Health Policy Expert Timothy Jost Anticipates Significant Setbacks With Repeal of ACA

Timothy Jost, Health Law Expert

Mark Masselli: This is Conversations on Healthcare, I am Mark Masselli.

Margaret Flinter: And I am Margaret Flinter.

Mark Masselli: Well, Margaret, the 2017 Congressional Delegation had its official
swearing in, Congress is opened for business and the leadership wasted no time
getting down to the business of voting to repeal, the Affordable Care Act as
promised.

Margaret Flinter: Republic Senator Mike Enzi of Wyoming introduced a
resolution just hours after the new Congress convened that will serve a s the
vehicle to try and repeal much of President Obama’s signature healthcare law.

Mark Masselli: Republicans have to use a budget resolution to undo the
Affordable Care Act, so lawmakers will be able to repeal the parts of the law that
have budget and tax implications.

Margaret Flinter: Essentially they get to gut the law without fully repealing the
entire piece of legislation by removing all the subsidies that are in place to help
low and middle income people buy health insurance.

Mark Masselli: Bu t in the meantime there are still many legal and legislative
questions that need answering. So we invited today’s guest Professor Timothy
Jost to weigh in with us.

Margaret Flinter: Professor Jost is the Emeritus Professor of Law at Washington
Allied Un iversity School of Law. He is a frequent contributor to Health Affairs and
really one of the nation’s leading scholars on health law and health policy.

Mark Masselli: Lori Robertson, also weighs in, the Managing Editor of
FactChecks.org. Always on the hunt from the statement spoken about health
policy in the public domain. But no matter what the topic, you can hear all of her
shows by going to www.chcradio.com .

Margaret Flinter: And as always if you have commen ts, please email us at
[email protected] or find this on Facebook or Twitter because we would
love hearing from you. We will get to our interview with Timothy Jost in just a moment.

Mark Masselli: But first , here is our producer Marianne O’Hare with these weeks,
headline news.
(Music) Marianne O’Hare: I am Marianne O’Hare with the healthcare headlines. As promise the new sworn in Republican control Congress assured in their vision of

Timothy Jost, Health Law Expert

the future, by intro ducing a bill to repeal the Affordable Care Act. The so called
American Healthcare Reform Act of 2017, seems to establish state - based high -
risk pools, increase health savings accounts and allow insurance sales across
state lines. The bill was sponsored b y the Conservative Republican Study
Committee to quote “Rest healthcare out of the hands of Bureaucrats”. There
are other replaced measures emerging from different camps within the GOP,
some from an extreme of repealing the ACA and replacing it with almos t nothing,
other plans from conservative think - tank suggested it would be better to keep
Obama Care intact and replaced portions of the law that aren’t working.

One thing that plans all share in common, the poor are looking at significant loss
of coverage and therefore loss of access to healthcare. One way millions of the
nation’s poor gain access to healthcare is through Planned Parenthood House
Speaker Paul Ryan is put forth a bill that would eliminate hundreds of millions of
dollars in funding, Ryan sa ying the defunding would be fast tracked and go
through as soon as next month, millions of poor Americans gain a wide degree of
health services through Planned Parenthood’s clinics including regular preventive
care, cancer screenings and STD screening and treatment.

Meanwhile, members of the Congressional Democratic Minority are pushing back
on a number of points asking the independent Congressional Ethics Committee,
to look into allegations of HHS secretary nominee Tom Price, who they say
profited of legi slation, he pushed through Congress, the Wall Street Journal last
month reported, Price bought and sold more than $300,000 in stock and about
40 healthcare, pharmaceutical and biomedical companies all the while
sponsoring and advocating legislation that co uld influence those company’s
shares.

In a major health recommendation reversal the National Institute of Health is
giving the okay, for parents of young babies to start introducing peanuts into their
diets to stay off the onset of deadly peanut allergies , study show, low doses of
peanut exposure at a very early age can actually prevent the onset of deadly
peanut allergies which we have seen a dramatic rise in recent decades. Study
showed the best time to exposed children to allergens is when their immune
systems aren’t fully formed, which takes a few years, suggesting, introducing
small amounts of peanut butter into the diets of babies as young as 4 to 6
months old as long as they are eating other solid foods. So want to keep your
little peanut allergy f ree, try peanut dosing during their first year of life.

I am Marianne O’Hare with these healthcare headlines.

(Music)

Mark Masselli: We are speaking today with Timothy Jost, Emeritus Professor of
Law at the Washington and Lee University School of Law, prolific writer and
author of Health Law casebook used widely at many U.S. Law Schools.

Timothy Jost, Health Law Expert

Professor Jost is a frequent blogger for the renowned journal Health Affairs.
Professor Jost is an elected member of the National Academy of Medicine and
the American Society of Law and Medicine here in this J.D. with Honors from the
University of Chicago, welcome back to Conversations on Healthcare.

Timothy Jost: Thank you.

Mark Masselli: You know recent Health Affairs blog, you noted that in wake of
the 2016 elec tion, Obama Care is facing a far more dramatic threat and I am
wondering if you can help our listeners understand the cross roads where we
stand right now.

Timothy Jost: Yes, the Republican leadership in Congress introduced a budget
resolution in the Sen ate that would open the way for repealing many of the
provisions of the Affordable Care Act through a simple majority vote, through the
budget reconciliation process, Congress can move forward with making major
changes in laws and in particular laws that a ffect the revenues or outlays of the
United States government, without having to worry about a filibuster. And so with
that 52 votes that the Republicans have in the Senate in the overwhelming
majority in the House, they could move forward with repeal of the Affordable
Care Act. The Republican Study Committee, a group of conservative
Republicans introduced legislations that would take the country in a radically
different way in terms of healthcare access.

The Republicans have not come together yet but wh en any concrete suggestion
for replacing the Affordable Care Act or for dealing with the 20 to 30 million
Americans who would lose coverage through repeal. So I think we are heading
into a very dangerous time for low and moderate income. Americans who do not
have coverage through their employers and also for Americans with preexisting
conditions.

Margaret Flinter: Professor Jost does feel like déjà vu all over again. You know
back in 2009, we had a House Speaker Nancy Pelosi, on the show she was one
of the legislations chief architects and she took a tremendous amount of heat
from our GOP opponents at the time by saying publicly, for sometimes she have
to pass laws without being entirely sure what’s in them, but it seems like the
same thing is coming to pass with this repeal and replace agenda, very few
details are clear about what the replaced legislation will look like or when it will
happened, so what elements or the law can actually be repealed legislatively as
you said with the budget reconciliation , but with aspects of the law might prove
much harder to dismantle.

Timothy Jost: Well it’s ironic that what Nancy Pelosi actually meant and she has
been very, very widely misquoted on this, was that, once we passed the
legislation, the American people w ould realize all of the good things that were in
the legislation. And what is actually happening now is that we are in a very

Timothy Jost, Health Law Expert

different situation where in fact, we do not know and cannot know what will be in
the replaced legislation because there is no si ngle proposal yet to replace the
Affordable Care Act, the Republicans are nowhere close to coming together.
The Budget Reconciliation Process is a process through which Congress could
address things like the premium tax credits, the Medicaid expansions, t he
individual and employer mandates. It probably could not address things like the
guaranteed issue and guaranteed renewal, the ban on health status, underwriting
the ban on gender underwriting which is very important before the Affordable
Care Act, women almost universally paid more than men for health coverage.

It could not address the ban on preexisting condition exclusions, so any kind of
repeal and replaced based on budget reconciliation is going to have a lot of holes
in it and probably won’t work v ery well. You can’t have a ban on preexisting
condition exclusions that will work if you don’t have the premium tax credits and
some things like the individual mandate. What the republicans are talking about
now is what would be called repealed and delay where they would repeal key
provisions at this point. And then just say, oh let’s wait a couple of years before
we get rid of the premium tax credits and maybe the Medicaid expansion and see
if we can think of something to replace it with.

The problem w ith that is that insurers are not charities and might very well not
stick around for a couple of years to find out what the Republicans come up with.
So I think we are faced with the potential crash of not just the marketplaces but
the entire individual m arket leaving 20 million people without any way of getting
the health insurance coverage.

Mark Masselli: Let’s look at some of the gains under Obama Care and you have
noted that it’s not only the 20 million plus uninsured people that have gained
access, you had some longitudinal data on other gains that have been made, I
am wondering if you can help us understand what some of those gains are that
the typical health consumer might not be aware of.

Timothy Jost: Sure, and I think everybody knows by this p oint that the levels of
the uninsured are rates are now at the lowest levels in history. But many of your
listeners may not know that improvements in hospital care leading to fewer
hospital acquired infections have saved about a 125,000 lives since the AC A was
adopted. And expanded coverage is preventing about 24,000 deaths a year.
National Health Expenditures over the 2010 to 2019 period are projected to be
$2.6 trillion less than the expenditures that were projected just before the ACA
became law.

Cov erage has written for children, young adults and all age levels, all income
levels, all ethnic and racial groups. An expanded coverage has also resulted and
improved access to care, with a share of Americans report, not having received
rd
medical care due to cost dropping by 1/3 since 2010. The burden of
uncompensated care born by hospitals is declined by about one quarters since

Timothy Jost, Health Law Expert

2013. The ACA has also helped people with employee coverage which is the
majority of Americans. The number of employees within annual capital and their
out of pocket cost has increased by $22 million since the ACA has been adopted.
Growth and per employee cost of employer based coverage has fallen to 5.6%
from the decade before the ACA annual growth, to 3.1% since the ACA was
ad opted. And private sector employee has grown continuously since the ACA
was adopted and the fall in the uninsured rate has not negatively influenced job
growth that some had predicted. So there has just been a lot of improvements in
quality of care, in r eduction of the cost of care as well as the dramatic gains and
access.

Margaret Flinter: Well, we recently had Sara Collins from the Commonwealth
Fund on the show and she was outlining some of the dramatic step except could
occur if the repeal goes throu gh as has been proposed by the GOP leaders and
she quoted studies that also show the repeal of Obama Care leading to more
uninsured Americans even then there were prior to the law’s passage. But she
makes the point that the lower - income, vulnerable Americ ans are the most at - risk
in the wake of a repeal, why is it going to target them particularly and what’s the
role that Medicaid plays in all of this.

Timothy Jost: The Medicaid expansions has been very important in expanding
coverage to millions of Ameri cans who previously lacked access to healthcare
and played a very important role in bringing down the uncompensated care
burden of hospitals. The Republican Study Committee proposals would replace
the tax credit with a tax deduction. Now if you are not p aying taxes, a tax
deduction is completely worthless. This is just the flat - out transfer of income,
transfer of access to healthcare from low - income Americans to high - income
American. In addition repealing the tax increases on Americans are any more
than $200,000 a year under the Affordable Care Act would result in literally
hundreds of billions of dollars of tax cuts for high income Americans over 10
years, even $6 tax credits would be essentially worthless to low - income
Americans because they either wou ld not provide enough money to purchase the
health insurance policy or they would only cover up a very, very high deductible
health insurance policy.

I think a lot of people don’t realize however, how many other things were in the
Affordable Care Act, I m ean there were loan and grant programs for people trying
to pursue an education in healthcare. There was expanded funding for
community public health institutions, of course closing the donut hole for seniors
on Medicare. So there is a lot in the Afforda ble Care Act if it were repealed as a
hole that Americans may never have noticed was there but would certainly
noticed that it was gone.

Mark Masselli: We are speaking today with health policy expert Timothy Jost,
Emeritus Professor of Law at the Washing ton and Lee University School of Law
and frequent contributor to the noted publication Health Affairs. You know we

Timothy Jost, Health Law Expert

have certainly have alignment on the repeal and replace side. We have got a
couple of big cases out there in 2015, Judge Collyer ruled that the house
republicans had standing to sue the executive branch over a spending dispute
and that the Obama Care administration had been distributing health subsidies in
violation of the Constitution and I wonder your thoughts about if that ruling is
appall ed/appealed, would we start to see lawsuits on the other side as well.

Timothy Jost: Well the House speaker well, I think is the most immediate threat
to the stability of the individual insurance market in the United States. Judge
Collyer held at severa l billion dollars that have been paid each year to insurers
who are required under the Affordable Care Act to reduce the deductible and co -
insurance and copayments, Judge Collyer held that there have been no
appropriation for those payments and thus we had to stop, the Obama
administration has been vigorously contesting that, the House recently got a
delay in that litigation claiming that the Trump administration may take a different
position and the court should wait until February to find out what the Tru mp
administration’s position was, if the Trump administration agrees with the House
and withdraws the appeal, I think that could in very quick order destroy the
individual market in the United States and the individual market isn't that
important to many o f them and they may have just say, forget it we are leaving
and it certainly wouldn’t come back for 2018. We still have the contraceptive
cases and I would expect that we are now going to see possibly dozens of cases
filed challenging the Trump administra tion.

Margaret Flinter: Right, well professor you talked about the jeopardy of the
Medicaid expansion, the potential privatizing of Medicare, what’s the political risk
when we make the laundry list of all who are likely to be very angry at loss of
benefi ts we have, the denial for preexisting conditions we have, people literally
dying in the streets from opioid overdose and what coverage there is, could
easily slip away, it seems like a potential for enormous political risk.

Timothy Jost: Well that is an issue of concern, I think going shows that a lot of
the lowest - income Americans are simply discouraged and I think a lot of people
also voted for Donald Trump because they really were dissatisfied with the
current political situation and wanted to change but didn’t really believe that he
was going to get rid of the Affordable Care Act under which many of them are
covered. If you look at the things that the administration is talking about doing in
terms of immigration and climate change, judicial appointme nts, they won’t affect
voters over a long period of time.

On the other hand if you cut off someone’s insurance coverage, it’s going to be
day where they realize what’s happened. And so I do think that there could be a
tremendous political backlash, it’s generally accepted that the Democrats really
suffered because of misunderstandings of the Affordable Care Act as much as
what the Affordable Care Act actually did. Now the healthcare system belongs to

Timothy Jost, Health Law Expert

the Republicans and they are going to have to take res ponsibility for all of the
things that are going to go wrong.

Mark Masselli: What do you think there may be some commonality because
clearly, I think everybody admits that it was an imperfect piece of legislation, you
think there is any common ground to be found that chart out for us, areas of
commonality that might find the light of day?

Margaret Flinter: Well, I think that there are actually substantial ground for
working together bipartisanly, the recently adopted Cures Act, the MACRA Act
which was a dopted last year I think across the whole range of issues like
investment and my healthcare research and a quality improvement, in the cost
control, I think there is a lot of common ground. Unfortunately, in the area of
access to healthcare, actually I th ink the country is far less divided than the
political parties are, the recent polling shows that only about a quarter of
Americans want to repeal the Affordable Care Act and almost half want to either
keep it or expand it.

The proposals that we are seein g I think would pretty radically shift the focus of
access from trying to provide access for the lowest income Americans, to trying
to improve and expand on the income of the highest income Americans and I
would say that one of the problems of the Affordab le Care Act is that, it did not do
enough for middle - income Americans whose income was too high to qualify for
the subsidies that it provided. And if a replacement planned provides tax credits
for higher income Americans in the individual market it would probably to some
extent help address that issue. But I think the proposal like this, else Republican
study group that would offer nothing to low - income Americans and a great deal to
high - income Americans is not going to get bipartisan support.

Margaret F linter: We have been speaking today with Timothy Jost, Emeritus
Professor of Law at the Washington and Lee University School of Law. You can
learn more about his work by going to the Health Affairs blog at
www.healthaffairs.org/blog . Professor Jost, thank you so much for joining us
again on Conversations on Healthcare.

Timothy Jost: And thank you very much for inviting me.

(Music)

Mark Masselli: Conversations on Healthcare, we want our audience to be truly in
the ‘No’ when it comes to the facts about healthcare reform and policy, Lori
Robertson is an award - winning journalist and Managing Editor of FactChecks.org
a non - partisan, nonprofit consumer advocate for voters that aim to reduce the
level of dec eption in U.S. politics, Lori, what have you got for us this week?

Timothy Jost, Health Law Expert

Lori Robertson: President elect Donald Trump claimed that former President Bill
Clinton called the Affordable Care Act quote “crazy” and that Minnesota
Governor Mark Dayton said the law “ is no longer affordable”, did they really say
that? Not exactly. Trump made his claim on Twitter to support his arguments
that the Affordable Care Act “doesn’t work” and provides “lousy” healthcare. He
has vowed to repeal and replace the ACA and the Rep ublican controlled
Congress has already taken a step towards repealed. As for Clinton calling the
ACA crazy, the former President made these comments while campaigning for
his wife, but the fuller context shows he wasn’t calling the entire law crazy, and
he was blaming Republicans for refusing to make changes to improve it.

Clinton said that it was “the craziest thing in the world” that those who buy their
own insurance but make too much to get subsidies, were facing escalating
premiums on the individual market. He went on to say that his wife, Hillary
supported allowing those people to buy into Medicare and Medicaid as a way to
fix the problem. Similarly Minnesota Governor Mark Dayton called proposed
individual market rate increases in his date, “severe ” and said “the reality is the
Affordable Care Act is no longer affordable” to increasing numbers of people.

Dayton went on to blame a “totally deadlock” Congress for failing to make
“necessary changes or improvements”. So Trump leaved out key context fr om
both Clintons and Dayton’s remarks to make its point. And that’s my factcheck
for this week, I am Lori Robertson, Managing Editor of FactChecks.org.

Margaret Flinter: FactChecks.org is committed to factual accuracy from the
country’s major political players and is a project of the Annenberg Public Policy
Center at the University of Pennsylvania. If you have a fact that you would like
checked, email us at www.chcradio.com we will have FactCheck.org, Lori
Roberts on, check it out for you, here on Conversations on Healthcare.
(Music) Margaret Flinter: Each week conversations highlights a bright idea about how to make wellness, a part of our communities and to everyday lives. When long time IBM executive Sharon L inder left the corporate world, she thought she would ease into semi - retirement, but then breast cancer diagnosis for her mother and
two sisters shifted her focus. She watched as all three of them went through multiple surgeries and treatments, were in th e ubiquitous Johnny , the hospital
gowns that tie in the back and leave patients often feeling vulnerable and exposed during time when they are also scared and then uncomfortable during their treatments.
Sharon Linder: The hospital gown was never meant to closing the back, it was
meant to make easy for you to go to the Johnny . And so when you put it in the
front, it really doesn’t close.

Timothy Jost, Health Law Expert

Margaret Flinter: The former corporate executive decided that the 1 in 8 women
going through breast cancer treatment needed a power suit of their own to
navigate this challenging experience and she launched her own research project
into which fabrics and which designs, might provide a better alternative to the
standard hospital gown, but wonder for us it would be an eas y addition to
hospital laundering services.

Sharon Linder: Nonstop, so the fabric we came up with, is a waffle leaves fabric
but it’s a knit. So the feel of it is very much like a cotton cashmere.

Margaret Flinter: She called her invention Janes as op posed to Johnny’s,
creating a gown that thousands of users have called comfortable starch and a
vast improvement from their predecessors.

Sharon Linder: It may fit people in a comforting way, it’s you know be you are
totally covered.

Margaret Flinter: And she developed a gown in time for her own cancer
diagnosis.

Sharon Linder: Janes did give me a really a leg up, I think that I felt better about
all of my treatments, just feeling like I looked better.

Margaret Flinter: Janes , a hospital gown design ed for enhancing the female
patient experience providing comfort, dignity, easier access during challenging
procedures, or just providing an easier experience for new breastfeeding
mothers, now that’s a bright idea.

(Music)

Margaret Flinter: This is Con versations on Healthcare, I am Margaret Flinter.

Mark Masselli: And I am Mark Masselli, peace and health.

Conversations on Healthcare broadcast from the campus of WESU at Wesleyan
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