The information came in a letter that describes an alleged episode of sexual misconduct involving the 53-year-old Kavanaugh when he was in high school, according to a person familiar with the matter,” they write.
“I have received information from an individual concerning the nomination of Brett Kavanaugh to the Supreme Court,” Feinstein, the top Democrat on the Senate Judiciary Committee, said in a statement earlier Thursday. “That individual strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision. I have, however, referred the matter to federal investigative authorities.” Seung Min and Elise report the letter was turned over to the FBI, but that the bureau does not plan to launch a criminal investigation.
“The White House decried the move as a desperate, last-minute campaign to tear down a qualified nominee, and the FBI does not plan on investigating the matter, which erupted publicly as Democrats complained that Kavanaugh is unfit for the high court,” they write. “The abrupt disclosure came as an intensely political battle over Kavanaugh’s confirmation continued to escalate, with a handful of moderate senators who would decide his fate deliberating on how they would vote on a nominee who could shift the balance of the court to the right for generations.”
“Top Senate Republicans said Kavanaugh’s nomination remains on track, but two swing GOP votes — Sen. Susan Collins of Maine and Lisa Murkowski of Alaska — have not announced their positions and face intense pressure at home to oppose Kavanaugh, injecting uncertainty into the outcome. Collins said she had lingering questions and plans to speak to Kavanaugh on Friday. In Alaska, the state’s largest Native American organization urged Murkowski to reject the nominee.”
Earlier in the day, the Judiciary Committee announced a delay on its vote on Kavanaugh’s nomination until next week. Our colleagues report final votes by the full Senate are expected at the end of the month.
OOF: President Trump drew widespread rebukes for falsely accusing Democrats of inflating the number of people who died in Puerto Rico in the aftermath of Hurricane Maria.
He drew widespread rebukes, including from members of his own party, for the accusation, which came as another dangerous storm, Hurricane Florence, barreled toward the Carolinas.
Trump criticized the findings of a George Washington University report last month that estimated there were about 2,975 “excess deaths” in the six months after the hurricane made landfall. “In his tweets, Trump thoroughly mischaracterized how the GWU researchers came up with the figure of 2,975 excess deaths,” our Post colleagues John Wagner and Joel Achenbach reports. “They did not, contrary to the president’s claim, attribute any specific individual’s death to Hurricane Maria. Given the methodology, there was not an opportunity to misclassify someone who died of old age, as Trump suggested. Rather, the GWU study looked at the number of deaths from September 2017 to February 2018 and compared that total with what would have been expected based on historical patterns.”
The claims received four Pinocchios from Post Fact Checker Glenn Kessler. “One might quibble with extending the period under investigation for that long, but few areas of the United States have suffered so long without electricity or drinking water in the aftermath of a natural disaster,” Glenn writes. “Moreover, in any part of the United States, 3,000 excess deaths in six months would be considered a crisis, worthy of an intensive investigation to find out what went wrong — rather than a tweetstorm that minimizes the problem. Even the most conservative estimate, looking just at the excess deaths through October, is above 1,000. Trump’s tweets are missing a few digits, and thus earn Four Pinocchios.”
Our Post colleagues Philip Rucker, Robert Costa and Josh Dawsey also wrote about how Trump’s remarks “diverted attention from the government’s preparations for the monster storm to his personal grievances.”
OUCH: A public-health expert is urging the National Institutes of Health to retract a statement on one of its websites that says “drinking too much alcohol can increase your risk of developing certain cancers.” Alcohol researcher Dr. Michael Siegel of Boston University School of Public Health sent a letter to NIH Director Francis Collins calling on him to apologize for a statement on NIH’s National Institute on Alcohol Abuse and Alcoholism, warning the statement does not go far enough and may put people at risk, Stat’s Sharon Begley reports.
“This is in direct contradiction with the scientific evidence which shows that even light to moderate drinking increases women’s risk of breast cancer,” Siegel told Stat. He added “the NIAAA is deceiving and potentially harming women while furthering the agenda of the alcohol industry” by suggesting only “too much” drinking can be a risk.
“The NIAAA has been repeatedly taken to task for its ties to the alcohol industry,” Sharon writes. “In June, NIH terminated an NIAAA-sponsored study on the cardiovascular benefits of ‘moderate drinking’ after an investigation found that NIAAA officials had ‘early and frequent engagement’ with the industry, including soliciting funding for the $100 million project from liquor companies that were told the study ‘represents a unique opportunity to show that moderate alcohol consumption is safe and lowers risk of common diseases.’”
—As Hurricane Florence made landfall in the Carolinas, the HHS Office for Civil Rights issued guidance to ensure “emergency officials effectively address the needs of at-risk populations as part of disaster response.”
According to a release by HHS, that includes taking into consideration all the diverse needs of “individuals with disabilities, individuals with limited English proficiency, and members of diverse faith communities.”
“HHS is committed to leaving no one behind during disasters, and this guidance is designed to help emergency responders and health and human service providers meet that goal,” said Roger Severino, OCR Director. “OCR also provides technical assistance on HIPAA and civil rights to emergency responders and hospitals so they feel empowered to help people and families in crisis.”
Strong winds and rain have already pummeled the coast of North Carolina, with the worst of the storm expected to hit the Carolinas today.
Get frequent updates about the storm from our Washington Post colleagues here. The Post has removed its paywall for all hurricane coverage.
HEALTH ON THE HILL
Hearing rumors my bipartisan Durbin/Grassley legis to make drug companies list prices on TV ads is out of spending bill It is EMBARRASSING to bow to BIG PHARMA at expense of consumers Policy is supported by Pres Trump AARP Dem&GOP Sens If we can agree why are lobbyists fighting?
— ChuckGrassley (@ChuckGrassley) September 13, 2018
— In a conference committee hearing on HHS funding, House and Senate appropriators removed language that would have provided the agency $1 million to develop regulations to require drug companies disclose their prices in all direct-to-consumer ads.
(Roll Call did a great piece at the end of August with all the background on the issue).
The bipartisan proposal is also included in the Trump White House’s blueprint to reduce drug prices. The idea behind it is that forcing companies to publicly share their list prices might compel them not to price drugs so exorbitantly high, and at minimum provide some transparency to consumers.
“Requiring drugmakers to disclose prices in direct-to-consumer advertising is not only strongly supported [norc.org] by the American public, bipartisan Members of Congress and the Administration, it’s simply the right thing to do. Just as patients need to know about the possible side effects of a drug, they also need to know how much it costs and if there are more affordable treatments available,” said Lauren Blair, spokeswoman for the Campaign for Sustainable Rx Pricing.
But the pharmaceutical industry has pushed back, saying that forcing companies to disclose their list prices will be meaningless and confusing because most insurers and consumers pay less than the list price.
The three senators who pressed to get this funding into the bill, a Republican, Charles Grassley (Iowa); a Democrat, Richard Durbin (Ill.); and an Independent, Angus King (Maine), released a statement noting their displeasure. The proposal was born out of a bill originally introduced by Durbin.
“It is a shame when Congress cannot pass a simple appropriations amendment to address high drug prices when that is the number one thing we are hearing from our constituents. If President Trump, AARP, Sen. Durbin, and I can agree on this policy, why is Congress allowing the drug companies to dictate policy?” Grassley said.
Lawmakers are eager to finish up the government spending debate to avoid another shutdown and are on their way to doing so for the first time in many years. Appropriators say they removed the language to avoid anything controversial getting in the way of that.
—Later Thursday, lawmakers reached a deal to avert a shutdown and keep the government funded through Dec. 7, which potentially sets up a holiday-time spending showdown. Both chambers approved a mini-spending package covering the Department of Veterans Affairs, military construction, energy and water development and funding for the legislative branch. They also passed what’s known as a continuing resolution to keep the other agencies in the federal government funded at current levels.
They are currently working through spending bills that cover HHS, Labor and Defense with hopes of completing those before the fiscal year ends this month. The remaining government funding, including for the Department of Homeland Security, covering Trump’s demands for funding of his border wall, won’t be dealt with until December.
— Sens. Claire McCaskill (D-Mo.) and Susan Collins (R-Maine) sent a letter to the CEO of pharmaceutical company Nostrum Laboratories, following a report in the Financial Times in which he defended the decision to hike the price of an antibiotic medication.
According to Financial Times’s David Crow, the company hiked the price of nitrofurantoin, an antibiotic used to treat bladder infections, from $474.75 to $2,392.
“This is a shocking price increase for a generic antibiotic that was first approved by the FDA in 1953,” the senators write in a letter to Nirmal Mulye. “Astonishingly, according to this report, you also flatly argued that ‘it is a moral requirement to make money when you can… to sell the product for the highest price’ and compared your decision to increase the price for nitrofurantoin to that of an art dealer who sells ‘a painting for half a billion dollars.’…In the pharmaceutical industry—as opposed to the luxury art market—pricing decisions can have a devastating impact on patients and their families that can literally amount to a matter of life or death.”
They call on Mulye to provide information and documents in response to several inquiries, including “financial and non-financial factors” that led to the price increase and “total gross revenue from the company’s sales of nitrofurantoin to date.”
My mom, who died in 2011 of ovarian cancer, had breast cancer many years before. When I saw @RepMikeBishop smiling at the White House after voting to gut protections for pre-existing conditions, something inside me broke. And it’s why I’m running for Congress. pic.twitter.com/kI5WvoyooD
— Elissa Slotkin (@ElissaSlotkin) September 13, 2018
— In an emotional new ad, Democratic nominee Elissa Slotkin, who is running to unseat Rep. Mike Bishop (R-Mich.), talks about her mother’s battle with ovarian cancer, criticizing Bishop for his vote to repeal the ACA.
“This is a story about my mom, but it could be about anyone’s mom,” Slotkin says in the ad. “She had survived breast cancer when I was very young, but her pre-existing condition hung over all of us when we lived here at the farm…. So, when I saw Congressman Bishop smiling at the White House after voting to gut protections for pre-existing conditions, something inside me broke. I’m running for Congress, and I approve this message because Mr. Bishop, that’s dereliction of duty and it’s a fireable offense.”
In a statement, Bishop’s campaign manager Troy Hudson said Slotkin is “lying about Bishop’s record,” the Detroit Free Press’ Todd Spangler reports.
“I am sorry about her mother’s passing,” Hudson said in the statement. “Families have to deal with unfortunate situations. But unfortunately Elissa Slotkin is lying about Mike Bishop’s record. Mike Bishop voted for a replacement plan for the Affordable Care Act that kept existing preconditions. He was also an original cosponsor to the Pre-Existing Conditions Protection Act (HR1211) that reaffirmed the guaranteed health care access to those with preexisting conditions.”
— And here are a few more good reads:
Inside an emergency operations center, Florence brings a flood of calls and worry:
Former vice president Joe Biden takes jab at Trump’s “naked nationalism:”