There has been much discussion on the future of the Affordable Care Act (ACA) and health policy in general, since the election. While it is tempting to try to predict the future of health policy, in reality it is still too early to know how policy will change, via which vehicles, and according to what timeline. There are, however, some key themes to be mindful of as we approach inauguration day:
- Repeal and replace will take time. Despite talk of repealing the ACA in the first 100 days of the new administration, repeal will be a complex, lengthy process. A comprehensive legislative package to repeal the ACA wholescale would be subject to an almost-certain Democratic filibuster in the Senate (unless Senate leadership were to eliminate the filibuster, which is unexpected given the longer-term implications of doing so) and would be challenging given the ACA’s integration in the health care system. The only legislation that can pass immediately is a budget reconciliation package, which would not be subject to a filibuster and would be more limited. Keep in mind that only provisions directly impacting the federal budget can be passed via budget reconciliation. Congress would be able to repeal some provisions—including the premium tax credits and cost-sharing reductions, small business tax credits, individual mandate and employer mandate penalties and other tax provisions, as well as the Medicaid expansion and other Medicaid provisions—but not others, such as the health insurance consumer protections. The budget reconciliation package passed in 2015,and subsequently vetoed, is likely to be the model for such an effort going forward.Not a vehicle for wholescale repeal, budget reconciliation would also cause chaos if implemented alone. For example, repealing the individual mandate requirement via budget reconciliation without repealing guaranteed issue, would significantly undermine the commercial insurance market. For this reason – and because repeal is predicted to result in 30 million individuals losing health insurance coverage – it is expected that the effective date of any repeal would be delayed until a replacement package can be implemented (the 2015 reconciliation bill delayed repeal of many provisions until 2017). Like repeal, replacement legislation will take time to pass given the threat of a filibuster, and will take time to implement similar to the ACA. Further, ACA opponents are yet to coalesce behind one replace package (though there are common themes among proposals, as outlined below).
- Other vehicles may be used to stop implementation of the ACA. Legislation is not the only vehicle for undermining the future of the ACA. Options for quicker action to chip away at the ACA can be advanced exclusively by the new administration, including:
- Failing to continue the prior administration’s legal defense of payments for cost-sharing reductions under House v. Burwell (see the article below on the court’s decision to stay this case until the new administration takes office);
- Failing to provide necessary guidance on interpretation of ACA rules and administrative procedures;
- Using regulatory flexibility to make changes, including to the plans that can be offered through the Exchanges;
- Failing to enforce ACA provisions, such as the individual mandate;
- Failing to seek funding for the FFMs;
- Failing to resolve Exchange/Medicaid enrollment and data transfer issues;
- Approving more 1332 State Innovation Waivers;
- Approving more aggressive 1115 Waivers (work requirements, premiums) and/or stopping approval of Medicaid expansion-related waivers; and
- Failing to pursue reauthorization of the Children’s Health Insurance Program (CHIP).
Further, uncertainty about the ACA immediately undermines insurer participation on Exchanges.
- There are common themes among “replace” packages. While those that oppose the ACA have yet to coalesce behind a repeal package, there are common themes among the President-elect’s health care platform and leading Congressional proposals. For example, the House consensus package released this summer (A Better Way), the Empowering Patients First Act proposed by Representative Price (President-elect Trump’s pick for Secretary of the Department of Health and Human Services), and the Patient CARE Act introduced by Senators Hatch and Burr and Representative Upton. Common provisions include:
- Tax deductions and tax subsidies
- Expansion of Health Savings Accounts
- Health insurance sales across state lines
- Purchasing pools
- High-risk pools
- Retention of some ACA provisions (e.g., pre-existing condition protections for those who have had continuous coverage and young adult coverage under family plans)
- Medicaid block grants and/or per-capita allotments
- Privatization of Medicare
- Tort reform
PCG’s health policy experts are closely following health policy developments and will continue to keep states posted on those developments and implications as the new administration takes office. We are also available to assist states as you strategize next steps.