Whither Obamacare?

Some MSM outlets reported last week — as if it were news — the President-elect’s support for some key components of Obamacare. While the man seems to be heavily influenced by the last person he spoke with, and he was interviewed shortly after his initial transition meeting with the outgoing president, it is impossible to predict with certainty what the future holds, in the health care realm as in many others. Despite the campaign rhetoric, the president-elect is a political naïf, a policy tabula rasa, and until we have a clearer picture of who his key appointees and advisors will be, and of whether, and to what extent, he is likely to actually follow their counsel — or simply allow them free rein — there’s no way of knowing exactly what to expect.

That said, he has consistently expressed his support for a number of the key components of the ACA (while promising to repeal it). As we all know, campaign shouts and hollers don’t translate well to the reality of life inside the Beltway. The bureaucratic inertia, and the political horse-trading needed to advance the ball, even within the GOP, will be just two aspects of the rude awakening awaiting the president-elect.

As I have written elsewhere, there is a GOP framework on the table for an ACA replacement (part of “A Better Way” — it’s been out there since June), though full implementation of that approach would require more than the budget reconciliation sorts of votes that seem to be all that may be within easy reach at the moment. At times it seems that the Senate Majority Leader wants nothing more than to repeat a recent budget reconciliation vote repealing key portions of the ACA — despite the fact that the President-elect has articulated support for some of the provisions the majority leader would eliminate. Wouldn’t it be interesting if, once the new powers that be are sworn in, Congress votes to “repeal Obamacare” and the Republican President vetoes the repeal?

The President-elect seems to appreciate the value of certain provisions of the law, and perhaps he may yet come to appreciate the way in which the various provisions depend upon each other. For example, you can’t eliminate the individual mandate (which, by the way, is an old chestnut previously touted by the Heritage Foundation — not exactly a bastion of socialism), without adding fuel to the “death spiral” fire — ultimately necessitating some sort of premium support to replace the cross-subsidization provided by Young Invincibles for everyone else, most critically the multiply-chronically-ill. Such support, though, would be anathema to the new Republican coalition at the levels needed. Insurance through high risk pools — supported by both Ryan and Trump — may well be unattainable or unaffordable for the people who need it (we have been down this road before, pre-ACA, and it wasn’t pretty). Trump is on record saying he does not want to disenfranchise these folks, though it is unclear whether he could push high risk pools along with the tens of billions of dollars in new appropriations likely needed to make them work long-term, rather than the more limited support — likely to be insufficient — proposed by Ryan.

There are a host of other details regarding potential future legislation on which the President-elect and the Speaker of the House have expressed opinions in speeches, town halls, interviews, etc., though it is impossible to say that they will not find themselves espousing new positions in the future. Modernizing Medicare, privatizing Medicare, replacing Medicaid expansion with tax credits, providing block grants to states for Medicaid in lieu of the current federal financial participation approach, eliminating CMMI, and on and on. Ryan has repeated in recent days that the “A Better Plan” framework linked to above is still the place to go to learn more about the GOP’s thinking on this issue.

While the dust will not settle until after Congress and the Trump Administration agree on a legislative way forward on health care reform, there are executive decisions that may be made which could torpedo parts of the ACA. These include abandoning the House v. Burwell appeal (the trial court found that the Obama Administration improperly funded certain guarantees for health insurance companies to induce their participation in the health insurance exchanges with dollars not expressly appropriated for that purpose), simply not pushing open enrollment in health plans on the exchanges in the future, or not aggressively enforcing the law (e.g., by letting individuals flout the individual mandate even if it is not repealed).

While the ultimate fate of Obamacare is not likely to be known for months or, quite frankly, years, I also tried to articulate last week why the health care innovation community should not fold its tents; much work remains to be done, no matter who is in the White House. Our per capita costs outstrip those in other countries and our life expectancy lags. The ACA continued the long slog that harks back to the birth of The Great Society programs, but the work is not done yet. There is plenty to do.

We can’t hit the pause button on health care in this country for too long.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting