Five Reasons The ACA Won’t Be Repealed

Since November 8, a chill has descended among individuals nationwide who are involved with or otherwise care about health care. Like sheep herded to their fate, there has been a resignation that the Affordable Care Act (ACA) will be repealed, taking with it coverage for over 23 million people, strong protections for consumers, and innovations in care delivery. But, if you take a closer look, the repeal and replace “two step” is fraught with difficulty, bolder than the ACA itself, and far from certain to succeed. So I think we all need to take a deep breath and refocus on what’s inside the sandwich we are about to be served, and resolve intentionally whether or not we’re going to eat it. I could be wrong. Gutting of the ACA could whistle through the day President Trump is inaugurated, a marvelous, bipartisan replacement plan could swiftly follow, and then everyone will wake up in a few years with at least the same coverage, care quality, and cost containment we have today. But here’s five reasons why I don’t think that’s going to happen:

1. ACA REPEAL IS NOT ACA REPEAL

Despite the pounding rhetoric shouted from the hilltops for seven years, ACA repeal has never meant repealing the entire law. By my count, there are about 424 sections of the ACA and only a few dozen have really attracted the ire, or even the attention, of opponents. In the manifold replacement plans that have gone beyond a simple statement of “the ACA is repealed,” there is scant reference to the Medicare reforms, workforce provisions, Medicaid program refinements, biosimilars pathway, or hundreds of other items that comprise the bulk of the law. So, just to level set, what we are talking about here is not the entire ACA, it’s a few dozen of the law’s most controversial components. So, what are Republicans actually talking about when they talk about ACA repeal? Ironically, it is the precise parade of horrors that they falsely accused the ACA of being during its passage and since its enactment. The ACA actually expanded coverage for 23 million people and counting; ACA repeal will take those people’s plans away. Literally. The ACA rationalized the health care market for consumers; ACA repeal will immeasurably disrupt it. The ACA required meaningful coverage; ACA repeal will embrace bare bones plans that stick families with most of the bills. Maybe in this post-postmodern world we live in after November 8, facts truly don’t matter. But somewhere somehow I think they do, and will here.

2. THE GORDIAN KNOT

There’s a reason the ACA is as complicated as it is. It had to be that way to work. The moral nucleus of the law is the insurance market reforms that protect people with serious illnesses like cancer from being denied coverage; older and chronically ill people from being charged impossibly high rates; families from going bankrupt after their costs exceed lifetime coverage limits; dependents up to the age of 26 from walking around without any insurance protection; and so on. The complexity comes in because these universally praised reforms are impossible without sufficient relatively healthy enrollees in the insurance market, thus requiring the mandate to buy insurance and the subsidies to make doing so affordable. Every health care economist on the left or right agrees that if you take that critical mass of enrollees away, the market crumbles, making the consumer protections unsustainable. But that is exactly what the Republican repeal plan would do. While it’s true that the current ACA marketplaces are fragile and in need of refinement, repeal at this time would shatter a burgeoning consumer-driven market that has already endured repeated attempts to undermine its stability. By ripping away cost controls but leaving in place popular consumer protections, Republicans risk pushing the market beyond repair. They know this and, when the time comes, many may have trouble signing off on an approach that imposes irreparable harm on their constituent families. There are vague references to “delaying” implementation of these changes until a “replacement” is passed (more on that in a bit), but everyone knows that once this market is destroyed there will be no going back. Specifically, plans will have no choice but to raise premiums into the stratosphere, if they stay in the market at all, which most I bet will not.

3. TEN REPUBLICAN GOVERNORS

Ten states led by Republican governors, including Ohio, Michigan, and Indiana, have expanded Medicaid under the ACA. In Michigan, 443,000people have gotten coverage under that state’s expansion. In Arizona, it’s 336,000. How does it play for these governors to have supported those coverage gains only to sit idly by as they are stripped away? Not well, trust me. Most of them won’t, and we’re already starting to see it. Instead, further flexibility could be afforded to permit more expansions that follow the model of these Republican-led states.

4. THERE IS NO REPLACEMENT PLAN

It has been almost seven years since the ACA passed, and almost eight since its first drafts were circulated. That’s how long Republicans have had to come up with a consensus alternative. So, where is it? Some plans have been presented, for sure, the most often referenced being House Speaker Paul Ryan’s “A Better Way.” But even that plan lacks legislative language (the hard part) or a Congressional Budget Office “score” assessing its costs and coverage implications. So we really don’t know what it is yet, or what it will do. As importantly, we don’t know what portion of the Republican caucus in Congress will support it, especially once they have those specifics and accompanying analyses. Remember not long ago all that talk about the divide within the GOP over budget deficits, spending, the degree to which to invest in the middle class, etc.? Well, that divide hasn’t gone anywhere, and it’s about to come back to the fore in a big way if we even get to this second step of the ACA repeal and replace dance. And that’s before you get into the bizarre scenario of Democrats lining up to help clean up the mess created by hotly partisan repeal. On the one hand, just for example, the Ryan plan would institute hundreds of billions of dollars’ worth of new tax credits for coverage that eerily resemble the ones already in place for ACA exchange enrollees. Will all hard right fiscal conservatives support that? On the other, it would cap the current tax deductibility of employer-sponsored insurance, an idea contemplated during ACA development but jettisoned in favor of the—again, remarkably similar—Cadillac tax. Are business-friendly Republicans going to support that in the face of hostile industry and labor opposition? On the third hand (it’s post November 8, people), the Ryan plan privatizes Medicare and guts Medicaid by turning both entitlement hallmarks of our social safety net into capped cash allotments to consumers and states, respectively. Everyone going to line up behind that one? Senate Democrats—who will be needed to pass a replacement plan—have already put a firm marker down that they will not. So, please, don’t be fooled. I’m not sure anyone would oppose taking a good look at an alternative or reform to the ACA that expands coverage and reduces cost to a comparable degree and can pass this Congress. If anyone’s got one, let’s see it now, before we take the leap of faith with repeal. You’ve had plenty of time.

5. HEALTH CARE STAKEHOLDERS

I was a little harsh earlier in referencing the passivity of the health care community in the face of this imminent catastrophe we are facing. But I don’t think that’s going to last long. November 8 was a shocking defeat for those who believe in broader access to health care. But it will only be a symbolic defeat if we hold our ground on our values and, as stakeholders, our missions. Discussions are burgeoning now about how the health care community—consumers, providers, companies, states, and more—will come together to oppose ACA repeal without a contemporaneous replacement plan that works. It’s time to get our heads back in the game. In conclusion, there’s ample reason to believe that enough Members of Congress and maybe even the President-elect will eventually find it irresponsible to move forward in this haphazard, two-step fashion. Some are starting to demandthe menu be hashed out before they are asked to sit and eat. That shouldn’t be too much to ask. If it is, well, that tells us all we need to know about the truth behind “repeal and replace.”