Prognosis for the Affordable Care Act

Two weeks into the new administration we have a few indications about what the future of the ACA might be.  (For today’s purposes, ACA means Affordable Care Act, not American Counseling Association.) The President and nearly every member of the majorities in both Houses of Congress have enthusiastically promised to repeal and replace the ACA.  In fact, the House has voted to repeal it many times in recent years.  Last year a budget bill repealing the ACA passed the House and Senate because that particular bill, known as a Reconciliation Bill, only needs 50 votes to pass the Senate.  The minority could not stop it, as it can most other pieces of legislation which need 60.

The Reconciliation Bill went to President Obama and he vetoed it as everyone knew he would.  Which illuminates the situation facing Congress this year: whatever it passes will in all likelihood be signed by President Trump, so that legislation needs to be more than the keeping of a campaign promise to repeal the ACA.  It needs to be legislation that provides access to healthcare for Americans.  Writing and passing a bill or bills to replace the ACA with something different, but similarly beneficial, is proving to be challenging, complicated, controversial, politically difficult, and several other things that didn’t apply when Congress knew that any repeal would be vetoed. 

Repealing the ACA is relatively easy.  Congress can use this spring’s Reconciliation Bill to eliminate the taxes that provide the subsidies for low income people who cannot afford health insurance.  This and similar steps can be included on Reconciliation and would effectively terminate the healthcare marketplace provided by the ACA.  A simple majority in both the House and Senate will send that bill to the President for signature. 

The question that has become the topic of intense discussion and no conclusions is What Happens Next?  Should the millions of Americans who have insurance under ACA just lose the benefits?  Are tax credits and health savings plans part of the answer?  What about mental health coverage?  Should insurance companies be allowed to again deny coverage to people with preexisting conditions?  And how long should Congress give itself to find these answers and pass a new program if it decides that repealing and replacing should happen simultaneously? 

Repeal can happen without any support from the minority in the Senate, but replacing will most likely involve issues that cannot be included in a Reconciliation Bill and therefore will require 60 votes to pass the Senate.  This is where Senators in favor of a relatively expansive health program can have their say and hold up legislation that is not a suitable replacement for the ACA in their eyes.  Some replacement ideas being floated could go on the Reconciliation Bill.  Whether they would be an adequate replacement is an open question.  

The President’s nominee for Secretary of Health and Human Services, Congressman Tom Price, is a staunch opponent of the ACA.  He will have significant power to weaken the current program because the Secretary of HHS was given significant control over its implementation when the original legislation was passed.  He can change the ten required benefits that insurance companies must provide, which include mental health services.  He has shown a distaste for telling insurance companies what they have to do, and a preference for deregulation.   In a less regulated health insurance system, required mental health benefits could be an early target.  Congressman Price is likely to be confirmed by a party-line vote this week so we will soon find out what he has in mind. 

The insurance companies are a primary player in the ACA, and will be in any similar replacement for it.    And in fact, they have to decide in the next few months if they want to participate in the marketplace for 2018, if it exists then, so they need some certainty about the situation as soon as possible.  If steps taken by Congress and HHS make it clear that the program will be destabilized and enrollment will decline, insurance companies will not be likely to participate.  Similarly, the insurance companies and other stakeholders such as hospitals will not want to hear that Congress will pass a series of bills that will incrementally improve/replace the current system.  They will want to see the entire package before agreeing to support it.  Which makes Congress’s job more difficult.

The other part of the overall ACA discussion is what to do about the 31 states that accepted Medicaid expansion funding as a separate element of the ACA legislation.  This discussion is greatly complicated by the support for converting Medicaid to block grants for the states.  Medicaid expansion benefitted considerably more people than did the creation of the insurance markets.  The bill President Obama vetoed simply terminated the expansion program.  Ten of the 31 states have Republican governors who will want to have input on what happens to the additional funding they have been receiving. 

If there is good news for those with ACA-provided insurance, it is that the complexity of replacing the ACA is making it apparent to important players in Washington that they shouldn’t just let the insurance markets collapse, that they need to take steps to shore them up in the near term, and that the word “repair” is now being heard in discussions about what to do next.  Lawmakers are becoming reluctant to vote to repeal the ACA without knowing what will supplant it.  Lost in the partisan rancor over the ACA in recent years was much of a discussion about the appropriate role of the federal government in helping provide Americans with access to health insurance, and who should pay for it.  Perhaps that discussion will take place in coming months.  The American Counseling Association will be representing the interests of counselors as the future of health insurance and mental health coverage is debated and decided.

If you want to contact your Members of Congress or the White House, you can find that information at our Action Center.  Congress will be in recess the week of February 24 and your representatives may be holding town hall meetings or other events.  Check with their local offices or websites.