Legal Insights and Perspectives for the Healthcare Industry

“Medicare for All” has appeared in the nation’s political dialogue as we head into the next election cycle, with a number of plans being proposed by Democratic lawmakers. Recent public opinion polls show a growing surge in popularity for expanding the federal program that currently insures older Americans. Yet the polls also show a decline in favorability for Medicare for All when respondents are asked about the details of the plans. While there appears to be general agreement that Americans should have access to affordable coverage, the Democratic plans differ over options for reforming the health insurance system. To that end, the Medicare for All plans can be divided into one of two categories: a single payor or a public option plan. From there, the proposals diverge over a mix of fault lines, tradeoffs, and potential for disruption.

In a tersely worded letter to the US Court of Appeals for the Fifth Circuit, the US Department of Justice (DOJ) announced on Monday that it “has determined that the district court’s judgment in Texas v. U.S. should be affirmed” and “is not urging that any portion of the district court’s judgment be reversed.” In December 2018, Judge Reed O’Connor of the US District Court for the Northern District of Texas reignited the simmering debate over the Affordable Care Act’s (ACA’s) ultimate survival when he ruled the entire law unconstitutional in Texas v. U.S. In a surprising reversal of its previously stated position that only certain provisions of the ACA (such as the ban on preexisting condition protections) should be severed from the statute, the DOJ is now asking the Fifth Circuit to invalidate the entire law. Even before yesterday’s abrupt change of course by the DOJ, the US Department of Health and Human Services has said that it will continue to administer and enforce the ACA during the appeals period.

The 116th Congress convened on January 3 with Democrats controlling the House for the first time since 2011 and Republicans maintaining their majority in the Senate. Divided government typically constrains Congress’s ability to pass broad, new legislative initiatives, while also limiting the scope of the legislation that does pass. Healthcare policy, especially, has been a point of partisan contention in the past. However, there are several areas where some degree of cooperation is possible in the 116th Congress and will likely impact the healthcare industry and health policy in 2019.

In an opinion released on a Friday evening in mid-December, Judge Reed O’Connor of the US District Court for the Northern District of Texas reignited the simmering debate over the Affordable Care Act’s (ACA’s) ultimate survival when he ruled the entire law unconstitutional in Texas v. U.S. The case, filed by 20 Republican-led states in February 2018, alleges that Congress invalidated the ACA when it zeroed out the individual mandate penalty under the tax reform legislation in 2017. Law360 published an article on December 18, 2018, by Morgan Lewis partners Susan Feigin Harris and Howard Young and senior health policy analyst Kathleen Rubinstein that discusses the decision, its impact, and what to expect next.

In an article published by Managed Healthcare Executive, Morgan Lewis partners Joyce Cowan and Susan Feigin Harris, and associate Jacob Harper discuss three CMS regulatory actions that managed care organizations will want to watch. These include the final rule on short-term, limited duration health plans; expanded telehealth coverage under the Medicare program; and the CMS announcement that certain quality and patient safety indicators will no longer be reported by CMS to the Hospital Inpatient Quality Reporting Program. As the administration proceeds with its incremental dismantling of the Affordable Care Act, it is important that managed care organizations maintain a watchful eye on emerging CMS policy changes and their potential implications for the industry.

Read the Managed Healthcare Executive Article