Battle Born Injury Lawyers
Free Consultation 702.570.9000

Breaking Down the Law : Affordable Care Act & Amy Coney-Barrett Confirmation

Affordable Care Act & Amy Coney-Barrett Confirmation

This week, US Supreme Court nominee Amy Coney-Barrett is facing questions from the Senate Judicial Committee as part of the confirmation process.

Many of the talking points center upon the upcoming Supreme Court hearing on the constitutionality of the Affordable Care Act.

Several senators, along with Presidential candidate Biden and VP candidate Kamala Harris, are claiming that if the ACA is deemed unconstitutional it will mean millions of Americans will lose their health insurance and lose protections for pre-existing conditions.

What are the chances the ACA is deemed Unconstitutional by the Supreme Court, and what could that mean to people here in Nevada with regard to their health insurance? Here to discuss is attorney Matt Hoffmann with Battle Born Injury Lawyers.

Thanks, etc.

  1. We’ll start with the upcoming hearing itself. What is at issue, and what is the likelihood the Affordable Care Act is deemed Unconstitutional?
  • The case coming up is California v. Texas. It’s an appeal from the 5th Circuit, which found that without an individual mandate, which was removed in the 2017 Tax Cuts and Jobs Act, the entire ACA is Unconstitutional.
  • I really don’t think there is any argument that the individual mandate is unconstitutional. It was upheld previously on the basis that the mandate was within Congress’s power to “tax.” But with the penalty for not buying insurance now being zero, there is no “tax,” which throws the entire legitimacy of the ACA back into question.
  • The issue really comes down to Severability.
  • Can one part of the ACA be found Unconstitutional yet have the remainder of the law stay in effect.
  • There is no “severability clause” in the law itself, but recent decisions from Justice Roberts and Kavanaugh strongly suggest that the entire law will not be thrown out.
  • I don’t know how Judge Barrett would rule, but if she does not get appointed or does not participate, and the Court is split 4-4, then the lower 5th Circuit decision will remain as good law within the 5th Circuit, meaning the ACA will be Unconstitutional in the states of Louisiana, Mississippi, and Texas.
  1. If the Affordable Care Act is found Unconstitutional, what will that mean for anyone who has coverage through it?
  • This is the big question that is getting all the sound-bites.
    • What’s being said is people with pre-existing conditions will lose coverage if the ACA is thrown out.
  • But that is not really true.
  • In 1996, President Clinton signed into law what we now refer to as HIPAA – the Health Insurance Portability & Accountability Act.
  • When most people think of HIPAA, they think of the forms you have to fill out in order to get copies of medical records.
  • In my business, I cannot get my client’s medical records without them signing a HIPAA compliant authorization to get those records.
  • But HIPAA does much more than that.
  • The idea behind HIPAA is in its name – Portability.
  • People were afraid to change jobs because it would mean they switched insurance plans, and if they did that they could lose coverage for pre-existing conditions.
  • But under HIPAA, if you change insurance plans but have had continuous coverage with another plan for 12 months or more, with no more than 63 days without coverage, the new insurance plan MUST cover your pre-existing conditions.
    • That’s been the law for over 24 years.
    • So the idea that the ACA “invented” these protections is just flat-out wrong.
  • And in the case of someone currently covered by the ACA, should the law be thrown out, someone currently covered who seeks a new insurance plan would still have their pre-existing conditions covered.
    • And that’s because they’ve had “continuous coverage” under the ACA before switching plans.
  • There will obviously be some who may not be able to switch to a new plan, and I can’t predict what will happen in those instances without Executive or Congressional action should the ACA be thrown out.
  • But for the vast majority of people, even if the ACA is deemed Unconstitutional, they could switch to a new health plan and all of their pre-existing conditions must be covered pursuant to HIPAA so long as they had 12 months of continuous health coverage prior to switching plans.