HSRI open enrollment continues despite ACA constitutional challenge

OPEN ENROLLMENT continues this week uninterrupted after a Texas Judge ruled the Affordable Care Act unconstitutional. The ruling is likely to be appealed.

PROVIDENCE — The first weekday after Fort Worth Federal District Court Judge Reed O’Connor ruled the Affordable Care Act unconstitutional, arguing the zeroed-out individual mandate neutralizes it as an exercise of Congress’s tax power, HealthSource RI health care open enrollment proceeded unperturbed.

Monday, Zachary W. Sherman, director of HealthSource RI, the state’s ACA health insurance exchange, said the challenge does not affect 2018 coverage or open enrollment for 2019.

“The decision coming out of Texas is not final. It’s very likely to be appealed,” Sherman said.

Sherman said the ruling against the ACA and a state level version of the law will likely be discussed during Tuesday’s meeting of the Market Stability Workgroup.

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“It will certainly come up, but we won’t be able to get into it fully until the Jan. 8 meeting. The consideration of codifying ACA consumer protections (such as essential health benefits and coverage up to 26) into state law will be on the agenda for the Jan. 8 meeting as well,” Sherman said.

Sam Salganik, attorney and health policy analyst at the Rhode Island Parent Information Network, noted an appeal will likely hinge on the principle of severability, a legal standard where a single element of a law ruled unconstitutional does not automatically neutralize a law.

The principle requires an assessment in such cases to focus on the intent of Congress when assessing the legality of its actions. In this case, Salganik said, the action in question is the 2018 Republican tax cut bill, which zeroed out the ACA’s tax penalty for not signing up for health insurance, but left the rest of the law intact.

“I think most legal scholars agree that this ruling doesn’t make a lot of sense and isn’t likely to be supported on appeal,” Salganik said.

The lawsuit also argues that the rules preventing people from being denied coverage for pre-existing conditions, and protecting people from being charged more if they’re sick, should also fall if the mandate is ruled unconstitutional, Salganik said, so that will be another element of the ruling the appeal will need to decide.

On Saturday, Gov. Gina M. Raimondo announced Rhode Island’s ACA health insurance exchange, HealthSource RI, remains open for business as open enrollment continues through Dec. 31. Individuals and families have until Dec. 23 to enroll for uninterrupted coverage starting Jan. 1, 2019.

“Yesterday’s ruling in Texas is dangerous, destructive and threatens the health care coverage of thousands of Rhode Islanders, particularly those with preexisting conditions who rely on the ACA’s essential consumer protections. Thanks to the Affordable Care Act, Rhode Island has one of the lowest uninsured rates in the country, and HealthSource RI offers among the lowest premiums in the country. I will continue to stand up for access to affordable, high-quality healthcare for all Rhode Islanders and will take all steps necessary to protect the ACA,” Raimondo said.

Members of the Protect Our Healthcare Coalition, 23 nonprofit, advocacy and community groups, pointed out the ACA remains in effect as the appeals process progresses.

“Friday’s misguided decision by District Court Judge Reed O’Connor in Texas v. Azar striking down the entirety of the Affordable Care Act marks a devastating blow to the health security of Rhode Islanders. We hope a higher court will reverse it based on its weak legal grounding and the grave harm overturning the ACA would cause to Rhode Islanders and millions of Americans nationwide,” said Linda Katz, policy director at Rhode Island’s Economic Progress Institute and chairperson of the Coalition.

The POHC statement noted that 75 percent of Americans support the ACA, and called on Rhode Island’s Congressional delegation to defend the law while also asking the General Assembly to duplicate the ACA’s consumer protections in state law.

“We must do all we can to protect and defend the health and well-being of every Rhode Islander,” the Coalition stated.

“It’s likely to come up,” said Mark Gray at the Office of Health Insurance Commissioner about Tuesday’s Health Insurance Advisory Council meeting, but not as an official part of the agenda, which was drafted prior to Reed’s late Friday ruling.

Formally, HIAC will review its annual report and its recent  health insurance network plan regulation which took effect in late November, as well as health-related state legislation for the next General Assembly session.

Rob Borkowski is a PBN staff writer. Email him at Borkowski@PBN.com.