By ROSEMARIE DAY and DAVID W. JOHNSON,
The Affordable Care Act (ACA) survived its third challenge at the Supreme Court on June 18, 2021, by a 7-2 vote, signaling that Obamacare is here to stay. With a divided Congress and a Biden administration challenged by multiple urgencies, there is little hope for national legislation to address healthcare’s access, cost, and quality deficiencies comprehensively.
Despite this lack of dramatic progress or sweeping change at the federal level, reformers need not lose hope. Quietly, state-based marketplaces are making health insurance provision more accessible, affordable and effective.
A Biden Administration’s executive order signed in January 2021, reopened the federal health insurance marketplace to individuals seeking to purchase or modify health insurance policies. The fifteen state-based marketplaces (SBMs) followed suit by enacting their own versions of this special enrollment period.
The Administration’s $1.9 trillion American Rescue Plan, enacted on March 11, 2021, includes a narrow but powerful provision that temporarily grants premium subsidies to higher-income Americans and reduces premium costs for lower-income Americans. The “Build Back Better Act” currently moving through the House of Representatives would make these subsidies permanent. It would also provide funding for more experimentation with state-based health insurance affordability programs.
These new policies align with measures undertaken by many SBMs during the past eight years to improve the quality, affordability, and marketability of their health insurance offerings. In this decentralized, real-world way, SBMs have operated as experimental policy laboratories to assess programming modifications for stabilizing local markets, expanding consumer choice, increasing access to vital healthcare services, and lowering premiums.
By MIKE MAGEE
Cautionary tales are timeless. Take for example Aesop’s Fables, from 620 BC, which included the advisory, “Be careful what you wish for lest it come true.”
Trump and the Republicans who oppose the ACA take heed. You may be inadvertently taking the entire collusive Medical-Industrial Complex down a rabbit hole.
In the opening salvo to the Amy Coney Barrett hearings, House Speaker Nancy Pelosi seemed to be anxious for the fight. Her view of Trump’s strategy? “The president is rushing to make some kind of a decision because … Nov. 10 is when the arguments begin on the Affordable Care Act…He doesn’t want to crush the virus. He wants to crush the Affordable Care Act.”
With no health plan replacement on the shelf, death star Republicans have been struggling to bury this ever more popular piece of legislation for ten years.
In the process, they’ve alienated not only those who believe health care is a right rather than a privilege, and those who support protections for pre-existing conditions, but also those against deceptive skimpy health insurance, those who believe transgender Americans deserve care guarantees, those who demand access to affordable drugs, those who have their under age 26 adult children covered on their family plan, those opposed to cuts in coverage of contraceptives, and those in favor of federal funding of Planned Parenthood clinics.
As Kaiser Health News Washington correspondent, Julie Rovner, recently wrote, “With the death of Ruth Bader Ginsburg, the ACA’s future is in doubt.” In a case now known as California v. Texas, set for presentation to the Supreme Court in just a few weeks, 21 attorneys general (AGs) led by California are seeking clarity on a challenge by Texas led Republican AGs to declare the ACA unconstitutional based on a weak technicality.
By JONATHAN HALVORSON
In a previous post, I described how some features of the Affordable
Care Act, despite the best intentions, have made it harder or even impossible
for many plans to compete against dominant players in the individual and small
employer markets. This has undermined aspects of the ACA designed to improve
competition, like the insurance exchanges, and exacerbated a long
term trend toward consolidation and reduced choice, and there is evidence it
is resulting in higher costs. I focused on the ACA’s risk adjustment program
and its impact on the small group market where the damage has been greatest.
The goal of risk adjustment is commendable: to create
stability and fairness by removing the ability of plans to profit by “cherry
picking” healthier enrollees, so that plans instead compete on innovative
services, disease management, administrative efficiency, and customer support.
But in the attempt to find stability, the playing field was tilted in favor of
plans with long-tenured enrollment and sophisticated operations to identify all
scorable health risks. The next generation of risk adjustment should truly even
out the playing field by retaining the current program’s elimination of an
incentive to avoid the sick, while also eliminating its bias towards incumbency
and other unintended effects.
One important distinction concerns when to use risk
adjustment to balance out differences that arise from consumer preferences. For
example, high deductible plans tend to attract healthier enrollees, and without
risk adjustment these plans would become even cheaper than they already are,
while more comprehensive plans that attract sicker members would get
disproportionately more expensive, setting off a race to the bottom that pushes
more and more people into the plans that have the least benefits, while the
sickest stay behind in more generous plans whose premium cost spirals upward. Using
risk adjustment to counteract this effect has been widely beneficial in the
individual market, along with other features like community rating and
However, in other cases where risk levels between plans differ
due to consumer preferences it may not be helpful. For example, it has been
documented that older and sicker members have a greater aversion to change (changing
plans to something less familiar) and to constraints intended to lower cost
even if they do not undermine benefit levels or quality of care, like narrow networks.
These aversions tend to make newer plans and small network plans score as
healthier. Risk adjustment would then force those plans to pay a penalty that in
turn forces enrollees in the plans to pay for the preferences of others.
By BOB HERTZ
It is not wise for Democrats to spend all their energy
debating Single Payer health care solutions.
None of their single player
plans has much chance to pass in 2020, especially under the limited
reconciliation process. In the words of Ezra Klein, “If Democrats don’t have a
plan for the filibuster, they don’t really have a plan for ambitious health
Yet while we debate Single Payer – or, even if it somehow
passed, wait for it to be installed — millions of persons are still hurting
under our current system.
We can help these people now!
Here are six practical programs to create a better ACA.
Taken all together they should not cost more than $50
billion a year. This is a tiny fraction of the new taxes that would be needed
for full single payer. This is at least negotiable, especially if Democrats can
take the White House and the Senate.
By JONATHAN HALVORSON, PhD
With each passing year, the Affordable Care Act becomes
further entrenched in the American health care system. There are dreams on both
the far left and far right to repeal and replace it with something they see as
better, but the reality is that the ACA is a remarkable achievement which will
likely outlast the political lifetimes of those opposing it. Future
improvements are more likely to tweak the ACA than to start over from scratch.
A critical part of making the ACA work is for it to support
healthy, competitive and fair health insurance markets, since it relies on them
to provide health care benefits and improve access to care. This is
particularly true for insurance purchased by individuals and small employers,
where the ACA’s mandates on benefits, premiums and market structure have the
most impact. One policy affecting this dynamic that deserves closer attention
is risk adjustment, which made real improvements in the fairness of these
markets, but has come in for accusations that it has undermined competition.
Risk adjustment in the ACA works by compensating plans with
sicker than average members using payments from plans with healthier members.
The goal is to remove an insurer’s ability to gain an unfair advantage by
simply enrolling healthier people (who cost less). Risk adjustment leads insurers
to focus on managing their members’ health and appropriate services, rather
than on avoiding the unhealthy. The program has succeeded enormously in bringing
insurers to embrace enrolling and retaining those with serious health
This is something to celebrate, and we should not go back to
the old days in which individuals or small groups would be turned down for
health insurance or charged much higher prices because they had a history of
health issues. However, the program has also had an undesired effect in many states:
it further tilted the playing field in favor of market dominant incumbents.
By MIKE MAGEE, MD
Today the notion that health is a preferred state of being, rather than a set of disconnected functions or services, is increasingly being embraced. A recent JAMA article promoted a health measurement system called the “flourishing index” focused on 6 key domains: happiness and life satisfaction, physical and mental health, meaning and purpose, character and virtue, close social relationships, and financial and material security.
Gro Brundtland, former director-general of the World Health Organization, wrote
in the World Health Report 2000 that
“The objective of good health is twofold – goodness and fairness;
goodness being the best attainable average level; and fairness, the smallest
feasible differences among individuals and groups.”
the age of Trump, with forced separation of immigrant mothers and children,
criminalization of abortion, and purposeful obstruction of enhanced access to
health care for vulnerable populations, it becomes impossible to ignore a
significant modern-day truism. Health is profoundly political.
Health is a collection of resources unequally distributed in society. Health’s “social determinants” such as housing, income, and employment, are critical to the accomplishment of individual, family, and community well being and are themselves politically determined.
By REBECCA FOGG
Back at their desks after the holidays, health care payers, providers and policymakers across the country are staring down their list of 2019 priorities, wondering which they can actually accomplish. Innovation to improve care quality and reduce costs will top many lists, and progress on this front depends, in no small part, on conditions for such innovation in the health care marketplace. Here are three phenomena unfolding there that I’ll be following closely this year to understand what innovators are up against, and how they’re responding.
- The legal battle over the Affordable Care Act (ACA). Over 20 million previously uninsured Americans acquired health insurance between 2010 and 2017, many due to the ACA’s premium subsidies, ban on pre-existing condition restrictions, and Medicaid expansion. At the most fundamental level, this coverage expansion has vastly improved one of the most important conditions for a healthy population—access to health care. But it also supports innovation toward better, more affordable care.Coverage expansion means providers get reimbursed for more of the care they deliver to patients who are unable to pay, which strengthens their financial position. It also enables some patients to maintain more continuous health insurance coverage, hence see a doctor more regularly over time. This, in turn, facilitates providers’ development of more effective approaches to management of long-term, chronic disease, which causes untold suffering and costs the U.S. hundreds of billions in direct medical costs.
By ETIENNE DEFFARGES
Having survived years of attacks from Republicans at the federal level, will the surviving ACA be rendered obsolete by Democrats’ local and state efforts towards universal health care? This could be an ironic twist of fate for Obamacare. Conceived out of the conservative Heritage Foundation’s ideas and an early experiment in Massachusetts under a Republican governor, President Obama’s signature legislative achievement could very well survive its most recent judiciary challenge. But over time the ACA is susceptible to obsolescence, because of the many universal health care solutions being pushed at the state level.
Let’s start this brief outlook for Obamacare by reviewing how it has played defense, quite successfully thus far: During most of 2017 and 2018, the future of the ACA was always discussed in the context of Republican efforts to repeal it. After all, the GOP controlled the White House and both Chambers of Congress. Hadn’t Republicans spent the last four years of the Obama administration promising to repeal Obamacare the instant they could? And so they went after the ACA in 2017 with all the levers of Washington power. But repealing is one thing, legislating another: We know what happened in July 2017, when the last “repeal and replace” effort was defeated in the U.S. Senate by the narrowest of margins, because three Republican Senators, Susan Collins, Lisa Murkowski, and the late and much regretted John McCain, voted against the repeal. With their December 22 tax law, Republicans did succeed in eliminating the ACA’s individual mandate tax penalty owed by individuals failing to maintain “minimum essential coverage.” Most medical plans qualify for this, as long as they meet a number of requirements, such as not charging more for pre-existing conditions. For good measure, the Trump administration used executive orders in 2018 to allow low-cost plans not meeting these ACA guidelines to be offered by employers. Twenty state attorney generals from Republican states, led by Texas and Wisconsin, also initiated litigation against the ACA, arguing that without the tax penalty the law had become unconstitutional.
By ETIENNE DEFFARGES
1) What is the likelihood the ACA will be repealed?
This straightforward question has a very simple answer: It depends on the results of the upcoming November 6 U.S. congressional elections.
If the Republicans retain control of both the House and the Senate, the probability that the ACA will be repealed is very high: The Republicans would be emboldened by such a victory and would most probably attempt in 2019 to repeal the health care law—again. It is worth remembering that in July of last year, the repeal of the ACA (a version of which had passed the House in May) was defeated in the Senate by the narrowest of margins, because three Republican Senators, Susan Collins, Lisa Murkowski, and the late and much regretted John McCain, voted against the repeal. This is very unlikely to happen again, although one would also have to consider the margins by which the Republican would have gained control both Chambers after these November midterms. In July of 2017, the Republicans held a 52-48 advantage in the Senate. Given ever-increasing polarization, such a margin, plus Republican control of the House, would likely spell the end of the ACA in 2019.
If the Democrats gain control of either the House of Representatives or the U.S. Senate, then the ACA will remain the law of the land. The only issue in the horizon will be the lawsuit filed in February of this year by a coalition of 20 states, led by Texas and Wisconsin. This lawsuit claims that Obamacare is no longer constitutional after the Republicans eliminated in December of 2017 the tax penalty associated with the ACA’s individual mandate. The 20 Republican attorney generals argue that without the tax penalty, Congress has no constitutional authority to legislate the individual mandate. Even if this case reaches the Supreme Court, one has to remember that the Court affirmed twice the constitutionality of the ACA, in June of 2012 and then 2015, with Chief Justice John Roberts voting with the majority on both occasions.
2) What do recent congressional changes to the ACA mean for those who buy insurance on health care exchanges?