Fifth Circuit Decision Threatens Parity and Coverage for Tens of Millions
The threat from a lawsuit attacking the Affordable Care Act (ACA) and mental health and addiction coverage continues after a deeply flawed decision yesterday from the U.S. Court of Appeals for the Fifth Circuit in Texas v. United States. In a 2-1 ruling, the Fifth Circuit ruled that the ACA’s “individual mandate” is unconstitutional and sent the case back to the U.S. District Court for a more thorough analysis on whether other ACA provisions can be severed from the individual mandate. Earlier this year, the same U.S. District Court judge ruled that the entire ACA should be struck down.
Assuming the U.S. District Court does not change this earlier conclusion, which was widely attacked by legal experts across the political spectrum, the results would have a devastating impact on Americans’ access to affordable health care. Individuals with mental health and substance use disorders would be among those hardest hit, given the long history of discrimination against them in health insurance coverage.
Dire consequences of overturning the entire ACA would include:
Millions losing health insurance coverage. According to a Congressional Budget Office estimate, upwards of 27 million people could have lost health insurance coverage by 2020 if Congress had repealed the ACA in 2017. More than 17 million low-income Americans have gained access to health insurance through Medicaid expansion in 32 states and Washington DC. Over 9 million Americans enrolled in the marketplace receive premium tax credits and over 5 million receive cost-sharing reductions. Without the ACA, these remarkable gains would be lost.
Allowing discrimination based on preexisting conditions once again. Under the ACA, individuals with preexisting medical conditions (including mental health and substance use disorders) must be allowed to purchase health insurance like everyone else (called “guaranteed issue”) at the same price (called “community rating”). If overturned, those individuals needing to could once again be rejected, have coverage for their preexisting conditions excluded, or be charged unaffordable premiums.
Crippling efforts to end the opioid crisis. Medicaid expansion has been critical to expanding opioid treatment. For states that expanded Medicaid, opioid-related hospitalizations in which the patient was uninsured fell from 13.4% in 2013 to just 2.9% in 2015. In non-expansion states, this percentage remained steady at about 17%. If Medicaid expansion is undone, the number of people with opioid use disorder who are insured will likely skyrocket. When Kentucky – a state hit hard by the opioid epidemic – expanded Medicaid, there was a 700% increase in Medicaid beneficiaries receiving substance use disorder treatment services. Similarly, unmet need for substance use disorder treatment services decreased 18.3% for Medicaid expansion enrollees, and unmet need for mental health treatment decreased 7.5%.
Undermining parity. The Mental Health Parity and Addiction Equity Act (Federal Parity Law) mandates equal coverage for mental health and addiction care compared to other types of medical care if the health plan covers mental health and addiction services. Because the ACA’s essential health benefits include mental health and addiction treatment services, this expands the reach of the Federal Parity Law. If plans do not include mental health and addiction benefits, parity is meaningless. Before the ACA, 45% of non-group plans did not cover substance use disorder services and 38% did not cover mental health services. Furthermore, benefits for the 17 million Medicaid expansion enrollees must include mental health and substance use disorder services in compliance with the Federal Parity Law. These protections would also be lost if the entire ACA is overturned.
Kicking young adults off their parents’ health plans. Between 2010 and 2013, 2.3 million young adults gained access to health insurance because they were allowed to stay on their parents’ health insurance up until the age of 26. This protection is particularly important for mental health treatment because serious mental illnesses such as schizophrenia often first manifest themselves during these critical years, and early diagnosis and treatment can be critical to improving long-term outcomes. Without insurance, these young people will likely not receive the treatment they need. Their conditions could quickly deteriorate, leading to job loss or homelessness.
Returning to annual and lifetime limits. Under the ACA, all group and non-group plans are prohibited from imposing lifetime or annual limits on benefits. This protection is critical for people with chronic mental health and addiction conditions, which often require long-term treatment. Before the ACA, nearly three out of every five employer-sponsored plans imposed lifetime dollar limits. If the ACA were repealed, nearly 90 million Americans could once again be in plans with lifetime caps.
For an even more comprehensive list of the widespread damage that would be caused by overturning the ACA, see this Kaiser Family Foundation review.
In recognition of the ACA’s critical protections, during the 2017 “repeal and replace” debates, Congress ultimately chose not to repeal the ACA. In fact, as shown in an amicus brief The Kennedy Forum joined with the American Cancer Society and 15 other groups, a bipartisan chorus of members of Congress were emphatic that the ACA’s critical protections should not be repealed without a replacement.
Ironically, the U.S. District Court decision—the same court now charged with providing further justification of its prior decision—would undermine clear Congressional intent by overturning the entire ACA without any replacement. As the amicus brief argued, “By invaliding the ACA in its entirety, the lower court substituted its own judgment for Congress’s policy-based decision, threatening the significant progress the ACA has made in getting patients the medical care they need.”
In the dissenting opinion yesterday, Judge King writes: “Given the breadth of the ACA and the importance of the problems that Congress set out to address, it is simply unfathomable to me that Congress hinged the future of the entire statute on the viability of a single, deliberately unenforceable provision.”
As California Attorney General Xavier Becerra, who is helping to lead the defense of the ACA, pointed out, overturning the ACA “could mean the difference between life and death for so many Americans and their families.”
