October 22, 2018

Potential Impact of Texas et al v United States on Persons with Substance Use Disorder

Michael C. Barnes, Stacey L. Worthy, Eric D. Topor, Matthew Itzkowitz and Sean Cheatle, DCBA Law & Policy, Washington, DC

I. Introduction

Substance use disorder (SUD) is significant public health issue in the United States, especially given the nation’s growing opioid, heroin, and fentanyl epidemic.1 Historically, insurance coverage for SUD treatment and services has been restricted, thereby creating a barrier for individuals with SUD to seek the care they need.2 On March 23, 2010, however, the Patient Protection and Affordable Care Act (PPACA) was signed into law, which substantially expanded health insurance coverage for individuals with SUD, including opioid use disorder.3

Yet, recent congressional action combined with pending litigation may significantly upend insurance coverage for individuals with SUD. One of PPACA’s key provisions is the individual mandate, which requires all Americans to pay a penalty if they do not maintain adequate health insurance.4 While initially challenged in 2012, the United States Supreme Court found that the individual mandate was a Constitutional tax.5 On December 22, 2017, President Trump signed into law the Tax Cuts and Jobs Act of 2017 (TCJA),6 which, among other things, zeroed out the individual mandate’s tax penalty, effective in 2019.7

On February 26, 2018, plaintiffs Texas and 19 other states filed suit in the United States District Court for the Northern District of Texas to initiate Texas v. United States.8 The plaintiffs requested that the Court grant injunctive relief, holding that PPACA is unlawful and enjoining its operation.9 They claimed that the individual mandate is now no longer a tax given that the penalty is $0, and is therefore, unconstitutional.10 The plaintiffs further claimed that the rest of PPACA and its accompanying regulations are inseverable from the individual mandate and unconstitutional as well.11 The defendant, the federal government, chose not defend against the plaintiffs’ claims regarding the individual mandate’s constitutionality but did argue that only two of PPACA’s provisions are inseverable from the individual mandate: the guaranteed issue and community rating provision.12 In opposition to the federal government’s position, 16 states and the District of Columbia intervened as defendants in the lawsuit to argue in defense of the constitutionality of PPACA and the severability of the entire PPACA from the individual mandate.13 The guaranteed issue provision requires insurance providers to issue health plans to any applicant regardless of health status or outside factors,14 and the community rating provision prevents health insurers from varying premiums based on health status or other factors.15 As such, these two provisions make up what is commonly referred to as the preexisting condition protections.

If the Court strikes down the individual mandate, the preexisting condition protections, or PPACA as a whole, then individuals with SUD will likely face more difficulties in accessing medications and services, further exacerbating the rate of untreated SUDs in the United States. This outcome could be avoided if instead, the Court  finds the individual mandate is severable from the guaranteed issue and community rating provisions because it was not Congress’s intent to repeal the community rating and guaranteed issue provisions when it passed the TCJA.16

This article provides an overview of the impact that PPACA has had on individuals with SUD, explores four potential outcomes of Texas v. United States and the impact that each outcome would have on persons with SUD, briefly argues why the individual mandate is severable from the rest of PPACA, and makes recommendations on how to protect persons with SUD in the event the Court sides with either the plaintiffs’ or United States’ positions.

II. Background              

SUD affects individuals across all demographics, as well as their families and communities.17 Approximately 21.5 million Americans aged 12 or older have SUD.18 SUD can result in significant impairment and health problems, such as inability to take part in daily activities at work, school, or home;  prevalence of SUD also correlates with infectious diseases, such as HIV and hepatitis C, criminal behavior, low education, and high unemployment.19 The National Institutes of Health estimated that over 72,300 Americans died from a drug overdose in 2017, and the number has been rising more quickly since 2014.20 A recent study concluded that as many as six million Americans have opioid use disorder, of which four million are undiagnosed.21 The total estimated cost of untreated SUD in the United States is $510.8 billion.22

Treatment for SUD has shown to be effective in reducing the impact of the disease as well as the public health burden. Appropriate treatment can reduce the number of overdoses and deaths and can increase productivity.23 Every dollar invested in SUD treatment programs yields a return of between $4 and $7 in increased earnings and decreased drug-related crime, criminal justice costs, and theft.24 Therefore, providing coverage of SUD treatment can not only save lives but also generate significant cost savings.

A. PPACA’s Expansion of Substance Use Disorder Health Insurance Coverage

Prior to the enactment of PPACA, health insurers in both public and private plans routinely denied coverage to individuals with SUD.25 Health plans discriminated against individuals with SUD on the basis of preexisting condition by either excluding them from coverage (pushing them into high risk pools) or limiting access to treatment and services through the use of higher copayments, annual visit limits, and overly burdensome prior authorization requirements.26

In contrast, PPACA and its implementing regulations significantly expanded insurance coverage and access for individuals with SUD in several ways.27 Of relevance to Texas v. United States, the guaranteed issue provision of PPACA requires health insurers to “accept every employer and individual in the State that applies for coverage,” regardless of preexisting conditions.28 PPACA also prohibits insurers from charging higher premiums based on health condition through the community rating provision.29 Therefore, insurers may no longer exclude individuals with SUD from coverage or charge them more based on their conditions.

Section 1557 of PPACA and its implementing regulation prohibit federal health programs and private insurers that accept any form of federal funding from discriminating on the basis of disability, including by using their formulary designs in a discriminatory manner.30 Given that SUD may be considered a disability, this provision is applicable to SUD.31 Therefore, such plans cannot use benefit utilization management policies pertaining to their formulary design, such as prior authorization, in a discriminatory manner toward individuals with SUD.

PPACA also requires treatment coverage for SUD.32 In particular, PPACA requires small group plans, individual plans, and Medicaid alternative benefit packages (ABPs) to cover SUD services, prescription medications, and preventive care as essential health benefits (EHBs).33 PPACA also caps annual out-of-pocket costs for health plan enrollees and prohibits individual plans, small group plans, and ABPs from putting yearly or lifetime dollar limits on the coverage of EHBs, including for SUD services.34 PPACA additionally allowed states to expand Medicaid coverage to all uninsured adults under the age of 65 with incomes up to 133 percent of the federal poverty level.

Finally, PPACA and its implementing regulations expanded federal parity protections.35 In 2008, Congress passed the Mental Health Parity and Addiction Equity Act (MHPAEA), which mandated parity in insurance coverage between mental health (MH)/SUD and medical/surgical services, including both treatment limitations and financial requirements.36 However, the MHPAEA only applied to privately insured large group plans that voluntarily offered coverage of MH/SUD benefits.37 PPACA expanded the MH/SUD parity protections in MHPAEA to individual and small group plans.38 In 2016, the Centers for Medicare & Medicaid Services (CMS) promulgated a rule which expanded parity protections to Medicaid managed care organizations, Medicaid ABPs, and the Children’s Health Insurance Program (CHIP) as well.39

As a result of these protections, PPACA expanded coverage to nearly 1.6 million Americans with SUD through Medicaid expansion alone.40  

B. Challenges to the Individual Mandate

The constitutionality of PPACA’s individual mandate has long been a point of contention. Pursuant to section 5000A of PPACA (i.e., the individual mandate), all Americans must either maintain a minimum level of health insurance (referred to as “minimum essential coverage”) year round or pay a tax penalty.41

In 2012, the provision came under the scrutiny of the Supreme Court of the United States in the landmark case, National Federation of Independent Business, et al. v. Sebelius.42 In Sebelius, a collection of states, individuals, and the National Federation of Independent Business argued that PPACA as a whole was unconstitutional because, among other arguments, Congress exceeded its enumerated powers under the Commerce Clause by requiring the individual mandate.43 Under the Commerce Clause, Congress has the authority to regulate economic activity that has a substantial effect on the interstate commerce of the country as a whole.44 In Sebelius, the plaintiffs argued that the individual mandate exceeded this power because the Commerce Clause does not allow Congress to compel individuals to participate in commerce.45

Conversely, the defendant United States argued, among other things, that the individual mandate was a tax, and therefore within Congress’ constitutional power to “lay and collect taxes.”46 Speaking on behalf of the Supreme Court, Chief Justice John Roberts agreed with the defendant, thereby upholding the individual mandate.47 Although the Court addressed the issue of severability, it was in connection with the expansion of Medicaid. Since the Court found the individual mandate constitutional, the severability of that provision was moot, and the question went unanswered by the Court.48

In 2017, Congress enacted the TCJA, which modified the individual mandate by removing the pecuniary tax on individuals who fail to obtain adequate health care insurance.49 The TCJA amended Section 5000A(c) of PPACA, the provision that levies a tax penalty on Americans without adequate insurance, by lowering the monetary exaction imposed to $0.50 The TCJA, however, left the individual mandate’s requirement to maintain minimum essential coverage under Section 5000A(a) intact.51 Therefore, while all Americans are still required to have health insurance, there is no penalty if they fail to comply with the provision. After removing the tax penalty, the issue of the individual mandate’s constitutionality once again arose in Texas v. United States.

III. Texas v. United States and the Severability Arguments

Congressional intent is the cornerstone of the severability doctrine. If a single provision is rendered unenforceable, “[u]nder current Supreme Court doctrine, a court must offer its best guess on what Congress would have wanted for the rest of the statute.”52 In Texas v. United States,the plaintiffs assert that the TCJA makes the individual mandate unconstitutional.53 The plaintiffs argue that under the plain text interpretation of PPACA, there is a legal mandate to obtain insurance, but that the mandate can no longer be interpreted as a tax because it will not raise any revenue to pay off any debts. Therefore, the individual mandate no longer meets the standards for constitutionality as set forth in Sebelius.54 The defendant United States similarly asserts that the individual mandate is no longer constitutional.55 The parties and the amici, however, differ on whether the remainder of PPACA is severable from the individual mandate, and therefore, unconstitutional as well.

A. The Plaintiffs’ Argument on Severability

According to the plaintiffs, the individual mandate is the focal point of PPACA, and is inseverable from the remainder of PPACA.56 Congressional intent was clear that the absence of the individual mandate would undercut PPACA’s functionality as a whole.57 The goals of PPACA were to “achieve[] near-universal [health insurance] coverage,” “lower health insurance premiums,” and “creat[e] effective health insurance markets.”58 The plaintiffs further argue that without the individual mandate, coverage will decrease, premiums will increase, and markets will become irrational.59 As such, the plaintiffs contend that a functioning individual mandate was essential, and without it, PPACA as a whole is unlawful.60

B. The United States’ Argument on Severability

The defendant argues that only the guaranteed issue and community rating provisions, rather than PPACA in its entirety, are inseverable from the individual mandate.61 Employing Murphy v. NCAA, the United States contends that it must be “evident that Congress would not have enacted those provisions which are within its power, independently of those which are not.”62 Citing to King v. Burwell, the defendant notes that Congress has already found that the guaranteed issue and community rating requirements fail without the individual mandate.63 More specifically, Congress stated that “if there was no individual mandate, many Americans would wait to purchase health insurance until they [developed an illness or condition requiring] care.”64 Congress further stated that the individual mandate “is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.”65 Therefore, without the individual mandate in place, the guaranteed issue and community-rating provisions would allow sick individuals to effectively “game the system” by waiting to buy health insurance until they need it, which would increase the overall price of insurance; the opposite of Congress’s intent when it enacted PPACA.66

The United States posits that congressional intent also illustrates that PPACA’s other major provisions are, in fact, severable.67 Relying on United States v. Booker, the United States argues that provisions are severable if they can independently function “consistent with Congress’ basic objectives in enacting the statute.”68 The United States argues that the plaintiffs failed to show that PPACA “ceases to implement any coherent federal policy” without the individual mandate, instead relying on a “chain of speculative hypotheticals which are not strong enough to justify invalidating other parts of the ACA” and its regulations.69 Rather, PPACA expanded health insurance coverage through several federal regulations, including Medicaid expansion and creation of health insurance exchanges, which can operate independently of the individual mandate and consistently with Congress’ intent.70

C. Amicus Arguments Against Severability

Five law professors: Jonathan H. Adler, Nicholas Bagley, Abbe R. Gluck, Ilya Somin, and Kevin C. Walsh, (amici) submitted an amicus brief to the Court in Texas v. United States in which they argue that Congress clearly intended that the individual mandate be severable from the remainder of PPACA.71 The amici note that the TCJA amended PPACA by eliminating only the tax penalty provision; however, Congress left the community rating and guaranteed issue provisions intact.72 In doing so, Congress “eliminated any need to examine earlier legislative findings or to theorize about what Congress would have wanted.”73

The amici also argue that the plaintiffs and the United States look to the wrong Congress in their hypothetical arguments on Congressional intent.74 The amici argue that, with respect to severability, the intent of the 111th Congress, which passed PPACA in 2010, was irrelevant.75 Instead, it was the intent of the 115th Congress in 2017 that removed the individual mandate’s penalty, but amended no other provision of PPACA, which was relevant to the question of severability.76 Therefore, the crux of the amici’s argument is that the 115th Congress’s intent in modifying PPACA through the TCJA is clearly evidenced by the TCJA’s elimination of the individual mandate’s tax penalty only, while leaving the remainder of PPACA intact.77 As such, even if the Court rules that the individual mandate is unconstitutional, the amici argue that both the guaranteed issue and community rating provisions are severable.78

D. Intervenor Arguments Against Severability

On April 9, 2018, 16 states and the District of Columbia filed a motion to intervene in Texas v. United States, and on May 16, 2018, the Court granted the intervenors’ motion.79 In their opposition brief, the intervenors argue that the individual mandate should not be deemed unconstitutional because it is still a tax even if it does not continuously produce revenue.80 If the Court determines that the individual mandate is unconstitutional, however, then “the proper remedy is to strike the [TCJA] amendment and revert back to the prior statutory provision.”81 Moreover, the intervenors raise the same argument as the amici that it is the intent of the 115th Congress, which enacted the TCJA, that is at issue, and therefore, given that Congress left the remainder of PPACA intact in the TCJA, congressional intent was not to find any other portion of PPACA inseverable.82 Finally, the intervenors argue that the plaintiffs will suffer no irreparable injury in absence of injunctive relief because it is “perfectly lawful for them to pay a tax of $0 instead of obtaining ACA-compliant insurance,” whereas the harm to the defendant states is significant.83 The defendant states could lose over half a trillion dollars in federal funds for healthcare; six million residents would lose access to Medicaid; residents would lose billions of dollars in tax credits for health insurance subsidies; and millions with preexisting conditions would be unable to purchase affordable health insurance.84

IV. Analysis

In Texas v. United States, the Court could make one of four foreseeable rulings with respect to severability. First, the Court could uphold the zero-penalty individual mandate as constitutional, and PPACA could otherwise remain intact, consistent with the intervenors’ argument. Second, the Court could deem the zero-penalty individual mandate unconstitutional but determine the guaranteed issue and community rating provisions to be severable from the mandate and, therefore, valid and binding, consistent with the intervenors’ and amici’s arguments. Third, the Court could side with the United States and conclude that the zero-penalty individual mandate is unconstitutional, the guaranteed issue and community rating provisions are not severable from the mandate, and therefore, all three are invalid and nonbinding. Finally, the Court could decide that the zero-penalty individual mandate is unconstitutional, and the entire remainder of PPACA is invalid and nonbinding, consistent with the plaintiffs' position that PPACA would not function in a manner consistent with congressional intent without the individual mandate. The likely impacts of these four foreseeable scenarios on people with SUD are briefly analyzed below.

A. The No-Penalty Individual Mandate Is Constitutional or the No-Penalty Individual Mandate Is Unconstitutional but the Community Rating and Guaranteed Issue Provisions Are Severable

Given that Congress has already eliminated the individual mandate’s tax penalty when it passed the TCJA, there is likely to be no further impact on individuals with SUD if the Court 1) upholds the constitutionality of the zero-penalty individual mandate; or 2) deems the individual mandate to be unconstitutional yet determines that the guaranteed issue and community rating provisions are severable.

By zeroing out the individual mandate’s tax penalty, significantly fewer Americans are expected to obtain health insurance.85 Many of the younger, healthier individuals who enrolled in health insurance plans simply to avoid the tax penalty are now expected to decline coverage.86 These individuals who used relatively little to no health services had previously offset the revenue insurers used to pay for high healthcare utilizers, including many individuals with SUD.87 Therefore, without as many young and healthy plan enrollees to offset costs, premiums are likely to increase for individuals with SUD who do obtain coverage. In fact, the Congressional Budget Office estimates that the loss of the individual mandate will increase annual health insurance premiums of nongroup health insurance plans by 10 percent.88

If only the individual mandate were to be invalidated, however, preexisting condition protections would still remain in place, as would essential health benefits, parity protections, and other provisions that expanded coverage and access to SUD treatment. Therefore, while all individuals signed up for healthcare may pay more in premiums and out-of-pocket costs, individuals with SUD could not be excluded from coverage or charged more solely based on their health condition.  

B. The No-Penalty Individual Mandate Is Invalid and the Community Rating and Guaranteed Issue Provisions Are Inseverable

If the Court deems the zero-penalty individual mandate invalid and the guaranteed issue and community rating provisions inseverable, as argued by the plaintiffs and the United States, then the 21.5 million Americans with SUD89 may experience difficulties obtaining health insurance coverage and accessing treatment, similarly to their experiences prior to the enactment of PPACA. 

Striking down the guaranteed issue and community rating provisions would place millions of Americans with SUD at risk of losing access to critical treatments and services because insurers could exclude them from coverage or charge them more based on their preexisting condition. Moreover, eliminating the guaranteed issue and community rating provisions of PPACA but leaving the rest of PPACA protections in place could result in more people being rejected from health plans than in pre-PPACA days. If insurers are still required to cover EHBs and cannot limit the amount they will spend per patient, then they may simply reject plan enrollees who are expensive to cover, such as those with SUD, altogether.90 This would hamper the country’s response to the opioid, heroin, and fentanyl epidemic.91 People with SUD may forego treatment because it is cost-prohibitive, thereby putting them at risk for further substance abuse and overdose.

C. Effects of Finding the Entire PPACA Inseverable

If the Court finds that the individual mandate is unconstitutional and further that the entire PPACA is inseverable from the invalidated provision, then persons with SUD with small or individual plans or covered through Medicaid expansion stand to lose coverage and parity protections for SUD treatment.92 Insurers could exclude those with SUD from coverage on the basis of their preexisting condition or charge such individuals higher premiums. In addition, without EHB requirements, individual and small group plan insurers would no longer be required to provide coverage of SUD treatments and services, or plans may subject such coverage to lifetime benefit limits. PPACA’s prohibition on arbitrary withdrawals of coverage by insurers during plan years would be eliminated as well, exposing persons undergoing treatment for SUD to sudden losses of coverage. There would be no annual cap on out-of-pocket costs. Furthermore, plans would not be required to cover SUD treatment on par with medical/surgical benefits.

As a result of PPACA being invalidated, millions of Americans with SUDs would lose their insurance or be required to pay significantly more for their treatments and services.93 Even minor increases in the cost of treatments and services have been directly tied to lack of adherence to a treatment plan.94 Individuals who cannot afford their treatment risk relapse, overdose, and death.95

V. Recommendations

The loss of PPACA protections would have significant negative consequences for an estimated 52 million Americans with a preexisting condition, including those with SUD.96 Given the wide-reaching public harm that would result, the Court should not grant the plaintiffs’ injunction to enjoin PPACA in its entirety and should instead rule in favor of the intervenors. Similarly, states and the federal government can enact legislation to restore some of the protections stripped away by a potential court ruling.

A. The Court

The Court in Texas v. United States should adopt the argument put forth by the intervenors that the zeroed-out penalty does not make the individual mandate unconstitutional, or if it is unconstitutional, that the proper remedy is to undo the TCJA amendment. Alternatively, it should adopt the arguments of the intervenors and the amici that the individual mandate is severable from the rest of PPACA. The amici present a compelling argument that Congress intended the individual mandate to be severable from the remainder of PPACA by enacting legislation which accomplished that specific action. Further, while analysis above has shown that the loss of the individual mandate will lead to fewer healthy enrollees in PPACA plans and rising premiums, that is not evidence of the inability of the remainder of PPACA to function without the individual mandate. Sparing these protections, and the entire PPACA, from elimination would create the least disruption in the treatment of persons with SUD.

B. The States

Since the effect of PPACA’s individual mandate has been nullified by the TCJA, state governments should respond by enacting their own penalty for individuals who are not enrolled in health insurance to prevent large-scale coverage losses and rate increases.

Several states have already taken this step. Massachusetts has found success with its own individual mandate, enacted in 2006,97 which helped achieve an insurance coverage rate of 97.2 percent.98 Massachusetts also saw average individual market premiums decrease 23.3 percent relative to other states from 2004 levels following the mandate’s enforcement, and an 8.7 percent decrease in average annual claims cost per enrollee relative to other states.99 New Jersey enacted its own individual mandate requirement in May 2018 (effective on Jan. 1, 2019),100 and has an insurance coverage rate of 92.3 percent.101 The District of Columbia enacted an individual mandate provision set to take effect in 2019, as well,102 with 96.8 percent of its residents covered as of 2017.103 Vermont, with an insurance coverage rate of 95.4,104 has also enacted an individual mandate statute, due to go into effect in 2020, although the associated enforcement provisions and penalty have not been passed yet.105

State legislatures could also insulate their residents from the loss of the community rating and guaranteed issue provisions, or even the loss of  PPACA, should the Court in Texas v. United States adopt either the plaintiffs’ or the United States’ position on severability. Strong state laws that replicate PPACA’s individual mandate, as well as the PPACA provisions guaranteeing coverage for individuals with preexisting conditions, coverage of EHBs, parity laws, and expanded dependent coverage can reduce insurance market instability and increase coverage quality. Expanded coverage for SUD treatment has been most pronounced in states that have passed legislation supporting access to SUD treatment.106

C. Congress

The loss of the individual mandate was the result of an act of Congress through the TCJA. However, a new Congress will be inaugurated in 2019 and could enact strong incentives for Americans to purchase health insurance and increase market participation, especially by younger, healthier people. A new Congress could make restoring the individual mandate a priority, as well as enact laws that reinstate any of PPACA’s consumer protections that are deemed inseverable from the individual mandate by the Texas v. United States Court. Restoring any PPACA consumer protections lost as a result of the TCJA and Texas v. United States litigation would help ensure that persons with SUD receive necessary treatment and prevent the opioid overdose crisis from worsening.

VI. Conclusion

The United States is in the midst of a national opioid, heroin, and fentanyl epidemic. Any reduction in PPACA coverage or its patient protections will have dire consequences for millions of Americans with SUD. The legal issues before the Court in Texas v. United States create questions for all Americans, but especially for people with SUD. Any of the four potential outcomes of the case have some level of detrimental effects on people with SUD, but the Court can mitigate the effects of the elimination of the tax penalty by looking to congressional intent.

Further erosion of PPACA beyond the loss of the individual mandate would impose a significant stumbling block on federal, state, and local governments, along with private treatment providers seeking solutions to respond to the opioid, heroin, and fentanyl epidemic. If PPACA consumer protections for insurance coverage are lost and cannot be directly replaced, states and Congress will need to consider other novel approaches to increase SUD treatment options and availability to stem the overdose crisis, although indirect legislative solutions may not be as effective at providing SUD coverage existing insurance pathways.   

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Michael C. Barnes, Esq. is a partner at DCBA Law & Policy. His practice is focused heavily on public policy, corporate responsibility, and regulatory compliance in the areas of healthcare and drug safety. He previously served as confidential counsel in the White House Office of National Drug Control Policy under President George W. Bush. He obtained his Juris Doctorate from the George Mason University School of Law.  He may be reached at mbarnes@dcbalaw.com.

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Stacey L. Worthy, Esq. is a partner at DCBA Law & Policy. She provides counsel to healthcare programs and providers specializing in addiction medicine, small businesses, and nonprofit organizations in various aspects of their legal, regulatory, and business affairs. She obtained her Juris Doctorate from the George Mason University School of Law.  She may be reached at sworthy@dcbalaw.com.

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Eric D. Topor, Esq. is an associate attorney at DCBA Law & Policy, and provides research, analysis, and strategic insight on matters of healthcare and business law and policy. He previously was a legal editor at Bloomberg Law reporting extensively on healthcare law. He received his Juris Doctorate from the College of William & Mary School of Law.  He may be reached at etopor@dcbalaw.com.

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Matthew Itzkowitz is a Law Clerk at DCBA Law & Policy and Juris Doctor Candidate, May 2020, American University Washington College of Law; B.S. Health Sciences, University of South Florida.

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Sean Cheatle is a Law Clerk at DCBA Law & Policy and Juris Doctor Candidate, May 2020, Duke University School of Law; M.A. and B.A., University of North Carolina at Chapel Hill.

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1

Amanda J. Abraham et al., The Affordable Care Act Transformation of Substance Use Disorder Treatment, 107 Am J Public Health 31, 31 (2017).

2

Id.

3

Sheryl Gay Stolberg & Robert Pear, Obama Signs Health Care Overhaul Bill, With a Flourish, N.Y. Times (Mar. 23, 2010), https://www.nytimes.com/2010/03/24/health/policy/24health.html?mtrref=www.google.com.

4

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 574 (2012).

5

Id.

6

Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, 131 Stat. 2054 (2017).

7

Tax Cuts and Jobs Act of 2017 § 11081.

8

Compl. at 1, Texas v. United States, No. 4:18-cv-00167-O (N.D. Tex. filed Feb. 26, 2018).

9

Id. at 5.

10

Id. at 2.

11

Id. at 2-3.

12

Fed. Defs.’ Resp. Mem. at 9, 12, Texas v. United States, No. 4:18-cv-00167-O (N.D. Tex. filed June 7, 2018).

13

Intervenor-Defs.’ Br, Opp’n at 16-39, Texas v. United States, No. 4:18-cv-00167-O (N.D. Tex. filed June 7, 2018).

14

The Henry J. Kaiser Family Foundation, Health Insurance Market Reforms: Guaranteed Issue 1-4 (2012), https://www.kff.org/health-reform/fact-sheet/health-insurance-market-reforms-guaranteed-issue/ (last accessed July 24, 2018).

15

U.S. Centers for Medicare & Medicaid Services, Community Rating, https://www.healthcare.gov/glossary/community-rating/ (last accessed July 24, 2018).

16

Br. Amici Curiae Jonathan H. Adler, Nicholas Bagley, Abbe R. Gluck, Ilya Somin, and Kevin C. Walsh. in Supp. of Intervenors-Defs.’ Opp’n to Pls.’ Appl., at 4, Texas v. United States, No. 4:18-cv-00167-O (N.D. Tex. filed June 14, 2018).

17

Rachel N. Lipari & Struther L. Van Horn, Trends in Substance Use Disorders Among Adult Aged 18 or Older, Substance Abuse and Mental Health Services Admin. (June 29, 2017), https://www.samhsa.gov/data/sites/default/files/report_2790/ShortReport-2790.html.

18

Id.

19

Id.

20

Nat’l Inst. On Drug Abuse, Overdose Death Rates (Aug. 2018), https://www.drugabuse.gov/related-topics/trends-statistics/overdose-death-rates.

21

Sarun Charumilind et al., Why We Need Bolder Action to Combat the Opioid Epidemic, McKinsey&Company (September 2018), https://healthcare.mckinsey.com/sites/default/files/Why-we-need-bolder-action-to-combat-the-opioid-epidemic.pdf.

22

Id.

23

Corwin N. Rhyan, The Potential Societal Benefit of Eliminating Opioid Overdoes, Deaths, and Substance Use Disorders Exceeds $95 Billion Per Year 1 (2017), https://altarum.org/sites/default/files/uploaded-publication-files/Research-Brief_Opioid-Epidemic-Economic-Burden.pdf.

24

Nat’l Inst. On Drug Abuse, Principles of Drug Addiction Treatment: A Research-Based Guide 13-14 (3d ed. 2012), https://d14rmgtrwzf5a.cloudfront.net/sites/default/files/675-principles-of-drug-addiction-treatment-a-research-based-guide-third-edition.pdf.

25

Dania Palanker et al., Deregulating the Individual Market and the Impact on Mental Health Coverage 2 (2018).

26

Abraham, supra note 1, at 31 (discussing the transformation of substance use disorder treatment since the implementation of PPACA).

27

Id.

28

Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1201, 124 Stat. 119 (2010).

29

Id.

30

Id. § 1557.

31

Pinka Chatterji & Ellen Meara, Consequences of Eliminating Federal Disability Benefits for Substance Abusers 29 J. Health Econ. 226 (2010). A literature review found similarities between SUD and diabetes, hypertension, and asthma in disease diagnosis, environmental and genetic factors, adherence to treatment, personal choice, and relapse. SUD “introduces significant and lasting changes in brain chemistry and function,” and should be treated and evaluated as a chronic illness. A. Thomas McLellan, Drug Dependence, a Chronic Medical Illness

32

Abraham, supra note 1, at 31.

33

42 U.S.C. § 18022(b)(1)(A)-(J) (2010). A Medicaid alternative benefit package is a health plan offered to Medicaid beneficiaries (instead of traditional Medicaid) that provides coverage equivalent to one of several specified benchmark plans. U.S. Centers for Medicare & Medicaid Services, Deficit Reduction Act Important Facts for State Policymakers, https://www.cms.gov/Regulations-and-Guidance/Legislation/DeficitReductionAct/downloads/Flexibility.pdf, (last accessed Sept. 19, 2018).

34

Id. § 300gg-11; Jane B. Wishner, How Repealing and Replacing the ACA Could Reduce Access to Mental Health and Substance Use Disorder Treatment and Parity Protections, Timely Analysis of Immediate Health Policy Issues, Urban Institute, June 2017, at 3, https://www.urban.org/sites/default/files/publication/90791/2001305-how-repealing-and-replacing-the-aca-could-reduce-access-to-mental-health-and-substance-use-disorder-treatment-and-parity-protections.pdf.

35

42 U.S.C. § 1396u-7(b)(6) (2010).

36

Kirsten Beronio et al., Affordable Care Act Will Expand Mental health and Substance Use Disorder Benefits and Parity Protections for 62 Million Americans, U.S. Department of Health and Human Services (2013), https://aspe.hhs.gov/report/affordable-care-act-expands-mental-health-and-substance-use-disorder-benefits-and-federal-parity-protections-62-million-americans.

37

Id.

38

42 U.S.C. § 1396u-7(b)(6) (2010).

39

Medicaid and Children’s Health Insurance Programs; Mental Health Parity and Addiction Equity Act of 2008; the Application of Mental Health Parity Requirements to Coverage Offered by Medicaid Managed Care Organizations, the Children’s Health Insurance Program (CHIP), and Alternative Benefit Plans, 81 Fed. Reg. 18390 (Mar. 30, 2016) (Final Rule).

40

Abraham, supra note 1, at 31.  

41

26 U.S.C. § 5000A (2010).

42

Nat’l Fed’n of Indep. Bus., 567 U.S. 530-31 (2012).

43

Id. At 540.

44

See U.S. Const. art. I, § 8, cl. 3; see also United States v. Lopez, 514 U.S. 549, 559 (1995).

45

Nat’l Fed’n of Indep. Bus., 567 U.S. at 552, 554-55.

46

U.S. Const. art. I, § 8, cl. 1; Nat’l Fed’n of Indep. Bus. 567 U.S. at 537, 547.

47

Nat’l Fed’n of Indep. Bus., 567 U.S. at 564.

48

Id. at 586.

49

Tax Cuts and Jobs Act of 2017, § 11081(a)(2)(A).

50

Id.

51

Id. (absence of new language).

52

Br. of Johnathan H. Adler et al., supra note 16, at 4.

53

Compl., supra note 8, at 2.

54

Id. at 2-3.

55

Fed. Defs.’ Resp. Mem., supra note 12, at 2.

56

Compl., supra note 8, at 4.

57

Id. (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 – 685 (1987)).

58

See Id. at 4-5 (citing 42 U.S.C. § 18091(2) (2010).

59

Id. at 5.

60

Id.

61

Fed. Defs.’ Resp. Mem., supra note 12, at 9, 12.

62

Fed. Defs.’ Resp. Mem., supra note 12, at 12; See Murphy v. NCAA, 138 S. Ct. 1461, 1482 (2018).

63

Fed. Defs.’ Resp. Mem., supra note 12, at 13.

64

Id. (citing to 42 U.S.C. § 18091(2)(I) (2010)).

65

Id.

66

Id. at 13-14.

67

Id. at 12.

68

Id. at 16; see United States v. Booker, 543 U.S. 220, 258-59 (2005).

69

Fed. Defs.’ Resp. Mem., supra note 12 at 17-18.

70

Id.

71

Br. for Jonathan H. Adler et al., supra note 16, at 4.

72

Id. at 6.

73

Id. at 8.

74

Id. at 8.

75

Id. at 8.

76

Id. at 8.

77

Id. at 4, 10.

78

Id.

79

Mot. Intervene and Mem. Supp. Thereof at 1, Texas v. United States, No. 4:18-cv-00167-O (N.D. Tex. filed Apr. 9, 2018); Intervenor-Defs.’ Br, Opp’n, supra note 13 at 1.

80

Id. at 15.

81

Id. at 15.

82

Id.

83

Id

 

84

Id. at 15-16.

85

Congressional Budget Office, Repealing the Individual Health Insurance Mandate: An Updated Estimate (2017), https://www.cbo.gov/system/files/115th-congress-2017-2018/reports/53300-individualmandate.pdf (last accessed July 24, 2018).

86

Id.

87

Christine Eibner and Sarah Nowak, The Effect of Eliminating the Individual Mandate Penalty and the Role of Behavioral Factors, The Commonwealth Fund (July 11, 2018), https://www.commonwealthfund.org/publications/fund-reports/2018/jul/eliminating-individual-mandate-penalty-behavioral-factors; Zack Sigel, Here’s How Much Your Premiums Will Increase Without Obamacare, PolicyGenius (June 6, 2018), https://www.policygenius.com/blog/heres-how-much-your-premiums-will-increase-without-obamacare/.

88

Congressional Budget Office, supra note 85, at 1.

89

Lipari & Van Horn, supra note 17.

90

Sigel, supra note 87; Margot Sanger-Katz, The New Obamacare Lawsuit Could Undo Far More Than Protections for Pre-existing Conditions, N.Y. Times (June 12, 2018), https://www.nytimes.com/2018/06/12/upshot/the-new-obamacare-lawsuit-could-undo-far-more-than-protections-for-pre-existing-conditions.html.

91

Wishner, supra note 34, at 1.

92

Id.

93

Id. at 4.

94

Michael T. Eaddy et al., How Patient Cost-Sharing Trends Affect Adherence and Outcomes; 31 Pharmacy and Therapeutics 45, 48-50 (2012) (summarizing literature that indicates this trend).

95

Suzanne Gelber Rinaldo & David W. Rinaldo, State Medicaid Coverage and Authorization Requirements for Opioid Dependence Medications, American Society of Addiction Medicine 4 (2013).

96

Preexisting patient conditions cited as reasons for declined insurance applications prior to PPACA include cardiovascular disease, Hepatitis C, renal disease, cancer, and a variety of other chronic diseases. The loss of PPACA insurance protections for individuals with SUD would come at a particularly inopportune time as the overdose deaths rise annually. Gary Claxton et al., Pre-existing Conditions and Medical Underwriting in the Individual Insurance Market Prior to the ACA, Kaiser Family Found. (Dec. 12, 2016), https://www.kff.org/health-reform/issue-brief/pre-existing-conditions-and-medical-underwriting-in-the-individual-insurance-market-prior-to-the-aca/. See also note 20.

97

Mass. Gen. Laws ch. 111M §2.

98

United States Census Bureau, U.S. Dep’t of Com., P60-264, Health Insurance Coverage in the United States: 2017 25 (2018).

99

Martin B. Hackmann et al., Adverse Selection and an Individual Mandate: When Theory Meets Practice, 105 Am. Econ. Rev. 1030 (2015).

100

N.J.S.A. 54A:11-1, et seq.; Katie Jennings, New Jersey Will Become Second State to Enact Individual Health Insurance Mandate, Politico (May 31, 2018), https://www.politico.com/states/new-jersey/story/2018/05/30/new-jersey-becomes-second-state-to-adopt-individual-health-insurance-mandate-442183.

101

United States Census Bureau, U.S. Dep’t of Com., P60-264, Health Insurance Coverage in the United States: 2017 25 (2018).

102

D.C. Code § 47-5102.

103

 United States Census Bureau, U.S. Dep’t of Com., P60-264, Health Insurance Coverage in the United States: 2017 25 (2018).

104

United States Census Bureau, U.S. Dep’t of Com., P60-264, Health Insurance Coverage in the United States: 2017 25 (2018).

105

Vt. Stat. Ann. tit. 32, §10452; Jennings, supra note 100.

106

Rhode Island, Oregon, and Maine saw the biggest average gains in percentages of persons accessing SUD treatment in the three years following enactment of full parity laws (amending those previously offering partial parity), while states that did not enhance their parity laws during that time period observed declines in SUD treatment. Hefei Wen et al., State Parity Laws and Access to Treatment for Substance Use Disorder in the United States: Implications for Federal Parity Legislation, 70 JAMA Psychiatry 1355, 1362 (2013).