Here at NoHLA, we are drawing up our holiday wish list for policymakers at the federal and state level. Here are our top asks this year:

1. Preserve health reform at the Supreme Court

On November 10th, the Supreme Court heard oral arguments in a case that could affect the health coverage of almost every Washington State resident.  In California v. Texas, a group of red states and the Trump Administration’s Solicitor General have asked the Supreme Court to rule on the constitutionality of the Affordable Care Act (ACA). If the Court were to invalidate the decade-old law, the impact would be devastating – especially during the pandemic when access to health coverage is more critical than ever.  The ACA provides direct coverage to over 23 million Americans, including 765,000 Washington residents enrolled in Medicaid and the state insurance Exchange. As a result, Washington has cut its uninsurance rate in half. And the law’s protections extend even more broadly, preventing insurance companies from denying coverage to people with preexisting conditions, requiring coverage of preventive services, banning lifetime coverage limits, allowing young people to stay on their parents’ plans, and expanding benefits for Medicare enrollees. In addition, the ACA provides critical support to states for health programs: if the ACA were to fall, our state would lose $4.2 billion in annual federal funds. 

Thankfully, there were promising signs during the oral argument that a slim majority of Justices may preserve the core of the Affordable Care Act, potentially by dismissing the case on standing grounds or limiting the impact of any component it finds unconstitutional through severability. Though the Court’s decision isn’t expected until June 2021, we will be monitoring closely and are prepared to react to any outcome. 

2. Repair and improve health reform with the Biden Administration

While we await the Supreme Court’s decision, the Biden-Harris Administration is not waiting to improve the Affordable Care Act. The incoming Administration is already soliciting feedback from health care advocates about opportunities to strengthen the ACA. While many of our asks require Congressional action, here are five administrative changes we’d like to see: 

• Roll back harmful rules that limited coverage. Over the past four years, the Trump Administration has issued a number of rules that have drastically curtailed access to health coverage for immigrants and other groups. As our top priority, we call for the Biden Administration to roll back regulatory changes to the “public charge” doctrine and related executive actions that have created a culture of fear that prevents immigrants from accessing needed health care. These policies have caused lasting damage to the health of immigrants and citizens alike– even those who are eligible for coverage and exempt from the rules have experienced the “chilling effect” we and other advocates anticipated, as in this recent article about pregnant people who have become too afraid to seek prenatal care. The Biden Administration must prioritize swiftly ending public charge and other similarly inhumane policies. 
  
  In other first steps, the new administration should restore previous interpretations of Affordable Care Act consumer protections. The Biden Administration should reinstate a robust interpretation of ACA Section 1557, including protections against nondiscrimination for individuals with limited English proficiency, individuals with disabilities, women, and LGBTQ+ communities. And the Administration should withdraw Association Health Plan, Short-Term Limited Duration, and Section 1332 rules and guidance that encourage a proliferation of “junk” plans in the market. While Washington State has enacted some statutory protections against these rules, and some aspects have been successfully challenged in court, the incoming administration should take steps to roll these rules back on a national level. 
  

• Maintain COVID-related coverage flexibilities, potentially permanently. One of the few silver linings in the COVID-19 pandemic is the flexibility it has afforded federal and state health programs to deliver coverage in a way that maximizes enrollment and care. Under the Families First Coronavirus Response Act, the Centers for Medicare and Medicaid Services have offered unprecedented support for states to maintain continuous enrollment in Medicaid, cover essential services for the uninsured, and offer telehealth services in Medicaid and Medicare. These policies are working to expand and maintain coverage during the pandemic – which raises a question about why we would revert to policies that limit coverage when the pandemic wanes. At minimum, the Biden Administration should reverse recent Interim Final Rules that undermine statutory continuous enrollment provisions. Subsequently, the Biden Administration should consider ways to maintain policies that have expanded coverage after the end of the public health emergency.
   
  
• Encourage states to close gaps in coverage for immigrants and others. As the incoming Administration clears the backlog of damaging Trump-era rules, it should consider proactive steps to offer health coverage to those who were left out of the ACA’s coverage expansions. The pandemic has demonstrated the inequity and foolishness of leaving people uninsured – often those at greatest risk for COVID-19. Even without congressional action, the new Administration could rapidly offer states pathways to maximize federal matching funds if they expand Medicaid coverage,  and give state Exchanges greater ability to improve eligibility, enrollment, and coverage. 
  
  
• Forgive tax reconciliation for subsidized Exchange enrollees. The ACA includes “reconciliation” provisions that require Exchange enrollees to repay advance premium tax credits if they underestimate their income for the year. While these provisions were originally intended as a program integrity measure, they are a liability during the pandemic, as millions of low-income workers across the country who lost jobs or income unpredictably in recent months could face a terrible surprise in their 2020 taxes: hundreds or thousands of dollars owed back to the IRS, on top of the losses they already face. There is precedent for the IRS to offer tax forgiveness in extraordinary circumstances– indeed, the Trump Administration has already authorized tax flexibility for higher income groups in the pandemic. The Biden Administration should explore any legal pathway to do so here, in recognition of the dire financial circumstances many workers faced in 2020. 
  

• Collect data to support a better understanding of health disparities. The pandemic has shone a spotlight on inequity in our health care system. But the data we need to truly address disparities is not yet available. For example, under federal rules, Washington State providers and laboratories are not required to report COVID-19 cases and deaths by specific race/ethnicity categories or languages spoken. That means the state is only collecting COVID-19 disparity data with high-level race/ethnicity categories that do not reflect the diversity of our state, such as “Asian” rather than more detailed sub-categories. While NoHLA and others are advocating for this to change on a state level, the Biden Administration could take steps to expand data collection nationally so that we have a better understanding of the extent of inequality and how we might address it. 

3. Defend against cuts and expand affordability in the State Legislature

Against the backdrop of a dynamic federal landscape, Washington State is headed into one of the most challenging legislative sessions in recent memory. Though the economic and revenue outlook has been on the upswing in recent months, the most recent forecast still shows a shortfall of $1.9B this biennium and $1.6B the next biennium. While there will be difficult decisions ahead, it is our hope that the Governor and Legislature will take cuts to critical health safety net programs off the table, and instead find consensus around investing in the health of Washington State residents. We support the adoption of progressive revenue options to support this investment and strengthen our state’s health care system. 

Earlier this fall, agencies modeled the possibility of a 15% cut to health care programs. The results would be devastating: entirely eliminating health coverage for at-risk immigrant groups (including children, elderly disabled people, and people with end stage renal failure) and severely reducing essential benefits for others (including hospice, long-term care, cancer treatment, adult dental care, maternity-related services, interpreter services, occupational/speech/physical therapies, same-day opioid treatment, and more). These cuts would not only be cruel, they would also be costly over the long term. As we learned during the Great Recession, short-term savings from cuts are soon outweighed by expensive emergency visits due to foregone care, forfeited federal revenue (including the current enhanced Medicaid match), and the administrative costs of dismantling programs (such as changes to eligibility systems or cost-shifting to social services).More recently, we have witnessed the tragic cost of uninsurance when a public health emergency strikes, as communities without reliable coverage, such as immigrant farmworkers in Eastern Washington, skidded to an economic halt as workers succumbed to the pandemic. 

Thankfully, there is growing momentum against these draconian cuts. News coverage has already begun to highlight the absurdity of making cuts to health programs during an ongoing public health emergency, as in this recent article citing NoHLA staff. And NoHLA and many others are calling for new progressive revenue to respond to the most regressive tax code in the country, which would allow the Legislature to both fill the budget shortfall and make proactive investments to address health inequities. In addition to needed public health funding, we will be encouraging the Governor and Legislature to reserve a portion of any new funds to make progress toward universal coverage for those most likely to be uninsured: people whose immigration status has excluded them from federal coverage options, and low-income people who cannot afford individual market coverage available through the Exchange. Stay tuned in next month’s newsletter for more specific recommendations ahead of the legislative session.

–Emily Brice, NoHLA Senior Attorney & Policy Advisor