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In a decision that jeopardizes the health care of millions of Americans and the entire Affordable Care Act (ACA), the Fifth Circuit Court of Appeals ruled in Texas v. United States that the ACA’s individual mandate is unconstitutional. The Court remanded the case to the district court to determine how much, if any, of the ACA can remain in force. The Fifth Circuit held that because Congress reduced the penalty for remaining uninsured to $0, the mandate to purchase insurance can no longer be considered a tax, which is what rendered it constitutional according to the Supreme Court (NFIB v. Sebelius). Although it was clear that Congress did not intend to strike down the entire ACA when it eliminated the penalty, the Fifth Circuit relied on unsound reasoning to conclude that many of the ACA’s provisions may not be “severable” from the mandate and therefore must also be dismantled. The Appeals Court ordered the same lower-court judge who struck down the entire law last year to review the ACA’s provisions again to determine which provisions can survive.

The ruling threatens the entire ACA: Protections for pre-existing conditions, the expansion of Medicaid, and, critically for older adults and people with disabilities, many provisions that improved Medicare. The ACA closed the Donut Hole in Part D, saving beneficiaries millions on prescription drugs. It eliminated out-of-pocket costs for preventive services, such as mammograms and diabetes screenings. It extended the solvency of the Part A Trust Fund for many years. Simply put, the ACA is woven into Medicare, including over 165 provisions that help beneficiaries and strengthen the program’s financial well-being. Striking down the ACA would have disastrous ramifications for Medicare beneficiaries and the U.S. health care system as a whole.

The Center for Medicare Advocacy, along with AARP and Justice in Aging, filed an amicus brief in the case highlighting the ACA’s key protections for older adults and the devastating consequences of nullifying the law. In its decision, the Fifth Circuit acknowledged that the Medicare agency would “suffer financially” if the law were struck down because Medicare’s payment schedules would suddenly be unlawful. Nonetheless, the decision recklessly puts the entire ACA law at risk.

While the decision does not change anything for now, as the litigation continues, it leaves a cloud of uncertainty over the entire ACA and all of its critical protections. This attempt at judicial repeal of the Affordable Care Act is dangerous and presents an unacceptable threat to people who rely on Medicare as well as the entire health care system.

December 19, 2019 – A. Bers

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