Affordable Care Act Back in the Spotlight: Build on its Progress or Scrap it Entirely?

It is hard to find a starker example of the different approaches our two political parties take to health care than the events of March 26, 2019. The day started with headlines about the Trump administration’s push to have the Affordable Care Act (ACA) declared unconstitutional, and ended with Democratic legislators in the U.S. House introducing a bill that would lower premiums and expand access to coverage through the law’s health insurance marketplaces. If the courts agree with the U.S. Department of Justice (DOJ), close to 20 million people will lose their health insurance, while hospitals and other providers will experience an 82 percent jump in demands for uncompensated care. The House bill (H.R. 1884), on the other hand, would reduce health insurance premiums for more than 13 million people and shore up protections for individuals with pre-existing conditions.

Texas v. Azar: Repeal without Replace, Through the Courts

President Trump campaigned on a promise to repeal the ACA. When that effort failed in Congress, the President repeatedly used his administrative powers to undermine the law, hoping that it would fail. Despite his best efforts, the ACA marketplaces have been remarkably resilient, with relatively steady enrollment and continued participation among insurance companies. Dissatisfied with the effectiveness of their administrative attempts to kill the law, repeal diehards within the White House are now pinning their hopes on the courts. In a surprise shift, the DOJ is now asking the 5th Circuit Court of Appeals invalidate the entire ACA.

It is hard to overstate the chaos – and harm – that would result from a wholesale reversal of the ACA. The law is nine years old and has become intertwined with just about every aspect of health care. Not only do millions depend on it for their coverage, but many more – an estimated 133 million – depend on it to protect them from discrimination due to a pre-existing condition. Further, with health care now representing 18 percent of our economic output, invalidating the law will result in an estimated 1.2 million people losing their jobs, with billions in financial losses for hospitals and other providers.

Most legal experts – including conservative experts – view the plaintiffs’ (and now DOJ’s) legal claims as “weak,” “dangerous, and “beyond the pale.” It has generally been expected that the 5th Circuit would overturn the lower court ruling and we could call it a day. But several recent appointments to that court – already known as a conservative circuit – are Trump administration appointees. So no one should rest easy.

The “Protecting Pre-existing Conditions & Making Health Care More Affordable Act of 2019”: A Mouthful, But a Major Step to Expand Access to Coverage

Meanwhile, on the other side of the aisle, the chairs of the House Energy & Commerce and Ways & Means Committee unveiled a comprehensive bill designed to lower premiums for ACA marketplace coverage, boost enrollment among the uninsured, and strengthen protections for people with pre-existing conditions. Key elements of the bill include:

  • Tax credits to help more middle-income families afford health insurance. Currently, you have to be between 100 and 400 percent of the federal poverty line (FPL) to qualify for the ACA’s premium tax credits. The bill would allow families with incomes above 400 percent FPL to qualify for tax credits if benchmark plan premiums were more than 8.5 percent of their income.
  • Eliminating the “Family Glitch.” This bill would ensure that your family members would be eligible for premium tax credits if your employer offers insurance that is affordable for you, but not your family.
  • Funding reinsurance. By protecting insurers from the highest-cost medical claims, the bill would lower premiums across the individual market.
  • Investing in consumer outreach, assistance. The bill would invest in efforts to educate consumers about coverage options and help them navigate the system. Investing in outreach boosts enrollment, brings more healthy people into the marketplaces, and helps moderate premiums as a result. One-on-one assistance helps consumers get the financial help they need and ultimately enroll in the coverage that’s right for them.
  • Limiting the sale of shortterm and association health plans. The bill would reverse a Trump administration policy that encourages the sale of plans that can deny coverage to people with pre-existing conditions, often come with skimpy benefits, or are otherwise exempted from key ACA protections. CHIR’s recent study of the marketing of short-term plans found that the brokers and websites that sell these products often mislead consumers into believing they are buying a comprehensive insurance product when they are not.
  • Limiting state waivers that would undermine pre-existing condition protections. The bill would reverse a Trump administration policy that allows states to pursue ACA waivers that roll back minimum benefit standards or promote the sale of plans that discriminate based on pre-existing conditions.

This bill would be a strong step forward to help the many people who continue to struggle with the costs of health care. Although its prospects look strong in the U.S. House, the GOP-controlled Senate has shown less appetite for tackling issues related to health coverage. In any event, this bill becomes moot if the White House prevails in its arguments in Texas v. Azar, because there will no longer be a federal floor of protections – or financial support – to build upon.

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