‘Insurance Really Drives the Healthcare System’.
As the future of Medicaid expansion, protections for pre-existing conditions, and free preventive health services faces a lengthy court battle, one thing is clear: healthcare—and health insurance—in the United States are indeed complicated.
Students enrolled in the Health Insurance and the Affordable Care Act seminar at the School of Public Health are confronting these convoluted issues surrounding the constitutionality of the landmark healthcare reform law and the challenges that persist in constructing an affordable, accessible, and quality American healthcare system.
“It’s intense, and the content is difficult,” says Wendy Mariner, Edward R. Utley Professor of Health Law, who has taught a version of the class for almost 20 years, adapting its content and focus each year to reflect the constantly evolving state of national health insurance reform. “As one student put it, ‘it’s so complicated—and so interesting.
“What I love about this course is that insurance is really what drives the health system,” says Mariner, who is also director of the JD-MPH dual degree program. “The problem and the reason that it’s worth studying is because we have a system that is ridiculously complicated. If, as a society, we want to achieve certain distributional goals like universal, or close to universal, coverage and affordability of health insurance while preserving private insurance, there has to be far more regulation of the private sector than there is in a more unified national health program.”
In other words, there will always be jobs for health law and policy students.
In fact, several of Mariner’s former students are now working in influential positions in health policy and law. Stacy Kern-Sheerer (SPH’04), a professor at the Marshall-Wythe School of Law at the College of William and Mary, worked on the ACA ERISA [Employee Retirement Income Security Act of 1974] provisions in the US Senate Office of Legal Counsel. Megan Wulff (SPH’10) serves as deputy director of policy for market performance at the Massachusetts Health Policy Commission. And Michael Cannella (SPH’14) is the legislative director and legal counsel for Massachusetts State Senator James Welch, and he is also an instructor of health law, policy, & management at SPH.
Throughout the semester, students in the ACA course take a deep dive into the role of public and private insurance in US health policy, examining the design, operation, and regulation of Medicare, Medicaid, private insurance, and employer-sponsored insurance. In this semester’s class, they have explored the changes that Congress, administrative agencies, and the court system are making to the ACA, and the implications of those changes to population health in the US. They are also tasked with writing two in-depth problem analyses on proposed or newly issued regulations.
Following the Trump administration’s affirmation of a US District Court judge’s ruling in Texas that the entire ACA was invalid, students gathered on a recent Monday afternoon to discuss the legitimacy of the ACA, the role of the courts, alternative options should the statute be upended, and the ensuing legal and political ramifications of the potential outcomes in court. The dialogue revolved around questions such as: What was the legal issue of this recent federal court decision? Can the Fifth Circuit Court of Appeals repeal this statute? What happens if the court upholds the federal ruling that the ACA is invalid because Congress eliminated the individual mandate, and it cannot enforce a zero-tax penalty? Do we have a Congress that is willing to debate and compromise?
“In the Texas case, those defending the ACA argued that the fact that the penalty for not having health insurance is now a tax of zero dollars doesn’t mean the individual mandate is not a condition that canbe taxed under Congress’s taxing power,” Mariner said to the class. “They argued that maybe the next Congress would bump up the dollar amount again. Did the court believe this argument?”
No, said student Kimberly Blair, because “Courts can’t base their rulings on hypotheticals, they can only base them on the current facts before the court. Even if Congress could increase the tax in the future, at the current moment, those are not the facts of the case.”
A few students remarked on the administration’s abrupt and unusual move in March to decline to defend any part of the ACA—a break from its previous position of supporting all but three parts of the law, namely the individual mandate, guaranteed issue, and community rating.
“Is that constitutional?” asked student Kyra Neal. “I thought the executive branch was required to defend acts of Congress.”
“That’s its job, yes, but there are circumstances in which the Justice Department does believe or discover that something that Congress has enacted and the president has signed is, in fact, unconstitutional,” Mariner said. “In principle, the Justice Department should not take a position that is contrary to the Constitution. It may take a position on an ambiguous or unsettled question.”
“I thought the federal government’s recent position was quite surprising,” said student Maitreyi Bandlamudi. “Even though a lot of GOP officials don’t like the ACA, the community-rating and guaranteed-issue provisions are extremely popular. This decision came as a shock to Republican members of Congress, because now they’re expected to draft a replacement, and they’re struggling to do that without being given fair warning that the Trump administration was going to make this decision.”
Students argued that is essential to incentivize people to join or remain in the insurance pool to alleviate rising healthcare costs. Some were optimistic that a bipartisan consensus on healthcare and health insurance is still possible.
‘The context has shifted so much into what’s deemed politically viable now, in terms of health care, so it is possible that there can be more moderate discussions about how to defend preexisting conditions,” said student Elizabeth Burke. “The midterms showed how confidently voters went to polls with healthcare in mind. Republicans aren’t foolish – they know that removing preexisting conditions and other topics could hurt them, so they may be willing to compromise.”
Mariner pointed out that there are a surprising number of people—approximately nine million—who are still buying individual plans on the federal or state exchanges, even though they are no longer required to maintain coverage by law. A good thing, she notes, because once people stop purchasing plans, the pre-ACA shifting of costs would place a greater economic burden on insurers, hospitals, and patients. If the entire ACA is struck down, federal funding for Medicaid expansion would end, and many newly uninsured people would no longer be able to pay for services—services that even healthy people may need
“There are some things that even healthy people can’t necessarily avoid—a broken leg, a heart attack, or a disease,” Mariner said.
“If you were the judge on the Fifth Circuit, what would you decide?”