Is Obamacare Dead?

“It’s dead. It’s gone. There’s no such thing as Obamacare anymore. It’s no longer – you shouldn’t even mention.”

— President Donald J. Trump  October 17, 2017

Not so fast, President Great-Again. First off, this is an obviously and flatly false statement. But also, don’t look now but Congress and the Trump administration itself are haltingly and chaotically moving to enact bipartisan legislation to stabilize the ACA exchange marketplaces for 2018 and 2019.

Importantly, passage of such a measure would get the ACA through the 2018 mid-term elections, although it’s unlikely that any legislation will tamp down the long-running and fierce debate about the fate and future of the law.

The primary aim of the bipartisan effort is to get funding for cost-sharing reduction (CSR) payments on the budget books. The payments, which go to health insurance companies, lower deductibles and co-pays for millions of low-income people.

They are the subject of a long-running legal dispute, which entered a new phase on Oct. 25 when a federal judge in California rejected an urgent appeal by 18 states to compel the Trump administration to continue making the payments as litigation continues. Trump announced earlier this month he would cease reimbursing insurers for the assistance, which insurers are required to deliver.

The ruling leaves the dispute to be resolved over the next few months in the California court even as a separate case involving the payments continues in a federal court in the District of Columbia.

The payments will total about $8 billion this year and were projected to come in at $10 billion in 2018. The Obama administration drew on general HHS and ACA funds to make the payments for 4 years. The Trump administration continued that practice until Trump’s decision earlier this month.

As expected, Trump’s action triggered insurers to announce they would—to recoup the loss—raise premiums 10% to 20% more than already planned for plans in the ACA exchanges. Such premium increases will hit people who get little or no subsidies the hardest. That includes the 8 million or so people who buy coverage off-exchange because they get no subsidies.

Those who buy on-exchange and get premium subsidies will be largely held harmless from the premium increases since the ACA requires the subsidization of premiums to keep up with premium increases.

Republicans characterize the CSR payments as insurance company bailouts. And Trump this month said several times that the payments have significantly enhanced insurer profits, which he said have soared since Obamacare went into effect in 2013.

All these assertions are incorrect. Again, insurers are mandated by the ACA to provide the assistance. Unfortunately, a technical error in the drafting of the law failed to establish an explicit process to appropriate funds for the payments.   As for profiting from the payments, data filed with HHS and the states overwhelming show insurer losses for their exchange business from 2014 to 2016. Those losses began to abate in 2017.

Despite the daily machinations and statements of doom, there’s still at least a 50/50 chance that some kind of compromise bipartisan measure will become law by year’s end.

Insurer, physician and hospital groups are pushing hard for it. Governors and state regulators—Democrat and Republican—want it. And the public favors bipartisan action; 70 percent now support fixes to the ACA rather than any further attempts at repeal and replace as the Nov. 1 start of open enrollment looms.

The major obstacle now is that the Trump administration and far-right conservatives are trying to leverage negotiations in the Senate—led by Tennessee Republican Lamar Alexander and Washington Democrat Patty Murray—to shoehorn in a batch of ACA changes Republicans failed to get via repeal and replace legislation over the summer and last month (Graham-Cassidy).

Namely, the White House has floated these additions to the Alexander-Murray bill: (a) buying insurance across state lines, (b) association health plans, and (c) state flexibility that permits states to nix some essential health benefits, thus undermining the ban on discriminating against people with pre-existing conditions.

Adding to the mix on October 24, Senate Finance Committee Chairman Orrin Hatch (R-Utah) and House Ways and Means Committee Chairman Kevin Brady (R-Texas) introduced proposed amendments to Alexander-Murray that would kill the individual mandate, expand health savings accounts, and exempt employers from penalties if they didn’t offer coverage.

Said Hatch, who is trying to reclaim his committee’s ownership of health care: “If Congress is going to appropriate funds for CSRs, we must include meaningful structural reforms that provide Americans relief from Obamacare.”

Democrats will not agree to these changes.   Moreover, as well said in a blog at the Georgetown University Center on Health Insurance Reforms website:

“The negatives associated with the end of the CSR payments are not strong enough to require a compromise on other provisions of the ACA in exchange for restoring the CSR payments…..In fact, negotiating away key consumer protections in return for a couple of years of CSR payments would create more harm to consumers. Eliminating the individual mandate would result in 15 million more uninsured by 2026 while increasing the budget deficit by $416 billion. Weakening the guardrails on the 1332 waiver, such as by allowing states to waive some or all of the essential health benefits, would result in higher costs for people with pre-existing conditions.”

At last count, the Alexander-Murray bill had 12 Democrat sponsors and 12 Republican sponsors.   Thus, it is at the 60 votes needed to pass in the Senate.   Leader McConnell has said, however, that he would not bring the bill up for a vote unless Trump signals he’ll sign it.

House Republican conservatives (The Freedom Caucus folks) said on Oct. 24 that Alexander-Murray as configured now is a “non-starter” for them.

On Oct. 25, CBO forecast that Alexander-Murray would lower the federal budget deficit an estimated $3.8 billion during the next decade and not affect the number of people with health insurance.

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