We’re still celebrating the Supreme Court’s decisions regarding health care and marriage equality from last week. But, we’ve also now taken time to evaluate just what these decisions mean—together. In other words, how do the Affordable Care Act and marriage equality interact to shape whether LGBT consumers have access to equitable, affordable, and comprehensive health insurance and health care?

Kaiser Health News predicts that the marriage equality ruling will likely result in more consumers accessing employer-sponsored coverage because they will now be able to rely on their partners’ coverage. In addition to workers gaining coverage from their employers, the answer also lies in special enrollment periods and Medicaid coverage.

  1. Special Enrollment Periods (SEP): After the end of open enrollment, particular qualifying life events enable consumers to enroll in Marketplace coverage—in State Based and Federally-facilitated Marketplaces. One of these qualifying life events is marriage. However, prior to the marriage equality ruling, this left some consumers out of the running. The Federally-facilitated Marketplace could only recognize a same-sex marriage as a SEP so long as the marriage occurred in a state where it was legal. If a couple couldn’t travel to a marriage equality state to get married (place of celebration), and their home state (place of domicile) didn’t allow same sex marriage, they were out of luck, and forced to apply for Marketplace coverage as individuals during the open enrollment period.

    Now, with marriage equality standing as the law of the land, it seems plausible that we’ll see an increase in marriages between same-sex couples, many likely occurring outside of the open enrollment period. So now, regardless of where a same-sex couple resides, their marriage will qualify them for a SEP if it happens outside the open enrollment period. LGBT and consumer health advocates in Georgia have already launched a new “Say ‘I Do’ to Healthcare” campaign to encourage same-sex couples who get married this summer—or any other time outside of the November 1, 2015 to January 31, 2016 open enrollment period—to apply for coverage through a SEP.
     
  2. Medicaid: While the federal Marketplace previously recognized married same-sex couples as eligible for tax credits and Marketplace coverage, the same is not true for Medicaid. Because Medicaid is a shared state and federal program, it was left up to each state to determine if same-sex married couples were eligible to apply for Medicaid coverage together. Not surprisingly, those states that didn’t have marriage equality weren’t likely to allow same-sex couples married in other states to apply for Medicaid together in their home state. However, the Supreme Court’s ruling changes this; same-sex couples in all 50 states should now also be able to apply for Medicaid together.

This doesn’t, however, mean that the fight to close the coverage gap is over. We know that LGBT people, and especially LGBT people of color, are disproportionally lower income. In fact, more than 60 percent of LGBT people with incomes under $47,080 (400 percent of the federal poverty level) would qualify for Medicaid expansion. LGBT people across the country need all state governments to expand their Medicaid programs.

However, sweeping discrimination still exists for many lesbian, gay, bisexual and especially transgender people—in many states, for example, same-sex couples can now get married but can also still be legally fired for their sexual orientation. One way we can begin to counter disparities and discrimination in areas such as health care access, housing, and the workplace is by collecting data on the experiences of LGBT people.

Community Catalyst and the Center for American Progress teamed up to create a compilation of data collection opportunities that advocates can use around the country. For example, advocates can encourage states to begin to include sexual orientation and gender identity questions on their Marketplace applications. Many states also conduct population surveys that should collect LGBT data—for example, the Behavioral Risk Factor Surveillance System (BRFSS) now has a question set on sexual orientation and gender identity that states can choose to use, and in 2014 alone more than 15 states added this question set to their BRFSS questionnaire.

While we continue to celebrate the Supreme Court’s decisions from last week, we know there’s much more work to be done.

Failing to close the gap is a missed opportunity for consumers, hospitals and states. The uninsured rate in the 30 states (including D.C.) that have closed the gap fell from 18 percent to just below 11 percent. States have reaped billions in savings from new revenues and reduced costs of caring for the uninsured. And enrollment in new coverage options has saved hospitals across the country $7.4 billion in uncompensated care costs in 2014 – with hospitals in expansion states reaping double the savings as those in non-expansion states.

With all this evidence of the benefits of covering more people, we’d have to disagree with recent reports that suggest that closing the coverage gap is not helping hospitals’ bottom lines. First of all, it’s important to remember that Medicaid expansion was never intended to be a silver bullet for hospital finances. Nevertheless, evidence so far demonstrates that closing the coverage gap is a precondition for hospitals to thrive financially. This recent study illustrates the wide array of benefits to hospitals of closing the coverage gap:

  • Hospitals in states that have closed the coverage gap saw larger declines in uninsured patients and greater savings in uncompensated care. In expansion states, hospitals saw between a 32 to 72 percent decline in uninsured patients, compared to a 0 percent to 14 percent decline for hospitals in non-expansion states. One hospital system even reported a 40 percent drop in uncompensated care in expansion states compared to a 6 percent increase in non-expansion states.
  • Hospitals in states that closed the coverage gap find it less costly to provide care to poor patients. A study by Modern Healthcare has found that hospitals in expansion states saw a higher average year-over-year revenue increase compared with non-expansion states. And according to one large hospital system (located in 16 states and D.C.), expansion led to an overall decrease in cost of care to the poor as a result of lower uncompensated care and increases in Medicaid revenue from covering more low-income adults.

Likewise, the converse is true – hospitals are more likely to be struggling in states that have not closed the gap. By not covering people who would be eligible for Medicaid under the ACA, hospitals in those states will be vulnerable to federal-level changes to hospital funding. Rural hospitals are especially at risk. Since 2013, 24 rural hospitals have shut down across the nation, and most of those have been in states that have not extended coverage. By closing the gap, these states would boost the number of insured people, reduce uncompensated care costs and help struggling hospitals avoid closing their doors. Closing the gap is an opportunity that should not be missed by state policymakers. 

South Carolina Governor Nikki Haley has called for the removal of the Confederate flag from the State House. Yet, she remains adamantly opposed to accepting the federal dollars set aside to extend Medicaid coverage to low-income South Carolinians. In last week’s New Yorker, former South Carolina state representative and Community Catalyst Board member Anton Gunn points out: “If you take the flag down tomorrow, what is going to substantively change in the lives of black people and people affected by inequality in South Carolina?” 

Last week’s Supreme Court decision on the Affordable Care Act benefits South Carolinians by allowing more than 200,000 of them keep federal tax credits to support their health coverage. However, nearly the same number of South Carolinians fall into the “coverage gap” because of Governor Haley and the legislature’s refusal to expand Medicaid. 

Closing the gap would substantially change the lives of black people in South Carolina. It would provide health coverage to 178,000 uninsured South Carolinians – disproportionately made up of people of color. Nationally, over a quarter of the potential beneficiaries are black. Our Close the Gap campaign is working on closing the coverage gap in the 21 states that have not done so. The racial dynamics of the campaigns cannot be overlooked - most of those states were slave states. Of the states that were part of the Confederacy, only Kentucky and Arkansas have expanded Medicaid. 

We characterized the Close the Gap campaign largely as a struggle of the “Old South” versus the “New South.” Governor Haley’s change of heart regarding the flying the Confederate flag over the Capitol is a victory for the “New South” and could provide a roadmap for how to close the coverage gap in former slave states. Combining moral outrage and grassroots activism with an appreciation of the economics of the situation has changed the political dynamics around the Confederate flag. Five hundred people demonstrated in front of the South Carolina Capitol protesting the flag. Companies like Walmart and E-bay saw the potential impact on their bottom lines and decided to stop selling Confederate flags. Tourists threatened to boycott Charleston.

Closing the coverage gap will require the same combination of moral outrage, grassroots organizing and hard thinking about the economics. But moral outrage over refusing to close the coverage gap is growing, and business groups are increasingly demanding that states accept the federal funds set aside for this coverage. Since the federal government is paying 100 percent of the costs of coverage that will help millions of people and address a long history of inequality, this should be an offer that states such as South Carolina cannot refuse.

... (At least until 2017)

This week the Supreme Court issued a strong decision upholding the availability of federal tax credits in all states regardless of whether health insurance is purchased on a state or federally-operated insurance marketplace. The six-justice majority opined in part:  “We cannot interpret federal statutes to negate their own stated purposes…Congress passed the Affordable Care Act to improve health insurance markets, not destroy them. If at all possible we must interpret the Act in a way that is consistent with the former and avoids the latter.”

The ruling not only commanded a strong majority, but also clarified that the decision to make tax credits available in all states was not subject to possible reinterpretation by a future administration, leaving the ACA on stronger legal footing than it was before the case was heard.

In truth, the burden on plaintiffs was always very high - requiring them to argue persuasively that their interpretation of the statute was the only one possible. We should perhaps be less surprised that they failed than that the case made it to the Supreme Court at all.

In the wake of the decision, political opponents of the ACA ramped up their rhetorical attacks. You would never guess that at least some of them must be secretly pleased. The decision spared them from having to unite disparate factions around an alternative that would shield them from blame for the human tragedies, unraveling insurance markets and economic losses that would have flowed in the wake of an adverse decision while not seeming to be “soft on ACA repeal”. The task was made even more difficult by a recent CBO report reconfirming that repealing the ACA would add to the federal budget deficit. In other words, opponents would have had to undo the ACA without undoing its benefits—either to people or the federal budget. The ruling in favor of Burwell allows opponents to continue to call for “repeal” (something on which they are united) without having to really figure out “replace” (something which divides them) at least until the outcome of the 2016 election is clear.

About that CBO report

ACA supporters cheered the CBO report that showed repealing the law would add to the budget deficit, but there was a nugget for opponents, too. The agency asserted that while repeal would add to the deficit, it would spur economic growth. This is a somewhat curious assumption, although to be fair to CBO, they are just being consistent. The argument is the flip side of the agency’s past finding that the ACA would shrink the total number of work hours, a finding ACA opponents widely mischaracterized by saying that the law would cause layoffs.

The basis of the CBO analysis, in both cases, has to do with the effect of the ACA on the labor market. CBO estimated that a certain number of people who were working only so they could receive health benefits, would leave the workforce once the ACA was implemented, causing a small contraction in the labor force and hence in economic output. The recent report assumes the reverse—that the loss of ACA supported insurance would cause people to reenter the workforce.

OK, I’m not an economist so maybe I am missing something, but this seems like a pretty weak argument to me on two grounds. First, it seems to suggest that the number of job-seekers determines the number of workers. Certainly at full employment, a reduction in labor force participation would be expected to reduce output and an increase would raise it. But we are not at full employment. Counting discouraged workers, we still have more than 10 percent of the workforce unemployed. It’s not clear that more job-seekers would translate into more workers at least until we’ve recouped the job losses created by the financial collapse. We are still more than 2 million jobs short of that mark. Secondly, there would be some significant economic adverse effects to repeal, including reduced purchasing power and more bankruptcies for the newly (re-)uninsured, job losses in the health sector and rising uncompensated care costs. It’s not so clear all that nets out to an economic positive regardless of what the CBO report might say.

Just Kidding

In other ACA related legal news, Governor Rick Scott of FL has dropped his suit against the federal government claiming that they were trying to coerce him into expanding Medicaid by withholding funds for the state’s Hospital Low-Income Pool (LIP). The suit was a meritless political maneuver. Scott consistently misrepresented the federal government’s statement that they would not continue LIP in its current form or at its current funding level, as being in some way contingent on the state’s decision on Medicaid. The bigger question is why coercion would even be needed to persuade the governor of a state with one of the highest uninsurance rates in the country to accept available federal funds to reduce the number of uninsured by as many as 800,000 people. One would think that common sense, not to mention basic decency, would be enough to do the trick given the proven benefits that have flowed to states that have closed the coverage gap.

Signs of summer are everywhere, and while you’re enjoying your iced coffee and reading the news on your front porch it’s hard to miss the overstated headlines predicting where the 2016 proposed health insurance rates will ultimately land. We’ve said it before, and we’ll say it again: keep calm and start making lemonade!

What are the right ingredients for effective advocacy when it comes to rate review? Well, we understand that not every state offers a robust rate review process with opportunity for meaningful public input, but that doesn’t mean your hands are tied. Here are a few suggestions to get you started on your journey to making the most of those lemons:

Contribute to the public conversation

  1. Use these talking points to respond to media inquiries about proposed rates in your state.
  2. Have a conversation with your Department of Insurance (DOI) about proposed rates in your state and ask them to use their authority to push back against unjustified increases.

Weigh in on proposed rates with your DOI

  1. Are there several insurers in your state that stick out as outliers in the spectrum of 2016 proposed rates? If you’re lucky enough to live in a state with a public process for rate review, now is the time to take a look at the outliers and push back against their justifications.
  2. If you live in a state that hasn’t reached Oregon's level of transparency, check out the healthcare.gov rate review website for proposed rates over 10 percent (and in some cases the rates under 10 percent). Think through which plan might be strategic to push back against (i.e. is this a plan that had a larger number of enrollees in 2015?) and write a letter to your DOI.  

Remind your state about federal rate review requirements

Were you unable to find 2016 rates on healthcare.gov or on a state website? It’s worth reminding your state DOI that federal law requires insurers to submit to CMS and the state rate filing justifications for all rate increases. States with an effective rate review program are required to post all of the rate increases over 10 percent, along with certain parts of the rate filing justification, to either a state website or link to CMS’s rate review website. Last, but certainly not least, a state with an effective rate review program must also have a mechanism for receiving public comments on those proposed rate increases posted to their website or CMS’s.

For a more in-depth analysis of how 2016 proposed rates will affect low-cost silver plan options, see the newly released Avalere study.