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The Potential for Dismantling the Affordable Care Act with a Trump Presidency

Many of you are likely wondering what do the election results mean for health care in the United States? Candidate Trump repeatedly stated he would repeal and replace the ACA on day one of his presidency. Since becoming President Elect Trump, he has declared that his three main priorities are: immigration, health care, and “big league jobs”. On Thursday, he released his proposed health care plan on his transition website. While thin on details, it reiterates his plans for the elimination of the ACA:

A Trump Administration will work with Congress to repeal the ACA and replace it with a solution that includes Health Savings Accounts (HSAs), and returns the historic role in regulating health insurance to the States. The Administration’s goal will be to create a patient-centered healthcare system that promotes choice, quality and affordability with health insurance and healthcare, and take any needed action to alleviate the burdens imposed on American families and businesses by the law.   

Not surprisingly, health care, and more specifically the fate of the ACA, is squarely on the table. Repealing the ACA has been a repeated strategy among Republicans in Congress. Now, with interests more clearly aligned among the newly elected members of the executive and legislative branches, many health policy wonks are weighing in on what can actually happen. Despite many thoughtful opinions on the topic, major uncertainty remains.

With that said, there is pretty much agreement on the means by which the ACA could be dismantled. In order to do a full repeal, Republicans would need 60 votes in the Senate to prevent a filibuster by Democrats. Unless there is a Republican strategy for eliminating the opportunity to filibuster, as Austin Frakt has suggested or the ability of the Democrats to maintain a filibuster wains throughout the Trump presidency as Megan McArdle from BloombergView posits, a full repeal is likely off the table.

Filibuster issue aside, remember how Obamacare was passed by Democrats once Republican Scott Brown won the Massachusetts Senate seat? Yes, that’s right – budget reconciliation. This process cannot be stopped by a filibuster, so a simple majority is sufficient. There are some limitations on what can be included in a budget reconciliation process. Tim Jost’s recent blog post on Health Affairs explains this well:

Budget reconciliation legislation is subject to strict procedural and substantive limits. Reconciliation in the Senate can only contain provisions that affect the revenues and outlays of the United States and cannot contain “extraneous provisions” that only incidentally affect revenue and expenditures. Budget reconciliation is a two-step process—first Congress adopts a budget resolution with instructions to committees to meet reconciliation targets and then it adopts the reconciliation itself. This cannot happen on “day one.”

This strategy was attempted earlier this year when the Restoring Americans’ Healthcare Freedom Reconciliation Act was sent to President Obama’s desk. President Obama vetoed it, but we cannot expect the same response from President Trump.

In addition to reiterating the likelihood of the process, the budget reconciliation bill sent to President Obama earlier this year gives us some insight into which components of the ACA might be on the chopping block. The Congressional Budget Office (CBO) scored the bill, and a House summary highlights many of the ACA provisions at risk, detailing the elimination of: the optional Medicaid expansion, tax credits (i.e., subsidies) for health insurance premiums in the exchanges, the individual mandate and penalties, employer requirements and associated penalties, the Prevention and Public Health fund, and the higher Medicare tax rate for individuals above $200,000 and couples making more than $250,000, among other things. Importantly, this bill reinstated additional payments for providers with a disproportionate share of Medicaid and uninsured recipients, since those providers would no longer being receiving reimbursement through insurance for this population and included some funding for state substance use and mental health programs.

Regardless of the means of repealing provisions of the ACA, there remains uncertainty about what a replacement plan would look like. We don’t know when the replacement will come. Will replacement be ready to go alongside the dismantling of other aspects of the ACA? Or will the ACA be taken down first? And perhaps even more importantly, what will a replacement include? As detailed in President Elect Trump’s recently released proposal, health savings accounts and enabling individuals to buy insurance across state lines appear to be central to his plan for replacement. We could also look to Speaker of the House Paul Ryan’s proposal for replacement, which has slightly more details. Here, we see some support for keeping private insurance reforms that are part of the ACA (e.g., keeping young adults on their parents’ plan until age 26 and protection for people with pre-existing conditions through high-risk pools). This is consistent with President Elect Trump’s recent change in rhetoric, although not in substance, noted in his interview with the Wall Street Journal on Friday after the election where he suggested he was open to keeping these two components of the ACA in place. Perhaps he now knows that a full repeal is not possible.

On Medicare, all we know from Trump’s written plan is a call to “modernize Medicare” to preserve it for baby boomers and beyond, while Ryan’s plan explicitly calls for enabling beneficiaries to choose private plans as alternatives to traditional Medicare starting in 2024, eliminating the Independent Payment Advisory Board, with continued investment in alternate payment models.

Both plans propose block granting Medicaid to the states, in other words, eliminating the entitlement part of the Medicaid program. Again, the details matter here. With the elimination of the Medicaid expansion, certainly fewer people would be covered by the Medicaid program, and the relative robustness of the program for those traditional eligible for Medicaid pre-ACA would depend on how well these proposed block grants keep up with expected costs for this population.

There is also debate about what will happen to the Innovation Center at CMS, the hub of payment and delivery system reform innovation created through the ACA. While the recent bipartisan MACRA law has embedded value-based payment into the Medicare program outside of the ACA, there has been reported opposition to the Innovation center by Republicans in the past.

There will be attention to women’s issues as well. The reconciliation bill from earlier this year eliminated federal funds for Planned Parenthood, a position reinforced by Vice President Elect Mike Pence’s longstanding and vehement anti-planned parenthood stance. Trump’s plan reinforces existing law that “protect individual conscience in healthcare,” likely a call to the Weldon Amendment, reiterated in Ryan’s plan which currently prohibits the federal government from discriminating against any health care entity or provider who does not pay for, provide, or refer for abortion services. NARAL has their own perspective on the Weldon Amendment. Remember, how one of the ACA provisions is the requirement for contraceptives to be covered by health insurance without a copay? There are reports of women rushing to get long-acting birth control (i.e., IUDs) in the few days since the election. Yesterday on CNN, when asked directly about whether guaranteed birth control was potentially at risk, Paul Ryan avoided the issue, suggesting he could not provide details on legislation that was not yet written.

On the other hand, there is a real question of whether the Trump Administration and the Republicans in Congress will actually go through with the dismantling as proposed. For example, McArdle suggests Republicans might not really want to eliminate some of the ACA provisions. She rightly explains that there are parts of the ACA that are particularly popular with Americans, especially the private health insurance reforms that make it possible for people who are sick to get health insurance without having to pay more.

While, yes, Republicans have repeatedly voted for repeal, so far they have always known it could not result in victory. Now, the stakes have changed. Will they really be willing to take health insurance away from the more than 20 million people estimated by to lose health insurance under a full repeal, likely with similar implications under a severe dismantling? While public polling suggests that people do not actually know the significant impact the ACA has had on the rate of the uninsured, bringing it to an all-time low of 8.6 percent counting seniors, polling also suggests support for the private insurance reforms.

One thing is certain. The Republicans now dictate the health care reform agenda and there are serious concerns about what a dismantling of the ACA would mean for many Americans struggling to pay their health care bills and access to high quality health care, not to mention the potential impact on the federal deficit. Despite the rhetoric that suggests the Trump Administration will eliminate the ACA right away, the reality of the policy making process, implementation challenges, and the desire not to throw people off of health insurance overnight suggest that most of the significant changes to the ACA will take some time.

by Signe Peterson Flieger

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