On Jan. 6, after five years of trying and 62 floor votes, congressional Republicans passed a bill repealing the Affordable Care Act, often called “Obamacare.” The Senate had passed the bill a month before.
House Speaker Paul Ryan (R-Wis.) quickly acknowledged that the president would veto the bill, as President Obama soon did. Ultimately, Ryan said, repealing Obamacare is “going to require a Republican president.”
But would getting a Republican president be enough to repeal the ACA? The answer isn’t simple, for a few reasons. But Republicans have a secret weapon: Let states launch the toughest battles first.
Voters support much of the ACA
According to the Kaiser Family Foundation, most of those enrolled in ACA’s marketplace plans say they are satisfied with their choice of providers, copays, premiums and deductibles. Few politicians support rolling back protections for people with preexisting health problems. Polls show that, even in more conservative states like Kentucky, most Americans support Obamacare’s expansion of Medicaid. Overall, while 35 percent of Americans continue to support repealing the ACA, they’re divided on whether the law should simply be repealed or replaced by a Republican-sponsored alternative.
Insurers and providers may want policy changes, but not repeal
For their parts, insurers and health care providers have few incentives for a full repeal of the ACA. Despite UnitedHealth Group’s recent threat to pull out of the exchanges because of serious losses in 2015, two of the biggest players in the individual marketplace — Aetna and Anthem — remain committed to participating. Even the health insurance trade association AHIP hasn’t criticized the ACA as a whole; rather, it has pushed for repeal of the ACA’s health insurance tax and revisions to minimum essential benefits and restrictions on age rating, claiming that these provisions drive up cost.
It’s true that health care providers have had mixed reactions to the ACA-driven growth of accountable care organizations (ACOs), which increase their financial responsibility for patient outcomes in the hopes of eliminating unnecessary costs and improving care coordination. But hospitals and physician groups have defended the ACA’s requirements that all insurance must cover certain basics like preventive care provisions, most recently by filing amicus briefs supporting the federal government in King v. Burwell, the lawsuit that challenged the ACA’s constitutionality.
The states might have serious objections to major changes in health care
Both federal and state governments spend time, money and regulatory effort on their citizens’ health care. Doing so requires a great deal of bureaucratic cooperation between federal and state agencies. And disturbing that tangle could create more chaos than ACA opponents expect.
Speaker Ryan’s comments imply that a unified Republican government in Washington would promptly repeal Obamacare — and that the party’s base eagerly awaits this. But disentangling the good (or at least the popular) from what conservatives see as the bad and the ugly would not be easy.
One simple example concerns the ACA’s expansion of Medicaid. As written, it was expected to mean that all states’ Medicaid programs would cover everyone in households with incomes up to 138 percent of the federal poverty level, adding roughly 15 million people to Medicaid rolls. The ACA worked toward this goal with both a stick and a carrot. It threatened to withdraw all Medicaid funds for states that wouldn’t expand the program, and offered to cover the extra costs entirely for three years, eventually reducing underwriting to 90 percent. In 2012’s National Federation of Independent Business v. Sebelius, the Supreme Court struck down the stick, but left the carrot.
Most of the states that took the expansion were controlled by Democratic governors. But some Republican governors, including presidential candidate John Kasich of Ohio, decided the federal money was too good to lose. A total of 32 states have now accepted the Medicaid expansion, and trillions of federal dollars with it. In Maryland alone, the estimated impact of Medicaid was $3.3 billion. Repealing it now would mean that all those states would lose that money.
State governments would almost certainly also oppose repeal of other parts of the ACA, which they’ve now spent time and money implementing. Even Ryan’s recent “repeal” bill left intact the ACA’s core regulatory reforms, guaranteed coverage for preexisting conditions, an end to annual and lifetime limits on insurance coverage, and the ability to keep young adults on a family policy.
So if the Republicans want to reform the ACA, how could they do it?
By taking advantage of that state-federal entanglement. The ACA already has several parts that could be tinkered with to reach Republican goals.
1. Medicaid Expansion.
A Republican administration could give the states more leeway in the terms and conditions they put on new Medicaid recipients. Several Republican-run states have waivers that let them make fewer people eligible than was originally intended. For example, Indiana requires some of the newly eligible population to pay monthly premiums into a health savings account; it’s testing whether co-payments will reduce non-emergency ER use.
But the Obama administration hasn’t accepted every proposal. For instance, it refused to let Pennsylvania’s Gov. Tom Corbett (R) add a Medicaid work requirement A Republican administration could allow that and more.
2. Insurance Exchanges.
Without directly repealing the ACA’s coverage provisions, Republicans could change them significantly. Under Section 1332 of the ACA, states can seek federal waivers allowing them to drop the requirement that everyone must buy health insurance or pay a penalty. While Congress placed limits on when states could do this, a Republican president could seek congressional approval to relax them, allowing more states to dismantle a significant piece of the law.
3. Regulatory Reform.
A Republican administration can do the same for regulatory reform— for instance, eliminating the ban on lifetime and annual benefit limits – i.e., allowing insurance companies to cap coverage once again, or getting rid of the guarantee that everyone must be offered coverage — by creating a waiver program that lets states try it out first. Some Republican plans have already called for a similar approach.
There’s no question that Republicans will continue to challenge the nature and scope of health care reform. But they probably won’t achieve an outright repeal. ACA opponents could be far more successful if they punt the most politically challenging efforts to the states.
Daniel Béland, Philip Rocco and Alex Waddan are the authors of “Obamacare Wars: Federalism, State Politics, and the Affordable Care Act“ (University Press of Kansas, 2016).