Health Law Scholar Professor Tim Jost: Roadmap After the Election

Timothy Jost

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Marianne O’Hare: Welcome to Conversations on Health Care with Mark Masselli and
Margaret Flinter a show where we speak to the top thought leaders in
health innovation , health policy , care delivery and the great minds
who are shaping the health ca re of the future. This week Mark and
Margaret speak with Timothy Jo st, Professor Emeritus at the College
of the Washington and Lee University School of Law. He is a coauthor
of the casebook Health Law , one of the most widely used health law
textbooks in th e country, and has been one of the most prolific
analysts and writers about the Affordable Care Act. He talks about the
election, the new configuration of the Supreme Court and what it
means for health reform .

Lori Robertson also checks in , the Managing Ed itor of FactCheck.org
she look s at misstatements spoken about health policy in the public
domain , separating the fake from the facts, and we end with a bright
idea t hat’s improving health and well being in everyday lives. If you
have comments please e - mail us at [email protected] or find us
on Facebook , Twitter , or wherever you listen to Podcast and you can
also hear us by asking Alexa to play the program. Now stay tuned for
our interview with health law expert T imothy Jo st here on
Conversations on Health Care .

Mark Masselli: We're speaking today with Timothy Jost Professor Emeritus at the
Washington and Lee University School of Law . He is a coauthor of the
casebook Health Law , one of the most widely used health l aw
textbooks in the country. He is author of Health Care at Risk: A
Critique of the Consumer - Driven Movement ,

Margaret Flinter: A renowned scholar on American Health Law, Dr. Jos t has published
extensively on the Affordable Care Act. He's been a significan t
contributor to the Health Affairs blog series “ Following the ACA " and
written over 600 articles since the ACA ' s implementation. Professor
Jos t , welcome back to Conversations on Health Care .

Professor Jost : Thank you. Good to be here.

Mark Masselli: Well, Professor, you joined us the last time it was 2017. The nation
was adjusting to the Trump administration who would really
campaign does, you know, on repealing the Affordable Care Act,
which they came fairly close to doing. But the health law survived for
many more days. And the country right now is on ten t erhooks as we
are awaiting the official results of the current presidential race. And
obviously there are lots of sets of legal challenges that are being put
forth. And still the ACA still remains in jeo pardy. I wonder if you could

Timothy Jost

talk to our listeners about the impact of the 2020 election. And what
do you think it bodes for the Affordable Care Act and health reform in
general?

Professor Jost: Well, it appears now that Vice President Biden is quite likel y to be
elected president, but that he will still need to work with the
Republican Senate and a House controlled by Democrats but with a
narrower margin. It also appears that Democrats did not gain much in
the way of state legislatures and probably lost gr ound there.

Any chance of repealing the Affordable Care Act legislatively seems
very remote at this point. But we have that case before the Supreme
Court next week challenging the ACA, which poses some possibility
that the law could be invalidated by the c ourt. All of the actions
therefore, to expand ACA protections or to reverse Trump
administration actions undermining the law by the Biden
administration will probably have to be accomplished through
administrative regulation or guidance. Any dramatic moves by the
Biden administration will be opposed by litigation, and many of those
cases will be heard before the 220 judges appointed by President
Trump, including possibly the supreme court now, which is completely
dominated by conservatives and Trump appoint ees. There may be a
few opportunities for bipartisan legislation, such as addressing
surprise medical bills, or possibly pharmaceutical costs. But the
ambitious agenda that the democrats pr oposed for reforming our
health care system will probably now have t o largely be shelved.
Things like the public option, or major increases in ACA subsidies are
unlikely to make it through a Republican Senate. So I think we're
going to have a few more years of stalemate .

Professor Jost: Professor, this maybe is a little bi t of looking back question for a
moment. But I know you've said that the ACA was never designed to
replace America's kind of patchwork quilt health system and that its
primary purpose was to provide coverage to more people by
expanding Medicaid and certain ly subsidizing premiums for low -
income Americans. You kn ow, from where we sit in health care we can
accomplish so much more through preventing denial for pre existing
conditions the end of lifetime caps, letting our kids stay on our health
insurance plans t ill they were 26. But when you look at the impact of
the ACA on the healthcare landscape in America and the efforts to try
and dismantle it almost from the beginning, how has that impacted
consumers? We know the gains but what didn't happen because of
the kind of constant efforts to dismantle it?

Professor Jost: Well, there have been tremendous gains, we have expanded Medicaid
to cover about 15 million more Americans. The marketplace ha s now
covered about 10 million Americans. The majority of Americans are

Timothy Jost

covered by their jobs, of course, but as you said, they have new
protections such as preventive services without cost sharing coverage
of adult children up to age 26, the end of lifetime and annual limits .
Almost everyone has benefited f rom the protections against
pre existing condition exclusions, if only to the extent that if they lose
their current coverage, and I think what we've seen in the last year is
that it's not that difficult to lose your employer - sponsored coverage,
you don't have to worry about whether you'll ever be able to get
coverage anyplace else. The ACA also closed the Medicare drug
coverage Doughnut Hole, offered Medicare beneficiaries new
preventive services, and it dramatically changed the way in which
Medicare pays for health care serv ices, reducing costs and increasing
value. It impose d taxes on wealthy Americans that have significantly
expanded the lifespan of the Medicare trust fund. It also get things
like creating new remedies for fraud and abuse, or giving the Food
and Drug Admini stration authority to approve generic biologics for
many people biologics have just been so incredibly expensive and
generic biologics have the promise of bringing those costs down a bit.
It contained many provisions to improve the health care workforce
an d also included things like privacy for nursing mothers, and
nutritional information on fast food menus.

All of these changes now are baked into the American healthcare
system. And it frankly, would not be possible to eliminate the ACA,
without throwing ou r entire healthcare system into chaos. It's not just
about pre existing condition s. It's about our entire health care system,
and it would e ffect everybody in some way.

Professor Jost: You know, Professor, our good friend Don Berwick said of you that
you are to the American healthcare policy what GPS is to a dark and
unfamiliar road. And I think we're going to need that GPS, as the road
ahead seems quite treacherous. And you talked a little earlier about
the Supreme Court taking up in a week or so another cha llenge to the
ACA. And you recently wrote about the death of justice Ruth Bader
Ginsburg and the G O P ’ s elevation of Amy Coney Barrett to replace
her. I think she noted she didn't really tip her hand in the confirmation
hearing. Though she did in a moot cou rt setting, she did vote to strike
down the Affordable Care Act. And I'm wondering what are the
various scenarios you see happening there in terms of the individual
mandate, and how that might go and other legal challenges? You
talked in broad general term s about 200 of the new Trump
administration's appointees be a logjam to get through, maybe paint
a detailed picture of what might lie ahead?

Professor Jost: Actually, Justice Barrett voted to preserve the ACA in that moot ,
although maybe that was just to m ake the students feel good. I'm not
sure. The case raises three questions, really California v s Texas. One is

Timothy Jost

whether Texas and the individual plaintiffs have been injured by an
unenforceable mandate sufficiently to have standing to challenge the
statute. The second is whether the mandate itself is unconstitutional
now that the tax that forced it has been zero ed out. And then the
third and really biggest question is if the statute is found
unconstitutional, how much of the rest of the ACA should be
invalida ted with it?

Justice Barrett, in her testimony suggested that severability was the
key question and that's where other people think this question is to
how much of the ACA should be invalidated? T w o other Justices on
the Court , Chief Justice Roberts and Ju stice Cavanaugh penned
opinions earlier this year suggesting that severability should be
presumed, which is to say that if a single provision of the statute is
found unconstitutional, the rest of the statute should presumably be
upheld. I think it'll be li kely that the two of them will go the same way
on this case with the three democratic appointees, and that will be
enough to preserve the statute, whether or not Judge Barrett joins
them or j oins the other three republican - appointed judges who are
more lik ely to rule to invalidate the ACA. There, of course, is a lot of
litigation right now, pending most of it challenging Trump efforts to
undermine the ACA, and there will be certainly a lot more litigation
coming in once the Biden administration starts promu lgating rules. So
it's going to continue to be good times for lawyers, probably not good
for the experts .

Margaret Flinter: Well, maybe this question, I'm not sure it's a good time for good
question for lawyers or people who like to imagine the future. But it
would seem that this pandemic that we are deep in the middle of is
likely to have some profound effect on our healthcare system going
forward. And certainly, it has laid bare some of the incredible health
disparities by race and ethnicity. By income, i t's laid bare some of the
terrible inequalities perhaps and access to quality care in long term
care and nursing homes for our elderly . It has probably created an
entire major new cl ass of pre existing conditions, a nd so I wonder,
going forward, do you hav e a sense of what might be different? What
have we learned from going through a pandemic that might impact
our health policy discussions going forward?

Professor Jost: Well, that question depends on whether when really believes there is
a pandemic and real ly believes that it's as serious as it actually seems
to be. But Congress has already taken some steps to protect
individuals from the costs of COVID tests and also the cost of COVID
vaccines when one becomes available. Legislation passed last spring
provi ded funding to support health care facilities to address the extra
burdens, they were b ear ing because of COVID, not actually so much
because of COVID itself. But because of all the other tests and

Timothy Jost

procedures that were cancelled because of COVID. I think we need
further legislation t o protect health care providers and also to protect
state and local governments from the added costs that COVID has
caused. And we should also be thinking about additional protections
for consumers against costs caused by COVID, particularly for
uninsured persons who contract the disease.

On the other hand, it's a little hard to justify paying for treatment for
COVID w hen we don't pay for treatment for other equally serious or
even more serious conditions for uninsured people, see ms to me that
the argument for covering people for the costs of COVID is essentially
an argument for universal health care coverage. That's not where we
seem to be going and given the makeup of the Senate for at least the
next two years.

Mark Masselli: We' re speaking today with Timothy Jose , Professor Emeritus at
Washington and Lee University School of Law, significant contributor
to Health Affair ’ s Blog series Following the ACA. ” You know Professor,
this recent presidential campaign, you know, broad health discussion,
in some ways beyond the ACA, most of the Democratic presidential
hopefuls, of course, wanted some kind of universal coverage, or
Medicare for all, but if elected, the Biden administration would take
them probably a much more measured approach. They've been really
focused in on how to reduce Medicare age to 60. And some other
changes, but not , not Medicare for all, as you mentioned, but the
republicans controlling, the Senate will see a lot more pushback in
advance. So I'd really like to know th e trajectory for the next iteration
of health reform and assuming it's a 48 / 52. In Biden, having been a
longtime senate member of whether or not you see any scenario
where some compromise can be found with some of the more
moderate Republica ns?

Professor J ost: Well, I think there are some things that Congress might be able to do
like dealing with surprise medical bills, or doing something about
pharmaceutical costs. But I think largely Biden is going to be limited to
doing what President Trump has been doin g for the last four years,
which is executive orders and regulations. And these can expand
coverage at the margins, he can do things like increase the open
enrollment period for the exchanges. Doing a lot more advertising,
Trump ad ministration cut that by 90% funding more navigators
probably rolling back on some Trump rules like the rules allowing
short term limited duration coverage that is not subject to ACA
protections.

Mark Masselli: Can you push a little more on what the executive orders really could
d o? I mean, advertisements, probably not an executive order. But
what are the -- what's the force and the power of an executive order?

Timothy Jost

Professor Jost: Well, frankly, an executive order doesn't really have any force on its
own. Trump has proved the master of putting out executive orders
that are essentially meaningless. But what an executive order does is
essentially directs an administrative agency to do what it can to deal
with the particular issue of problem. I think rolling back on some of
the new Trump r egulations, expanding birth control coverage,
expanding protection for LGBTQ individuals, expanding access to
special enrollment periods to the exchanges.

So there are some things that are not insignificant that the
administration can do. Probably one of t he biggest things is to change
the guidance on waivers, so that Medicaid work requirements would
not be permitted, or that you couldn't do what Georgia has done in
the last couple of weeks of getting rid of the federal exchange. And all
of that can be done administratively. Now, probably anything he does
administratively that significant is going to be challenged in court. But
that's been true with the Trump administration, too. And some of
these rules have held that.

Margaret Flinter: Now Professor, I'm gl ad you raised the issue about Georgia, which has
been much in the news in recent days, this issue of getting the waiver
from CMS to allow it to opt out of the federal health insurance
exchange altogether. And instead having a collection of payment
options for insurance coverage for low income residents. Can you talk
about that move, I don't see how that works. Given the protections
that are in place for the health insurance exchanges, what will Georgia
be allowed to do? Why are they doing it? And will other s try and
follow up course with that, do you think?

Professor Jost: Well, Georgia has cut back on what it's asked to do. So what's
proposing right now is less ambitious anyone who's proposing earlier.
But basically, what it's proposing now, is that they be allowed to opt
out of the federal exchange and all coverage would be marketed
through insurance agents and brokers. And predictions are that tens
of thousands of people would lose coverage i f they do that. It's a little
unclear why they want to do it. It was put out for public comments.
And I hope about 1800 comments were submitted opposing it. Five
were submitted supporting it. It was put out for public comments and
I hope about 1800 comments were submitted opposing it , five were
submitted supporting it. Even the agents and brokers whom it's
supposed to benefit, don't seem that excited about it. It's the kind of
thing that where the Trump Administration is trying to come up with
an alternative to the ACA , and it doesn't seem like there's much there
that co uld actually help consumers. It's unclear who it would help at
all. But that kind of thing, which is permitted under the current waiver
guidance of the Trump Administration, I think , is going to be
dramatically reversed. T hat's not even a rule that's just guidance that

Timothy Jost

Biden Administration could change that guidance, its first day in
office, although whether they could revoke the Georgia Waiver or
not, which doesn't go into effect for a couple of years, probably not,
but at least they can monitor it very cl osely to see if it's working.

Mark Masselli: Professor, you've spent a lifetime analyzing American Health Policy
but in this past decade, we've seen all these rapid changes technology
is advancing , Telehealth , Remote Monitoring, Genomics, Predictive
Medici ne, all moving really at a rapid pace , and we're seeing a
growing trend of consumer driven healt h care. I'm wondering if you
look forward, what's your vision of the kind of health system we'll see
evolve in the country over the decade ahead and what kind of laws
will be requir ed to protect health consumers?

Prof Jost: It seems to me that the major concerns of health law are going to
continue to be the traditional concerns of health law protecting
privacy, protecting transparency and informed consent. I think
Telehealth has some real promise , and I think it's generally believed
that the COVID epidemic has shown what it can do, and that it is a
useful technology and that can be money saving. On the other hand, I
think many of the things that are being pursued r ight now are going to
prove quite costly and then we're going to have to decide how that
cost is going to be paid, and who's going to have access to those
technologies , and those are all going to be difficult problems.

Consumer - Driven Healthcare, I think, we really need to see if that
means anything more than increasing consumer costs because what it
is often meant is just higher deductibles , higher cost sharing, with the
idea that consumers will make better decisions if they have to pay a
lot more for the ir care. I think most consumers at this point feel like
they're already paying too much. We'll see where that goes. I think
everybody thinks transparency is a good thing, except for maybe
providers who have to be transparent , but we'll see.

Margaret Flinte r: We've been speaking today with Timothy Jos t, Professor Emeritus at
Washington and Lee University School of Law, and one of the nation's
leading scholars on American Health Policy and the Affordable Care
Act. Professor Jo st, we want to thank you for cont inuing to help us
navigate the complex world of health policy in America and for joining
us today on Conversations on Health Care .

Prof Jost: Thank you very much for inviting me and thank you for some great
questions.

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Mark Masselli: At Conversation s on Health Care , we want our audience to be truly in
the know when it comes to the facts about healthcare reform and

Timothy Jost

policy. Lori Robertson is an award winning journalist and Managing
Editor of FactCheck.org, a nonpartisan, nonprofit consumer advocate
for voters that aim to reduce the level of deception in U.S. politics.
Lori, what have you got for us this week?

Lori Robertson: President Donald Trump has made the misleading boasts that the U . S .
is in great shape because 97% of emergency room visits were fo r
something other than COVID - 19 , b ut the number is not as impressive
as it sounds. Trump was making that claim in late October campaign
rallies as he falsely claimed the U . S . is, “ Rounding the corner or
rounding the turn on the pandemic ” . For instance, Tru mp said in
Wisconsin on October 27, “ Thanks to our relentless efforts, 97% of all
current emergency room visits are for something other than the
virus. ” The same day in Nebraska , he repeated this statistic adding,
“ We're in great shape ”. Trump's statistic is correct, but it's not the
meaning ful indicator he presents it as. Even during the pandemic ’ s
harrowing days in April, the percentage of ER visits due to a COVID
like illness never went higher than 7%. The number while lower now
has been on the rise.

Mo reover, public health experts do not think that the U . S . is in great
shape, and several metrics show that the pandemic is worsening.
Trump's 97% figure likely comes from the CDC. According to the
agency's data tracker, around 3% of ER visits in late Octobe r were due
to a COVID like illness. That's an uptick from two months ago when
the figure hovered around 2%. The CDC system monitors emergency
department visits for COVID - 19 like illness in a subset of hospitals in
47 states. The percentage of such visits e ach week peaked at 6.8% in
April, and then hitting another peak of 4.2% in July. That's my
FactCheck for this week. I'm Lori Robertson, Managing Editor of
FactCheck .org.

Margaret Flinter: FactCheck .org is committed to factual accuracy from the country’s
ma jor political players and is a project of the Annenberg Public Policy
Center at the University of Pennsylvania. If you have a fact that you’ d
like check ed , email us at www.chcradio.com . We’ll have
FactCheck .org’s Lo ri Robertson check it out for you here on
Conversations on Health Care.

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Margaret Flinter: Each week , Conversation s highlights a bright idea about how to make
wellness a part of our communities and everyday lives. Sub Saharan
Africa leads the world in maternal and infant deaths each year.
According to an annual report from Save the Children , an estimated
397,000 babies died at birth in that region in 2013 , and some 550
mothers died per day as well. Most of the causes have to do with lack
of acce ss to medical care in these low - resource regions , and often the

Timothy Jost

local midwives lack formal medical training to prepare them to
conduct inter ventions in the event of a life - threatening event lik e a
hemorrhage or an infection.

Anna Frellsen: 90% of all the deaths that we see today could be prevented if the
mother had access to this really basic skilled care durin g the
childbirth.

Margaret Flinter: Anna Frellsen is CEO of the Maternity Foundation, a Copenhagen
based nonprofit dedicated to eliminating maternal and i nfant death in
the world. Their organization has created intervention for midwives
living in low resource areas, if they just have access to a smartphone .
It's called the Safe Delivery App , and it provides comprehensive
training for midwives that teach the m and guide them on what to do
in the event of a birthing crisis.

Anna Frellsen: This is really a matter of building the skills of the health workers who
are already out there and empower them to be able to better handle
the emergencies that may occur duri ng childbirth such as the woman
starts bleeding or the newbor n is not breathing and so forth as a
matter of finding a way that we can reach to health workers and build
their skills.

Margaret Flinter: Frellsen says the real promise of the Safe Delivery Appl ication lies in
its ability to provide ongoing obstetric and neonatal training so that
local midwives can gain important clinical knowledge over time . The
Safe Delivery App has been designed to be culturally relevant and
easily understood , and it's receive d the United Nations approval for
wider deployment, potentially impacting a million live births . A low
cost culturally sensitive mobile app that offers immediate guidance
and assistance to midwives and health workers, the backbone of the
health care system and low - resource areas, empowering them with
ongoing support and knowledge that can improve birth outcomes.
Now that's a bright idea.

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Marianne O’Hare : You've been listening to Conversations on Health Care.

Mark Masselli: I'm Mark Masselli.

Margare t Flinter: And I'm Margaret Flinter.

Mark Masselli: Peace and Health .

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Marianne O’Hare : Conversations on Health Care is recorded at WESU at Wesleyan
University, streaming live at www.chcradio.com , iTunes, or wherever
you listen to podcasts. If you have comments, please email us at

Timothy Jost

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