WASHINGTON — Maryland attorney general Brian Frosh (D) said Thursday he is feeling “very optimistic” about winning his lawsuit to declare the Affordable Care Act (ACA) constitutional, in contrast to a Texas lawsuit arguing just the opposite.
The lawsuit, known as State of Maryland vs. United States of America, was filed in September in the U.S. District Court for the District of Maryland. It alleges that President Trump has indicated he won’t enforce the ACA and that disruption of ACA enforcement will lead to higher uncompensated care costs. Arguments in the case were presented this past December.
“Our judge has it under advisement; we’re awaiting her ruling,” he said in a speech at a conference held by FamiliesUSA, a left-leaning healthcare consumer organization. “We’re very optimistic.” While it’s dangerous to “try to read the tea leaves,” Frosh told MedPage Today after his speech, “the judge was all over it … To me she looked very skeptical of the government’s case.”
Frosh mentioned an argument he and his colleagues made that had been left out of the Texas case, which seeks to invalidate the ACA. The judge overseeing that litigation ruled the ACA unconstitutional because Congress, in 2017, eliminated the penalty uninsured individuals were required to pay as part of the so-called individual mandate. With the mandate effectively gone, the ACA could no longer stand, the Texas judge said. (The decision is on hold while the case is appealed.)
“When you have a statute that causes another one to become unconstitutional, you toss or limit the later-passed law,” Frosh said. In this case, “the law that is unconstitutional, if in fact [the judge decides] it jeopardizes the ACA, would be the piece of the … tax bill that reduced the tax to zero. If that caused the ACA to fall, it should be stricken.”
Maryland Attorney General Brian Frosh (D) speaks at the FamiliesUSA conference in Washington. (Photo by Joyce Frieden)
During his speech, Frosh also discussed his state’s new legislation to avoid generic drug price gouging. “We found that in 2016, the price of generic drugs … had begun to skyrocket,” he explained. “We looked at a study done by the Government Accountability Office which looked at a basket of 1,400 generic drugs and found that more than 300 experienced what GAO called an ‘extraordinary’ price increase in the past 5 years — an increase of 100% or more.” A second study by the Senate Aging Committee found that with many of these price increases, “the cause was price gouging, pure and simple,” he said.
Frosh, along with the group Maryland Citizens’ Health Initiative, “put together legislation that prohibits price gouging; it says that if somebody who makes off-patent or generic drugs has an unreasonable price increase, the attorney general can go into court and [enjoin] it,” he explained. Although the law was passed, “no sooner it went into effect that the generic drug association sued me as well as the state of Maryland.” Frosh’s group won the first round and lost the second, and is now asking the Supreme Court to take up the case, he said.
The Maryland attorney general also filed a price-fixing lawsuit with other state attorney generals against a group of drugmakers, alleging that the companies “just jacked up the prices of their products. The complaint has lots of examples of emails back and forth among these competitors, and we allege [they] show a clear plan to fix prices and cheat consumers,” he said. “One of the most telling things is there was one manufacturer that had more than 1,500 emails and telephone calls to its competitors in a 1-year period. [Calling] suppliers, that makes sense; customers, I get that too, but 1,500 [communications] with competitors — that’s very unusual. I’m very optimistic we’ll get recoveries from manufacturers to help reimburse folks in our states that they’ve cheated.”
Frosh also sued the Trump administration over its rules allowing for so-called “association health plans” (AHPs) — health insurance plans that can be sold across state lines and are exempt from some of the coverage requirements in the Affordable Care Act. “These are like bait for folks who think they’re healthy or are willing to take the risk that they’re not going to get sick,” he said. “These ‘skinny’ plans suck the healthier, best insurance risk out of the general pool and raise the cost for everybody else.” The district court heard oral arguments in that lawsuit on Thursday.
Conference-goers also heard from House Speaker Nancy Pelosi (D-Calif.), who mainly spoke to rouse the troops. “Take pride in what you have done,” Pelosi told the audience, many of whom had worked on healthcare issues in their states. “But there is more work to be done.”