How to sab­o­tage the ACA

Los Angeles Times - - OP-ED - Nicholas Ba­gley is a pro­fes­sor of law at the Univer­sity of Michi­gan. By Nicholas Ba­gley

With the col­lapse (for now) of the Repub­li­can ef­fort to re­peal the Af­ford­able Care Act, the Trump ad­min­is­tra­tion faces a stark choice. Should it do what­ever it can to make Oba­macare work? Or should it sab­o­tage the law in an ef­fort to force Democrats to the bar­gain­ing ta­ble?

Make no mis­take about it: The choice is in Pres­i­dent Trump’s hands. Con­trary to Repub­li­can talk­ing points, the Af­ford­able Care Act is work­ing. Mil­lions have gained cov­er­age, and the rate of the unin­sured is at a his­toric low.

It’s not per­fect. About onethird of states, mainly in the South and the Great Plains, have re­fused fed­eral money that would al­low them to ex­pand Med­i­caid and cover some of their most vul­ner­a­ble cit­i­zens. The new health­care ex­changes also have strug­gled in some states. In­sur­ers have been re­luc­tant to par­tic­i­pate in sparsely pop­u­lated, high-cost ar­eas, erod­ing the mar­ket com­pe­ti­tion that leads to low pre­mi­ums. And there’s a lot of frus­tra­tion with ex­ces­sively high de­ductibles for ex­change plans.

These are fix­able prob­lems, though — if Repub­li­cans want to fix them. It’s not clear that they do.

This past week­end, Trump threat­ened again to with­hold bil­lions of dol­lars in cost-shar­ing re­duc­tions from health in­sur­ers. That money is sup­posed to com­pen­sate in­sur­ers for tak­ing on low-in­come cus­tomers.

But these pay­ments are mired in con­tro­versy. House Repub­li­cans filed a law­suit dur­ing the Obama pres­i­dency ar­gu­ing that Congress never ap­pro­pri­ated the nec­es­sary money. A fed­eral judge agreed and ruled that the pay­ments had to stop.

For now, the judge’s de­ci­sion has been put on hold to al­low for an ap­peal. If he wanted to, how­ever, Trump could drop the ap­peal with lit­tle more than a stroke of a pen, in which case the rul­ing would go into ef­fect and the pay­ments would have to end im­me­di­ately.

That move would throw the ex­changes into chaos. In­sur­ers that counted on fed­eral money could go bank­rupt, leav­ing their en­rollees with­out cov­er­age. Many of those that weath­ered the im­me­di­ate storm would even­tu­ally leave the ex­changes any­way: How could they af­ford to do busi­ness with a faith­less fed­eral part­ner? Those that re­mained would have to hike their pre­mi­ums to make up for the lost fed­eral money.

Trump could throw other wrenches into the works, as well. He could an­nounce, for ex­am­ple, that he won’t en­force the in­di­vid­ual man­date, which would en­cour­age healthy peo­ple to wait un­til they get sick to buy health in­surance — and drive up pre­mi­ums by as much as 20%. And he could make it eas­ier for states to ap­ply for waivers that ex­empt them from cer­tain Oba­macare rules.

Some parts of the health re­form law are more pro­tected. Al­though Med­i­caid de­pends on fed­eral fi­nanc­ing, the states are in charge of ad­min­is­ter­ing their own Med­i­caid pro­grams. That partly in­su­lates them from fed­eral tam­per­ing. Al­though the Trump ad­min­is­tra­tion could al­low states to place more oner­ous con­di­tions on Med­i­caid el­i­gi­bil­ity, like work re­quire­ments for non-dis­abled adults, Med­i­caid as a whole is rel­a­tively safe.

The pri­vate in­surance mar­ket is much more vul­ner­a­ble. And the big­gest prob­lem may not be what the Trump ad­min­is­tra­tion does. It may be what it doesn’t do. The ex­changes de­pend on com­pli­cated in­for­ma­tion tech­nol­ogy, and main­tain­ing them re­quires com­pe­tent day-to-day man­age­ment. What if Trump does not bother?

The prob­lem is most acute for the 38 states that rely on Health­Care.gov, the fed­er­ally ad­min­is­tered ex­change. But it’s also a con­cern for the states, in­clud­ing Cal­i­for­nia, that run their own ex­changes. To cal­cu­late a cus­tomer’s sub­si­dized pre­mi­ums, for ex­am­ple, the state ex­changes need to know that cus­tomer’s in­come — which re­quires rapid com­mu­ni­ca­tion with data­bases at the In­ter­nal Rev­enue Ser­vice. If that com­mu­ni­ca­tion chan­nel goes down and no one re­pairs it, the state ex­changes can’t work.

For Oba­macare to fal­ter, in other words, Trump doesn’t need to burn down the ex­changes. He just needs to let their gears turn to rust.

This sort of ma­lign ne­glect would vi­o­late the pres­i­dent’s con­sti­tu­tional duty to “take Care that the Laws be faith­fully ex­e­cuted.” But don’t ex­pect the courts to save the day. Courts are pretty good at stop­ping pres­i­dents from do­ing un­law­ful things, but they can’t thwart a cam­paign of mis­man­age­ment.

For that, the pub­lic has to step up. Trump is bet­ting that the pub­lic will blame Democrats if the in­surance mar­kets im­plode. Polling data sug­gests he’s wrong about that, and for good rea­son. Trump has openly threat­ened to cause the col­lapse of the in­surance mar­kets. Who do you think vot­ers will blame if they do, in fact, col­lapse?

The fail­ure of the Repub­li­cans’ re­peal ef­forts has given Trump an op­por­tu­nity to dis­play lead­er­ship. Tran­scend­ing par­ti­san­ship, he could put the Af­ford­able Care Act on a sound foot­ing while work­ing with Congress to fix its gen­uine prob­lems. Do­ing so would be good for Trump, good for the coun­try and good for the mil­lions of peo­ple who could sleep at night with­out won­der­ing how they’ll pay their med­i­cal bills.

Or, like a tod­dler with a pile of blocks, Trump could bring the whole thing crash­ing down.

Mark Ral­ston AFP/Getty Images

PROTESTERS rally in Los An­ge­les on Satur­day to sup­port the Af­ford­able Care Act.

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