ACA re­peal-and-re­place ef­forts just got a lot more dif­fi­cult

Modern Healthcare - - NEWS - By Me­lanie Evans

The bat­tle ahead for Repub­li­cans who hope to re­peal and re­place the Af­ford­able Care Act is one that will be fought on the cam­paign trail, even as mar­kets move ahead with more con­fi­dence af­ter last week’s U.S. Supreme Court de­ci­sion.

The rul­ing—a huge win for Pres­i­dent Barack Obama and the mil­lions of peo­ple who get to keep their sub­si­dized cov­er­age—means the mar­ket dis­rup­tion that will ac­com­pany any fu­ture ef­fort to dis­man­tle the law will grow sig­nif­i­cantly larger since mil­lions more peo­ple are likely to gain cov­er­age through the fed­er­ally run ex­changes over the next two years.

The court’s de­ci­sion left lit­tle prospect that le­gal chal­lenges will dis­man­tle the law be­fore 2017. Any con­gres­sional re­peal ef­fort faces the threat of a veto while Obama is still in of­fice. And the next ad­min­is­tra­tion—should the GOP win the White House and keep con­trol of Congress—will see the law’s achieve­ments fur­ther ce­mented in place.

“It is such a clear judg­ment,” said Joseph An­tos, a healthcare economist at the Amer­i­can En­ter­prise In­sti­tute, a cen­ter-right think tank in Washington. “That’s it. This is a clear mes­sage to Repub­li­cans if you want to change any­thing about the ACA, you re­ally do have to re­peal it and start all over again.”

Repub­li­cans were swift to de­nounce the court’s 6-3 de­ci­sion. Con­gres­sional lead­ers and pres­i­den­tial can­di­dates re­acted by vow­ing to jet­ti­son the law.

“I am dis­ap­pointed in the Bur­well de­ci­sion, but this is not the end of the fight against Oba­macare,” said for­mer Florida Gov. Jeb Bush, who leads Repub­li­can pres­i­den­tial can­di­dates in fundrais­ing, in a Twit­ter post.

Mar­kets, how­ever, were ju­bi­lant, and the rally un­der­scored what observers de­scribed as a grow­ing cer­tainty that the in­sur­ance mar­ket for mil­lions of Amer­i­cans cre­ated un­der the ACA will re­main.

Per­haps most im­por­tant, said both op­po­nents and sup­port­ers of the law: Repub­li­cans must clearly ar­tic­u­late an al­ter­na­tive to the Af­ford­able Care Act.

GOP plans will likely in­clude pop­u­lar ACA con­sumer pro­tec­tions, such as the guar­an­tee that peo­ple can’t be de­nied cov­er­age be­cause they are al­ready sick. “It is po­lit­i­cal re­al­ity that we are not go­ing to go back to the old days where peo­ple can be re­fused cov­er­age,” An­tos said. But al­ter­na­tives would also likely not man­date pur­chas­ing cov­er­age, which is nec­es­sary to pre­serve the fi­nan­cial vi­a­bil­ity of an in­di­vid­ual in­sur­ance mar­ket with guar­an­teed is­sue.

Repub­li­can pres­i­den­tial hope­fuls, in­clud­ing Louisiana Gov. Bobby Jin­dal, Florida Sen. Marco Ru­bio and Texas Sen. Ted Cruz, each of whom has of­fered pro­pos­als to re­place the ACA, now face a higher bar. “Ob­vi­ously, it’s in­cum­bent on them to ex­plain what that would be and how that would work bet­ter than be­fore” the Af­ford­able Care Act, said Deb­o­rah Chol­let, a se­nior fel­low at the pol­icy re­search com­pany Math­e­mat­ica, where she stud­ies health in­sur­ance mar­kets. “Ex­plain to me why we’re not go­ing to see steadily ris­ing unin­sured and steadily ris­ing healthcare costs, aside from the broad rhetoric that mar­kets al­ways work.”

With­out the man­date for in­di­vid­ual cov­er­age, in­sur­ers will press to refuse cov­er­age to those al­ready sick. Re­mov­ing the man­date that in­di­vid­u­als buy in­sur­ance “pulls the thread which dis­man­tles” the mar­ket, Cho­lett said.

The re­sult would likely be the re­turn of small, costly high-risk pools that, be­fore the ACA, of­fered un­af­ford­able cov­er­age to peo­ple with can­cer and other pre-ex­ist­ing con­di­tions who couldn’t buy in­sur­ance else­where. “If it did not work be­fore, why would it work now?” she said.

Repub­li­cans in Congress vowed ac­tion af­ter the de­ci­sion, but of­fered few specifics for re­place­ment. House Ma­jor­ity Leader Kevin McCarthy (R-Calif.), said in a state­ment that the court’s rul­ing con­firmed “we must re­peal and re­place this fun­da­men­tally flawed law.”

House Speaker John Boehner de­clined to say if the House would vote this year on a Repub­li­can al­ter­na­tive to the law. “We’ll see,” he said at a post-rul­ing news con­fer­ence. “There’s been dis­cus­sion about that. Most of the dis­cus­sion so far this year was if the court ruled against the ad­min­is­tra­tion in King v. Bur­well, what the re­sponse would be.”

Public opin­ion is split on the ACA, with foes slightly out­num­ber­ing sup­port­ers, and both camps split along party lines, the latest Kaiser Health Track­ing Poll found. The po­lit­i­cal di­vide was equally clear on public at­ti­tudes on what should hap­pen next. Democrats largely sup­port con­tin­ued ACA adop­tion or ex­pan­sion, while Repub­li­cans mostly fa­vor scal­ing back or scrap­ping the law. In­de­pen­dents were evenly split.

Strik­ing down man­dates that ev­ery­one buy in­sur­ance and em­ploy­ers of­fer health ben­e­fits won ap­proval from roughly 40% of Amer­i­cans. More im­por­tant, the poll found, was the high cost of pre­scrip­tion drugs.

Democrats in Congress seized on the rul­ing to re­buke Repub­li­cans who con­tin­ued to call for re­peal. On Twit­ter, Demo­cratic sen­a­tors de­rided fur­ther ef­forts to dis­man­tle the law. “Memo to the non­stop crit­ics of the Af­ford­able Care Act: Stop try­ing to kill this pro­gram and work to make it stronger,” tweeted Sen. Dick Durbin of Illi­nois.

Ad­vo­cates for the unin­sured, mean­while, saw the de­ci­sion as ce­ment­ing the ACA into U.S. pol­icy. “The Af­ford­able Care Act is now, es­sen­tially, a per­ma­nent part of Amer­ica’s healthcare sys­tem,” said Ron Pollack, ex­ec­u­tive di­rec­tor of Fam­i­lies USA.

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