After federal judge’s ruling against Affordable Care Act, Virginia plows forward with Medicaid expansion enrollment

More than 182,000 people have signed up for Medicaid since the eligibility rules changed under expansion on Nov. 1, and the state has high hopes that number will continue to rise — even after a federal judge in Texas issued a ruling declaring every part of the Affordable Care Act, including Medicaid expansion, unconstitutional.

The ruling throws a shadow of uncertainty over the ACA, from the individual market to coverage for those with pre-existing conditions. Thirty-three states, including Virginia, have passed Medicaid expansion, but if the ruling stands as it is without an appeals court or the Supreme Court again upholding the law, as it has previously, about 20 million people stand to lose coverage, including those 182,000 Virginians.

During an event Wednesday to announce the new enrollment figures, Gov. Ralph Northam expressed confidence that the ruling will be overturned and that Medicaid expansion, which has become a hallmark of his administration, will continue unhindered.

“This is going to be appealed, I don’t think it will move forward successfully,” Northam said to a room filled largely with staff from the Department of Medical Assistance Services, the agency that manages Medicaid in Virginia. “I will just tell you I don’t think it will have anything to do with what we’re accomplishing in Virginia. So I would encourage us to continue the great work that we’re doing.”

Many health policy experts are similarly confident that the ruling will be successfully overturned, either by the U.S. Court of Appeals for the 5th Circuit or the Supreme Court. The case was filed earlier this year by a group of Republican governors and attorneys general, who argued that the health law is invalid because Congress did away with the individual mandate last year.

But even with a ruling, uncertainty still abounds. The group of Democratic attorneys general who intervened to defend the case after the Justice Department declined to defend the health law, including Virginia Attorney General Mark Herring, have asked the judge, Reed O’Connor, to clarify if he meant for the ruling to go into effect immediately.

“This fight isn’t over by a longshot,” Herring said in a statement. “I’m going to keep working to protect the millions of Virginians who have benefited from the ACA , and who deserve better than the constant attacks Republicans continue to launch on their health care.”

Some experts say the case has little chance of surviving an appeal or even making it to the Supreme Court. O’Connor’s judgment was “simple and straightforward but clearly wrong,” said Tim Jost, a health policy expert and professor at Washington and Lee University, during a media conference Tuesday held by the Commonwealth Fund. Even the Wall Street Journal’s editorial board called it a “blunder.”

“This is probably not a big-deal ruling,” Rick Mayes, co-chair of the Healthcare Studies Program at the University of Richmond, said in an email. “It seems to lack standing and will likely be overturned by the 5th Circuit Court of appeals. I don’t think it will have a big impact on Virginia enrollment or Medicaid expansion.”

But few anticipated that O’Connor would strike down the entire ACA in his ruling, even those who expected him to find the individual mandate unconstitutional. And the 5th Circuit leans heavily conservative, adding some anxiety to the assumption it will overturn the ruling.

For now, however, the U.S. Department of Health and Human Services has said it will continue to enforce the ACA, and that all aspects of the law — which are vast and far-reaching — will continue.

“The biggest problem with this decision at this point — because I do fully expect it to be reversed — is the confusion it causes among consumers, the confusion it causes among Medicaid beneficiaries,” Jost said. “And the possibility that some of the states that are plaintiffs decide they’re going to just stop enforcing the law.”

The ruling came just before the deadline to sign up for a health plan on the individual market, sparking some fear that it would deter people who mistakenly think the ACA has been eliminated from signing up. But that didn’t happen, as figures released Wednesday show. And Northam said he is similarly confident that Medicaid enrollment will not suffer from uncertainty over the ruling’s impact.

“I think that’s part of our job, to make sure that it is an isolated ruling and it’s going to be appealed and it really has no effect on what we’re doing in Virginia,” Northam said. “I think it will be overturned. We’re going to continue to do everything we’re doing now.”

The state expects to enroll 200,000 people by Jan. 1, Northam said, and around 360,000 by the end of 2019. Medicaid has no finite open enrollment period; eligible Virginians can sign up at any time of the year.

Northam said he expects enrollment to slow down over the holidays, but that “it’s very realistic to think that we’ll have over 200,000,” by 2019.