Health Care Update: Current Opportunities and Challenges to HIV Care

1. Health Care Update:Current Opportunities and Challenges to HIV Care Robert Greenwald, Professor of Law and Faculty Director Center for Health Law and Policy Innovation Harvard Law School September 2019

2. In Congress, What a Difference a Year Makes 2018 2019 Affordable Care Act Federal Health Care Programs June 19, 2018 May 16, 2018 February 26, 2019 Center for Health Law and Policy Innovation

3. Administration at the Forefront Center for Health Law and Policy Innovation

4. Continuing Shift From Federal to State Authority • Congressional gridlock and Administration policy favors a delegation of authority to state policymakers • States have increasing control over determining health program structure and oversight - from eligibility rules to the coverage of essential health benefits, to enforcement of non-discrimination protections • With more discretion, states have unique opportunities to enact innovative policies and reforms • This also means a return to a more fractured system with heightened state and regional disparities/inequities Center for Health Law and Policy Innovation

5. Successes • Federal Court invalidated Medicaid work requirements in Kentucky, Arkansas and New Hampshire cases • Advocacy in five states (FL, MS, MO, SD and WY) led to approvedballot questions on Medicaid expansion for voters during the upcoming 2020 elections • Advocacy efforts successfully protected Medicare Part D HIV drugs access • Federal Court invalidated rule that allowed private association health insurance plans to discriminate against people with pre-existing conditions • U.S. Court of Appeals for the 3rd Circuit invalidatedrules that sought to expand exceptions to the ACA’s contraceptive mandate Center for Health Law and Policy Innovation

6. 1. Medicaid Demonstration Projects § 1115 of Medicaid Act allows states to apply for waivers from traditional rules • Trump Administration continues to encourage waivers for work requirements, time limits on coverage, lock outs and other onerous rule changes • Most recently, a Trump Administration “leaked guidance” encourages states to implement block grant waivers • Several states have already expressed interest in capping Medicaid funding and instituting eligibility and benefits restrictions “We are fully committed to work requirements and community participation requirements in the Medicaid program. We will continue to litigate, we will continue to approve plans, we are continuing to work with states, and we’ll drive forward.” – Alexander Azar, Secretary of HHS Center for Health Law and Policy Innovation

7. 2. Private Insurance Marketplaces • The Administration is committed to undermining the ACA’s Private Health Insurance Marketplaces • Cutting funding for cost-sharing subsidies • Reducing Marketplace outreach and patient navigation support • Promoting “junk insurance” exempt from ACA access, quality and equity rules • Deferring to states to monitor for discriminatory practices Center for Health Law and Policy Innovation

8. 3. Promotion of Discriminatory Practices • Rewriting ACA non-discrimination rules to deny access to gender affirming care and abortion services • Allowing HIV status to justify family separations at U.S. border • Changing public charge rules that inhibit immigrant populations access to health care and services • Defunding Title X clinics that provide abortion services and referrals • Pursuing efforts to expand religious and moral health care refusal rights Center for Health Law and Policy Innovation

9. 4. Health Care Costs • Despite some efforts to address the high cost of health care little has changed • Leadership is required as vested institutional players will likely not align on meaningful reforms • In the meantime, consumers face: • uninsurance and underinsurance • delays and denials of coverage, often the result of abusive utilization management • Solutions cannot be at the expense of low-income, vulnerable populations • Solutions must secure the future of the community-based HIV infrastructure • Solutions mustensure universal access to high-quality and affordable health care and services that address the social determinants of health Center for Health Law and Policy Innovation

10. 5. Texas v. U.S. • A federal district court ruled that the entire ACA is unlawful, based on a finding that elimination of the individual mandate tax as a part of the 2018 Tax Bill rendered the entire ACA unconstitutional • Currently under appeal to the 5th Circuit Court of Appeals • Cautiously optimistic that the decision will be overturned as severability doctrine requires judges to leave what Congress enacted as undisturbed as possible • When repealing the mandate Congress could have repealed the entire law, but chose not to This case is a significant threat as it is impossible to know what the Appeals Court or U.S. Supreme Court will do! Center for Health Law and Policy Innovation

11. The Path Forward • We have to continue grassroots advocacy and litigation efforts to support sound health laws and policies • To build momentum for 2020, we must work with members of the House to develop a comprehensive reform plan that leaves no one behind • We need to continue to challenge harmful Trump Administration proposals • We need to encourage states to mitigate the harm of Trump proposals and to take advantage of opportunities to promote innovative health reforms Working together to protect and promote high-quality and affordable health care is a goal that advocates can and must win! Center for Health Law and Policy Innovation

12. HIV Health Care Access Pathway Schedule Center for Health Law and Policy Innovation