Our Take: DOJ asks Supreme Court to uphold the ACA, coalition seeks to expand the health care law

Last Wednesday, the Department of Justice sent a letter to the Supreme Court asking the justices to uphold the Affordable Care Act in California v. Texas.

“Following the change in Administration, the Department of Justice has reconsidered the government’s position in these cases. The purpose of this letter is to notify the Court that the United States no longer adheres to the conclusions in the previously filed brief of the federal respondents,” the letter, signed by Deputy Solicitor General Edwin Kneedler, stated.

Essentially, the Biden administration’s DOJ is asserting that the ACA’s individual mandate is constitutional, even after Congress reduced the individual mandate’s penalty payment amount to $0 in 2017.

However, should the high court decide that the mandate is unconstitutional, the DOJ is now taking the stance that it can be severed from the rest of the ACA and all other provisions of the law can stand.

The Trump administration’s view, including that of the DOJ under former Attorney General William Barr, was that the individual mandate is unconstitutional and inseverable, and thus the entire law is invalid.

The Supreme Court justices already heard oral arguments in the case in November. At the time, the court appeared likely to side with the argument that the individual mandate is severable.

In the DOJ’s letter, Kneedler did not ask for new oral arguments or additional briefs from the state AGs.

A ruling is expected by June.

Our Take: We’ve written about the attempts to repeal the Affordable Care Act ad nauseam. You know the basics, whether you’ve read about them here or elsewhere. Republican lawmakers have been trying to take down the ACA since before it was ever fully implemented, and those efforts escalated under the previous administration.

At the same time, the health care law has gained in popularity — particularly its protections for people with pre-existing conditions.

And now, after the country has struggled through the pandemic for a year, there’s widespread support for expanding the ACA.

For instance, Reuters reported last week that a coalition of health care and employer groups (including such heavyweights as the American Medical Association, the American Hospital Association, America’s Health Insurance Plans, the Blue Cross Blue Shield Association, and the U.S. Chamber of Commerce) asked the Biden administration to:

Four private payers have been chosen to manage Oklahoma’s partially privatized Medicaid program. The Oklahoma Health Care Authority’s board selected Blue Cross Blue Shield of Oklahoma, Humana Healthy Horizons, Oklahoma Complete Health (a Centene subsidiary), and UnitedHealthcare to manage the new program, called SoonerSelect, starting Oct. 1. The contracts are reportedly worth approximately $2 billion. The Oklahoma State Medical Association (OSMA)

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it plans to request an injunction against the contracts. “While we certainly have strong feelings about outsourcing the state Medicaid program to for-profit companies, this is about process,” said Dr. Pete Aran, chair of OSMA’s board of trustees. “The fact remains that Oklahoma’s legislature has not passed the appropriate legislation or funding to move managed care forward. We believe it is premature to move ahead with these contracts until the legislative process is completed.”

The FDA has authorized Visby Medical’s rapid, point-of-care COVID-19 PCR test for use by any organization with a CLIA certificate of waiver, including nursing homes, dialysis centers, urgent care clinics, and universities. The single-use polymerase chain reaction test provides results in 30 minutes and requires only a power plug to operate, the company noted in a press release. “By shrinking rapid PCR technology to palm-sized dimensions and eliminating the need for an additional instrument or reader, Visby Medical’s test provides fast, accurate, and actionable results at the point of need,” the San Jose, Calif.-based company stated. Visby plans to eventually make the test available for use in the home.

CMS is undoing the waivers that allow states to implement Medicaid work requirements, including a “pending” approval for Georgia’s partial Medicaid expansion. The move is in response to President Biden’s Jan. 28 executive order asking federal agencies to reevaluate policies that could make it harder to obtain or maintain health insurance, including Medicaid and Medicare coverage. But the reversals could take a while — before she left as CMS administrator, Seema Verma asked states to sign contracts that hamper the process. It’s also unclear what impact CMS’ new efforts will have on appeals the Supreme Court has agreed to hear next month regarding the Medicaid work requirements in Arkansas and New Hampshire.

The Senate voted 87-7 last Monday to confirm Denis McDonough to serve as secretary of the Department of Veterans Affairs, NPR reported. McDonough has worked for the federal government in various capacities since the mid-90s, including as President Barack Obama’s chief of staff during Obama’s second term. He is the second non-veteran to head the VA.

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