More #TexasFoldEm fallout: DOJ lawyer resigns in protest, Sen. Alexander plays dumb, alphabet soup of organizations chime in

2019 OPEN ENROLLMENT ENDS (most states)

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Welp. The idiotic #TexasFoldEm lawsuit against the ACA...or more specifically, the Trump Administration's decision to lay down and even join the lawsuit against it--appears to be doing even more damage to the U.S. Justice Department than I had thought:

In addition to three nonpartisan Justice Department attorneys withdrawing from the case just minutes before the government's brief in the case was formally filed (presumably in protest of the decision by their boss), a highly-respected senior attorney with the Department has also resigned in protest:

A highly respected career lawyer at the Justice Department has decided to resign just days after the Trump administration backed a controversial lawsuit that would wreck part of the Affordable Care Act.

Joel McElvain, outgoing assistant director of the federal programs branch, has spent more than 20 years at the department, much of it working on the biggest cases of the day. A former colleague described McElvain to HuffPost as a “really good guy — the type who in any rational or just world would be at DOJ his entire career.”

Another former colleague told The Washington Post, which was first to report the resignation, that the news of McElvain’s departure was a “gut punch.”

Although McElvain has not publicly offered a reason for his resignation, the Post article said that his departure “highlights internal frustration” with the Trump administration’s decision to support a lawsuit from officials in 20 conservative states. That lawsuit, now before a federal district judge in Texas, could wipe out key protections for people with pre-existing conditions.

The response from medical/healthcare groups is equally sharp.

Here's a joint statement from the American Cancer Society, the American Diabetes Association, the American Heart Association, the American Lung Association and the National Multiple Sclerosis Society:

“The decision by the Department of Justice to abandon critical patient protections is devastating for the millions of Americans who suffer from serious illnesses or have preexisting conditions and rely on those protections under current law to obtain life-saving health care.

“Members of Congress on both sides of the aisle have been emphatic that critical protections should not be repealed without a replacement that would ensure patients can continue to have access to care. If the court strikes down these protections, that exact repeal without replace scenario will occur.

“Should this case be successful, people with cancer, heart disease, diabetes, lung disease and any serious or chronic condition are likely to be denied coverage due to their pre-existing conditions or charged such high premiums because of their health status that they will be unable to afford any coverage that may be offered.

“Without access to comprehensive coverage patients will be forced to delay, skip or forego care. This was often the case before the law took effect and would likely be the same should these essential protections be eliminated.

“On behalf of the millions of Americans we represent, we urge the administration to reconsider its position. Striking down these provisions would be catastrophic and have dire consequences for many patients with serious illnesses.”

Here's a joint statement from the American Academy of Family Physicians, the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, the Amercian College of Physicians, the American Osteopathic Association and the American Psychiatric Association:

Our organizations, which represent a combined membership of more than 560,000 physician and medical student members are concerned about the Department of Justice’s decision to not defend the constitutionality of existing laws that extend patient protections to individuals in insurance markets as part of Texas v United States. The elimination of these protections could result in millions of people facing limited access to health care coverage and higher cost as a result of insurers being allowed to return to discriminatory coverage and pricing practices.

Our organizations disagree with the Department of Justice’s decision not to defend the protections established by the Affordable Care Act that prohibit insurance companies from denying or discontinuing coverage for individuals with pre-existing conditions or other factors such as gender or race.

As physicians who provide a majority of care to individuals for physical and mental conditions, we can speak clearly that these insurance reforms and protections are essential to ensuring that the more than 130 million Americans, especially the more than 31 million individuals between the ages of 55 and 64 , who have at least one pre-existing condition are able to secure affordable health care coverage.

We strongly urge the Department of Justice to reconsider its decision in Texas v United States and that we all seek policy solutions that increase access to affordable health care that provides all individuals, regardless of their gender, race, and health status, reasonable protections against discrimination in coverage and pricing.

Meanwhile, Republican Senator Lamar Alexander, who happens to chair the Senate health committee, played dumb yesterday in a formal statement claiming innocence:

“There’s no way Congress is going to repeal protections for people with pre-existing conditions who want to buy health insurance. The Justice Department argument in the Texas case is as far-fetched as any I’ve ever heard. Congress specifically repealed the individual mandate penalty, but I didn’t hear a single senator say that they also thought they were repealing protections for people with pre-existing conditions. In fact, Republicans are seeking to expand insurance options for Americans with pre-existing conditions through a new Department of Labor rule that will make lower cost employer insurance with patient protections available to the self-employed and more employees of small businesses.”

On the one hand, he's probably correct that none of the GOP Senators who voted to repeal the mandate thought they were also voting to repeal guaranteed issue at the time. On the other hand, as I noted yesterday, every one of them (except for John McCain, Susan Collins and Lisa Murkowski) had previously voted to do so indirectly by voting to repeal the ACA's essential health benefits and other provisions which would lead to both guaranteed issue and community rating effectively being repealed as well.

In other words, the only reason they "didn't think" they were effectively voting to repeal guaranteed issue is because they "didn't think" at all.

Furthermore, just about all of them had voted to repeal the ACA exchanges, subsidies and Medicaid expansion back in 2015, which, again, would have effectively caused the guaranteed issue and community rating provisions to be toothless, so again, Alexander is being incredibly disingenuous here:

Republicans on Thursday night achieved something of a milestone in their five-year battle against the Affordable Care Act: They finally passed a bill repealing the law through the United States Senate.

The measure cleared by a narrow, party-line margin of 52-47, and it must still return to the House for a final vote next week. But passage in the Senate means that after dozens of failed tries by Republicans in the House, President Obama will get the opportunity to stamp his veto on a bill eviscerating the law that, in the popular parlance if not in text, bears his name.

...The repeal votes in the House and Senate were, like so many before them, purely symbolic. In an odd twist of the political dynamic in Washington, the only reason Republicans were able to muster the votes to pass it in the Senate was that it stood no chance of becoming law. Because if Obamacare were repealed without a replacement ready, the health-care system would be thrown into chaos, with millions of Americans poised to lose insurance either on the exchanges or from Medicaid. As it is, Democrats plan to target Republican senators up for reelection next year and accuse them of voting to kick needy constituents off Medicaid.

The measure passed by the Senate on Thursday doesn't actually repeal Obamacare in its entirety. ...the bill does not scrap the health law’s provisions allowing parents to keep their children covered under their insurance plans through age 26, or the prohibition on insurers discriminating against people with preexisting conditions, among others. But it does gut the law by eliminating the insurance exchanges and subsidies, and by repealing the Medicaid expansion accepted by 30 states.

The Senate bill is much more robust than a version that passed the House, as Republican leaders tried to prevent defections from conservatives like Senators Ted Cruz and Mike Lee who said it would be meaningless to snip at the law rather than eviscerate it. The measure also defunds Planned Parenthood, but that provision drew protests from centrist Republican Senators Susan Collins, Mark Kirk, and Lisa Murkowski, who failed in their attempt to restore funding by amendment.

Finally, HHS Secretary Alex Azar decided to play "New Phone, Who Dis?" on the issue during a Senate HELP hearing yesterday:

Health and Human Services Secretary Alex Azar told lawmakers Tuesday that he wants to preserve access to affordable insurance for Americans with preexisting medical conditions, but he declined to disclose his view of an administration move that could undercut such consumer protections.

Calling it “a constitutional position . . . not a policy position,” Azar sidestepped grilling on whether he agreed with a legal brief filed last week by Justice Department attorneys stating they would not defend the Affordable Care Act in a federal lawsuit by Texas and 19 other Republican-led states.

During a hearing before the Senate Health, Education, Labor and Pensions Committee that was mainly about the president’s blueprint to address drug prices, Sen. Maggie Hassan (D-N.H.) told Azar that Justice’s legal position is “like some kind of a sick joke.” The administration argues that the ACA’s individual mandate, requiring most people to carry health insurance, will become unconstitutional next year — and, with it, the law’s insurance protections for consumers.

“Will you encourage the Trump administration to change its position?” Hassan challenged Azar, a lawyer and former HHS general counsel.

He replied that “we do believe in finding solutions on the matter of preexisting conditions and the matter of affordability, regardless of the litigation.”