California’s AG on future of ACA suit, CVS-Aetna union

By | August 8, 2019

California Attorney General Xavier Becerra, a Democrat, has been at the forefront of many legal healthcare battles since taking office in 2017, including leading a coalition of states to defend the Affordable Care Act against the Texas-led effort to dismantle it.

Becerra’s office is also suing Johnson & Johnson’s Ethicon unit alleging the company falsely promoted its pelvic mesh product as safe and effective, inked a $ 935 million settlement with Aetna over its disclosure of patient HIV health status and sued Sutter Health for allegedly overcharging patients in violation of antitrust laws. 

California also recently announced a $ 70 million settlement with Teva, Endo and other generic drug companies over allegations they illegally delayed access to cheaper generic medicines.

Becerra spoke to Healthcare Dive about how he views his role as California’s top law enforcement official, including his priorities and his predictions for whether the ACA will survive a constitutional challenge.

This interview has been edited for clarity and brevity.

HEALTHCARE DIVE: What is the highest healthcare-related litigation priority of your office right now?

XAVIER BECERRA: Defending healthcare for pretty much every American under the Affordable Care Act.

On the Affordable Care Act, what happens if the Fifth Circuit comes out with an opinion that says we agree with the trial judge, and ACA is invalid? What are your next steps? Is it the U.S. Supreme Court?

BECERRA: You fight all the way. I didn’t seek public office to see rights dismantled. I’m out there to try to protect them and expand them. So, to the degree that we can fight, we will fight, and we we certainly expect and hope to win. 

Then, what happens if it goes all the way to the Supreme Court and the ACA is still invalidated?

BECERRA: I think, first, if the Supreme Court were to get this case and dismantle healthcare for tens of millions of Americans, I think it has ramifications far beyond the Affordable Care Act. I think this will call into question the integrity and confidence people could have in the highest court in the land. It will raise questions about the political and partisan nature that seems to be creeping into more and more of our judiciary, and the decisions handed down by the courts. And it will, I think, cause a lot of people to think if the courts are the place for the last resort for justice. One way or another, the fight to move towards universal coverage for every American so that every American knows that they have a right to health care will continue; it won’t stop. One of the main reasons I got into elective office was to fight for that; that doesn’t change.

Do you have any confidence that there will be a plan to replace the Affordable Care Act if it is invalidated?

BECERRAThe best thing is to build on what you’ve got, you know, than demolish it, think you could do it better. And so I believe the best course of action is to continue to build on the Affordable Care Act, rather than trying to, as I keep saying, dismantle it. So I would think that the court would recognize that, if it’s going to say it must be abolished, it must have a sense of how to do it differently and constitutionally. 

I think the Affordable Care Act is not only constitutional, but that the court made it very clear that it’s constitutional a few years back, and so, I still feel pretty confident that, at the end of the day, we’ll prevail in this case.

California initially opposed the CVS-Aetna merger but now is supporting the government’s settlement agreement with the companies. Can you explain the switch in positions?

BECERRA: We had some particular goals in mind when we moved to take action. But once we think that our concerns are being addressed in a fair and reasonable fashion, we’re not interested in trying to rake someone over the courtroom coals simply to make a point. We’re there to provide the relief that’s necessary and to put people back in line when it comes to the law. And so if there’s a settlement that we’ve had, it’s because we believe we’ve reached terms that are beneficial to the people of our state, and addressed the legal concerns that we raised in our filing a lawsuit in the first place.

Is there any kind of threshold for the state getting involved in a lawsuit?

BECERRAMy job as the attorney general is to protect and advocate for the people, the values and the resources of California. And so when there is something that is impacting the values or the resources of our state, I have the right to jump in. And so that’s what we’ve done. It has to be something where I can show I that I really am either defending or fighting for more than just one person and not just one particular interest but it has to be the interests of the state and of the people. And so it’s obviously acting as more than just private attorney for any one Californian, but it also means I don’t have to wait until 40 million Californians are affected before I can take action.

You are involved in suing Ethicon, a Johnson and Johnson company, in state court over pelvic mesh markting. It’s the first state attorney general-led pelvic mesh lawsuit to go to trial. Are there are other medical product suits that you’re either involved in or thinking about getting involved in on behalf of California residents?

BECERRAWe’re active in a lot of these consumer product cases. Obviously, we’re in trial right now against Johnson and Johnson. And we’ve done a number of cases in the past. Any time, as I said, the people, the values or the resources of our state are impacted, we will be there. And obviously, any time there’s a consumer product that we believe is neither safe nor a value to the people of our state, we’re going to do what we can. I can’t divulge any particular investigation that we’re engaged in right now, but I can certainly tell you that we’re watching to make sure that if someone wants to peddle a service or a product to the people of California, we’re going to make sure that people are getting their money’s worth.

Do you feel a particular responsibility to get involved and intervene in healthcare cases?

BECERRA: Because of my responsibility to protect the people, the values and resources of the state, certainly we’re going to jump in whenever necessary. But, for me, it’s personal.

Growing up, you know, healthcare was something we could not take for granted because of the cost. And growing up, I guess, in a way, in Congress, as I try to make public policy and make good decisions, learning, whether it was the work we did in the Affordable Care Act or trying to deal with the Supplemental Security Income program or protecting Social Security, disability insurance, helping pass the Children’s Health Insurance Program, you name it, all those things helped me grow up and understand now, as a policymaker and as an enforcer, what it takes to protect health care for people. And on top of that, I consider health care a right, so it’s a matter of protecting and expanding it, not dismantling it.

And finally, I think I react the way you or anyone else in this country does, that, when it comes to healthcare, it’s expensive. People have gone bankrupt personally because they’ve taken their child to the hospital. That doesn’t seem like it belongs in a civilized country like the United States.

Any final thoughts to share on healthcare?

BECERRA: We’re going to fight to protect what people have got because it’s not a matter of choice. It’s not like some luxury product that you can have or not have. If you need to go to the doctor if your child is sick, you’ve got to go. And at that point, the last thing you’re thinking is, can I afford to have my child see this doctor, go to the hospital. You do it. And so, because it’s indispensable, we’ve got to treat it like, as I said, a right that people have.

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