The Trump administration argued in district court Tuesday that it was allowed to let people buy short-term plans outside of Obamacare’s rules because they’d done little to disrupt the market and had been allowed for most of Barack Obama’s tenure.
Throughout the oral arguments, D.C. District Court Judge Richard Leon, an appointee of George W. Bush, raised these same arguments, even before the Trump administration presented its position.
“What’s going on here is nothing more than a status quo of what was going on before,” Leon said. By the end of the hearing, he said that he “a lot to chew on” and that he hoped to issue a ruling by the summer.
At the center of the lawsuit, filed in September by patient groups, are short-term health insurance plans, which the Trump administration has promoted as an alternative to Obamacare, which can be prohibitively expensive for people who don’t qualify for subsidies. The administration allows people to buy the short-term plans for just under 12 months and then to renew for a total of three years. In extending the short-term plans, the administration overturned a rule the Obama administration implemented in April 2016 that shortened the time people were allowed to have the plans from 364 days to three months.
The plaintiffs, including patient groups representing people with HIV/AIDS, cancer, and mental illness, sued, saying that people with serious chronic issues would not have access to medical care. Attorney Charles Rothfeld, who represented the plaintiffs in court on Tuesday, said that the Trump administration was undermining Congress’ will in the Affordable Care Act to provide “meaningful, adequate insurance” that would not turn away sick people or charge them more than healthy people and that would cover a range of medical care.
Short-term plans are generally meant to be transitional coverage that people use when they’re between jobs or taking a semester off school.
“It is better for those people to have an alternative versus no alternative,” said Serena Maya Schulz Orloff of the Department of Justice, who was representing the Trump administration.
She argued that people who had left the exchanges were already seeking another form of coverage and that the Trump administration offered them merely one option.
Short-term plans cost roughly half of what Obamacare plans do, though they offer more limited benefits. They can omit coverage for pregnancy, diabetes, cancer, or substance abuse treatment, or they could charge people more who have some of these conditions. Critics argue that people will buy the plans without understanding how limited they are.
Rothfeld said that the plans were not being offered in the same way as they were under the Obama administration because at that time, they were marketed as transitional coverage. Now, he said the Trump administration was offering the plans specifically in competition of Obamacare, a move Rothfeld said would cause healthy, young people to leave Obamacare, a possibility in conflict with what Congress intended when it passed the law.
“The rules allow people to essentially opt out of the Affordable Care Act,” he said.
Leon appeared skeptical of the argument, saying that people could opt out of Obamacare plans anyway, particularly since Congress zeroed out the fine on the uninsured, known as the individual mandate, as part of the 2017 Republican tax overhaul.
It’s unclear what impact the short-term plans have had on causing people to leave Obamacare. Orloff, representing the Department of Justice, said there was “no evidence that [short-term plans] have caused anyone to leave.” She argued that people getting coverage on the exchange wouldn’t be expected to leave if they get subsidies because their plans would be cheaper than short-term plans, which don’t qualify for subsidies. Under Obamacare, some people are paying as little as $ 0 a month in premiums because the federal government picks up the tab.
Leon asked for proof that short-term plans made people leave Obamacare, saying the suit may be premature. He asked the plaintiffs whether it might not be better to let the issue play out for two or three years.
But Rothfeld said “there is no doubt” people are switching from Obamacare plans to short-term plans. Letting people stay in them, he said, was contrary to the Affordable Care Act because was designed to keep as many people as possible in the same risk pool as a way to keep premiums down and cover pre-existing illnesses. Congress hadn’t barred the sale of the plans because they weren’t aware to what extent they would be used, he said.
To that, Leon shot back: “You think the staffers in committees didn’t know about it? They’re steeped in it.”
Former estimates from HHS showed that roughly 200,000 people would leave the exchanges in favor of short-term plans, and the Congressional Budget Office has estimated that 2 million people will enroll in short-term plans, coming from both inside and outside the exchange or from the ranks of the uninsured.
But one open enrollment has occurred since those estimates were released. In the end, only 300,000 people left the exchanges. Other factors could account for the slight drop, including the zeroing out of the fine on the uninsured, or a strong economy that lets people switch from buying their own coverage on Obamacare to getting health insurance through work.
Last week, House Democrats passed a bill to reverse the Trump administration’s rules on short-term plans, but it’s unlikely to be taken up in the GOP-controlled Senate. Democrats have referred to the coverage as “junk” insurance, and when Rothfeld raised the topic of the vote during the hearing, Leon noted that it had been conducted along party lines.
“Isn’t it better they have some options rather than no options?” Leon asked.