March 2019

Yesterday, in a near-party line vote, Senate Republicans confirmed Chad Readler to a lifetime appointment as a federal judge, despite Readler’s well-known history of fighting to strip protections from Americans with pre-existing conditions. Yesterday’s vote sends a clear message: Republicans remain intent on trying to take away Americans’ health care.

News outlets were quick to point out Readler’s health care history:

New York Times: Senate Confirms Trump Nominee Who As Justice Official Fought The Affordable Care Act. “The Senate on Wednesday confirmed Chad A. Readler of Ohio as President Trump’s 33rd federal appeals court judge despite bipartisan criticism that as a Justice Department official in the Trump administration he had shirked his official responsibility to defend the Affordable Care Act when it was challenged in court…The fight over Mr. Readler was intensified by his role in the legal struggle over the Affordable Care Act, which Democrats said he was obligated to defend as a top lawyer in the Justice Department’s civil division because it was existing law. Instead, he filed a brief in support of a lawsuit by Republican attorneys general aimed at gutting the Affordable Care Act, and argued that it, and its protections against denying coverage for pre-existing conditions, was unconstitutional.” [New York Times, 3/6/19]

HuffPost: Chad Readler Fought Obamacare Protections. Now He’s A Lifetime Federal Judge. “The Senate voted 52-47 to make Readler, 46, a lifetime federal judge. Every member of the chamber’s Democratic caucus opposed him with the exception of Sen. Joe Manchin of West Virginia, who did not vote. Every Republican but one, Sen. Susan Collins of Maine, voted for him. Democrats raised lots of concerns with Readler, who until recently was President Donald Trump’s acting assistant attorney general for the Justice Department’s civil division. In this role, Readler defended efforts to weaken voting rights, defended Trump’s ban on transgender people serving in the military, defended his ban on people from Muslim-majority countries visiting the United States and argued that a worker can be fired because of his or her sexual orientation. But most of the criticisms by Democrats centered on Readler’s role as a top attorney and policy advisor for the Justice Department when it declined to defend key provisions of the Affordable Care Act in response to a lawsuit filed by Republican state attorneys general. Readler made the legal argument that protections for pre-existing conditions are unconstitutional. The next day, Trump nominated him to be a federal judge.” [HuffPost, 3/6/19]

Wall Street Journal: Senate Confirms Readler “Over Objections About His Participation In The Trump Administration’s Decision To Stop Defending Major Parts Of The Affordable Care Act In Court.” “A divided Senate confirmed a top Justice Department lawyer to be a federal appeals judge Wednesday, over objections about his participation in the Trump administration’s decision to stop defending major parts of the Affordable Care Act in court. The 52-47 Senate vote confirmed Chad Readler for a seat on the Sixth U.S. Circuit Court of Appeals, which hears cases from Kentucky, Michigan, Ohio and Tennessee…Mr. Readler last year signed a Justice Department brief that declined to defend much of the Affordable Care Act against a challenge from a group of Republican-led states seeking to invalidate the health-care law. A Texas judge struck down the entire health-care law in December. That ruling is on hold for now and the case is on appeal.” [Wall Street Journal, 3/6/19]

Politico: Senate Confirms Trump’s Judicial Nominee Who Opposed Obamacare. “The Senate confirmed President Donald Trump’s controversial judicial nominee on Wednesday who supported a lawsuit challenging Obamacare. In a 52-47 vote, the Senate approved Chad Readler’s nomination to the Sixth Circuit Court of Appeals. Republican Sen. Susan Collins of Maine joined Democrats to vote against the nominee. In the lead-up to his confirmation vote, Senate Democrats framed Readler’s confirmation battle as a test for Republicans over whether they supported protecting individuals with pre-existing conditions.” [Politico, 3/6/19]

The Hill: Senate Confirms Controversial Trump Court Pick Who Backed A Lawsuit Challenging The Affordable Care Act. “The Senate on Wednesday confirmed a controversial federal circuit court pick who backed a lawsuit challenging the Affordable Care Act.  Senators voted 52-47 on Chad Readler’s 6th Circuit nomination, with GOP Sen. Susan Collins (Maine) siding with Democrats to oppose him. Readler, who previously worked as an assistant attorney general for the Civil Division at the Department of Justice, ran into controversy over a brief he filed last year supporting a lawsuit filed by Texas and other states seeking to strike down the Affordable Care Act.” [The Hill, 3/6/19]

And Democrats were clear:

Senate Minority Leader Chuck Schumer (D-NY): “Can You Imagine The Lack Of Compassion It Takes To Argue That 130 Million Americans, With Cancers, Respiratory Ailments, All The Way Down To Asthma, Don’t Deserve The Guarantee Of Affordable Health Care?” “‘Can you imagine the lack of compassion it takes to argue that 130 million Americans, with cancers, respiratory ailments, all the way down to asthma, don’t deserve the guarantee of affordable health care?’ asked Senate Minority Leader Chuck Schumer (D-N.Y.). ‘It’s going to be remembered, this vote, for a long time. A long, long time.’” [HuffPost, 3/6/19]

Sen. Joe Manchin (D-WV): Readler “Single-Handedly Tried To Rip Insurance Away From West Virginians And Americans.” “‘This is something I don’t do often,’ Mr. Manchin said. ‘I don’t take it lightly.’ But Mr. Readler, he said, had “single-handedly tried to rip insurance away from West Virginians and Americans” when his Justice Department responsibility was just the opposite. ‘This gentleman has basically shown it is not about the law; it is not about the Constitution; it is about his politics and himself and not a man who should be sitting on a higher court,’ Mr. Manchin said.” [New York Times, 3/6/19]

Sen. Sherrod Brown (D-OH): “Chad Readler Is A Clear And Immediate Threat To The Health Coverage Off Millions And Millions Of Americans Who Have Preexisting Conditions.” “The U.S. Senate on Wednesday confirmed Columbus attorney Chad Readler to be a judge on the Sixth Circuit Court of Appeals over objections from Democrats including U.S. Sen. Sherrod Brown of Ohio, who portrayed Readler as a right-wing idealogue who has ‘actively worked to strip Ohioans of their rights.’ ‘Chad Readler is a clear and immediate threat to the health coverage of millions and millions of Americans who have preexisting conditions,’ Brown said at a Tuesday press conference to decry Readler’s confirmation.” [Cleveland Plain Dealer, 3/6/19]

Washington, DC — Today, the Centers for Medicare and Medicaid Services issued a request for information to gather recommendations on how to sell health insurance across state lines. Leslie Dach, chair of Protect Our Care, issued a statement in response:

“This move by the Trump administration is just another attempt to sabotage health care. The Trump Administration wants to let insurance companies pick the state with the least regulation, and allow insurers to bypass much needed consumer protections. This has nothing to do with choice, competition, or affordability for consumers; it is about increasing profitability for the insurance companies and guaranteeing worse coverage for the rest of us.”

Background:

SELLING ACROSS STATE LINES WOULD BE A “RACE TO THE BOTTOM” THAT UNDERMINES CONSUMER PROTECTIONS

CBO: Selling Across State Lines Would Result In People Living In States With More Consumer Protections To Be Offered Plans From States That Do Not Have Those Protections. “Under H.R. 2355, CBO expects that individual health insurance would be offered across state lines to individuals in states with relatively expensive coverage mandates and rate-setting rules that permit relatively little variation in the prices an insurer may charge. The insurers offering those policies would be licensed in, and regulated by, states that do not have those characteristics.” [Congressional Budget Office, 9/12/05]

Urban Institute: Insurers Would Domicile Firms In States With Lax Regulations And The Least Consumer Protections. “Pre-ACA proposals to permit sales of insurance across state lines would have allowed insurers to take advantage of the regulatory variation across states. The same is true for current proposals to permit such sales while simultaneously repealing all or most of the ACA. Under such a policy scenario, insurers would have powerful financial incentives to domicile firms in states that have little regulation of nongroup insurance markets, such as those without guaranteed issue, those with no limits on premium rating, those permitting liberal use of benefit riders, and so on.” [The Urban Institute, 6/29/16]

NAIC: Allowing The Sale Of Insurance Across State Lines Would “Preempt” Consumer Protections In States. “In the same vein, we strongly oppose legislation that would preempt state authority. We continue to see proposals that would preempt state licensing requirements and, thus, consumer protections by allowing sales across state lines by federal edict, without proper discretion for the states to form compacts between themselves. We also see proposals that would preempt state solvency requirements and regulations by creating federally licensed insurance pools called ‘association health plans.’ Such federal actions would strip states of the ability to protect consumers and create competitive markets and should be rejected.” [NAIC Letter to Reps. Walden, Brady, Pallone and Neal, 1/24/17]

Oregon Department Of Consumer And Business Services Director Pat Allen: “That Really Is A Race To The Bottom.” “Groups such as the National Association of Insurance Commissioners argue that insurers might flock to states with the most-limited requirements for the industry. That could result in some plans carrying cheaper premiums, though more limited coverage. ‘That really is a race to the bottom in terms of what the regulatory playing field looks like,’ said Pat Allen, director of the Department of Consumer and Business Services in Oregon.” [Wall Street Journal, 12/3/16]

Consumers Would Be More Vulnerable Because They Potentially Would Have Limited Ways To Hold Out Of State Insurers Accountable. “Health insurance sales across state lines raise the question of who would enforce the regulations of the state from which coverage is sold. Individuals may not even be aware that they are buying a policy not subject to the laws of their own state. Say an insurer violated the laws or regulations of the state of sale. Insurance regulators in the purchaser’s state would undoubtedly find it difficult, if not impossible, to enforce their laws on an insurer that may not even be licensed to sell coverage in their state. Regulators in the state in which the insurer is domiciled might have insufficient resources and insufficient incentives to protect the residents of another state. Consequently, it is unclear how consumers would have a path for redress if necessary.” [The Urban Institute, 6/29/16]

NAIC: “Allowing Insurance To Be Sold Across State Lines Would Eliminate The Ability Of Insurance Regulators To Assist Consumers.” “Interstate policies would for the first time allow insurers unlicensed in the purchaser’s state to sell health insurance, which would otherwise be a criminal offense. Licensure is the key that allows state regulators to take action to protect consumers. The regulators of one state have no authority to enforce the laws of another state. Instead, consumers will have to hope that the regulator in a distant jurisdiction has the ability and resources to assist consumers nationwide.” [NAIC, accessed 3/6/19]

SELLING ACROSS STATE LINES WOULD TILT INSURANCE TOWARD THE HEALTHY WHILE RAISING COSTS FOR THE SICK

NAIC: “Interstate Sales Would Allow Some Insurers To Cherry-Pick The Best Customers By Avoiding Consumer Protections.” “Interstate sales would allow some insurers to cherry-pick the best customers by avoiding consumer protections that require them to cover individuals with preexisting conditions and limit their ability to charge higher prices for older, sicker customers. In states with robust consumer protections, insurers could reap huge profits by skirting these rules. [NAIC, accessed 3/6/19]

NAIC: “Existing Risk Pools…Would Become Progressively Sicker And More Expensive Until They Ultimately Fail.” “Out-of-state insurers would be able to lure healthy enrollees away from existing risk pools, which would become progressively sicker and more expensive until they ultimately fail. Insurers that currently comply with state consumer protections would be forced by out-of-state competitors to evade them as well. Insurance policies would cover less and less, as insurers try to design policies that discourage the sickest customers from applying. [NAIC, accessed, 3/6/19]

Urban Institute: Selling Across State Lines Would Provide Strong Incentive For Healthy To Purchase Coverage From States With The Fewest Regulations. “Insurers doing so could then selectively sell insurance to just the healthiest, lowest-risk individuals living in states that regulate their markets more strictly. Healthier individuals living in states that require more sharing of health care risk between the healthy and the sick would have a strong financial incentive to buy coverage from these out-of-state insurers, who could charge them low premiums based on their particular characteristics and health experience.” [The Urban Institute, 6/29/16]

Premiums Will Increase For Those Who Purchase Insurance In More Regulated States, Which Would Most Likely Be The Sick. “Consequently, average health care costs would increase significantly for those enrolled in a product meeting the standards of a high-regulation state, making premiums unaffordable for those trying to buy more comprehensive coverage. Premiums would go up not just for sick people but also for relatively healthy people who prefer the more generous coverage in the more regulated market, that is, healthy older adults or families.” [The Urban Institute, 6/29/16]

SELLING ACROSS STATE LINES WOULD LEAD TO EMPLOYERS DROPPING COVERAGE

CBO: Selling Across State Lines Would Result In 1 Million People Losing Their Employer Sponsored Coverage. “Some employers (especially smaller ones) would find it desirable to stop offering coverage to their employees because the insurance available in the individual market had become cheaper. In addition, some people with relatively low health care costs who, under current law, will obtain health insurance coverage through an employer, would choose instead to purchase individual health insurance coverage from an out-of-state insurer. That would increase the per-person cost of the employer’s group health insurance, and would result in additional employers deciding to drop the group coverage. Based on CBO’s analysis of research on the responses of individuals and firms to changes in the price of health insurance, CBO estimates that, if the full effect of H.R. 2355 were realized immediately, about 1 million people—including both employees and covered dependents—would lose employer-sponsored health insurance coverage.” [CBO, 9/12/05]

EVEN CONSERVATIVES SAY SELLING INSURANCE ACROSS STATE LINES WON’T REDUCE COSTS
Heritage Foundation Senior Research Fellow Edmund Haislmaier: “No One Should Be Under The Illusion You Can Dramatically Lower The Cost Of Insurance In Los Angeles If You Buy An Arkansas Policy.” “‘No one should be under the illusion you can dramatically lower the cost of insurance in Los Angeles if you buy an Arkansas policy,’ said Edmund Haislmaier, a senior research fellow at the Heritage Foundation, a conservative think tank.” [Wall Street Journal, 12/3/16]

Washington, DC — Today, Republicans in the United States Senate voted to confirm Chad Readler’s lifetime nomination to the Sixth Circuit of the US Court of Appeals. Readler led the effort in the Trump Justice Department to eliminate protections for pre-existing conditions by filing the brief on behalf of the Trump administration in Texas v. United States. Leslie Dach, chair of Protect Our Care, issued a statement in response to the vote:

“Make no mistake, the Republicans who voted to confirm Chad Readler were voting for full repeal of the Affordable Care Act. Republicans who voted for Chad Readler want to go back to the days where insurance companies could deny, drop or charge more for coverage for millions of people with pre-existing conditions. Readler tried to sabotage the ACA from within the administration, and now that he’s on the court, he will be able to sabotage your care from the bench. It’s clear that Republicans didn’t learn their lesson from the November election and they must be held accountable for giving a anti-health care nominee a lifetime appointment.”

Background:

As Acting Assistant Attorney General, Chad Readler filed a brief on behalf of the Trump administration in Texas v. United States arguing that protections for people with pre-existing conditions under the Affordable Care Act should be struck down. This put the full weight of the Department of Justice behind the Republican war on health care to overturn the entire Affordable Care Act (ACA).  In December, a federal judge ruled in favor of the Republican plaintiffs, striking down the entire ACA. If this ruling is allowed to stand:

• Marketplace tax credits and coverage for 10 million people: GONE.
• Medicaid expansion currently covering 15 million people: GONE.
• Protections for more than 130 million people with pre-existing conditions when they buy coverage on their own: GONE.
• Allowing children to stay on their parents’ insurance until age 26: GONE.
• Free annual wellness exams: GONE.
• Ban on annual and lifetime limits: GONE.
• Ban on insurance discrimination against women: GONE.
• Contraception with no out-of-pocket costs: GONE.
• Limit on out-of-pocket costs: GONE.
• Requirement that insurance companies cover essential benefits like prescription drugs, maternity care, and hospitalization: GONE.
• Improvements to Medicare, including reduced costs for prescription drugs: GONE.
• Closed Medicare prescription drug donut hole: GONE.
• Rules to hold insurance companies accountable: GONE.
• Small business tax credits: GONE.

As the Senate is poised to vote on Chad Readler’s nomination for the Sixth Circuit Court of Appeals, once again Republicans are about to show us where they stand: against Americans with pre-existing conditions and with a Trump administration that is resolved to dismantle the ACA. Readler, who overruled career Justice Department attorneys and filed the brief on behalf of the Trump administration in Texas v. United States arguing in favor of striking down protections for people with pre-existing conditions, is a known health care opponent. From patient groups to doctors, hospitals, and insurance companies, those who know health care the best say that Readler’s position on health care is the worst.

Leading up to the Texas hearing, disease groups, patient groups, doctors and hospitals warned that Readler’s argument to eliminate the Affordable Care Act and its consumer protections would have disastrous consequences:

Joint Statement From Five Disease Groups — American Cancer Society Cancer Action Network, American Diabetes Association, American Heart Association, American Lung Association, and the National Multiple Sclerosis Society: Patients May Be Forced To “Delay, Skip Or Forego Care.” “Should this case be successful, people with cancer, heart disease, diabetes, lung disease and any serious or chronic condition are likely to be denied coverage due to their pre-existing conditions or charged such high premiums because of their health status that they will be unable to afford any coverage that may be offered. Without access to comprehensive coverage patients will be forced to delay, skip or forego care. This was often the case before the law took effect and would likely be the same should these essential protections be eliminated…Striking down these provisions would be catastrophic and have dire consequences for many patients with serious illnesses.” [Joint Statement, 6/8/18]

Joint Statement From Six Provider Groups — American Academy of Family Physicians, American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American College of Physicians, American Osteopathic Association, and American Psychiatric Association: “The Elimination Of These Protections Could Result In Millions Of People Facing Limited Access To Health Care Coverage And Higher Cost As A Result Of Insurers Being Allowed To Return To Discriminatory Coverage And Pricing Practices.” “Our organizations, which represent a combined membership of more than 560,000 physician and medical student members are concerned about the Department of Justice’s decision to not defend the constitutionality of existing laws that extend patient protections to individuals in insurance markets as part of Texas v United States. The elimination of these protections could result in millions of people facing limited access to health care coverage and higher cost as a result of insurers being allowed to return to discriminatory coverage and pricing practices…As physicians who provide a majority of care to individuals for physical and mental conditions, we can speak clearly that these insurance reforms and protections are essential to ensuring that the more than 130 million Americans, especially the more than 31 million individuals between the ages of 55 and 64, who have at least one pre-existing condition are able to secure affordable health care coverage.” [Joint Statement on Texas v. United States, 6/9/18]

American Psychiatric Association: “This Decision Could Lead To Insurers Denying Coverage To The 130 Million Americans With Pre-existing Conditions…Is In The Midst Of An Opioid Epidemic And 30% Rise In Suicide Rates.” “This decision could lead to insurers denying coverage to the 130 million Americans with pre-existing conditions. This is harmful to the health of these Americans and is very short-sighted considering the nation is in the midst of an opioid epidemic and 30% rise in suicide rates.” [American Psychiatric Association, 6/8/18]

The Arc: “Another Example Of The Trump Administration’s Intent To Undermine Access To Health Insurance For Millions Of People With Disabilities.” “The actions of the Department of Justice are another example of the Trump Administration’s intent to undermine access to health insurance for millions of people with disabilities by dismantling the Affordable Care Act.  It exposes the Administration’s intent to eliminate critical protections for people with pre-existing conditions who benefit from provisions in the law that assure access to affordable health insurance. The ongoing attempts to dismantle this law highlight a disturbing disregard, by the Trump Administration, for the needs of people with disabilities who rely on the Affordable Care Act for their health and wellbeing.” [The Arc, 6/8/18]

Brain Injury Association of America: People With Pre-Existing Conditions, Like A Brain Injury, Will Likely Lose Access To Essential Treatment And Rehabilitation. “The Justice Department’s position threatens a core piece of the Patient Protection and Affordable Care Act. If the court agrees, people with pre-existing conditions – like brain injury – will likely be forced to pay higher premiums and ultimately lose access to essential treatment and rehabilitation.” [Brain Injury Association of America, 6/8/18]

Margaret A. Murray, Chief Executive of the Association for Community Affiliated Plans: Anyone Who Has Had “So Much As A Case Of Asthma” Should Be “Deeply Unsettled.” Margaret A. Murray, the chief executive of the Association for Community Affiliated Plans, which represents plans for low-income and vulnerable populations, said that anyone who has bought individual insurance ‘and has had so much as a case of asthma in their past should be deeply unsettled by the choices this administration has made.’” [Washington Post, 6/8/18]

America’s Health Insurance Plans: Administration’s Decision Will Cause Rates To Increase For Older, Sicker Patients. “Zeroing out the individual mandate penalty should not result in striking important consumer protections, such as guaranteed issue and community rating rules that help those with pre-existing conditions. Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019.” [America’s Health Insurance Plans, 6/8/18]

After Judge Reed O’Connor ruled in favor of Readler’s argument,  insurance companies, disease groups, hospitals, and health advocates yet again condemned the position, calling it “misguided and wrong”:

Blue Cross Blue Shield: “We Are Extremely Disappointed In The Court’s Ruling.” “Yesterday’s federal district court ruling in a case challenging the Affordable Care Act is the first step in what we expect will be a lengthy legal process…While we are extremely disappointed in the court’s ruling, we will continue to work with lawmakers on a bipartisan basis to ensure that all Americans can access the consistent, quality health coverage they need and deserve.” [Blue Cross Blue Shield, 12/15/18]

America’s Health Insurance Plans: “The District Court’s Decision Is Misguided And Wrong.” “The district court’s decision is misguided and wrong. This decision denies coverage to more than 100 million Americans, including seniors, veterans, children, people with disabilities, hardworking Americans with low-incomes, young adults on their parents’ plans until age 26, and millions of Americans with pre-existing conditions. We argued in an amicus brief before the court that provisions of the Affordable Care Act (ACA) affecting patients with pre-existing conditions, and those covered by Medicaid and Medicare should remain law regardless of what the court ruled on the individual mandate. Unfortunately, this ruling harms all of these Americans.” [AHIP, 12/14/18]

American Medical Association: “An Unfortunate Step Backward For Our Health System.” “The American Medical Association called the ruling ‘an unfortunate step backward for our health system’ and warned the decision could ‘destabilize health insurance coverage.’ ‘No one wants to go back to the days of 20 percent of the population uninsured and fewer patient protections, but this decision will move us in that direction,’ AMA president Barbara L. McAneny said in a statement.” [CNBC, 12/14/18]

American Federation Of Hospitals: “The Judge Got It Wrong.” “‘The judge got it wrong,’ said Charles N. ‘Chip’ Kahn III, president of the Federation of American Hospitals. ‘This ruling would have a devastating impact on the patients we serve and the nation’s health-care system as a whole. . . . Having this decision come in the closing hours of open enrollment also sows seeds of unnecessary confusion.’” [Washington Post, 12/14/18]

American Hospital Association: “America’s Hospitals And Health Systems Are Extremely Disappointed.” “America’s hospitals and health systems are extremely disappointed with today’s federal district court ruling on the constitutionality of the Affordable Care Act. The ruling puts health coverage at risk for tens of millions of Americans, including those with chronic and pre-existing conditions, while also making it more difficult for hospitals and health systems to provide access to high-quality care…We join others in urging a stay in this decision until a higher court can review it and will continue advocating for protecting patient care and coverage.” [American Hospital Association, 12/14/18]

American Association of Medical Colleges: “This Ruling Puts Millions Of Americans, Including The Most Vulnerable Patients, At Risk.” “Dismantling the ACA will be disastrous for the nation’s health care system. Patients—particularly those with preexisting and complex conditions—require stability and continuity in their care. Without access to affordable meaningful coverage, many would forego or delay necessary medical care. This ruling puts millions of Americans, including the most vulnerable patients, at risk.” [American Association of Medical Colleges, 12/15/18]

Elena Hung, President Of Little Lobbyists: “The Harm Is Done.” “We know the ACA is still the law and nothing changes for now. But the harm is done; you can’t tell us not to worry when our kids’ lives are on the line.” [Elena Hung Twitter, 12/14/18]