CHARLESTON, W.Va. — While President Donald Trump has kicked the debate on health care legislation until after the 2020 election cycle, the issue of health care is not going away anytime soon.
The 5th Circuit Court of Appeals is reviewing a December ruling regarding the federal health care law’s constitutionality; a judge ruled in favor of a coalition of states — in which one member is West Virginia — decided “Obamacare” is unconstitutional because of the repeal of the statute’s individual mandate provision in the 2017 tax law.
If the lawsuit is successful, millions of Americans — and thousands of West Virginians — would be at risk of losing their insurance coverage. The law’s provisions allowed state Medicaid exchange programs and enforced protections for covering people with pre-existing conditions.
U.S. Sen. Joe Manchin, D-W.Va., and Senate Democrats have been raising concerns about the lawsuit since last year, introducing resolutions to defend the law.
Sen. Shelley Moore Capito, R-W.Va., however, is not worried about the law’s immediate future.
“If the courts were to strike it down, there wouldn’t be an immediate everybody loses their health care the next day, which is what many people would have you believe because that is frightening to people and rightly so,” she said. “I think we would have a chance to go in and reshape health care and make it better over a period of time.”
Trump, who has argued the Republican Party will become the party of health care, said last week a legislative health care effort will happen after the next election; Republicans could remain in control of the executive branch and Senate, and regain control of the House of Representatives. Trump’s comments came a week after the Department of Justice said it supports the decision by Judge Reed O’Connor of the Northern District of Texas on the constitutionality of the health care law.
A Texas-led coalition of states put forward the lawsuit, arguing the individual mandate is essential to “Obamacare” and its repeal makes the entire law unconstitutional. The Supreme Court is expected to consider the matter after the appeals court’s ruling.
According to the West Virginia Department of Health and Human Resources, more than 160,000 people in the state have insurance coverage through the state’s Medicaid exchange program. The U.S. Census Bureau reported last fall uninsured rates in West Virginia decreased from 14% in 2013 to 5.3% in 2016, although the rate increased to 6.1% in 2017.
Capito, who voted multiple times to repeal and replace “Obamacare,” told MetroNews the final ruling on the law is not coming in the near future.
“I think it will probably take a while to decipher it on the legal merits on whether you can strike the individual penalty and does that strike the entire bill,” she said. “I personally don’t agree with that as legal standing. I think you can sever it and then move forward.”
Capito said Trump’s timing of pushing health care is related to increasing costs and declining access; an analysis from the Kaiser Family Foundation shows premiums in West Virginia rose by 112% between 2014 and 2019.
“We know something has to be done, and I think that is what the president is reflecting,” she said. “We couldn’t repeal and replace it because the replacement part is obviously much more difficult.”
Manchin said he was not caught off guard by the president’s comments.
“He thinks he made a commitment and a promise during his campaign,” he told MetroNews. “Right now, there’s the offset of higher premiums for private-pay individuals that is just absolutely onerous. That can be fixed. You need to take the lead on this, Mr. President, and we’ll call it ‘Trump Repair Care’ because nobody else can fix it unless he takes the lead.”
After the Justice Department last year refused to defend the health care law, Manchin introduced resolutions to get the Senate Legal Counsel involved in legal proceedings. He co-sponsored last week a resolution backed by the Senate Democratic Caucus asking the Justice Department to reverse its most recent decision.
The House of Representatives last week passed a similar resolution; the measure also condemned the Trump administration for working against the health care law. West Virginia’s three representatives — Republicans David McKinley, Alex Mooney and Carol Miller — voted in opposition.
During the 2018 election, Manchin attacked his Republican opponent, state Attorney General Patrick Morrisey, for supporting the lawsuit. Manchin has said if the plaintiffs are successful, 800,000 West Virginians with pre-existing conditions could lose their insurance coverage.
Twenty-one states are appealing the ruling. The Blue Cross Blue Shield Association last week filed a brief supporting the effort.
Manchin and Capito voted in February to confirm William Barr as attorney general, the Justice Department’s head. Manchin said Barr should not be blamed for the department’s support of O’Connor’s ruling.
“He fought the good fight within the administration. He just lost out because the president overrode him. I understand that,” the senator said. “William Barr was not in support of not supporting the ACA.”
Politico reported Health and Human Services Secretary Alex Azar also opposed the Trump administration’s moves against former President Barack Obama’s health care law.
“If I had been here in 2009, I would have fought extremely hard for the changes that I think need to be made now way back then before I would have ever committed to voting for it. That’s not the hand I was dealt,” Manchin said of the current law.
Capito said there are good provisions of “Obamacare” — noting protections for individuals with pre-existing conditions, allowing young adults to stay on their parents’ insurance until the age of 26 years old and removing limits on insurance benefits — yet change needs to happen
“Let’s sell insurance across state lines. Let’s have association health plans,” she said. “On portability, 170 million people have private insurance, but the fear is if they want to change jobs or lose their jobs, they lose their insurance. Let’s make private insurance portable from job to job.”
A federal judge late last month struck down association health plans, which would have allowed small businesses to establish insurance programs to go around “Obamacare.” Capito said she was disappointed in the ruling.
“Another thing that has been looked at is a block-grant approach,” she added. “That gets a lot of pushback, but in the Medicaid space, I think West Virginia is going to be able to tailor a program better. I think we have saved money in our Medicaid program by having more flexibility in the program to tailor those real needs.”
Lawmakers discussed two bipartisan proposals following 2017’s failed repeal and replace efforts; Sens. Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., put forward a plan that included two-years of funding for cost-sharing reduction subsidies and allowing states to use waivers for the health care law’s provisions.
The second plan would have provided more than $2.2 billion for funding a reinsurance program in order to provide insurance for high-cost individuals, which would have limited rate increases for others. The funding would have been for two years.
Maine Sen. Susan Collins, a Republican moderate, introduced the bill with Florida Democrat Bill Nelson, who lost in last year’s election. Manchin said he plans to be the lead cosponsor with Collins in reintroducing the bill, saying rates could fall as much as 40% as a result of the proposal.
The problem, according to Manchin, is Senate Majority Leader Mitch McConnell, R-Ky.; Manchin argued McConnell held the bills from being considered by the last Congress.
“There’s enough support that they will pass,” he said of both measures. “I guess Mitch, collaborating with the White House, decided to make this an issue and just ride this baby all the way through.”
During a hearing last week before the Senate Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, Azar said he would be happy to work with Manchin and Collins on the proposal. Manchin and Capito are subcommittee members.
As the legal proceedings on “Obamacare” continue, Manchin said people who gained insurance because of law’s subsidies or Medicaid expansion should be mandated to go through a managed care system.
“They should be taking classes learning how to keep themselves healthy, learning how to basically buy nutritional food, cook properly and not using the most costly forms of delivering health care by going to emergency rooms,” he said.
Manchin added watching Republicans work for nearly a decade against “Obamacare” has become tiring.
“I’ve never seen anything like it, and they justify it by the politics,” he said. “I thought we were all on the same side, which is team USA. We might have different approaches to fix problems, but God, you should fix the problem.”
Capito, whose seat is up in 2020, said she has fought in favor of other health care programs during her 18 years in Washington, noting her support of Medicare Part D and the Children’s Health Insurance Program. She added lawmakers will continue to discuss ways to improve the current system.
“I’ve got to work hard to reassure West Virginians that whatever changes we would make in health care, what would be front and center is the inclusion of coverage for pre-existing conditions,” she said.
“There are issues that we can improve the system on that we’re going to go to that we’ve talked about and how important they are for me and for West Virginians.”
Mick Mulvaney, the acting White House chief of staff, said on “Fox News Sunday” the Justice Department was right in backing the December ruling. He added a health care proposal should be released “fairly shortly.”