The ACA survived Trump, but not unscathed. Now what?

 

It seems that the Affordable Care Act somehow survived the Trump administration, although not unscathed. After failing to strike down the law altogether in the U.S. Senate—assisted by the fact that there was no real “plan” to replace it with—the Republicans added a measure striking down the individual mandate in their let-the-rich-get-richer tax cut bill, which of course testifies to their social “priorities.” In 2017, Trump ceased making payments to private insurers that participated in the marketplace exchanges to cover costs.  

Last year, Trump signed two executive orders, one which he called the “America First Healthcare Plan” which was nothing more than an unenforceable drug benefit program, the other a “request” that insurers that were allowed by an earlier executive order to offer cut-rate, “skinny” medical coverage for up to 364 days, not to deny coverage to people with pre-existing medical conditions. These “associated plans” were found to be an illegal “end around” of the ACA in district court, but the Trump administration appealed the decision, and the D.C. Court of Appeals has been taking its time on rendering a decision on the matter.

The Biden administration is reviewing Trump-era pin-pricks around the law’s peripheries, such as allowing states greater flexibility in “experimenting” with non-compliant coverage, and changing how out-of-pocket premiums are determined. Also under scrutiny is allowing states like Georgia to “opt-out” from the federal Healthcare.gov website, and allowing low-benefit red states that declined to implement the ACA’s Medicaid expansion, such as Texas, a 10-year waiver to convert Medicaid payments into “block grants” for hospitals to cover costs incurred from its huge number of low-income uninsured. One thing that Trump did which is not included in Biden’s executive order for review is the halting of payments to insurers in the exchanges. In fact, one of the few things that Biden has effectively overturned is the reduced six week enrollment period, and the return of funding for assisting in outreach and enrollment.

The question is where does the ACA stand now? Currently the U.S. Supreme Court is sitting on a lawsuit that it is expected to render judgment on by this summer which hopes to “kill” the ACA by asserting that if the individual mandate is “unconstitutional,” than the whole law must be. Many observers actually believe this is the weakest attack on the law yet, and even the right-wing justices in oral arguments expressed skepticism in the claims of the plaintiffs that they had been “harmed” by the law—thus questioning their “standing” to even bring the case—and that the individual mandate and the rest of the law was not “serverable.”

Regardless of the court’s ultimate ruling on the constitutionality of the individual mandate—which frankly is not unlike the requirement to have auto insurance, which you can be fined for not having—it would be very surprising if the court did not allow the ACA to stand. The justices must surely be aware of the repercussions of invalidating the law: putting tens of millions on the uninsured rolls, allowing insurers to put onerous restrictions on types and length of coverage, and putting millions more at risk by either allowing insurers to deny coverage to those with pre-existing conditions, or charge premiums beyond the reach of many.

Biden is proposing a revamping of the ACA that will offer a “public option” based on the Medicare model as a “transition” to a permanent public option plan. Biden also proposes to re-impose the individual mandate, but also expand the “options” that people will have in regard to their providers, and expanding eligibility. In order to rein-in drug prices, his proposal seeks to reverse the absurd law that disallows the government to negotiate with drug makers on prices. There is also to be changes in regard to eligibility and what percentage of one’s income can be spent on an individual market plan. Biden seeks to pay for this by repealing Trump’s tax cuts for the wealthy.

So for now “Obamacare” is still on the books and still operating, and short of a “surprise” ruling by the Supreme Court, it will survive the latest attack on it, at least for now. However, that doesn’t mean that the pin-pricks it absorbed from the Trump administration will not cause long-term harm if not address by the Biden administration. Biden’s new proposals are not intended necessarily to re-plug those holes, but to somehow make it more "appealing" to both “average” voters and to the “progressive” wing of his party.