John Blomster: Welcome to 红桃视频, a UW School of Law podcast where we discuss today's biggest legal topics with the law school鈥檚 distinguished guests and experts from around the world. I'm John Blomster. And today we are diving into all things ACA with Joan Altman, director of government affairs and strategic partnerships at the Washington Health Benefit Exchange. Joan has spent her career breaking down barriers to access to health care services, work that includes extensive efforts serving underserved and low-income communities. Since earning her JD from 红桃视频, a true Law Dawg through and through, she has served in a number of key leadership roles at the Washington Health Benefit Exchange. As many of our listeners know firsthand, the exchange is responsible for the operation of Washington Health Plan Finder, the online marketplace for individuals and families to find, compare and enroll in health plans, dental plans and Washington Apple Health.
She recently joined the law school for a special panel on the recent Supreme Court case California v. Texas, which was the first major challenge to the Affordable Care Act since the appointment of the court鈥檚 newest justice. We will be discussing the case in detail with an eye toward what the future holds. And we're thrilled to get rolling. So, Joan, thank you very much for taking the time to speak with us,
Joan Altman: John, thanks so much for having me. And thanks for that wonderful introduction. I'm glad you got in proud class of 2012 graduate.
JB: Absolutely, absolutely. All right. Well, first off, could you just talk a little bit about what the Washington Health Benefit Exchange is and the kind of role that you are playing there currently?
JA: Sure, I'd love to. The Washington Health Benefit Exchange, we're an interesting breed in Washington, we are a quasi-state agency. So, we were created by the legislature in 2011 to stand up the Affordable Care Act in Washington. Washington elected to create its own state-based marketplace, which is the exchange. It also elected to expand Medicaid. And so the Washington Health Benefit Exchange, which runs Washington Health Plan Finder, is the portal to implement both of those main policy initiatives. We enroll people in the Medicaid program, John, as you mentioned, and also into private health and dental plans. So, currently, we're in our eighth open enrollment period now, which is hard to imagine it's been that long since we started. From November 1 to January 15, people can enroll and enroll now in health coverage options. We're trying to let as many people know, as possible, what their options are, given the given the pandemic.
JB: How many Washingtonians does the Health Benefit Exchange serve? And as you just touched on how has the COVID-19 pandemic had any impact on those numbers?
JA: The Washington Health Benefit Exchange serves, we're nearing 2 million people. So, over one in four residents in the state are currently using Washington Health Plan Finder to get their health coverage. That's over 1.5 million are enrolling in Medicaid. And that's an area where we've seen over 100,000 more people and growing come in as people are impacted by job loss and reduction in hours and furlough. We're seeing more people qualify for the subsidized state program, Washington Apple Health. And we think by the end of the pandemic, that number, maybe up near 2 million.
We've also seen we have about 200,000 residents who enroll in private coverage through the exchange. And again, we've seen that number increase. But we've also seen more people kind of shift into Medicaid as a result. So, we haven't seen similar鈥攚e've seen spikes in activity, but resulting enrollment has stayed pretty similar. I would say with COVID, you know, Washington was one of the states that was obviously first hit by COVID. We were the first state-based marketplace in the country to open a special enrollment period for residents who were uninsured as a result of the pandemic and we saw massive numbers of people come in. We saw more new customers, so people had never used our services before we saw younger customers. And we also saw more black, indigenous, people of color come in as a result of the pandemic. So, we've been working pretty closely with colleagues across state government to reach as many people as possible, notably people who are losing, losing employment and continue to lose their employment over the pandemic.
JB: Were you surprised at all in the midst of the pandemic to see yet another challenge to the Affordable Care Act, trying to dismantle it, despite the fact that more people than ever need these kinds of services right now?
JA: Yeah, that's a great question. I would say the timing certainly hasn't made our job to do outreach and enroll as many people as possible easier. We are consistently sharing through our social media outlets and our communications channels and our marketing and outreach campaigns. You know, the ACA is still the law of the land, that you can still come in and get insurance, that it's still important to have insurance and so there have been some messaging challenges.
Surprised? No. I would say we've been here, we've been here before. I had never been in a job that has so consistently faced existential threats the entirety of the time that I've been in it. So, I will say, you know, the Affordable Care Act鈥攎ost challenge statute in American history, you know, over 200,000 lawsuits have been filed. The first were filed, I think minutes literally, after the bill passed in 2010. And with this most recent challenge, you know, it had been in the works since 2018. So, you know, no one could have predicted the pandemic, at the time that this lawsuit was brought and working its way through the lower courts. But you know, the one thing that we know about the Affordable Care Act, the only predictable thing about all the litigation is that it will continue. You know, we've seen, I think, seven Supreme Court cases over the past decade on this. And given where things are headed, it's unlikely that that will cease until Congress sort of takes further action to clarify intent, and to sort of shore it up.
JB: Yeah, despite all of the lawsuits and the Supreme Court cases, like you said, the ACA is still the law of the land. What has made it so resilient in light of all these different attacks for different angles, targeting different parts of the law?
JA: It has been surprisingly resilient I think ever since the passage in 2010. I think part of that is just because it has been so politicized. And because, you know, you've seen repeal and replace be a major focus in 2014, both with the congressional election, and then again, in November 2016, there was sort of discussion of repeal and replace pretty continuously. And then you sort of saw some of the challenge, right? I think it's this whole healthcare is complicated, who would have thought it was so complicated kind of dialogue that came up. You saw Republican House leadership work really hard to get their version of a replacement bill passed in May of 2017. And they had to work hard, despite a pretty significant Republican majorities in the house. And then, you know, it sort of frustrated people鈥攆rustrated conservative moderates, you know, it sort of frustrated people on both ends of the political spectrum. Some people thought it wasn't conservative enough. And then other people, moderates were more concerned about the Congressional Budget Office, projecting that 22 million people would be uninsured as a result of that bill. So, it wasn't surprising when it moved from the house over to the Senate, that the Senate with a smaller majority, were unable to pass their own version.
So, I think you've seen some challenges along. You've seen executive branch challenges. You've seen congressional branch challenges, and you've seen judicial challenges. You've seen it challenged in every pathway, that that it could and I think, because it's so large, because it is so complicated, because there are a lot of dependencies within the law a lot of different legal strategies have been tried. And you know, there have been some successes, but for the most part, the bill has sort of remained intact in its core. I think people have been really surprised by the resiliency. I think there's a lot of contributing factors. I would say that there hasn't been鈥攊t's become so politicized has been a barrier, it seems, in Congress to move in any kind of reforms forward, because you've seen such a split ideologically in the bill. And in the content of the bill. I think from a judicial perspective, you've seen strategies to overturn the whole thing. You've seen strategies sort of death by 1000 cuts. People have tried a lot of different, a lot of different ways to make substantive changes through the judiciary. And I think largely people have sort of defaulted to Congress to make those types of changes.
JB: So let's talk about the latest case. California v. Texas was heard on November 10. And again, as we mentioned, in the opening, it was the first major challenge to the ACA since the appointment of Amy Coney Barrett. Let's just talk about that. What were the issues that this case raised, but what were the arguments?
JA: There were essentially three main issues that are the most talked about with regard to the case. First, which is a little bit of a sleeper issue, but after oral arguments I wouldn't sleep on it too much is the issue of whether the plaintiffs in the case have standing to sue. So, this is an issue where it's not a done deal. This case, if there's a potential that it gets decided on standing, and there were some questions and some comments made during oral arguments that indicated the newest justice was part of that questioning, questioning sort of whether people had had any standing in the lawsuit to begin with. So, first issue standing.
Second issue: is the individual mandate constitutional? And third issue, if the mandate is unconstitutional, whether the rest of the Affordable Care Act can be severed and still stand? Or if the whole Affordable Care Act has to fall, if the individual mandate piece is found unconstitutional. And I think the ranges of potential outcomes to the state of Washington and otherwise really vary here. If the plaintiffs don't have standing to sue, then the ACA as it exists today, remains in effect.
If there is standing and you move to whether the individual mandate, which was amended at the end of 2017. So, we talked about there were sort of this continuing to repeal and replace effort. When those efforts failed and toward the end of 2017 you had the Tax Cuts and JOBS Act, which reduced the individual mandate penalty to zero. So, once that bill passed, you had lawsuits filed right at the beginning of 2018, almost immediately to say wait a second, you know, under previous litigation, you upheld this as a tax. If there is a $0 penalty this can't stand. So, if they find that the individual mandate, as it stands today with zero penalty is constitutional, then the ACA, as it exists today largely remains in effect, because we have an Affordable Care Act with a mandate, but without a penalty now.
So, the third is where it gets more interesting, which is I think most people have significant concern about is that if you got to the third issue, and you said, the individual mandate is unconstitutional, can it be severed from the rest of the ACA? That's where you know if yes, it can be severed. Again, the ACA continues without a mandate, which is very functionally similar to what we have today. And if it can't, you're talking about significant consequences in the state of Washington and otherwise, if you try to unwind a 2,000 page piece of healthcare legislation,
JB: Yeah, that sounds like an absolute nightmare to sort through. 2020 is probably the worst time to ask a question about predicting outcomes. I wouldn't be surprised by anything these days. But you know, you live and breathe this world every single day. Where do you think the case is going? What do you think the possible most likely outcome is, given what you know about the facts of the case, but then also given, you know, the history of the issues raised around and how the court has behaved in the past on this?
JA: Yeah, that's a great question. Well, we're all sort of anxiously waiting to see what the official court decision is here. We'll be waiting likely at least until spring, if not till right up till the end of the summer when their term ends. I think most sort of legal scholars and academicians and people who followed this would sort of expect because of how oral arguments went that if you get past standing, and even if a majority were to find that the individual mandate is unconstitutional, that the court will decide that the rest of the Affordable Care Act can stay as it is. And I think that's mostly because of questions that Justice Roberts and justice Kavanaugh posed in the hearing that suggests that it would be upheld even if the mandate were to fall. And I think that would be consistent with some of the other cases we've seen this summer where justice Kavanaugh, in particularly, in writing for some of the majority opinions has said, 鈥渓ooking at other laws, telecommunications laws and other types of areas that you can sever you know, just because someone chair the board, maybe you get rid of him, but the rest of the board of jurisprudence around telecoms could stand.鈥 So, I think we've seen some precedent from him. And I think there's also just the words that they spoke in the hearing were pretty definitive.
You know, justices don't always tip their hand that strongly, but you had a lot of justices weigh in. And, you know, I think Roberts said, 鈥淚 think it's hard for you to argue that Congress intended the entire act to fall, if the mandate were struck down when the same Congress lowered that penalty to zero, and did not even try to repeal the rest of the Act. I think, frankly, that they wanted the court to do that, but that's not our job.鈥 So, I think, you know, that's a pretty definitive statement coming from Chief Justice Roberts. I think Kavanaugh also had a line where he said, 鈥渋t does seem fairly clear that the proper remedy would be to sever the mandate and to leave the rest of the act in place.鈥
JB: Oh, wow.
JA: And I think one more, if you want, is Justice Alito asked how the court, 鈥渃ould justify declaring the individual mandate is essential when it hasn't even been in effect for two years.鈥 So, he said in the early days of the ACA, quote, 鈥渢here was strong reason to believe that the individual mandate was like a part of an airplane that was essential to keep the plane flying, but now the part has been taken out and the plane has not crashed.鈥 So, I think you see some pretty strong indication from at least five justices on the court that if the mandate were to be found unconstitutional, that they did reach that on its merits that the rest of the Affordable Care Act will stand.
JB: That is extremely strong language. Like you say, that's a bit unusual. So, I guess we will see in the spring and hopefully, if not, in the summer.
JA: Well and John I will say the other thing I would add there is that we may鈥攖here's, again, we sort of mentioned there's, you know, the executive, the judicial and the congressional and you have things and movement on all three tracks on this issue, which makes it one of the more exciting for people who like to geek out in health law and health policy, but we're also watching this presidential transition, and we're watching the congressional transition. And so there are several actions Congress could take, before or after the Supreme Court ruling to address the content of this case, right? So, they could鈥攁t issue is this $0 penalty. So, they could Congress could go in and increase the penalty from zero to some nominal amount, so that it functions as a tax. And that they could do that via budget reconciliation with a simple majority in each chamber. So, that would sort of moot the issue in the case that it's a $0 penalty, and therefore not a tax. Just go in and make it a tax.
The other thing they could do is include language that makes it very clear that their intent was to be able to sever this part of the law. So, that would likely take more votes, this would be sort of a 60-vote, filibuster-proof majority in the Senate, which could be hard to come by, but you could do it. And then the third, they could just go in and remove the mandate themselves from the law. You know, there's a Nicholas Bagley, a law professor, has sort of talked about this as saving and severing and sinking the mandate. So, they could go in and sink the mandate, and just remove it all. And so it's not even an issue. So, you could see Congress take some activity here, which is why all eyes are toward Georgia and their special election to sort of see whether the Senate, whether there'll be a 50-50 tie or whether republicans will maintain the majority.
And the only other thing I'd add is that, you know, we're also on the executive side watching to see what will happen with the change in administration. So, the Biden administration could choose to come in and defend the Affordable Care Act. You know, it's obviously after oral arguments. So, it could be largely symbolic there. But it could be less symbolic in other cases where the Trump administration's actively pursuing litigation in a lot of areas in other parts of the ACA, like the contraceptive mandate, and some other sort of pieces. So, we'll see some positioning here, as things shift that could sort of the new incoming administration could take some immediate and longer-term actions to bolster the ACA, through rulemaking and guidance, as well. We also could see more executive actions come down from now running up until the inauguration, so it continues to be an area that people are watching pretty closely.
JB: Like you said, I mean, health law is one of the most exciting fields to be in right now. And I mean, just talking about how this touches every part of our government and directly impacts all of our lives. So, for students who are interested in getting into this field and pursuing a career in health law, what advice would you have, even as a young law student coming in, a first year to start moving in that direction?
JA: Yeah, we need you. We're all tired. We need some new fresh minds in this area. No, I'll say I think I have benefited so much from talking to people who've been in the health law and health policy in the public health law space in Washington from long before when I arrived at UW. I came to UW鈥攖hat was sort of my transition from the east coast to the west coast. And I've been amazed at how many people in government and the private sector and nonprofit fields and academia are engaging in this space.
Washington is an amazing place to be in health policy and health law. So, I would encourage people who are coming in with that interest to pursue it. We need you and it's a great place for us to do it. Washington's been on the leading edge of a lot of different health policy initiatives over the years. It's an exciting place to practice.
I would say for people who are maybe less certain or unsure that they want to be a litigator or they want to be in the private sector or they want to be in the public sector. I came in as a Gates Scholar in 2009, I had only worked in the public interest, and I've continued to work in public interest. That being said, there are so many different ways to engage in this field. So, you can go to one of our sort of prestigious firms in Seattle, or you know, in the state who are working in health law and health litigation and we need those people to be bringing lawsuits that help protect people and keep people safe and keep people being able to provide services here. However, there are Lots of nonprofit opportunities. There are lots of government opportunities. I'll plug governments. I obviously work in that space. I've worked at nonprofits. I've worked in federal government. I worked in the Centers for Medicaid and Medicare Services in DC. And then I came out here and worked at the state level in Olympia. Lots of opportunities for people who want to get engaged either on the legislative side or the policy side. And what you do in this field can make a really, really big difference.
I'm working with people right now. And we're working on vaccine distribution and we're working on emergency coverage for people who get COVID. We're working on waiving cost sharing and copays with health insurers to make sure people get the services they need. So, really impactful field. Really challenging, demanding, complicated. Law meets ethics meets taxes, meets, you know, mandates meets individual liberties versus public health and safety of the state. You're right in the middle of a big fun mess. But it's a great field to be in. You'll never be bored and welcome anyone who's interested to reach out and contact me. I'm always happy to talk to the UW students and support them on their path.
JB: Joan Altman is director of government affairs and strategic partnerships at the Washington Health Benefit Exchange. She recently joined the law school for a special expert panel on the latest challenge to the Affordable Care Act. You can learn more about that case, the Washington Health Benefit Exchange and more. Just head over to our podcast page at law.uw.edu.
This was a lot of fun, Joan. Thank you very much for speaking with us today.
JA: John, thanks so much for having me. I really appreciate it.
