Ohio: Could an obscure ACA provision provide Medicare for life to all residents of East Palestine? (Probably not)

Over on Twitter, political commentator Krystal Ball made an interesting claim:

A provision in Obamacare allows residents in areas deemed a public health disaster to be covered by Medicare for life. At the very least, East Palestine residents deserve this universal coverage after being exposed to a known carcinogen. https://t.co/ooPYmJ4Y8b

— Krystal Ball (@krystalball) February 21, 2023

What she's referring to is an obscure & fascinating nugget buried in the Patient Protection & Affordable Care Act: Section 10323, which states:

SEC. 10323. MEDICARE COVERAGE FOR INDIVIDUALS EXPOSED TO ENVIRONMENTAL HEALTH HAZARDS.

(a) In General.--Title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) is amended by inserting after section 1881 the following new section:

``SEC. 1881A. <<NOTE: 42 USC 1395rr-1.>> MEDICARE COVERAGE FOR INDIVIDUALS EXPOSED TO ENVIRONMENTAL HEALTH HAZARDS.

``(a) Deeming of Individuals as Eligible for Medicare Benefits.--

``(1) In general.--For purposes of eligibility for benefits under this title, an individual determined under subsection (c) to be an environmental exposure affected individual described in subsection (e)(2) shall be deemed to meet the conditions specified in section 226(a).

``(2) Discretionary deeming.--For purposes of eligibility for benefits under this title, the Secretary may deem an individual determined under subsection (c) to be an environmental exposure affected individual described in subsection (e)(3) to meet the conditions specified in section 226(a).

``(3) Effective date of coverage.--An Individual who is deemed eligible for benefits under this title under paragraph (1) or (2) shall be-- ``(A) entitled to benefits under the program under Part A as of the date of such deeming; and ``(B) eligible to enroll in the program under Part B beginning with the month in which such deeming occurs.

The short version is that people who fit the criteria laid out in the rest of Section 10323 are eligible for Medicare for life even if they're under 65 years old and don't fit the normal criteria needed for Medicare eligibility for non-seniors (ALS, ESRD, or have received SSDI for at least 24 months).

And what are those conditions?

``(2) Individual described.--For purposes of paragraph (1), an individual described in this paragraph is an individual who enrolls in part B, submits to the Secretary an application to participate in the applicable pilot program under this subsection, and--

``(A) is an environmental exposure affected individual described in subsection (e)(2) who resides in or around the geographic area subject to an emergency declaration made as of June 17, 2009; or

``(B) is an environmental exposure affected individual described in subsection (e)(3) who-- ``(i) is deemed under subsection (a)(2); and ``(ii) meets such other criteria or conditions for participation in a pilot program under paragraph (1)(B) as the Secretary specifies.

OK, so they have to live "in or around the geographic area" noted by the emergency declaration of June 17, 2009...or others impacted by an environmental exposure described later in Section 10323.

So what's that 6/17/09 emergency declaration?

U.S. Environmental Protection Agency Administrator Lisa P. Jackson today announced the agency has determined that a public health emergency exists at the Libby asbestos site in northwest Montana. Over the past years, hundreds of asbestos-related disease cases have been documented in this small community, which covers the towns of Libby and Troy. The announcement was made today at a joint press conference with Department of Health and Human Services Secretary Kathleen Sebelius and U.S. Sens. Max Baucus and Jon Tester.

There was a great writeup of the oddly-specific "Libby, Montana" clause by Kay Tillow in the now-defunct Firedoglake back in 2011, republished by Physicians for a National Health Program:

In 2009 when the Washington Beltway was tied up with the health care reform tussle, Montana Democratic Senator Max Baucus, chairman of the all powerful Senate Finance Committee, said everything was on the table — except for single payer. When doctors, nurses and others rose in his hearing to insist that single payer be included in the debate, Baucus had them arrested. As more stood up, Baucus could be heard on his open microphone saying, “We need more police.”

Yet when Senator Baucus needed a solution to a catastrophic health disaster in Libby, Montana, and surrounding Lincoln County, he turned to the nation’s single-payer health care system, Medicare, to solve the problem.

Baucus’ problem was caused by a vermiculite mine that had spread deadly airborne asbestos, killing hundreds and sickening thousands in Libby and northwest Montana. The W.R. Grace Company that owned the mine denied its connection to the massive levels of mesothelioma and asbestosis and dodged responsibility for this environmental and health disaster. When all lawsuits and legal avenues failed, Baucus turned to our country’s single-payer plan, Medicare.

The short version is that Baucus demanded that a very specific clause be inserted into the ACA in return for his voting for it: The residents of Libby, Montana (and Troy, MT apparently?) became eligible for Medicare for life:

They don’t have to be 65 years old or more. They don’t have to wait until 2014 for the state exchanges. No 10-year rollout – it’s immediate. They don’t have to purchase a plan – this is not a buy-in to Medicare – it’s free. They don’t have to be disabled for two years before they apply. They don’t have to go without care for three years until Medicaid expands. They don’t have to meet income tests. They don’t have to apply for a subsidy. They don’t have to pay a fine for failure to buy insurance. They don’t have to hope that the market will make a plan affordable. They don’t have to hide their pre-existing conditions. They don’t have to find a job that provides coverage.

Robert Pear of the NY Times had also written a story about this particular ACA nugget (along with some other obscure provisions added to win votes) in 2009:

Buried in the deal-clinching health care package that Senate Democrats unveiled over the weekend is an inconspicuous proposal expanding Medicare to cover certain victims of “environmental health hazards.”

The intended beneficiaries are identified in a cryptic, mysterious way: individuals exposed to environmental health hazards recognized as a public health emergency in a declaration issued by the federal government on June 17.

And who might those individuals be? It turns out they are people exposed to asbestos from a vermiculite mine in Libby, Mont.

For a decade, Senator Max Baucus, Democrat of Montana, has been trying to get the government to help them. He is in a position to deliver now because he is chairman of the Finance Committee and a principal author of the health care bill.

This is an interesting story in & of itself, but what about Ball's blanket assertion, with no clarification, that "residents in areas deemed a public health disaster" are eligible for Medicare for life?

Well...no, at least not from my reading of the section in question.

While Section 10323 does include a provision that other "environmentally exposed" individuals may be eligible for this clause, it notes that they have to fit the description of subsection (e)(3) and who meet other conditions:

1. I think this section means they have to actually have lived in the Libby, Montana area prior to the 6/17/09 emergency declaration:

`(ii) as demonstrated in such manner as the Secretary determines appropriate, has been present for an aggregate total of 6 months in the geographic area subject to an emergency declaration specified in subsection (b)(2)(A), during a period ending-- ``(I) not less than 10 years prior to such diagnosis; and ``(II) prior to the implementation of all the remedial and removal actions specified in the Record of Decision for Operating Unit 4 and the Record of Decision for Operating Unit 7

2. Even if the "other" wording is open to later environmental disasters outside fo the Libby, Montana area, I think they would have to have some very specific medical conditions...all of which are asbestos-related in nature:

``(iv) is determined under this section to meet the criteria in this subparagraph.

``(B) Conditions described.--For purposes of subparagraph (A), the following conditions are described in this subparagraph:

``(i) Asbestosis, pleural thickening, or pleural plaques as established by--

``(I) interpretation by a `B Reader' qualified physician of a plain chest x- ray or interpretation of a computed tomographic radiograph of the chest by a qualified physician, as determined by the Secretary; or

``(II) such other diagnostic standards as the Secretary specifies, except that this clause shall not apply to pleural thickening or pleural plaques unless there are symptoms or conditions requiring medical treatment as a result of these diagnoses.

``(ii) Mesothelioma, or malignancies of the lung, colon, rectum, larynx, stomach, esophagus, pharynx, or ovary, as established by--

``(I) pathologic examination of biopsy tissue;

``(II) cytology from bronchioalveolar lavage; or

``(III) such other diagnostic standards as the Secretary specifies. `

`(iii) Any other diagnosis which the Secretary, in consultation with the Commissioner of Social Security, determines is an asbestos- related medical condition, as established by such diagnostic standards as the Secretary specifies.

So, unless asbestos was one of the chemicals included on the Norfolk Southern train which derailed, I don't think it would make the cut.

The EPA has published a full list of the chemicals which were on board the train...and asbestos isn't among them:

• Polypropylene
• Vinyl Chloride
• Dipropylene Gllycol
• Propylene Glycol
• Diethylene Glycol
• Ethylene Glycol Monobutyl Ether
• Ethylhexyl Acrylate
• Polyvinyl
• Polypropyl Glycol
• Isobutylene
• Butyl Acrylates
• Benzene

Now, there is a portion of the section which may leave open the possibility of an East Palestine inclusion...

``(3) Other individual described.--An individual described in this paragraph is any individual who--

``(A) is not an individual described in paragraph (2);

``(B) is diagnosed with a medical condition caused by the exposure of the individual to a public health hazard to which an emergency declaration applies, based on such medical conditions, diagnostic standards, and other criteria as the Secretary specifies;

``(C) as demonstrated in such manner as the Secretary determines appropriate, has been present for an aggregate total of 6 months in the geographic area subject to the emergency declaration involved, during a period determined appropriate by the Secretary;

``(D) files an application for benefits under this title (or has an application filed on behalf of the individual), including pursuant to this section; and ``(E) is determined under this section to meet the criteria in this paragraph.''.

It's the highlighted bit above which I think is what Bell's claim hinges on. I'm not an attorney, and am definitely not an expert on interpreting legislative text, so I can't say for certain whether the door is open for East Palestine to be included here.

I suspect that it isn't...for one thing, if it was, I'm pretty sure that the residents of Flint, Michigan would have Medicare for life after the water crisis of 2014 (they did get approved for expanded Medicaid coverage instead, anyway)...but I could be wrong.