“State” Means Something for the ACA, Nothing for ADAP

By: Marcus J. Hopkins, Blogger

June 25th, 2015, became yet another milestone for the landmark Obama Administration legislation, the Affordable Care Act (ACA), when the Supreme Court ruled 6-3 in favor of maintaining federal tax credits for citizens in all states, regardless of whether or not the state, itself, had established its own exchange (King v. Burwell).

To put that decision into perspective, to date, there have been only 16 states (and the District of Columbia) that have set up their own health insurance marketplaces (de Vogue & Diamond, 2015). It is significant because residents in 34 states whose marketplaces are run by the federal government risked losing key tax subsidies that would allow for lower- and middle-income families to afford health insurance – a key measure whose overturning threatened to derail, entirely, the ACA, leaving millions of Americans stuck with the bill for their healthcare, entirely out of pocket.

Photo of the U.S. Supreme Court with the words,
Photo credit: Planned Parenthood

The sticking point in question was a four-word phrase: “…established by the State.”

The plaintiffs’ lawyers unsuccessfully argued that the phrase clearly barred the federal government from “…doling out subsidies” in the 34 states who had not established their own healthcare marketplaces. Their argument suggested that Congress specifically wrote the phrase into the law in an effort to encourage individual states to establish their own exchanges – in effect penalizing citizens living in states whose legislatures failed to act on establishing a marketplace – and that the IRS attempted to “fix” the law when that effort failed on a large scale.

What bothers me about this line of thinking is that the term “State” has consistently, throughout history, been used to reference national governments as a whole. By those wishing to convey disdain, the establishment and enforcement of federal regulations (upon any industry) are consistently blamed for creating a “Nanny State;” government leaders are referred to as “Head(s) of State.” As a noun, a state is “a nation or territory considered as an organized political community under one government” (State, n.d.).

In terms of state vs. federal law, with very rare exception, federal laws trump state laws; attempts to buck federal authority are rarely upheld in court. We are a united nation; “…one nation, indivisible, with Liberty and Justice, for all,” and not just “…those in states who created their own marketplaces.” Simply because we have, since our nation’s inception, accepted that states maintain some level of autonomy does not mean that we are not one single “State.”

And yet, without fail, certain political leaders who hoped for a different verdict from the court would like to divide us, rather than to unite. They awaited with glee a ruling that would create two classes of citizens – those whose states function for their best interests, and those whose states function for the best interests of the few; of the ideologues.

What frustrates me about this victory, though, is how its lesson is not applied to the AIDS Drug Assistance Programs (ADAPs). Ryan White, Part B, is a singular piece of legislation that was established to help those who could not afford HIV treatments across the country. Yet, we effectively have 59 completely different ADAP programs, with different funding, different qualifications, different regulations, different formularies…it’s a landscape that has not, for much of its existence, proven cost effective, equitable to its clients, or the quality or quantity of care that is provided.

I suspect that I’m largely in the minority on this issue as, in the effort of full disclosure, I have and always will be in favor of a Universal Healthcare model. If researching HCV coverage has taught me nothing else, at least I have a clearer picture of how ADAP programs, in addition to creating an opportunity for people to receive treatment they might not otherwise be able to afford, create barriers to mobility.

Mobility barriers are pernicious things, as they may manifest in many forms, but the primary concern I have is the inability to relocate to a place that may hold better economic, social, or career prospects, because relocating is hampered by having to meet much a much different set of criteria in order to qualify for your new state’s ADAP program. One of the benefits of doing away with the 59-ADAPs model in favor of a national ADAP program would be the elimination of relocation-oriented application and qualification standards – the only thing that would need updated is your physical address and source/amount of income.

Literally every ADAP qualification criteria is based upon a single measurement of income – the Federal Poverty Limit (FPL) – a measure that is assessed nationwide, regardless of an applicant’s [lower case “s-“] state of residence. And yet, despite this being a national measurement, each state’s income requirements are different: 400% of the FPL; 250% of the FPL; 150% of the FPL – each ADAP program has its own special set of requirements that applicants must meet in order to receive assistance.

What we have is a [capital “S-“] State legislated and designed program that should be equitably meted out to HIV-positive American citizens, but because it is implemented at the [lower-case “s-“] state level, citizens with virtually identical levels of income in two different states are afforded different treatment. A person in one state may qualify, where the other may not in the next state over.

Beyond basic qualification issues exists another inequitable access issue – while an ADAP client in Massachusetts has access to Sovaldi (Gilead), Harvoni (Gilead), Olysio (Janssen), and Viekira Pak (AbbVie), were that same client to relocate, for whatever reason, to West Virginia, they would lose coverage for those medications, and instead be reverted to less easily tolerated and less effective interferon-based treatments; should that client relocate to Tennessee, they would have no access to any HCV treatment, whatsoever.

It far past the point where we need to admit that our patchwork approach to Ryan White, Part B, is failing the very people it was created to assist. We do ourselves no favors by insisting that this 59-ADAP model is serving everyone who needs the program with any level of equity; indeed, we do harm by insisting that this model be not only maintain, but that it become entrenched. If we want to truly ensure that all Americans who need treatment for HIV (and any HCV co-infection), we should consider looking at the creation of a universal ADAP model, that would serve everyone equally.

While ADAP and HIV advocates are spending June 25th, 2015, exhaling a collective sigh of relief that the tax subsidies have been preserved in this 6-3 ruling, having successfully argued their point that ALL Americans should have equal access to healthcare services, they’re largely ignoring the very same people whom they are tasked (or have tasked themselves) to represent.



Disclaimer: HEAL Blogs do not necessarily reflect the views of the Community Access National Network (CANN), but rather they provide a neutral platform whereby the author serves to promote open, honest discussion about Hepatitis-related issues and updates. Please note that the content of some of the HEAL Blogs might be graphic due to the nature of the issues being addressed in it.


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