Robert Pear

Utah’s ballot measure, approved with support from 53 percent of voters, would expand Medicaid to cover people with incomes up to 138 percent of the poverty level — up to about $16,750 a year for an individual — and pay the state’s share with a small increase of the sales tax. Under the ballot initiative, 150,000 people are expected to gain coverage, starting April 1.

In Idaho, more than 60 percent of voters supported a ballot measure to expand Medicaid.

But in both states, the Republican legislatures are looking for ways to roll back those votes.

The bill barreling through the Utah Legislature was “an effort to override the will of the people,” said Matthew Slonaker, executive director of the Utah Health Policy Project, a nonprofit group that supported the full expansion of Medicaid.

Utah lawmakers, worried that the sales tax increase might not fully cover the costs, are rushing through a bill that would limit the expansion of Medicaid to people with incomes less than or equal to the poverty level, about $12,140 for an individual.

State officials say that the bill, which is estimated to cover 90,000 people, could be on the desk of Gov. Gary R. Herbert, a Republican, in a week or two.

Idaho lawmakers are considering restrictions, such as work requirements, to limit the reach of the voters’ will.

In both cases, state Republicans may need Washington’s help. Utah’s legislative plan is contingent on federal approval of a waiver that would allow the state to get extra federal money without the full expansion of Medicaid envisioned in the Affordable Care Act.

The federal government and the states have historically shared the costs of Medicaid, with the federal government paying a larger share in states with low per capita income. In Utah, the federal government pays about 70 percent of what Medicaid spends on health care.

By contrast, under the Affordable Care Act, the federal government pays at least 90 percent of the cost of care for people made eligible for Medicaid by the full expansion of the program. Utah and some other states want the enhanced federal payments for a smaller expansion — to anyone up to the poverty level.

To date, the federal government has not approved such proposals — even though some Trump administration officials want to allow the “partial expansion” of Medicaid as a way to head off full expansion in additional states, which could be more expensive for the federal government.

Paul Edwards, a deputy chief of staff for Herbert, said the governor and other state officials had many conversations with Trump administration officials, including people at the White House and at the Centers for Medicare and Medicaid Services.

“The governor came away quite encouraged,” Edwards said. “The most important conversations have been on the telephone between Gov. Herbert and Seema Verma,” the administrator of the federal Medicaid agency.

“We are in close contact with CMS, and we are encouraged by what we are hearing,” Edwards said. “But no one has put anything into writing.”

The Trump administration has repeatedly promised to provide more “flexibility” for state Medicaid programs, but a federal health official declined to characterize the discussions with Utah.

Utah’s bill would put limits on the growth of per capita costs in the Medicaid program and would freeze enrollment if the cost of the Medicaid expansion was projected to exceed the amount of money provided in appropriations by the Legislature, restrictions “outside the spirit” of the ballot initiative, Slonaker said.

The bill also says that Utah will seek federal permission to impose work requirements on Medicaid beneficiaries, like those approved by the Trump administration in several other states.

The Utah Medicaid program now covers parents with dependent children in households with incomes up to 60 percent of the poverty level. Adults without dependent children are generally ineligible, with a few exceptions. People with incomes from 100 percent to 400 percent of the poverty level can obtain subsidies in the form of tax credits to help them pay premiums for private insurance in the federal marketplace.

One of Utah’s main goals is to eliminate a gap in coverage. Many poor people are now eligible for neither Medicaid nor subsidized private insurance.

State Rep. James A. Dunnigan, a Republican who is leading efforts to replace the ballot initiative, said the revenue provided by the sales tax increase would not be adequate to pay the state’s share of the cost of a full Medicaid expansion after two years.

The fiscal mismatch will be “a runaway train wreck,” Dunnigan said in an interview. “We balance our budget here every year. We value our triple-A bond rating and our reputation as one of the nation’s best managed states.”

People with incomes of 100 percent to 138 percent of the poverty level will still be able to get subsidies for private coverage in the insurance exchange, he said.

Dunnigan said he, too, had been encouraged by his discussions with the Trump administration. “I would not be pursuing this unless I thought there was a high likelihood that the federal government will approve it,” he said.

If President Donald Trump approves Utah’s request for enhanced federal matching payments with a partial expansion of Medicaid, other states are sure to press similar requests.

Arkansas, for example, expanded Medicaid to 138 percent of the poverty level in 2014. But it has requested federal permission to roll back coverage to 100 percent of the poverty level.

Massachusetts, concerned about the cost of its expanded Medicaid program, has also asked for permission to reduce eligibility for certain adults to 100 percent of the poverty level, saying it would be better for them to obtain subsidized commercial insurance.

This article originally appeared in <a href="https://www.nytimes.com/2019/02/04/us/politics/utah-idaho-medicaid-expansions.html" id="32f5f2fe-38ac-3b13-aff3-ea4466375372">The New York Times</a>.

WASHINGTON — The voters of Utah and Idaho, two deeply Republican states, defied the will of their political leaders in November and voted to expand Medicaid under the Affordable Care Act. Now those leaders are striking back, moving to roll back the expansions — with encouragement, they say, from the Trump administration.

In Utah and Idaho, GOP Looks to Curb Medicaid Expansions That Voters Approved

This month, the company, Allergan, doubled down, asking the Supreme Court to rule that the Saint Regis Mohawk Tribe can use its sovereign immunity to fend off challenges by makers of low-cost generic copies of the best-selling prescription eyedrops, Restasis.

Congress is gearing up for what promises to be a yearlong investigation of drug prices, with House and Senate committees planning to hold hearings on Tuesday. The deal between Allergan and the Saint Regis Mohawks promises to be front and center when lawmakers in both parties examine the use of patents to delay competition and keep prices high.

Restasis, a treatment of chronic dry eye disease, had sales of nearly $1.5 billion in 2017 — Allergan’s best seller after Botox.

In September 2017, Allergan transferred patents for the eye drug to the tribe in upstate New York near the Canadian border. Allergan paid the tribe $13.75 million up front and agreed to pay up to $15 million a year in royalties as long as the patents remained valid. At the same time, the tribe gave Allergan “the sole and exclusive right” to manufacture and market the drug in the United States for uses approved by the Food and Drug Administration.

The company says it is trying to protect its “intellectual property.” The tribe says it needs the money to provide health, education, welfare, housing and other services for its members.

But Michael A. Carrier, a law professor at Rutgers University and an expert on pharmaceutical patents, said, “This has nothing to do with the purpose of tribal immunity and everything to do with evading the patent system.”

“Drug companies should not be able to use this shell game of transferring patents to Native American tribes just so they can escape review at the patent office,” Carrier said.

Generic drug companies, eager to sell low-cost copies of Restasis, have challenged the validity of the patents. And so far, the tribe has struck out in its efforts to use sovereign immunity as a shield for the patents.

Judge William C. Bryson of the U.S. Court of Appeals for the Federal Circuit said he had “serious concerns about the legitimacy of the tactic that Allergan and the tribe have employed.”

“The essence of the matter is this,” he said, “Allergan purports to have sold the patents to the tribe, but in reality” it is trying to “rent the tribe’s sovereign immunity” to protect the patents and forestall competition. He found that four of the Restasis patents were invalid.

Restasis sells in pharmacies for an average cash price of about $657 for a month’s supply, according to the drug-price website GoodRx.

The Trump administration, siding with the generic drug companies, said the evident purpose of Allergan’s deal with the tribe “was to allow Allergan to retain and enforce its patents.”

Allergan is still the “effective owner” of the patents, “for which the tribe paid nothing,” the Justice Department said. “In no real-world sense do these patents belong to the Saint Regis Mohawk Tribe.”

Allergan and the tribe are now asking the Supreme Court to rule that the tribe can assert sovereign immunity in proceedings at the Patent and Trademark Office, and the move has attracted attention in Congress.

Sen. Tom Cotton, R-Ark., said he had drafted a bill to prevent Indian tribes from using sovereign immunity to block the review of patents by federal courts and the patent office.

“By transferring the patents to a tribe that had no part in the development of the drug, Allergan attempted to purchase sovereign immunity to rip off consumers,” Cotton said. “Allergan’s transfer of the Restasis patents to the Mohawk tribe was a sham.”

Rep. Jerrold Nadler, D-N.Y., chairman of the House Judiciary Committee, has described Allergan’s deal as a “cynical ploy to shield its patents on a lucrative drug from review at the U.S. Patent and Trademark Office.”

In 2011, Congress created a special procedure under which an independent arm of the patent office — the Patent Trial and Appeal Board — can cancel patents if it finds they were granted in error. Brand-name drug companies say these proceedings are often stacked against them and their patents.

Allergan is not the only company facing criticism on Capitol Hill.

In a Twitter post this past week, Rep. Ro Khanna, D-Calif., singled out AbbVie: “They filed 247 patents for Humira, a single drug for arthritis. They received over 132 patents for that drug and are blocking competition for 39 years. They have increased prices 144% since 2012. This is a racket!”

Jillian Griffin, a spokeswoman for AbbVie, declined to comment about Khanna's criticism. Global sales of Humira totaled $19.9 billion last year, the company reported Friday.

Sen. Susan Collins, R-Maine, chairwoman of the Special Committee on Aging, said some drugmakers were trying to stave off competitors by surrounding their products with a web of overlapping patents — a “patent thicket.”

Consumer advocates, insurers and generic drugmakers joined together this month in a new group, the Coalition Against Patent Abuse, to expose the ways in which brand-name drug companies try to extend their government-granted monopolies.

Rep. Frank Pallone Jr., D-N.J., chairman of the Energy and Commerce Committee, endorsed the effort, saying, “Brand-name companies take actions that make it difficult for generics to enter the market.”

The tribe defended its novel arrangement with Allergan. While the tribe has a casino on its reservation, it said it could not depend solely on casino revenues to address the community’s “chronically unmet needs.”

The tribe tried to block review of the Restasis patents by citing its sovereign immunity, but the patent appeal board rejected this argument, as did the Court of Appeals for the Federal Circuit. The Supreme Court appears to be its last chance, at least for now.

This article originally appeared in <a href="https://www.nytimes.com/2019/01/26/us/politics/allergan-eye-drops-indian-tribe.html" id="e6968a2d-3958-3757-a4a1-dbe8bd444029">The New York Times</a>.

WASHINGTON — When a pharmaceutical company sold its patent rights for a blockbuster drug to an Indian tribe 16 months ago, stymied competitors and consumer groups condemned the move as a flagrant abuse of the patent system.

Lucrative Deal Between Big Pharma and Indian Tribe Faces New Scrutiny

In the open enrollment period that ended Saturday, the number of sign-ups totaled 8.45 million, down from 8.82 million at the same point last year, a drop of about 367,000, or 4 percent, despite warnings that a more precipitous drop could be in the offing.

Democrats have repeatedly accused President Donald Trump of sabotaging the Affordable Care Act and its marketplace by promoting short-term health policies with skimpier coverage, substantially cutting enrollment promotion efforts and nearly eliminating funds for “navigators” who help potential enrollees through the process. Congress also zeroed out the health law’s penalty for not being covered, starting in 2019.

But Seema Verma, administrator of the Centers for Medicare and Medicaid Services, said “enrollment remained steady through HealthCare.gov.”

Those numbers came despite a decision Friday by a federal judge in Texas that invalidated all of the Affordable Care Act, causing confusion about the future of health insurance. Consumers were apparently not deterred. More than 4.3 million people signed up last week, compared with 4.1 million in the final week of enrollment last year.

Trump administration officials expressed satisfaction Wednesday.

“This administration has taken strong steps to promote a competitive, stable health insurance market,” and the new numbers show the administration’s efforts are working, Verma said.

She suggested the strong economy was a factor in the drop.

“With the lowest unemployment rate in 50 years,” Verma said, “it’s possible that more Americans have employer-based coverage and don’t need exchange plans.”

In the 39 states using the HealthCare.gov platform, employment increased this year by 2 million, the administration said.

Larry Levitt, a senior vice president at the Kaiser Family Foundation, declared the Affordable Care Act “far from dead and remarkably resilient.”

Still, the number of people selecting plans this year was substantially lower than in 2015, when 9.6 million people signed up, and in 2016, when 9.2 million did so.

Among states using the federal insurance exchange, the largest numbers of sign-ups this year were in Florida (1.8 million), Texas (1.1 million), North Carolina (502,500) and Georgia (460,100).

The number of people signing up increased this year in five states: Florida, Hawaii, Mississippi, Oklahoma and Wyoming. Among the states showing declines of more than 15 percent were Louisiana and West Virginia.

With stable premiums and more insurers offering coverage this year, the number of people signing up might have been expected to increase. In many counties, people of modest means could get insurance for free, as federal subsidies would pay the entire premium for some policies.

But sign-ups were lagging for most of the 45-day enrollment period this year. Several factors may have initially discouraged enrollment.

The Trump administration cut back funds for public education, advertising and consumer assistance. Verma kicked off open enrollment on Nov. 1 with a Twitter post that disparaged the available options.

“The BIG SECRET no one reports: #Obamacare’s skyrocketing premiums are destroying affordable options for the unsubsidized, including people with pre-existing conditions,” Verma wrote.

Administration officials said Wednesday that they had found more effective, less expensive ways of reaching consumers. The administration sent more than 700 million emails and text messages to remind people of open enrollment.

In some states, insurers have been selling short-term insurance plans, which the Trump administration portrays as a low-cost alternative to comprehensive coverage. The short-term plans — sold outside the health insurance exchange — do not have to comply with the Affordable Care Act, generally provide fewer benefits, often refuse to pay for the treatment of pre-existing conditions and tend to attract healthier people.

Congress also zeroed out the tax penalty for people who go without insurance, effective in 2019, and as a result some people may feel less pressure to obtain coverage. But a survey last month by the Kaiser Family Foundation found that most Americans were unaware of the change, so it is unlikely to explain much of the decline in enrollment.

“Repeal of the individual mandate added to the uncertainty, but it is the carrot of the subsidies rather than the mandate” that leads many people to buy insurance in the marketplace, said Ana Gupte, a health care analyst at Leerink Partners in New York.

Many Democrats won midterm elections this year by promising to protect the Affordable Care Act. Having won control of the House, they plan to push legislation to achieve that goal.

The numbers released Wednesday show activity in states that use the HealthCare.gov website run by the federal government. In other states, which operate their own marketplaces, deadlines vary.

Consumers are still able to enroll in California, Connecticut, Colorado, the District of Columbia, Massachusetts, Minnesota, New York and Rhode Island.

“Insurance has to be sold, which is why we will continue promoting enrollment with robust marketing and outreach efforts well into the new year,” said Peter V. Lee, the executive director of the state-run exchange in California, where open enrollment continues through Jan. 15.

Joshua Peck, who was the chief marketing officer for HealthCare.gov in the Obama administration, said the number of people renewing coverage on HealthCare.gov this year was impressive.

More than three-fourths of the people signing up this year — more than 6.4 million people — were renewing coverage.

An overwhelming majority of the people who obtain health insurance through the Affordable Care Act marketplace receive financial assistance to help defray the cost. The tax credit now covers 87 percent of the average premium — $519 of $596 — leaving the beneficiary to pay an average of $77 a month.

Under the law, subsidies generally increase with insurance premiums. This linkage protects many consumers, but causes acute distress for Trump administration officials because, they say, it means that taxpayers bear the cost of premium increases.

“The law’s skyrocketing subsidies have kept subsidized insurance enrollment fairly steady,” said Alex Azar, secretary of health and human services. “But Americans who make too much to receive subsidies have begun to opt out of the insurance market en masse.”

Verma said that “many Americans don’t qualify for subsidies on HealthCare.gov and remain priced out of the insurance market.”

For some of them, the administration says, short-term insurance policies, which can run up to 36 months, may be the answer.

“We heard a lot of criticism about ending the individual mandate &amp; offering lower priced options for Short Term Limited Duration (STLD) plans, &amp; how that would negatively affect #OpenEnrollment,” she said in a Twitter post.

But she pointed to New Jersey, which she said had banned short-term plans and adopted its own version of the individual insurance mandate, and still had an 8 percent drop in the number of people signing up for marketplace coverage this fall.

This article originally appeared in <a href="https://www.nytimes.com/2018/12/19/us/politics/obamacare-enrollment.html" id="e218c270-1a89-3a93-a6d5-4ff6631badc2">The New York Times</a>.

Despite Challenges, Health Exchange Enrollment Falls Only Slightly

WASHINGTON — The number of people signing up for insurance on the federal HealthCare.gov website declined slightly this year, the Trump administration reported on Wednesday, but a last-minute surge in enrollment showed that Americans were still eager for coverage under the Affordable Care Act.

The states, which support the health care law, said the ruling Friday, by Judge Reed O’Connor of U.S. District Court in Fort Worth, had caused immense confusion about whether the law was still in effect, and whether consumers were still entitled to its benefits and protections.

The states asked O’Connor to clarify whether he meant his decision to have “any immediate legal effect.”

In his sweeping decision, O’Connor held that a provision at the heart of the Affordable Care Act — a requirement for most Americans to have health insurance known as the individual mandate — was unconstitutional and that other provisions of the law could not survive because they were inextricably linked to the coverage mandate. The sprawling law includes not only health insurance exchanges and an expansion of Medicaid, but also protections for people with pre-existing conditions, requirements for what insurance must cover and much more.

But O’Connor did not issue an injunction barring enforcement of the law.

“In light of this ambiguity,” California and the other states asked O’Connor on Monday to affirm that the Affordable Care Act was still the law and should be enforced while supporters and opponents of the measure continue their battle in court.

“The district court’s ruling poses a dangerous threat to the health care of millions of Americans,” said California Attorney General Xavier Becerra. “Today’s filing makes clear that California and its partner states will do everything possible to challenge this reckless ruling.”

Caitlin Oakley, a spokeswoman for the Department of Health and Human Services, said Monday that because O’Connor had not issued a final judgment or an injunction, the department “will continue administering and enforcing all aspects of the ACA as it had before the court issued its decision.”

The lawsuit was filed by Texas and 19 other states. The individual mandate was enforced by a tax penalty on people who go without insurance, and the Supreme Court upheld it in 2012 as an exercise of Congress’ taxing power. But as part of the tax overhaul that President Donald Trump signed last December, Congress reduced the penalty to zero dollars, starting in 2019. Texas and the other plaintiffs contend that the mandate will then lose its constitutional justification.

On Friday, Trump hailed the judge’s decision as “great news for America!”

But the coalition of states led by California told the judge Monday that their citizens would face “devastating harm from the invalidation” of the Affordable Care Act.

“The law’s provisions are so interwoven in virtually every aspect of the public and private health care system that the elimination of the ACA will cause grievous immediate and long-term harm to Americans’ health and financial security, to the health care system, and to federal and state budgets,” the coalition said in a legal brief.

“If the ACA is invalidated, nearly 12 million Americans who gained coverage through the Medicaid expansion would become uninsured,” the coalition said. “An additional 8 million low-income residents will lose access to billions of dollars in tax credits” that help them pay premiums for private insurance.

O’Connor’s decision left several issues unresolved, but California and its allies said he should allow an immediate appeal on an important legal question: “whether the ACA remains in force, wholly or in substantial part, after the passage” of the tax cut law.

Gov. Greg Abbott of Texas, a Republican, said Monday that his state would try to devise a replacement for the Affordable Care Act.

“If Obamacare remains struck down on appeal Texas will be ready with replacement health care insurance that includes coverage for pre-existing conditions,” Abbott said in a Twitter post.

This article originally appeared in <a href="https://www.nytimes.com/2018/12/17/us/politics/obamacare-ruling-court-judge.html" id="da7aaece-da90-306f-a2a5-08371e49837b">The New York Times</a>.

WASHINGTON — California and 15 other states asked a federal judge Monday to protect current health care coverage for millions of Americans while courts sort out the implications of his ruling that the Affordable Care Act was invalid in its entirety.

States Ask Judge to Declare Health Law Still in Effect While Ruling Is Appealed

The administration acknowledged that some Utah residents might lose coverage but said that others would become healthier and gain financial independence because they were working.

In approving a Medicaid waiver for Utah, the Trump administration is reaffirming its conservative priorities, defying critics and inviting another round of litigation.

Under the new Utah program, 70,000 to 90,000 adults will become eligible for Medicaid, and they can begin applying for coverage Monday. The waiver has a novel feature to control costs: Utah can freeze enrollment of newly eligible beneficiaries if the projected costs of their coverage exceed the funds appropriated by the state Legislature.

Seema Verma, administrator of the federal Centers for Medicare and Medicaid Services, who approved the waiver, said Utah had found a “fiscally sustainable” way to cover more people.

Utah voters in November approved a full expansion of Medicaid as envisioned in the Affordable Care Act, to cover people with annual incomes up to 138 percent of the poverty level — up to about $17,235 for an individual. But state legislators had different ideas and approved a more limited expansion, to 100 percent of the poverty level, or $12,490 for an individual, with work requirements. That is the program approved Friday.

In her approval letter, Verma said the work requirements could help people achieve financial independence and obtain jobs providing health insurance.

“If participating in community engagement activities improves beneficiaries’ physical and mental health,” Verma wrote, “these beneficiaries may consume fewer health care resources, thus keeping in check state costs on Medicaid.”

“Some beneficiaries could lose coverage, at least temporarily, for failure to comply” with the work requirements, Verma said.

But she said the Utah program had safeguards, including exemptions from the work requirements for certain people who were disabled, caring for children younger than 6 or being treated for drug addiction.

Medicaid is an open-ended entitlement program, meaning that benefits are generally available to anyone who meets eligibility criteria established by federal and state governments.

Verma defended the enrollment limits as a way for Utah to keep within its budget, so it would not have to cut benefits.

Gov. Gary R. Herbert of Utah, a Republican, welcomed approval of the state program, describing it as “an important first step in covering vulnerable Utahans in a financially sustainable way.”

But Joan C. Alker, executive director of the Center for Children and Families at Georgetown University, said: “Utah’s enrollment cap is in direct conflict with Medicaid’s guarantee of coverage if you meet the income eligibility requirements. As a legal matter, it is even more questionable than the waivers struck down in Arkansas and Kentucky.”

Verma approved the Utah waiver in an 8,500-word letter that repeats many of the points rejected Wednesday in the Arkansas and Kentucky cases by Judge James E. Boasberg of U.S. District Court for the District of Columbia.

Utah’s demonstration project promotes the health of beneficiaries and their financial independence, Verma said. Research shows a positive link between employment and “improved health outcomes,” she wrote.

Boasberg said that the waivers in Arkansas and Kentucky could not be justified as contributing to either the financial independence of Medicaid beneficiaries or the “fiscal sustainability” of the program for a state. Those, he said, are not independent objectives of the federal Medicaid law, and waivers are supposed to promote those objectives.

The court rulings on Arkansas and Kentucky are not binding on federal officials as they consider proposals from other states. Federal officials can try to argue that the work requirements in Utah are somewhat different from those in Arkansas and Kentucky.

Matthew Slonaker, executive director of the Utah Health Policy Project, a nonprofit group that supported the full expansion of Medicaid, said, “The work requirements here are legally vulnerable, just like those in Arkansas and Kentucky.”

The changes in Utah approved Friday fall short of the expansion of Medicaid envisioned in the Affordable Care Act and endorsed by Utah voters in November.

But Utah is liberalizing its eligibility criteria. Many poor people in Utah have been ineligible for Medicaid if they do not have dependent children. The state Medicaid program has covered parents with incomes up to 60 percent of the poverty level, or about $7,500 for an individual. Utah has also extended coverage to about 3,000 adults with income below 5 percent of the poverty level, about $625 a year.

“As a condition of eligibility” in Utah, beneficiaries covered under the waiver will have to register for work through the state’s online system. They will have to complete an online assessment of their job training needs and an online training program. In addition, they will have to apply for jobs with at least 48 potential employers.

Under the Utah waiver, the federal government will pay about 70 percent of Medicaid costs for newly eligible beneficiaries. If the state had fully expanded Medicaid, the federal government would have paid at least 90 percent.

Utah officials are eager to obtain federal approval for two more changes in their Medicaid program. They want to get additional federal payments — the enhanced 90 percent federal share — without extending eligibility to people above the poverty level. And they want permission to impose some kind of per-person limits on Medicaid spending, which would be a huge change in the way Medicaid is financed.

This article originally appeared in <a href="https://www.nytimes.com/2019/03/29/us/politics/medicaid-trump-utah.html" id="19201a4c-8cc0-3250-a741-52303c256991">The New York Times</a>.

WASHINGTON — Just two days after a federal court struck down work requirements for Medicaid beneficiaries in Arkansas and Kentucky, the Trump administration approved similar requirements in Utah on Friday.

Trump Administration Approves Medicaid Work Requirements in Utah

The rule is “clearly an end-run around the ACA,” said Judge John Bates of the U.S. District Court for the District of Columbia.

The ruling was the second big defeat this week for President Donald Trump on a top-priority item on his health care agenda as the president has sought to use the courts to obliterate his predecessor’s signature achievement. Another judge Wednesday blocked Medicaid work requirements in Arkansas and Kentucky.

Trump promoted the small-business health plans as a way to save people from the “nightmare of Obamacare.” He told small-business owners in June that “you’re going to save massive amounts of money and have much better health care.”

In the economic report of the president released last week, the White House said the small-business plans — known as association health plans — showed how consumers benefit when the government reduces federal regulations and increases “choice and competition in health care markets.”

But Bates said that the rule authorizing such health plans was unlawful and must be set aside because it “does violence” to the Employee Retirement Income Security Act of 1974, the framework for employer-sponsored health plans covering tens of millions of Americans.

Large employer-sponsored health plans can avoid some requirements of the Affordable Care Act. But Bates said that the Trump administration had improperly stretched the statutory definition of “employer” to include “virtually any association of disparate employers connected by geographic proximity” — as well as sole proprietors who own businesses without any employees.

The lawsuit was filed by New York and 10 other states.

“We are pleased that the District Court saw past the Trump administration’s transparent effort to sabotage our health care system and gut these critical consumer protections in the service of its partisan agenda,” Attorney General Letitia James of New York state said Thursday night.

Bates said that the final rule issued by Trump and Labor Secretary Alexander Acosta “creates absurd results under the Affordable Care Act.” For example, he said, two business owners who have no employees would be treated as both employers and employees.

Likewise, he said, a group of 51 individuals, none of whom employ anyone, would be treated as 52 employers and 51 employees and would be free from many requirements of the Affordable Care Act that apply to health insurance in the individual and small-group markets.

The Trump administration’s attempt to squeeze self-employed individuals into the definition of employer is “a magic trick,” and the rationale offered by the Labor Department is sleight of hand, Bates said.

Moreover, he said, in issuing its rule for small-business health plans, the Trump administration ignored the language and purpose of both the Affordable Care Act and the Employee Retirement Income Security Act, known as ERISA.

The final rule, he said, illegally “expands the definition of ‘employers’ to include groups without any real commonality of interest and to bring working owners without employees within Erisa’s scope.”

“Because the final rule stretches the definitions of ‘employer’ beyond what the statute can bear, the final rule is unlawful” under the Administrative Procedure Act, which sets the standards for federal rule-making, the judge said.

Republicans in Congress have tried for two decades to promote association health plans through legislation. Using his regulatory authority, Trump tried to do what Congress could not accomplish.

Rep. Robert C. Scott, D-Va., the chairman of the Education and Labor Committee, said Bates’ ruling was “an important victory for workers and consumers who would be harmed by the administration’s decision to expand the reach of association health plans.”

“The Department of Labor’s final rule is one of numerous examples of this administration’s efforts to sabotage the Affordable Care Act through executive action,” Scott said.

Bates voided major provisions of the rule and sent it back to the Labor Department to determine if any of the rule could be salvaged.

Under the rule, issued by the Trump administration in June, association health plans were exempt from many consumer-protection mandates in the Affordable Care Act. They were not always required to provide “essential health benefits” like mental health care, drug abuse treatment, emergency services and prescription drugs.

Labor Department officials said association health plans would not be able to deny coverage or charge higher rates to individual employees with pre-existing medical conditions.

Small-business health plans have a long history of fraud and abuse that have left employers and employees with hundreds of millions of dollars in unpaid medical bills. The problems are described in dozens of court cases and enforcement actions taken over more than a decade by federal and state officials who regulate the plans.

In many cases, the Labor Department said, it has targeted “unscrupulous promoters who sell the promise of inexpensive health benefit insurance but default on their obligations.” In several cases, it has found that people managing these health plans diverted premiums to their personal use.

Trump administration officials had said they would tighten supervision of the plans to prevent repetition of such abuses.

On Monday, the Trump administration broadened its attack on the Affordable Care Act, telling a federal appeals court that the entire law should be invalidated. If the appeals court accepts the administration’s arguments, millions of people could lose health insurance, including those who gained coverage through the expansion of Medicaid and those who have private coverage subsidized by the federal government.

The administration’s position, urging the appeals court to throw out all of the Affordable Care Act, stunned members of Congress, including many Republican senators who said they had no desire to revisit the issue after their failure to repeal the law in 2017.

But Trump plowed ahead, promising to devise a replacement for the Affordable Care Act.

“The cost of Obamacare to people is far too much,” Trump said Thursday. “The deductibility is ridiculous. It averages more than $7,000, meaning it’s unusable. So Obamacare has been a disaster.”

This article originally appeared in <a id="eeede601-ca15-435a-aa80-ebb8cd0bf00a" href="https://www.nytimes.com/2019/03/28/us/politics/trump-judge-health-care.html">The New York Times</a>.

Dealing another blow to Trump, federal judge strikes down rule skirting requirements of health Act

WASHINGTON — A federal judge Thursday struck down a Trump administration rule that allows small businesses to band together and set up health insurance plans that skirt requirements of the Affordable Care Act.

The ruling was the second big defeat this week for President Donald Trump on a top-priority item on his health care agenda as the president has sought to use the courts to obliterate his predecessor’s signature achievement. Another judge on Wednesday blocked Medicaid work requirements in Arkansas and Kentucky.

Trump promoted the small business health plans as a way to save people from the “nightmare of Obamacare.” He told small-business owners in June that “you’re going to save massive amounts of money and have much better health care.”

In the economic report of the president last week, the White House said the small business plans — known as association health plans — showed how consumers benefit when the government reduces federal regulations and increases “choice and competition in health care markets.”

This article originally appeared in <a id="3fac99b7-3af8-457a-b72b-a68bc32418be" href="https://www.nytimes.com/2019/03/28/us/politics/trump-judge-health-care.html">The New York Times</a>.

Court blocks an 'end-run' around health care law

WASHINGTON — A federal judge on Thursday struck down a Trump administration rule that allows small businesses to band together and set up health insurance plans that skirt requirements of the Affordable Care Act.

The administration had previously said that the law’s protections for people with pre-existing conditions should be struck down, but that the rest of the law, including the expansion of Medicaid, should survive.

If the appeals court accepts the Trump administration’s new arguments, millions of people could lose health insurance, including those who gained coverage through the expansion of Medicaid and those who have private coverage subsidized by the federal government.

“The Justice Department is no longer asking for partial invalidation of the Affordable Care Act, but says the whole law should be struck down,” Abbe R. Gluck, a law professor at Yale who has closely followed the litigation, said Monday. “Not just some of the insurance provisions, but all of it, including the Medicaid expansion and hundreds of other reforms. That’s a total bombshell, which could have dire consequences for millions of people.”

The new position is also certain to reignite a political furor over the Affordable Care Act, ensuring that it will figure even more prominently in 2020 elections. Democrats have been saying that President Donald Trump still wants to abolish the law, and they can now point to the Justice Department’s filing as evidence to support that contention.

The Justice Department disclosed its new stance in a two-sentence letter to the 5th U.S. Circuit Court of Appeals, in New Orleans, and will elaborate on its position in a brief to be filed later.

In the letter, the Justice Department said the court should affirm a judgment issued in December by Judge Reed O’Connor of the U.S. District Court in Fort Worth, Texas.

O’Connor, in a sweeping opinion, said that the individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’ tax power” because Congress had eliminated the tax penalty for people who go without health insurance.

Accordingly, O’Connor said, “the individual mandate is unconstitutional” and the remaining provisions of the Affordable Care Act are also invalid.

In its letter to the appeals court, the Justice Department said Monday that it “is not urging that any portion of the district court’s judgment be reversed.” In other words, it agrees with O’Connor’s ruling.

In the nine years since it was signed by President Barack Obama, the Affordable Care Act has become embedded in the nation’s health care system. It changed the way Medicare pays doctors, hospitals and other health care providers. It has unleashed a tidal wave of innovation in the delivery of health care. The health insurance industry has invented a new business model selling coverage to anyone who applies, regardless of any pre-existing conditions.

The law also includes dozens of provisions that are less well known and not related to the individual mandate. It requires nutrition labeling and calorie counts on menu items at chain restaurants. It requires certain employers to provide “reasonable break time” and a private space for nursing mothers to pump breast milk. It improved prescription drug coverage for Medicare beneficiaries, and it created a new pathway for the approval of less expensive versions of biologic medicines made from living cells.

Lawyers said invalidation of the entire law would raise numerous legal and practical questions. It is, they said, difficult to imagine what the health care world would look like without the Affordable Care Act.

The Trump administration’s new position was harshly criticized by the insurance industry and by consumer advocates.

The government’s position “puts coverage at risk for more than 100 million Americans,” said Matt Eyles, the president and chief executive of America’s Health Insurance Plans.

Leslie Dach, the chairman of Protect Our Care, a consumer advocacy group, said: “In November, voters overwhelmingly rejected President Trump’s health care repeal and sabotage agenda. But he remains dead set on accomplishing through the courts what he and his allies in Congress could not do legislatively: fully repeal the law, devastate American health care and leave millions of Americans at risk.”

The Trump administration’s new stance appears to put Republicans in Congress in an awkward position. They have repeatedly tried to repeal the health law. But in the last year, they said over and over that they wanted to protect coverage for people with pre-existing conditions, and those protections are among the law’s most popular provisions.

The lawsuit challenging the Affordable Care Act, Texas v. United States, was filed last year by a group of Republican governors and state attorneys general. Officials from California and more than a dozen other states have intervened to defend the law.

The Texas lawsuit “is as dangerous as it is reckless,” Xavier Becerra, the attorney general of California, said Monday as he filed a brief urging the appeals court to uphold the law.

This article originally appeared in <a id="6f1e38f2-fe46-45ae-bea5-9a785fd4c83f" href="https://www.nytimes.com/2019/03/25/us/politics/trump-obamacare-aca.html">The New York Times</a>.

Trump officials broaden attack on health law, arguing courts should reject all of it

WASHINGTON — The Trump administration broadened its attack on the Affordable Care Act on Monday, telling a federal appeals court that it now believed the entire law should be invalidated.

<h1>WASHINGTON — Federal health officials are not enforcing requirements for Medicaid coverage of abortion in the limited circumstances where it is legal, congressional investigators have found.</h1>

At least 13 states are flouting a requirement to cover abortion-inducing pills, and one state, South Dakota, has for 25 years failed to provide the required coverage for abortion in cases of rape or incest, the Government Accountability Office, a nonpartisan investigative arm of Congress, said in a report made public this month.

The report underlines the wide range of restrictions that states impose on abortion access and Medicaid coverage of it.

Trump administration officials, like many of their predecessors, “have not taken any actions to address states’ noncompliance,” the report said.

Robert Pear

Articles written by the author

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