The Democrats’ reconciliation bill includes several major health care pieces backed by different lawmakers and advocates, setting up a precarious game of policy Jenga if the massive measure needs to be scaled back.
Between the lines:Health care may be a priority for Democrats. But that doesn’t mean each member values every issue equally.
Why it matters: As the party continues to hash out the overall price tag of its giant reconciliation bill, it’s worth gaming out which policies are on the chopping block — and which could potentially take the entire reconciliation bill down with them.
There are clear winners of each pillar of Democrat’s health plan:
Seniors benefit from expanding Medicare to cover dental, vision and hearing benefits.
Low-income people — primarily in the South and disproportionately people of color — in non-expansion states benefit if the Medicaid gap is closed, giving them access to health coverage.
Affordable Care Act marketplace enrollees benefit if the increased subsidy assistance that Democrats enacted earlier this year is extended or made permanent.
Elderly and Americans with disabilities benefit from an expansion of their home-based care options, and their caretakers benefit from a pay bump.
Seniors — and potentially anyone facing high drug costs — benefit if Medicare is given the authority to negotiate drug prices, although the drug industry argues it will lead to fewer new drugs.
Yes, but:Each of these groups face real problems with health care access and affordability. But when there’s a limited amount of money on the table — which there is — even sympathetic groups can get left in the dust.
Each policy measure, however, also has powerful political advocates. And when Democrats have a razor-thin margin in both the House and the Senate, every member has a lot of power.
Seniors are disproportionately powerful on their own, due to their voting patterns. But expanding what Medicare covers is extremely important to progressives — including Sen. Bernie Sanders.
Closing the Medicaid gap is being framed as a racial justice issue, given that it disproportionately benefits people of color. And although many Democrats hail from expansion states — particularly in the Senate — some very powerful ones represent non-expansion states.
These members include Sen. Raphael Warnock, who represents Georgia and is up for re-election next year in an extremely competitive seat, and Rep. Jim Clyburn, who arguably is responsible for President Biden winning the 2020 primary.
The enhanced ACA subsidies are scheduled to expire right before next years’ midterm elections. Democrats’ hold on the House is incredibly shaky already, making extending the extra help a political no-brainer.
Expanding home-based care options was one of the only health care components of Biden’s original framework for this package. But aside from the president’s interest in the issue, unions care a lot about it as their members stand to gain a pay raise — and Democrats care a lot about what unions care about.
And finally, giving Medicare the power to negotiate drug prices has the most powerful opponents, theoretically making it vulnerable to the chopping block. But it also polls very highly, and perhaps even more importantly, produces enough government savings to help pay for these other health care policies.
The bottom line: “From a political perspective, none of these health care proposals seem very expendable,” said KFF’s Larry Levitt.
Most — if not all of them — can be scaled to save money.
But there are also powerful constituencies for the other components of the bill that address issues like child care and climate change, meaning these health care measures aren’t only competing against one another.
And, Levitt points out, “there’s always a difference between members of Congress staking out positions and being willing to go to nuclear war over them.”
But the hits keep coming. One of the most popular benefits offered by the ACA, free preventive care through manyemployer-based and marketplace insurance plans, is under attack by another legal domino, Kelley v. Becerra. As University of Michigan law professor Nicholas Bagley sees it, “[t]his time, the law’s opponents stand a good chance of succeeding.”
We are public health and economics researchers at Boston University who have been studying how preventive care is covered by the ACA and what this means for patients. With this policy now in jeopardy, health care in the U.S. stands to take a big step backward.
One way it has tried to reach both goals is to prioritize preventive services that maximize patient health and minimize cost, like cancer screenings, vaccinations and access to contraception. Eliminating financial barriers to health screenings increases the likelihood that common but costly chronic conditions, such as heart disease, will be diagnosed early on.
Section 2713 of the ACA requires insurers to offer full coverage of preventive services that are endorsed by three federal groups: the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices and the Health Resources and Services Administration. This means that eligible preventive services ordered by your doctor won’t cost you anything out of pocket. For example, the CARES Act used this provision to ensure COVID-19 vaccines would be free for many Americans.
Removing the financial barrier has drastically reduced the average cost of a range of preventive services. Our study found that the costs of well-child visits and mammograms were reduced by 56% and 74%, respectively, from 2006 to 2018. We also found that the ACA reduced the share of children’s preventive checkups that included out-of-pocket costs from over 50% in 2010 to under 15% in 2018.
We also studied the residual out-of-pocket costs that privately insured Americans had after using eligible preventive services in 2018. We found that these patients paid between $75 million to $219 million per year combined for services that should have been free for them. Unexpected preventive care bills were most likely to hit patients living in rural areas or the South, as well as those seeking women’s services such as contraception and other reproductive health care. Among patients attempting to get a free wellness visit from their doctor, nearly 1 in 5 were later asked to pay for it.
The plaintiffs who brought the latest legal challenge to the ACA, Kelley v. Becerra, object to covering contraception and preexposure prophylaxis (PrEP) for HIV on religious and moral grounds. The case is currently awaiting decision in a district court in Texas, but seems to be headed to the Supreme Court.
The case rests on two legal issues: 1) violation of the nondelegation doctrine, and 2) the appointments clause of the Constitution. The nondelegation doctrine is a rarely used legal argument that requires Congress to specify how their powers should be used. It essentially argues that Congress was too vague by not specifying which preventive services would be included in Section 2713 up front. The appointments clause specifies that the people using government powers must be “officers of the United States.” In this case, it is unclear whether those in the federal groups that determine eligible preventive care services qualify.
Texas District Judge Reed O’Connor has indicated so far that he takes a kind view toward the plaintiff’s case. He could rule that this provision of the ACA is unconstitutional and put the case on a path to the Supreme Court.
Patients stand to lose more than just money
If Section 2713 were repealed, insurers would have the freedom to reimpose patient cost-sharing for preventive care. In the short run, this could increase the financial strain that patients face when seeking preventive care and discourage them from doing so. In the long run, this could result in increased rates of preventable and expensive-to-treat chronic conditions. And because Section 2713 is what allows free COVID-19 vaccines for those with private health insurance, some patients may have to pay for their vaccines and future boosters if the provision is axed.
The ACA has been instrumental in expanding access to preventive care for millions of Americans. While the ACA’s preventive health coverage provision isn’t perfect, a lot of progress that has been made toward lower-cost, higher-value care may be erased if Section 2713 is repealed.
Lower-income patients will stand to lose the most. And it could make ending the COVID-19 pandemic that much harder.
States with 1332 reinsurance waivers will have more pass-through funding to implement the waivers.
The Centers for Medicare and Medicaid Services and the Biden Administration have earmarked $452 million in federal funding through the American Rescue Plan for efforts to lower costs and improve health insurance access in 13 states.
Due to the changes made to the ARP, states with 1332 reinsurance waivers will have more pass-through funding to implement the waivers, and may also have their own state funding available to pursue further strategies to promote insurance affordability.
This funding, said CMS, might otherwise have been spent on 2021 reinsurance costs.
The “pass-through funding” is determined on an annual basis by the Department of Health and Human Services and the Department of the Treasury. They’re available to states with approved section 1332 waivers that have also lowered premiums to implement their waiver plans.
WHAT’S THE IMPACT?
State-based reinsurance programs created through section 1332 waivers are designed to improve health insurance affordability and market stability by reimbursing issuers for a portion of healthcare provider claims that would otherwise be paid by some consumers and by the federal government through higher premiums.
As a result, said CMS, these programs hold the potential to lower premiums for consumers with individual health insurance coverage, and may increase access to coverage and provide more health plan options for people in those reinsurance states, without increasing net federal costs.
The additional funds announced by CMS range from $2.5 million to $139 million per state – varying based on factors such as the size of the state’s reinsurance program. The funds are the result of expanded subsidies provided under the ARP, which will result in new people enrolled, and will cover a portion of the states’ costs for these reinsurance programs.
States with approved section 1332 state-based reinsurance waivers have experienced reduced premiums in the individual market, CMS said. Overall, from plan years 2018 to 2021, states that have implemented section 1332 state-based reinsurance waivers for the individual market have seen statewide average premium reductions ranging from 3.75% to 41.17%, compared to premiums absent the waiver, according to the agency’s internal data.
For example, in 2021, statewide average premium reductions due to the waiver were 4.92% in Pennsylvania, 18.47% in Colorado, and 34% in Maryland, compared to a scenario with no waiver in place.
Beyond reduced premiums, it’s expected that section 1332 state-based reinsurance waivers may help states maintain and increase issuer participation, and may increase the number of qualified health plans available in each county in such states from year to year. For example, states like Colorado, Wisconsin, Alaska and Maryland have seen additional issuers enter or re-enter the individual marketplace since their state reinsurance programs have been implemented.
The agency’s current thinking is that stronger issuer participation in the individual market may increase competition and translate to consumers having more opportunities to obtain affordable health insurance coverage. Nationally, on average, there are more QHP offerings in 2021 than in 2020, and in states with section 1332 state-based reinsurance waivers, the average number of QHPs weighted by enrollment increased by 30.6% from 2020 to 2021.
The states, and their pass-through funding amounts, include Alaska ($43,827,328), Colorado ($49,892,498), Delaware ($10,821,203), Maine ($8,562,238), Maryland ($139,159,548), Minnesota ($64,969,985), Montana ($7,129,995), New Hampshire ($8,820,847), North Dakota ($5,798,044), Oregon ($18,948,114), Pennsylvania ($28,558,672), Rhode Island ($2,590,540) and Wisconsin ($63,408,562). New Jersey’s pass-through funding amount will be announced at a later time.
THE LARGER TREND
In April 2021, the departments announced a total of $1.29 billion in pass-through funding for the 2021 plan year and posted a FAQ that noted that the departments would inform states of additional pass-through to account for the ARP.
ON THE RECORD
“This investment is a testament to our administration-wide commitment to making healthcare more accessible and affordable,” said HHS Secretary Xavier Becerra. “This funding from the American Rescue Plan will reduce monthly healthcare costs for consumers, increase coverage, and provide more options. We will continue to work with states to strengthen the healthcare system as we respond to the COVID-19 pandemic.”
“Reducing a family or individual’s average monthly health coverage costs frees up that money for other needs,” said CMS Administrator Chiquita Brooks-LaSure. “The Biden-Harris Administration continues to work with states to reduce costs and deliver more affordable health coverage options. This is another example of how the American Rescue Plan is helping more people meet their healthcare needs.”
On Thursday, the Missouri Supreme Court unanimously reversed a lower court ruling that held that the state’s $1.9B Medicaid expansion, approved by voters in a 2020 ballot initiative, was unconstitutional.
The ruling clears the way for the state’s Department of Social Services to begin implementation of the expansion, which is expected to cover 275,000 low-income Missouri residents. Under the Affordable Care Act (ACA), the federal government will pay 90 percent of the cost to cover the newly eligible Medicaid beneficiaries, along with an additional bump in federal funding for Missouri’s Medicaid program, thanks to a provision in the American Rescue Plan Act passed earlier this year.
Missouri voters approved the expansion by a 53-47 margin last year, but the ballot initiative was held to be unconstitutional because it did not include a source of funding for the portion of coverage costs to be paid for by the state (and the state legislature refused to allocate money for the expansion, despite currently running a surplus). Five other states have turned to ballot initiatives to expand Medicaid under the ACA, seeking to work around state legislatures that have resisted the change. In all, a dozen states, mostly in the Southeast, have chosen not to expand their Medicaid programs, even despite the additional incentives Congress voted into law this year.
Democrats on Capitol Hill are considering legislative alternatives to provide new coverage to low-income residents in those states, as part of the $3.5T reconciliation package currently being negotiated. Numerous studies have shown the positive impact of expanding Medicaid on health and financial well-being, but state-level politics have proven to be a challenge, especially in deep-red states. Meanwhile, tax dollars continue to flow from those states to fund Medicaid expansion elsewhere—now, including Missouri.
One of the most important initiatives for President Biden since taking office in 2021 has been to pass a sweeping infrastructure bill to improve roads, bridges, water systems, and to make affordable housing more available to Americans in need, to name a few key components. While a bill has not yet been passed, initial estimates range from $2.5 – 3.5 Trillion in total spending across all sectors. How will the proposed infrastructure bill affect healthcare for Americans? Healthcare remains the largest component of household spending in the U.S. In 2019, Americans spent approximately $3.8 Trillion on healthcare, or about 18% of the Gross Domestic Product. More importantly, we learned from the pandemic that healthcare service providers are a critical infrastructure support network to our nation. What does the infrastructure bill provide to assist with this going forward? The largest healthcare components in the infrastructure bill are estimated to be:
$400 Billion for Home and Community Based care for the disabled and elderly. According to census, an estimated 20% of the U.S. population will be over 65 by
Caring for elderly relatives or living independently will become a top concern for most Americans. Home care is projected to grow by 22.6% in the next decade.
Lowering the Medicare eligibility age from 65 to 60. If it passes, this will increase the participants in the Medicare program by an estimated 20 million.
$18 Billion for needed upgrades to VA hospitals. The average age of a VA hospital is 58 years. The private-sector hospitals median age is 11 years old. There are 1,700 VA hospitals and clinics with 69% are more than 50 years old. Additionally, nearly 100 VA sites, mostly in the western part of the country, need seismic correction. Other President Biden Healthcare Priorities There are several other healthcare topics that President Biden has added to his Agenda. • Expand coverage to Medicaid at the state level to provide access to almost 5 million additional individuals • Lowering drug costs for consumers by requiring drug companies to negotiate with Medicare, limiting drug price increases and import drugs to save costs • Ending surprise billing
Expand funding for mental health care through the ACA and bring parity between mental health and other healthcare services
Tax credits for eligible families who enroll in coverage through the Marketplace
Unfortunately, while these estimates may continue to change between now and when a final bill is passed, healthcare is not a meaningful part of the infrastructure bill. Given our recent experience during the pandemic with hospital capacity being overloaded, one would have thought that the infrastructure bill would have addressed this critical shortfall.
Collection agencies held $140 billion in unpaid medical debt in 2020, according to a study published July 20 in JAMA.
Researchers examined a nationally representative panel of consumer credit reports between January 2009 and June 2020. Below are four other notable findings from their report.
An estimated 17.8 percent of Americans owed medical debt in June 2020. The average amount owed was $429.
Over the time period studied, the amount of medical debt became progressively more concentrated in states that don’t participate in the Affordable Care Act’s Medicaid expansion program.
Between 2013 and 2020, states that expanded Medicaid in 2014 experienced a decline in the average flow of medical debt that was 34 percentage points greater than the average medical debt flow in states that didn’t expand Medicaid.
In the states that expanded Medicaid, the gap in the average medical debt flow between the lowest and highest ZIP code income levels decreased by $145, while the gap increased by $218 in states that did not expand Medicaid.
Senate Democrats announced a compromise budget framework to fund President Biden’s social spending plans to the tune of $3.5T, including substantial money for some of the administration’s key healthcare priorities. The framework sends instructions to several Senate committees, including the Budget and Finance panels, to craft legislative language around the central components of the deal, with the goal of passing a spending package before next month’s recess.
Many specifics remain to be ironed out in negotiations among the party’s progressive and moderate camps, but some of the main elements of the deal became clear this week. The plan includes extending theenhanced subsidies for purchasing individual coverage on the healthcare marketplaces, which were implemented earlier this year as part of the American Rescue Plan Act. It would also seek to close the so-called “Medicaid coverage gap”, by providing new coverage options for low-income adults in states that did not expand Medicaid under the Affordable Care Act (ACA).
New investments would be made in home- and community-based services for long-term care, along the lines of the $400B proposed in President Biden’s American Families Plan. And the budget deal envisions expanding benefits in the Medicare program to include dental, vision, and hearing services. Given the budgetary concerns of moderate Democratic lawmakers like Sen. Joe Manchin (WV), one critical question will be how the $3.5T deal will be paid for. One likely source of funding for the deal will be reforming the way Medicare purchases prescription drugs, making that long-time Democratic policy objective a probable part of any final package.
Notably absent from the healthcare spending proposals: lowering the eligibility age for Medicare from 65 to 60. No final decision has been reached on whether to incorporate such a move; rather, the question will be sent to the Senate Finance Committee for consideration. Given the urgency of passing as much of the Biden administration’s legislative agenda as possible before the midterm campaign season begins in earnest, we think it’s unlikely that Democrats will be willing to cross the Rubicon of Medicare expansion at this point.
The prospect of having to gain support from all 50 Democratic senators—as zero Republicans are expected to support the package—will likely temper any appetite for picking a fight with the influential hospital and physician industries, which have strongly opposed Medicare expansion.
One longer-term implication of the apparent decision to favor expansion of Medicare benefits over lowering the Medicare eligibility age now:a richer package of services in traditional Medicare might make Medicare Advantage (MA) a less attractive alternative for potential enrollees and could undermine any future efforts to create an “MA buy-in” for coverage expansion.
Expect lobbying and negotiations to reach a furious pace over the next several weeks, as lawmakers work out the final details of the $3.5T spending plan.
The Biden administration is quietly engineering a series of expansions to Medicaid that may bolster protections for millions of low-income Americans and bring more people into the program.
Biden’s efforts — which have been largely overshadowed by other economic and health initiatives — represent an abrupt reversal of the Trump administration’s moves to scale back the safety-net program.
The changes could further boost Medicaid enrollment — which the pandemic has already pushed to a record 80.5 million. Some of the expansion is funded by the COVID-19 relief bill that passed in March, including coverage for new mothers.
Others who could also gain coverage under Biden are inmates and undocumented immigrants. At the same time, the administration is opening the door to new Medicaid-funded services such as food and housing that the government insurance plan hasn’t traditionally offered.
“There is a paradigm change underway,” said Jennifer Langer Jacobs, Medicaid director in New Jersey, one of a growing number of states trying to expand home-based Medicaid services to keep enrollees out of nursing homes and other institutions.
“We’ve had discussions at the federal level in the last 90 days that are completely different from where we’ve ever been before,” Langer Jacobs said.
Taken together, the Medicaid moves represent some of the most substantive shifts in federal health policy undertaken by the new administration.
“They are taking very bold action,” said Rutgers University political scientist Frank Thompson, an expert on Medicaid history, noting in particular the administration’s swift reversal of Trump policies. “There really isn’t a precedent.”
The Biden administration seems unlikely to achieve what remains the holy grail for Medicaid advocates: getting 12 holdout states, including Texas and Florida, to expand Medicaid coverage to low-income working-age adults through the Affordable Care Act.
And while some of the recent expansions – including for new mothers — were funded by close to $20 billion in new Medicaid funding in the COVID relief bill Biden signed in March, much of that new money will stop in a few years unless Congress appropriates additional money.
The White House strategy has risks. Medicaid, which swelled after enactment of the 2010 health law, has expanded further during the economic downturn caused by the pandemic, pushing enrollment to a record 80.5 million, including those served by the related Children’s Health Insurance Program. That’s up from 70 million before the COVID crisis began.
The programs now cost taxpayers more than $600 billion a year. And although the federal government will cover most of the cost of the Biden-backed expansions, surging Medicaid spending is a growing burden on state budgets.
The costs of expansion are a frequent target of conservative critics, including Trump officials like Seema Verma, the former administrator of the Centers for Medicare & Medicaid Services, who frequently argued for enrollment restrictions and derided Medicaid as low-quality coverage.
But even less partisan experts warn that Medicaid, which was created to provide medical care to low-income Americans, can’t make up for all the inadequacies in government housing, food and education programs.
“Focusing on the social drivers of health … is critically important in improving the health and well-being of Medicaid beneficiaries. But that doesn’t mean that Medicaid can or should be responsible for paying for all of those services,” said Matt Salo, head of the National Association of Medicaid Directors, noting that the program’s financing “is simply not capable of sustaining those investments.”
Restoring federal support
However, after four years of Trump administration efforts to scale back coverage, Biden and his appointees appear intent on not only restoring federal support for Medicaid, but also boosting the program’s reach.
“I think what we learned during the repeal-and-replace debate is just how much people in this country care about the Medicaid program and how it’s a lifeline to millions,” Biden’s new Medicare and Medicaid administrator, Chiquita Brooks-LaSure, told KHN, calling the program a “backbone to our country.“
The Biden administration has already withdrawn permission the Trump administration had granted Arkansas and New Hampshire to place work requirements on some Medicaid enrollees.
In April, Biden blocked a multibillion-dollar Trump administration initiative to prop up Texas hospitals that care for uninsured patients, a policy that many critics said effectively discouraged Texas from expanding Medicaid coverage through the Affordable Care Act, often called Obamacare. Texas has the highest uninsured rate in the nation.
The moves have drawn criticism from Republicans, some of whom accuse the new administration of trampling states’ rights to run their Medicaid programs as they choose.
“Biden is reasserting a larger federal role and not deferring to states,” said Josh Archambault, a senior fellow at the conservative Foundation for Government Accountability.
But Biden’s early initiatives have been widely hailed by patient advocates, public health experts and state officials in many blue states.
“It’s a breath of fresh air,” said Kim Bimestefer, head of Colorado’s Department of Health Care Policy and Financing.
Chuck Ingoglia, head of the National Council for Mental Wellbeing, said: “To be in an environment where people are talking about expanding health care access has made an enormous difference.”
Mounting evidence shows that expanded Medicaid coverage improves enrollees’ health, as surveys and mortality data in recent years have identified greater health improvements in states that expanded Medicaid through the 2010 health law versus states that did not.
In addition to removing Medicaid restrictions imposed by Trump administration officials, the Biden administration has backed a series of expansions to broaden eligibility and add services enrollees can receive.
Biden supported a provision in the COVID relief bill that gives states the option to extend Medicaid to new mothers for up to a year after they give birth. Many experts say such coverage could help reduce the U.S. maternal mortality rate, which is far higher than rates in other wealthy nations.
Several states, including Illinois and New Jersey, had sought permission from the Trump administration for such expanded coverage, but their requests languished.
The COVID relief bill — which passed without Republican support — also provides additional Medicaid money to states to set up mobile crisis services for people facing mental health or substance use emergencies, further broadening Medicaid’s reach.
And states will get billions more to expand so-called home and community-based services such as help with cooking, bathing and other basic activities that can prevent Medicaid enrollees from having to be admitted to expensive nursing homes or other institutions.
Perhaps the most far-reaching Medicaid expansions being considered by the Biden administration would push the government health plan into covering services not traditionally considered health care, such as housing.
This reflects an emerging consensus among health policy experts that investments in some non-medical services can ultimately save Medicaid money by keeping patients out of the hospital.
In recent years, Medicaid officials in red and blue states — including Arizona, California, Illinois, Maryland and Washington — have begun exploring ways to provide rental assistance to select Medicaid enrollees to prevent medical complications linked to homelessness.
The Trump administration took steps to support similar efforts, clearing Medicare Advantage health plans to offer some enrollees non-medical benefits such as food, housing aid and assistance with utilities.
But state officials across the country said the new administration has signaled more support for both expanding current home-based services and adding new ones.
That has made a big difference, said Kate McEvoy, who directs Connecticut’s Medicaid program. “There was a lot of discussion in the Trump administration,” she said, “but not the capital to do it.”
Other states are looking to the new administration to back efforts to expand Medicaid to inmates with mental health conditions and drug addiction so they can connect more easily to treatment once released.
Kentucky health secretary Eric Friedlander said he is hopeful federal officials will sign off on his state’s initiative.
Still other states, such as California, say they are getting a more receptive audience in Washington for proposals to expand coverage to immigrants who are in the country without authorization, a step public health experts say can help improve community health and slow the spread of communicable diseases.
“Covering all Californians is critical to our mission,” said Jacey Cooper, director of California’s Medicaid program, known as Medi-Cal. “We really feel like the new administration is helping us ensure that everyone has access.”
The Trump administration moved to restrict even authorized immigrants’ access to the health care safety net, including the “public charge” rule that allowed immigration authorities to deny green cards to applicants if they used public programs such as Medicaid.In March, Biden abandoned that rule.
Ruling by a decisive 7-2 margin, in what dissenting Justice Samuel Alito described as the third in “our epic Affordable Care Act trilogy”, the Supreme Court rejected the latest—and likely the last—effort to overturn the 2010 health reform law. Holding that the states and individuals that brought the latest challenge to the law did not have “standing”—the legal right to sue—the high court effectively closed the book on a decade-long series of challenges to the Affordable Care Act (ACA). Those efforts have included two previous Supreme Court cases, numerous promises to “repeal and replace” Obamacare, and the neutering of the law’s “individual mandate” to buy health insurance, which led to this latest case, Texas v. California.
At issue in the case was whether, by zeroing out the penalty for not purchasing insurance, Congress effectively removed the ACA’s status as a taxation measure, which the Court had previously held as central to the constitutionality of the law. In Alito’s dissenting opinion, the full implications of the issue are laid out: in his view, by invalidating the mandate, Congress rendered the entire law unconstitutional, meaning that it should be overturned. But a majority of seven Justices, including Kavanaugh and Barrett (both appointed by President Trump) disagreed, joining Justice Breyer in his opinion thatno harm had been done to the states that brought the suit, and ordering that the case be returned to the lower court for dismissal.
More than ten years after the passage of the ACA, it now (finally) seems as though the law is here to stay. Bolstering its central provisions—subsidized individual insurance coverage, expanded Medicaid benefits, protections for those who purchase insurance—is a centerpiece of the Biden administration’s policy program, featured first in the American Rescue Plan Act, and now in the recovery legislation currently being debated. Republicans, who had long opposed the ACA, barely mentioned it during the last presidential campaign, instead turning their focus to thwarting Democrats’ plans to expand coverage by lowering the Medicare eligibility age or implementing a government-run “public option”.
Given the evenly split makeup of the Senate, however, we continue to believe the greatest hurdle such proposals will face is not Republican opposition, but reluctance on the part of conservative Democrats, like Sen. Joe Manchin (WV), whose votes will be needed for any legislation to pass.
With the Supreme Court calling a third strike against challenges to the ACA, and the new administration eager to advance its other priorities (infrastructure, childcare, jobs), for the first time in over a decade, we might just be in for a period of relative calm on the healthcare policy front.
In what has become something of a Washington tradition, the Supreme Court again upheld the Affordable Care Act on Thursday, in the third major case from Republican challengers to reach the high court.
The margin this time was larger, 7-2, as the High Court appears less and less interested in revisiting the health care law through the judiciary.
Democrats hailed the ruling as a boost to their signature law, and Republicans were left to figure out a path forward on health care amid another defeat.
Here are five takeaways:
This could be the last gasp of repeal efforts
It is impossible to ever fully rule out another lawsuit challenging the health law or another repeal push if Republicans win back Congress.
But after more than 10 years of fighting the Affordable Care Act, GOP efforts at fighting the law are seriously deflated, as many Republicans themselves acknowledge.
“It’s been my public view for some time that the Affordable Care Act is largely baked into the health care system in a way that it’s unlikely to change or be eliminated,” said Sen. Roy Blunt (Mo.), a member of Senate GOP leadership.
Asked if he still wanted to repeal and replace the law, which was the GOP rallying cry for years, Sen. Chuck Grassley (R-Iowa) said instead, “I think I want to make sure it works,” before attacking former President Obama’s promises about the law’s benefits.
Even Sen. Josh Hawley (R-Mo.), who helped bring the lawsuit against the health law as attorney general of Missouri, said Thursday that the Supreme Court had made clear “they’re not going to entertain a constitutional challenge to the ACA.”
Supporters of the law said it is now even more entrenched, despite years of GOP attacks.
“The war appears to be over and the Affordable Care Act has won,” said Stan Dorn, senior fellow at the health care advocacy group Families USA.
Still, not all Republicans are throwing in the towel on at least verbally attacking the law.
“The ruling does not change the fact that Obamacare failed to meet its promises and is hurting hard-working American families,” said House GOP leaders Kevin McCarthy (Calif.), Steve Scalise (La.) and Elise Stefanik (N.Y.).
And there is at least one ACA-related lawsuit still working its way through the lower courts. Kelley v. Becerra challenges provisions of the health law around insurance plans covering preventive care including birth control.
Through the three major Supreme Court cases on ObamaCare, the margin of victory has risen from 5-4 to 6-3 to 7-2.
“There’s a real message there about the Supreme Court’s willingness to tolerate these kinds of lawsuits,” Andy Pincus, a visiting lecturer at Yale Law School, said of the growing margin of victory.
The case was decided on fairly technical grounds. The Court ruled that the challengers did not have standing to sue, given that the penalty for not having health insurance at the center of the case had been reduced to zero, so it was not causing any actual harm that could be the basis for a lawsuit.
Republicans did get some vindication in that Democrats had fiercely attacked Barrett during her confirmation hearings for being a vote to overturn the health law, when in fact she ended up voting to maintain the law.
The ACA is stabilizing
The early years of the Affordable Care Act were marked with the turbulence of a website that failed at launch, premium increases, and major insurers dropping out of the markets given financial losses.
Now, though, the markets are far more stable. For example, 78 percent of ACA enrollees now have the choice of three or more insurers, up from 57 percent in 2017, according to the Kaiser Family Foundation.
Democrats, now in control of the House, Senate and White House, were able to pass earlier this year expansions of the law’s financial assistance to help further bring down premium costs.
The Biden administration announced earlier this month that a record 31 million people were covered under the ACA, including both the private insurance marketplaces and the expansion of Medicaid.
“We are no longer in the Affordable Care Act, ‘How’s it going to go? Is it going to survive?’ mode,” said Frederick Isasi, executive director of Families USA. “We really are in a whole new phase. It really is: ‘How do we improve it?’”
Republicans face questions on their health care message
The Republican health care message for years was summed up with the simple slogan “repeal and replace.”
But now those efforts have failed in Congress, in 2017, and have failed for a third time in the courts.
That leaves uncertainty about what the Republican health care message is. The party has famously struggled to unite around an alternative to the ACA, so there is no consensus alternative for the party to turn to.
The statement from McCarthy, Scalise, and Stefanik calling the ACA “failed,” shows that party leaders are not fully ready to accept the law.
The leaders added that “House Republicans are committed to actually lowering health care costs,” which has been a possible area for the party to focus that is not simply about repealing the ACA.
But any discussion of health care costs is fraught with complications. Republicans, for example, overwhelmingly oppose House Democrats’ legislation to allow the government to negotiate lower drug prices, arguing it would harm innovation from the pharmaceutical industry.
Grassley reached a bipartisan deal on somewhat less sweeping drug pricing legislation with Sen. Ron Wyden (D-Ore.) in 2019, but that bill went too far for many Republicans as well.
Democrats want to go farther, but face an uphill climb
With the ACA further entrenched, and control of the House, Senate and White House, Democrats are looking at ways to build on the health law.
The main health care proposal from the presidential campaign, a government-run “public option” for health insurance, has faded from the conversation and is not expected to be a part of a major legislative package on infrastructure and other priorities Democrats are pushing for this year.
While the health care industry has largely made its peace with the ACA, pushing for a public option or lowering health care costs means taking on a fight with powerful industry groups.
Progressives like Sen. Bernie Sanders (I-Vt.) have instead poured their energy into expanding Medicare benefits to include dental, vision, and hearing coverage, and lowering the eligibility age to 60.
Allowing the government to negotiate lower drug prices also could make it into the package.
“Now, we’re going to try to make it bigger and better — establish, once and for all, affordable health care as a basic right of every American citizen,” said Senate Majority Leader Charles Schumer (N.Y.). “What a day.”