Kemp, Trump proposal to block ACA shopping website draws legal fight

A waiver to the ACA granted by the Trump administration allows Georgia to block access to the exchange for coverage that begins in 2023. Instead, Georgians will be directed to contact information for private agents and brokers, who may sell skimpier plans that do not coverage contraception, maternity care, mental […]

A waiver to the ACA granted by the Trump administration allows Georgia to block access to the exchange for coverage that begins in 2023. Instead, Georgians will be directed to contact information for private agents and brokers, who may sell skimpier plans that do not coverage contraception, maternity care, mental health care, emergency room visits and other services. These private agents may collect larger commissions from selling such insurance plans, and critics say they have a record of selling coverage with gaps that people don’t understand until too late.

Patients are already able to buy from those agents and brokers. But some projections say as many 100,000 Georgians could wind up without insurance if they lose access to healthcare.gov.

“Any one of these 100,000 Georgians are likely some of our patients,” said Staci Fox, chief executive of Planned Parenthood Southeast, which is one of organizations filing the lawsuit.

“Tens of thousands of women now have access to contraception that didn’t before,” because of the ACA’s mandates for insurance, Fox said. “That’s what the waiver means to us: that these patients no longer get access to that type of care like birth control.”

Reshaping the law, or breaking it?

A spokeswoman for Gov. Brian Kemp, Mallory Blount, defended the Georgia waiver, saying it will “reduce Georgians’ dependence on the failed promises of the Affordable Care Act,” increase private-sector competition and make more options available.

“Governor Kemp’s administration has always been committed to putting the health and wellbeing of Georgians first,” Blount said.

Governor Brian Kemp and Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma celebrate with fist bump following her announcement last fall that the Trump administration would approve Georgia's waiver request under the Affordable Care Act.  Verma traveled to Georgia for the announcement, and said she was "proud" that Georgia had taken full advantage of the Trump administration's new flexibility under the ACA. (PHOTO by Hyosub Shin / Hyosub.Shin@ajc.com)

Governor Brian Kemp and Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma celebrate with fist bump following her announcement last fall that the Trump administration would approve Georgia’s waiver request under the Affordable Care Act. Verma traveled to Georgia for the announcement, and said she was “proud” that Georgia had taken full advantage of the Trump administration’s new flexibility under the ACA. (PHOTO by Hyosub Shin / [email protected])

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

Kyle Wingfield, president of the libertarian-leaning Georgia Public Policy Foundation, defended the waiver.

“This comes down to whether you want to let states try to improve on a poorly functioning law or not,” Wingfield said. “Considering that hundreds of thousands of Georgians who qualify for subsidies don’t buy insurance on the federal exchange, the current system obviously isn’t working.”

Enacted in 2010, the ACA allows states to request waivers of some of the law’s provisions, to better tailor the law to a state’s needs. Many waivers have been uncontroversial. For example, several states, including Georgia, have been allowed to pay subsidies to insurance companies to lower premiums for high-income policyholders.

But Kemp’s waiver plan — called “Georgia Access” — goes much further and is based on the theory that private brokers and agents will have a greater incentive to find customers to insure.

Tara Straw, a senior policy analyst at the left-leaning Center on Budget and Policy Priorities, based in Washington, said Kemp’s claims that the waiver would expand coverage in Georgia are “preposterous.” Straw’s research is cited in the lawsuit.

“They are most certainly going to reduce coverage,” Straw said. “The numbers that they project are ridiculous. They assume that everyone, the 500,000 people that use healthcare.gov, are just going to automatically migrate to a new system and no one will be lost in the process.”

Georgia’s waiver is based on a rule changes adopted in 2018 by the Trump administration. “We have worked to give states unprecedented flexibility,” Seema Verma, administrator of the Centers for Medicare and Medicaid Services, said when she came to Georgia to announce the waiver’s approval. “Governor Kemp and the state of Georgia are the first to avail themselves of all of these flexibilities.”

EARLIER IN THE AJC: Federal approval of Kemp ACA waiver contains last-minute surprises

No courts have yet ruled on the legality of the rule change. While other states have sought waivers for certain ACA provisions, Straw said, “none have been this radical.”

Guardrails

The lawsuit argues that Georgia’s waiver breaks federal law in several ways, from violating the “guardrails” meant to ensure waivers maintain robust insurance coverage, to the way the waiver application itself was handled.

The guardrails are meant to ensure waivers increase the effectiveness of the ACA, but President Trump actually had the goal of destroying it, the plaintiffs argue, quoting him several times in their legal complaint.

The guardrails prohibit waivers that decrease the number of people covered, weaken the types of coverage offered or make coverage less affordable. They also bar waivers that cost the government more than if the current system were left alone. The lawsuit argues that Georgia’s waiver is in danger of doing all of that.

Critics also say that the Trump administration, racing toward the waiver’s approval two days before the 2020 presidential election, allowed insufficient time for public comment. The lawsuit says the comment times were so short as to be illegal, and that the administration then failed to take the comment it did receive into consideration.

“Obviously the state of Georgia is affected the most by this waiver,” said Lewis, the lawsuit’s lead lawyer. “But it’s part of this broader national campaign that the Trump administration is trying to pursue.”

EARLIER IN THE AJC: Public comment function broken on Kemp proposal to block ACA website

MORE: Read the federal fact sheet on the Georgia ACA waiver, Parts I and II; a lawsuit is challenging Part II.

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