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Five Things Obamacare Got Right-and What Experts Would Fix

It was one of the most notorious quotes that emerged from the battle over the Affordable Care Act.

We have to pass the bill so you can find out what is in it. – House Speaker Nancy Pelosi, March 9, 2010.

The line was taken out-of-context, as Pelosi’s office has continued to protest. But more than three years after her quote — and nearly three years after the ACA passed Congress — Pelosi’s accidental gaffe seems pretty apropos.

The law continues to delight supporters with what they see as positive surprises; for example, some backers say Obamacare deserves credit for the unexpected slowdown in national health spending. But critics warn that the law’s perverse effects on premiums are just beginning to be felt.

And there still are “vast parts of the bill you never hear about,” notes Timothy Jost, a law professor at Washington & Lee. “I wonder if they’re [even] being implemented.”

Jost and a half-dozen other health policy experts spoke with me, ahead of Obamacare’s third birthday on Saturday, to discuss how the law’s been implemented and what lawmakers could have done better.

Below, you’ll find a selection of their comments, grouped around five of the ACA’s accomplishments and five of the law’s biggest drawbacks.

And keep in mind: While hindsight may normally be 20/20, today it’s 2013.

What the Law Got Right

It expanded health coverage — and maybe more than you think. While many observers tend to focus on the coverage provisions that take effect next year, several experts noted that the ACA’s effects on increasing access to insurance have been near immediate.

“We already have hundreds of thousands of Californians now covered under new options that didn’t exist before the Affordable Care Act, from PCIP to LIHPs to the young adults on their parents’ coverage,” according to Anthony Wright, the executive director of Health Access.

Millions of patients now get no-cost preventive care. The number of patients receiving free services like a mammogram, flu shot or annual wellness visit “has dramatically expanded,” Jost notes. He points to a new HHS report, which found that more than 100 million Americans received no-cost preventive care in the last two years thanks to the law.

Providers are innovating on care delivery. The ACA contains direct funding for Medicare accountable care organizations and other coordinated-care efforts, but the trickle-down effects beyond government-led reforms have been incredibly positive, experts say.

“The momentum that the law provides around the move toward more integrated care is already playing out in positive ways in the marketplace,” according to Micah Weinberg of the Bay Area Council. “It’s not that the Medicare shared savings program itself is going to be the solution,” he adds, but the law has spurred providers to take on new risk. For example, California’s Sutter Health is partnering with United Healthcare and physicians in the East Bay area to produce a competitively priced product for large businesses. The ACA “helpfully moves us in a direction that I’m not sure we would’ve gone in the first place,” Weinberg adds.

Mental health services received a huge boost. The law “is the most important change to [mental health/substance abuse] policies in many years,” says Harold Pollack, a public policy professor at the University of Chicago. Writing in the current issue of Washington Monthly, Pollack pulls out one example: Hundreds of thousands of mentally ill homeless people will gain access to regular health care, thanks to Obamacare.

“This is just a huge improvement for mental and behavioral health services in the United States,” according to Pollack.

The model of risk selection. The law deserves credit for eliminating health status underwriting and denying coverage for pre-existing conditions, Jost points out.

“ACA has changed the basic business model of individual and small-group insurance,” Pollack agrees. “This will present many challenges. But the old business model for many firms based on risk selection has been substantially reformed.”

What the Law Got Wrong

It’s written in a very confusing way. Overwhelmingly, experts pointed to the challenges that emerged from the rushed process to finalize the bill — confusing statues and loopholes that are still making trouble for regulators.

“If we were to run the clock back, one would hope that in conference committee we could have ended up with simpler solutions,” says Weinberg.
A single Massachusetts lawmaker deserves a share of the blame, one expert grumbles.

“I wish Martha Coakley were a better politician, so that the bill could have been professionally scrubbed in conference committee before final passage,” Pollack says.

Implementation took way too long. Even Don Berwick, the former head of CMS, thinks that the ACA’s staggered implementation is regrettable.

In response to my question at the Association of Health Journalists’ conference last week, Berwick argued that the law should have moved more quickly to implement health insurance exchanges and close the Medicare prescription drug benefit donut hole.

Some of those delays were politically motivated: Pushing off the most expensive provisions helped keep the Congressional Budget Office’s score of the ACA down. And of course, major reforms, like staffing up and building out the infrastructure for health insurance exchanges, do take time and funds.

But in hindsight, “I don’t know that you needed four years,” to implement Obamacare,” says Josh Barro, lead writer of Bloomberg View’s blog “The Ticker.”

“Maybe you could’ve done it in two.”

It passed the buck to get necessary bucks. Obamacare’s efforts to raise revenue “were very bad,” Barro argues, with complicated tax provisions and too much pressure on high earners.

“Basically, [the measures] were designed to do as much economic damage as possible for each dollar of new revenue raised,” he adds.

And there’s a deeper issue behind the law’s structure, Barro suggests.

“It’s pernicious to tell people that we’re going to expand the size of the federal government, and don’t worry — someone else is going to pay for it.”

It included too much complexity for businesses. Many employers are still puzzling over how the ACA will affect their operations and trying to figure out whether they’ll keep or drop health coverage when new provisions begin to take effect next year.

“It turns out that the small business tax credit is really complicated,” says Weinberg. “And the employer responsibility requirement is mind-bendingly complicated.”

It opened the door to provider collusion. Berwick noted that the ACA’s push to integrate care also set up an opportunity for providers to take advantage of the law for their own benefit: By using their expanded market power to push for higher prices. Perhaps the law could have been better structured to protect against that outcome, he suggests.

Looking at the Next Three Years — and Beyond

While President Obama’s re-election cinched the ACA’s survival, a tremendous amount of effort still lies ahead to ensure that the law reaches its potential.

“The people who care about the law need to be even more clear-eyed about making it work,” says Weinberg.

But it’s important not to be too hard on Obamacare, Pollack warns.

“It’s miraculous that the bill passed at all, given all the obstacles,” he adds.

“Our difficult legislative process gives you at most one shot to enact a huge reform like this. It’s hardly surprising that this isn’t a context that promotes the most technically proficient policies.”

And judging the ACA on its third birthday is taking a snapshot of a law that’s still relatively immature.

“The real triumphs will be in 2014, with the major expansions and benefits slated,” according to Wright. But “as with the triumphs, it’s premature to have a complete understanding of the drawbacks … the main law has yet to be implemented.”

Obamacare “was the first battle of a very long war — a very, very bitterly fought war,” Jost notes, with states now poised to pick up the fight.

“But don’t forget how far we’ve come in three years, doing the work of implementation.”

Dan Diamond (@ddiamond) is Managing Editor of the Daily Briefing, a CaliforniaHealthline columnist, and a Forbes contributor. This post originally appeared at CaliforniaHealthline.org.

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