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Scorecard: Keeping Track of Potential ACA—and Other—Federal Law Changes

January 3, 2017
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What might happen to the internal health system elements of the ACA remains very unclear

In an article published yesterday in The New York Times, Abby Goodnough and Robert Pear (with reporting contributed by Gardiner Harris) provide a helpful overview of some of the possible changes that could take place to the Affordable Care Act (ACA) this year, as the U.S. Congress, led by Republican majorities in both the Senate and House of Representatives, considers what to do about the groundbreaking 2010 legislation. As a presidential candidate, Donald J. Trump promised many times to “repeal and replace Obamacare,” as the sweeping federal legislation is often called. Both Trump, who will take office as President on January 20, and most Republican federal candidates and office-holders, have expressed a very strong desire to eliminate or gut the ACA, focusing primarily on its creation of the health insurance exchanges that are providing health insurance products to more than 11 million Americans. Together, the creation of the health insurance exchanges, the expansion of the Medicaid program, partly via federal subsidies, in 31 states and the District of Columbia, and such provisions as parents’ ability to keep their adult children covered under the parents’ health insurance plans until their children reach the age of 26, have led to the access to health insurance of over 20 million Americans.

So members of Congress and the incoming administration will be faced with a series of dilemmas around the health insurance-related provisions of the ACA, and what potentially to do with them, meaning that even that portion of the law may not be completely “repealed,” as has been promised.

Indeed, as a Brookings Institution-sponsored report, authored by Alice M. Rivlin, Loren Adler, and Stuart M. Butler, published on Dec. 13 and entitled, “Why repealing the ACA before replacing it won’t work, and what might,” noted, “Despite the lack of consensus on what a replacement plan looks like, Republicans are signaling that they plan to use the budget reconciliation process (which only requires a simple majority in the Senate rather than the 60 votes needed to bypass a filibuster) to pass a law immediately that repeals the ACA’s Medicaid expansion, premium tax credits, cost-sharing assistance, and the taxes that helped pay for it (leaving in place the law’s insurance market and Medicare reforms) as of a date certain in the future (likely January 1, 2020).” But, the report’s authors add, “[A] reconciliation bill (like the one passed in 2016) would likely destabilize the individual market and very possibly cause it to collapse in some regions of the country during the interim period before any replacement is designed. That’s because some insurers that have stayed in the individual insurance market in hopes of adding customers as they gained experience with the ACA marketplaces would likely pull out of the individual market under the “repeal and delay” scenario, in the face of the law’s uncertain future and thus unpredictable enrollment and costs.” In other words, legislation to repeal the ACA via a reconciliation bill would require leaders in Congress to figure out two things: how to literally “reconcile” such legislation with federal budget stringencies, while also attempting to maintain stability in the national private health insurance market.

Rivlin, Adler, and Butler aren’t the only experts casting doubt on the idea of a “total repeal” of the ACA via the congressional budget reconciliation process. Writing on Jan. 3 in the Health Affairs Blog, Joseph Antos and James Capretta, in an article entitled “The Problems With ‘Repeal and Delay,’” write, “To begin with, ‘repeal’ may not really mean full repeal of the ACA. Congressional leaders have mentioned using H.R. 3762 from the just-completed Congress as the blueprint for what they plan to do in the new year. H.R. 3762 was passed early in 2016 (and then vetoed by President Obama) using the budget reconciliation procedure, which allowed it to be approved in the Senate with a simple majority vote. In practical terms, that meant Republicans could pass it without needing any support from Democratic senators. The assumption is that a similar bill could pass again in 2017. (The GOP will have 52 seats in the Senate in January.) However,” Antos and Capretta note, “the budget reconciliation process comes with strict rules about what provisions can be included in the legislation. Only provisions that directly change taxes or entitlement spending can be included in such bills, which means H.R. 3762 could not repeal large sections of the ACA that are more regulatory than budgetary in nature.”

Antos and Capretta go on to write that “A partial repeal bill passed using reconciliation could put an end date on funding for the premium credits and cost-sharing subsidies provided in the ACA, and reduce the federal government’s payments to states that have adopted the ACA’s Medicaid expansion. It could also terminate the taxes that partially financed the legislation when it was enacted in 2010. The repeal bill will almost certainly eliminate the tax penalty associated with enforcement of the individual mandate but is likely to delay repealing the tax credits and Medicaid expansion until at least 2019.”

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