Attorney General Andy Beshear is currently engaged in three national health care lawsuits to preserve essential protections for Kentucky families provided by the Patient Protection and Affordable Care Act (ACA), including the nearly 800,000 Kentuckians with pre-existing conditions.
The Office of the Attorney General is opposing national efforts that would stop Medicaid expansion and end tax credits that help working families afford insurance. Some of these efforts would strip away key ACA protections for newborn, maturity and pediatric services, seniors' prescription drug discounts, oral and vision care, and substance abuse treatment.
A major provision of the Affordable Care Act allows significant and critical assistance for drug treatment, providing coverage to an additional 2.8 million Americans suffering from addiction. It requires both private plans and Medicaid to cover certain drug treatment. That treatment could be under threat.
Constitutionality of the Affordable Care Act
Texas and other states sought a ruling that the entire ACA is unconstitutional, thus threatening to completely erase the ACA along with the coverage and protections it provides, including coverage for pre-existing conditions and coverage for treatment of essential health benefits like mental health and substance abuse treatment. It would also eliminate seniors' prescription drug discounts and allow companies to charge seniors and women more for their coverage.
Attorney General Beshear and the attorneys general of 15 other states and the District of Columbia
State of Texas, et al v. USA, et al in U.S. District Court in the Northern District of Texas to protect the healthcare coverage of hundreds of thousands of Kentuckians because the federal government chose not to defend the ACA in the case.
In December 2018, the District Court ruled in favor of Texas, agreeing that the ACA is unconstitutional. Attorney General Beshear and the coalition of attorneys general have appealed the District Court's wrongful ruling. Our coalition of attorneys general asked for an expedited briefing schedule, which the
court denied. The court did grant the U.S. House of Representatives the right to intervene in support of the ACA.
A briefing schedule was set by the Court of Appeals that is similar to the expedited schedule proposed by the appellees. Beshear and the other appellants filed their brief on March 25, 2019. The plaintiffs (appellees) filed several answering briefs on May 1.
Current status: On appeal at the U.S. Court of Appeals for the Fifth Circuit. The case is currently in the briefing phase.
Next steps: Appellants' (Beshear et al.) reply brief is due by May 22.
U.S. Department of Labor's Association Health Plan Rule
Beshear and 11 other attorneys general
have asked a federal court to reject the U.S. Department of Labor’s Association Health Plan (AHP) Rule that allows critical changes to the nation’s health care landscape. The federal government's new Rule illegally manipulates a 1974 law – the Employment Retirement Income Security Act or ERISA – to allow the creation of association health care plans by employment groups. These plans would offer fewer protections for Kentuckians currently in the individual and small group health insurance plans, and would threaten the stability the ACA provided to employer-sponsored coverage. The Rule could also threaten an employee's eligibility for health care tax incentives that keep premiums affordable. On March 28, 2019, the district court rejected the AHP Rule and remanded it to the Department of Labor for changes.
Current status: The Department of Labor has filed notice of appeal to the U.S. Court of Appeals for the D.C. Circuit.
Next steps: Briefs will be submitted by each side to the Court of Appeals.
Reimbursement of Cost-Sharing Reduction Subsidies to Insurance Companies
The Affordable Care Act created subsidies to make premiums and out-of-pocket expenses more affordable in local health markets, known as exchanges. A central feature of the exchanges was federal cost-sharing reduction (CSR) subsidies. CSRs make health insurance more affordable for low- and middle-income Kentuckians by reducing out-of-pocket costs such as deductibles and co-pays. Under the CSR provisions, insurance companies pay a portion of a covered patient's out-of-pocket expenses upfront, with a promise that the insurance company will be reimbursed for those costs by the federal government.
CSR subsidies are backed by a mandatory payment provision of the ACA. That provision requires the Secretaries of Health and Human Services and the Treasury to make “periodic and timely payments” directly to insurance companies that are “equal to the value of the reductions.” It also provides a permanent appropriation that authorizes the Secretaries to reimburse insurers for CSR costs without further appropriations from Congress.
In October 2017, the Trump administration decided that the ACA’s permanent appropriation does not apply to CSR payments and refused to make the required federal payments to Insurance Companies.
Attorney General Beshear and the attorneys general of 17 other states and the District of Columbia
sued to compel the U.S. Department of Health and Human Services to continue these federal payments to insurance companies that reduce monthly insurance premiums for eligible individuals who purchase polices off ACA exchanges.
Current status: This case is currently being held in abeyance by agreement of the parties. The federal government is allowing "silver loading" by insurance companies as a workaround to the loss of CSR payments.
Next steps: If the federal government ends "silver loading" by insurance companies, plaintiffs will take action again.