Despite its monumental achievement, the Affordable Care Act (ACA), like any landmark piece of legislation, was only the beginning. Its aim was grand, but even putting aside the wild circumstances of its enactment, it was evident that effective implementation would raise major challenges. A plausible assumption shared by many was that following the ACA’s legislative odyssey, life would settle down and the hard job of building out (and modifying where needed) its initial legislative scaffolding would get underway.
Things didn’t work out this way, of course. Since it was signed into law, the ACA has faced an unprecedented attempt at legislative nullification: in Congress, with more than 50 separate repeal votes; through a pileup of ongoing legal challenges in the courts; through a “50 vetoes” state strategy involving refusal to establish Exchanges and denial of the Medicaid expansion once the option became legally available in the wake of National Federation of Independent Business (NFIB) v. Sebelius; in the court of public opinion, through endless polls asserting a deep hatred of the law; and even in the ACA’s “Obamacare” moniker, an inherent sneer. (Who can blame the Administration for its ultimately unsuccessful effort to embrace and thus neutralize the name?) The demise of the law could not have been better scripted.
And yet the Affordable Care Act has prevailed. Five years after passage, it has succeeded in covering over 30 million Americans and has reduced the percentage of uninsured Americans by 20 percent from its 2010 high. The ACA has spawned a wide array of efforts to improve the accessibility, quality, and efficiency of health care. Primary care has been extended to an additional 5 million residents of the most severely medically underserved urban and rural communities. Efforts to transform Medicaid into a full pillar of health reform proceed steadily, through a combination of eligibility expansions and initiatives aimed at improving how care is organized, delivered, and financed.
In his Health Affairs Blog post on King, Tim Jost notes the lawsuits that await resolution. But the Court’s decision in King is an undeniable watershed. The Court’s opinion took far too long to emerge from behind the velvet drapes. But it amounts to a total legal refutation of the single greatest challenge to the ACA’s ability to function—a challenge that actually argued that Congress intentionally designed the law to fail—just as NFIB represents the most important test of the law’s basic constitutionality.
This is not to say that the war over health reform is over. It probably wouldn’t be summer were opponents not to try to wrap either an outright or a de facto ACA repeal effort inside an FY 2016 budget reconciliation bill. CBO’s estimated cost impact of repealing the law, between $137 billion and $353 billion depending on whether macroeconomic effects are accounted for, would seem to make such an effort impossible unless Congress were to set aside its own legislative process, which it always has the option of doing; alternatively, Congress could cobble together deep cuts in Medicare and Medicaid to come up with the necessary funds to pay for a repeal. (Such a bill surely would be vetoed, probably to many Republicans’ relief.)
Of course, the King decision is sure to give an added boost to efforts by Republican Presidential candidates to run campaigns based in large part on an ACA repeal, while forcing Democratic candidates to once again commit time and resources to a defense of the law. No matter how much the general public may tire of this process—especially as the law touches more and more families—and want to move on, the topic of ACA repeal will remain a staple of the political landscape.
But at some point, rage has to abate and the changes envisioned under the ACA have to be either overtly or tacitly allowed to become part of the basic legal fabric of the American health care system. Maybe that time is now finally approaching.
The Work That Remains
Assuming that the nation is one Presidential election away from the final word on whether the ACA is here to stay, it is worth reflecting on some of the near-term concerns that emerge as important follow-on policy issues. (Perhaps the deepest question raised by the ACA—whether it makes sense to keep a legal framework that continues to favor health coverage as an employer benefit at all—is put off for another day).
1. Expanding Medicaid To Cover The Poorest People
King’s triumph in validating the entitlement to premium subsidies for all qualified Americans regardless of where they live brings into even sharper relief the enormous disgrace of the Medicaid problem — both the refusal of all states to adopt the expansion and the exclusion of the millions of otherwise-eligible low income people who cannot meet the ACA’s long-term U.S. residency test.
Both problems need to be addressed, the first through persuasion, the second through legislation. There simply is no explanation other than ideology for the decision by 21 states to nullify the Medicaid expansion. There are those who say that patience is the way to go and that ultimately all states will embrace Medicaid expansion. But the impact of the coverage gap, especially on minority Americans (Medicaid expansion was one of the Reverend Clemente Pinkney’s enduring issues in the South Carolina legislature.) simply is too great to think in terms of “ultimately.”
To be sure, a §1115 demonstration strategy has borne fruit. But allowing certain “experiments”—such as enabling states to impose premiums on the very poorest adults on pain of lock-out, or imposing superfluous work requirements—would simply throw up new and harsh access barriers under cover of expansion. (Most excluded adults either work or live in working families; those who do not by and large have serious health conditions). A combination of political and negotiating strength is needed to overcome this most terrible of all ACA weaknesses.
2. Making the ACA’s Private Insurance Provisions Work Better For Children, Low- And Moderate-Income Families, And People With Disabilities
The ACA’s most enormous strides have been made in the pathways to affordable coverage it has created for low- and moderate-income individuals and families, including families with children, as well as in its elimination of coverage barriers for persons with serious health needs. But significant challenges remain. The so-called “family glitch” means that low- and moderate-income workers’ own employer coverage may be affordable (as defined by law), but their family coverage is not. Yet they are unable to qualify for tax subsidies in order to purchase reasonably priced coverage for their children. GAO estimates that a half million children are affected. The Children’s Health Insurance Program (CHIP) only partially offsets this problem, since in many states the upper bounds of CHIP eligibility fall well below the ACA’s premium subsidy standard.
Beyond the family glitch is the problem of dental coverage for children. Oral health care arguably is the single most important insurance benefit for children given the universality of oral health concerns and the cost of appropriate care. Under the ACA, pediatric oral health coverage was supposed to be an integral element of all plans subject to the essential health benefit standard, and its cost therefore taken into account when calculating premium subsidies. But this has turned out not to be the case as the law has been implemented. Depending on where they live, families purchasing subsidized Exchange coverage may be unable to find a plan that includes dental benefits for their children, meaning that they must buy stand-alone dental plans that are subject to separate premiums and cost-sharing requirements, maintain separate out-of-pocket limits, and continue to apply pre-existing condition exclusions. This problem has to be fixed.
For low- and moderate-income families, subsidy assistance is too low. The gap between subsidies and reality shows up most clearly when the Exchange subsidy structure is compared to that used for separate CHIP plans. A family living at twice the federal poverty level can purchase a CHIP plan with roughly a 90 percent actuarial value. Under the Exchange system, not only would the family have to pay a higher family premium, but cost-sharing assistance would bring the actuarial value for covered benefits to only about 73 percent. Considering everything a family might need that falls outside the scope of an exchange plan (e.g., vision care or adult dental benefits), leaving these families with such high financial exposure clearly poses real access problems.
Especially for people with disabilities, the ACA’s market reforms — specifically its ban on the use of pre-existing condition exclusions and discriminatory pricing techniques — were clearly the law’s signature achievement. But in the face of these non-discrimination provisions, some insurers have devised other types of discriminatory techniques, such as redlining people with costly conditions by hiking out-of-pocket costs for selected prescription drugs, attempting to classify mental health conditions such as autism as physical conditions in order to avoid mental health parity requirements, or structuring their networks to create barriers to certain types of specialty care.
Overcoming these practices and weaknesses may, in some cases, require new legislation. In others, what is needed is clearer regulatory standards and a greater commitment to oversight and enforcement, which have been weak. (Who has time for active oversight and enforcement when the battle just to hang onto paper gains is so great?)
3. Making The ACA A More Potent Force For Cost Containment And Quality Improvement
Building on trends already underway in the health care industry, the ACA sought to propel forward progress through the creation of new efficiency and quality improvement tools in the form of Medicare and Medicaid organizational and payment reforms, and multi-payer system transformation initiatives. The legislation introduced spending control innovations such as broader oversight of insurance pricing in order to create downward pressure on health care prices. But whether these indirect efforts to control health care costs will achieve long-lasting change remains to be seen; without long-lasting change, Americans’ coverage will continue to erode, as most powerfully evidenced by the creation of a new generation of under-insured Americans as a result of the growth of high-cost-sharing plans.
Any decision to take a more direct approach to health care cost containment will need an unprecedented level of agreement across the political spectrum, but the nation can expect little to no real progress if it remains engulfed in a battle over government’s role in the threshold matter of coverage itself.
4. Building Primary Health Care Access For Medically Underserved Communities And Populations And Addressing The Underlying Social Conditions Of Health
The ACA’s Community Health Center Fund, recently extended for two additional years as part of the Medicare Access and CHIP Reauthorization Act (MACRA, Pub. L. 114-10), has helped health centers extend their reach to an additional 5 million people since 2010. But even with this expansion, health centers are able to offer affordable primary health care in only a fraction of all medically underserved communities, and health centers as well as other safety-net providers face a critical shortage of trained medical, nursing, dental, mental health, and other professionals. Of all the questions we should not have to ask ourselves as we think about how the ACA can be strengthened, whether there ought to be an ongoing public investment in the development of primary care infrastructure is high on the list.
Nor should we have to ponder whether health care systems that treat medically complex children and adults should be equipped to address social as well as medical care needs. The attributes of health care systems equipped to tackle both tasks in an effective manner have been described in numerous reports and studies, and CMS’ proposed Medicaid managed care regulation represents an important step in creating a policy framework for the growth of such systems.
Financing the social and population health services element of integrated delivery systems remains a challenge. Josh Sharfstein has put forth an excellent suggestion on how Medicaid managed care payments themselves might play a role, and grant-based funding will continue to be crucial in this regard.
All this is to say that King should be understood for its fuller policy implications: It’s time to stop fighting over whether access to affordable insurance and high-quality health care is part of government’s basic role in the lives of Americans. Indeed, this is the only wealthy nation in which this question seems to remain open to debate. King’s bigger meaning is that it is now time to move on, so that the ACA’s deeper promises can be effectively translated into reality.
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