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The Health 202: Here's how a rollback of key Obamacare element could stymie the law's full repeal

with Paulina Firozi


Senate Majority Leader Mitch McConnell (R-Ky) said Nov. 14 that he was "optimistic" about adding the individual mandate repeal to the tax bill. (Video: The Washington Post)

It's hard to count just how many times the train to repeal the Affordable Care Act has started -- and then stopped -- this year. Now it's moving again, but this time down a very narrow track to eliminate only the law's individual mandate to buy coverage.

Senate Republicans announced yesterday that they’re including a repeal of the individual mandate in the tax bill currently being debated in the Finance Committee -- and indicated they may have the 50 votes they'd need to pass the whole thing the week after Thanksgiving (see my colleague Tory Newmyer's write up in today's The Finance 202). Although party leaders were deeply reluctant to insert the political hot potato of Obamacare into the tax debate, President Trump has heavily pressured the GOP to include it, desperate for something he can dub a health-care “win” during his first year in office.

Trump's tweets in recent days:

And so it materialized. “We’re optimistic that inserting the individual mandate repeal would be helpful” to the tax effort, Senate Majority Leader Mitch McConnell (R-Ky.) told reporters yesterday after the weekly GOP lunch, my colleagues Mike DeBonis and Damian Paletta report.

Republicans think they've finally landed on an Obamacare repeal approach that won't prompt massive public pushback. They're well aware that a majority of Americans dislike the individual mandate. In a Kaiser Family Foundation poll released this morning, 55 percent of respondents said they'd like it erased as part of a GOP tax plan. And now GOP lawmakers are characterizing repeal of the mandate as a tax cut for poor and middle-class Americans, arguing that the penalty for being uninsured is predominantly paid by folks in lower income brackets.

Mike heard from No. 3 Senate Republican John Thune (R-S.D.), who also said the bipartisan deal struck between Sens. Lamar Alexander (Tenn.) and Patty Murray (Wash.) to fund cost-sharing reductions will be part of the deal:

Sen. Rand Paul (R-Ky.), who had pushed hard to include mandate repeal in the tax overhaul, said this:

Yet even if the public likes the idea of ditching the mandate, insurers, doctors and hospitals certainly don't. The entire ACA basically hinges on requiring everyone, including the young and healthy, to buy coverage in order to create balanced risk pools that benefit even the sickest patients, several top associations argued in a letter to congressional leadership yesterday.

"There will be serious consequences if Congress simply repeals the mandate while leaving the insurance reforms in place: millions more will be uninsured or face higher premiums, challenging their ability to access the care they need," America's Health Insurance Plans, the American Medical Association, the American Hospital Association and three other groups wrote.

It goes without saying that Democrats are not pleased. Top Senate Democrat Chuck Schumer (D-N.Y.):

Here's another question. If Republicans ultimately repeal the individual mandate as part of a tax overhaul, does that close the book on future attempts to repeal the remaining 99 percent of the ACA that remains law? On one hand, it's hard to imagine lawmakers returning to their Obamacare repeal effort in 2018 — an election year — after they crashed and burned on several efforts this year. Yet Trump has continued promising that the votes are nearly there and that Republicans will ultimately be successful.

Republican senators discussed the proposal to eliminate the Obamacare individual healthcare mandate as a part of tax reform on Nov. 14. (Video: Jordan Frasier/The Washington Post)

Let's assume for a minute that Republicans do try again to repeal the ACA next year, but now the law doesn't include the individual mandate. This could make the task simultaneously more and less difficult: It would be harder to pay for an Obamacare replacement but also make it appear that coverage losses are less severe. Let me explain:

1. By repealing the individual mandate in the tax bill, lawmakers would be using up savings that could have been applied to future GOP health-care bills.

The Congressional Budget Office says that repealing the mandate would save the federal government quite a lot of money because fewer people would buy coverage and therefore access pricey premium subsidies. Getting rid of the mandate would save $338 billion over a decade, the CBO said in an updated estimate released just last week.

The savings were a huge plus for Republicans as they tried to push health-care bills through the House and the Senate over the spring and summer that would have repealed the ACA’s taxes. Even though those bills dramatically scaled back Medicaid and subsidy spending, Republicans still needed a way to pay for retaining some of the ACA’s marketplace benefits.

2. Repealing the mandate means more Americans will opt out of coverage. Which means future GOP health-care bills — specifically, how many people would be left uninsured under them — might compare more favorably to the status quo.

It works like this: In its most recent estimate, the CBO said that 13 million Americans will choose to buy health coverage over a decade simply because there’s a mandate to do so. Get rid of the mandate, and 13 million fewer people would be covered by 2027.

A big reason the CBO said both the House and Senate bills would result in 22 million fewer Americans getting coverage is due to their elimination of the mandate — both measures would have rescinded the penalty for being uninsured, so far fewer people would buy coverage. Republicans were often forced on the defense with this number, which Democrats cited constantly as they fought the repeal- and-replace efforts.

But if the mandate has already been repealed in a tax revamp, it would change the underlying baseline and a future Republicans health-care bill might get scored as causing, say, only 9 or 10 million Americans losing coverage relative to current law. And that could make it somewhat less hard for Republicans to sell the changes to the American public, which has deeply disliked their health-care proposals up until now.

Of course, none of this is to say that repeal of the mandate will ultimately be included in a final tax overhaul signed by Trump. Its inclusion is forcing Republicans to again grapple with their own internal divisions over health care.

The problem is particularly acute in the Senate (though House Republicans are also balking, and the measure isn't part of the draft they intend to pass on Thursday). In the upper chamber, Republicans hold a 52-seat majority and can lose no more than three votes with Vice President Pence serving as a tie-breaker. That margin could get narrower if they forfeit the Alabama Senate seat for which controversial Republican Roy Moore is still running.

Sen. Susan Collin, a moderate Maine Republicane, expressed concerns about the strategy, per CNN's Lauren Fox:

Yet Collins and two other important Senate moderates haven't ruled it out, per Bloomberg's Steven Dennis:


AHH: Is repealing the individual mandate enough to convince House conservatives to also vote for a tax overhaul that funds extra Obamacare subsidies? Maybe not, the Washington Examiner's Robert King reports. In order to garner moderate support, the mandate repeal would have to ride along with a compromise to extend subsidies for low-income Americans crafted by Alexander and Murray. But conservatives perceive the CSR payments, which were halted by the Trump administration, as a "bailout" for Obamacare insurers.

"Some Republicans remained vociferously opposed to the deal that funds Obamacare insurer payments for two years," Robert writes.

“I don’t see that as something we are gonna take up right now,” said Rep. Mark Walker, chairman of the 170-member Republican Study Committee. Rep. Joe Barton (R-Tex.) said he supports repealing the mandate but not extending the subsidies, though he said he would wait to see a final package.

Other Republicans told Robert they'd give the Alexander-Murray deal a second look if it's coupled with repeal of the individual mandate. “It would make me think more positively in that direction,” said Rep. Phil Roe (R-Tenn). “Obviously there is some cost to the cost-sharing arrangement, but I would take a look at that.”

Politico's Jake Sherman framed the dilemma well:

OOF: The House GOP’s tax plan could trigger $25 billion in Medicare cuts next year, the CBO said yesterday in a letter to No. 2 House Democrat Steny Hoyer (D-Md.). The agency said that the tax package, which adds up to $1.5 trillion in tax cuts, would set off automatic cuts as required by the 2010 pay-as-you-go law, affectionately known as "PayGo," which says that any new legislation cannot collectively increase estimated deficits over the five or 10-year budget window.

Unless lawmakers vote to waive the PayGo law, the Trump administration would have to make across-the-board cuts to mandatory spending programs -- such as Medicare, Roll Call reports. Or, Congress could instead pass subsequent legislation to offset the deficit increase from tax cuts.

But if lawmakers don't take either route, the Office of Management and Budget would be required to issue a sequestration order within 15 days to reduce 2018 spending by a total of $136 billion, CBO wrote to Hoyer. The CBO noted that PayGo law limits Medicare cuts to 4 percent, which would total $25 million. That would leave $111 billion to be sequestered from other nonexempt programs.

OUCH: Yesterday, 44 attorneys general asked Congress to repeal a law that effectively strips the Drug Enforcement Administration of potent weapons against large drug companies that have allowed hundreds of millions of pain pills to spill onto the black market, The Post's Lenny Bernstein and Scott Higham report.

The Washington Post and “60 Minutes” revealed in a joint investigation last month that an early version of the law -- which Congress approved by unanimous consent in 2016 -- had been written by a drug industry lawyer and shepherded through the House by Rep. Tom Marino (R-Pa.) for two years. Two days after the media reports, Marino withdrew his nomination to be the nation’s next drug czar.

“The Ensuring Patient Access and Effective Drug Enforcement Act neither safeguards patient access to medication nor allows for effective drug enforcement efforts,” the bipartisan group of attorneys general wrote. “We urge you to repeal the act so that the public is protected and drug manufacturers and distributors may be held accountable for their actions.”

But Marino defended the legislation, noting that it was rewritten by a bipartisan collection of senators and signed by President Obama.

“This carefully crafted legislation was put together the way Americans want to see the process operate: transparent and with both parties working together to solve a complex problem,” he said in a statement. “We must balance the needs of patients — particularly those at end of life who sometimes find access to medicine a desperate challenge — and the needs of law enforcement."

President said the Texas church shooting which left 26 people dead was a “mental health problem at the highest level.” (Video: The Washington Post)

President Trump has insisted that it's mental health -- not gun control -- that was behind the recent shooting at a church in Sutherland Springs, Tex. that left 26 people dead. “I think mental health is your problem here,” Trump said at a news conference in Tokyo earlier this month. “This isn’t a guns situation." Yet the president has proposed hefty cuts to mental health care in his 2018 budget proposal and in other positions he's taken over the past year, Axios reports. Some highlights:

  • Trump's 2018 budget would cut the mental health services block grant 23 percent.
  • It would cut a combined $625 million from the National Institute of Mental Health and the Substance Abuse and Mental Health Services Administration.
  • Trump supports repealing the ACA, which includes mental health coverage as an “essential health benefit."
  • A repeal of the ACA would also limit the expansion of Medicaid, which helps to fund mental health coverage.
  • Earlier this year, Trump reversed an Obama-era regulation making it harder for people with mental illnesses to buy a gun. The rule required the inclusion in the national background check database of people receiving Social Security checks for mental illness and people deemed mentally unfit to handle their own finances. 

--Democrats are responding to Trump's nomination of Alex Azar to lead the Department of Health and Human Services by pushing the administration to lower drug prices, which was promised during his campaign. They're focusing on Azar's past work for Eli Lilly and Co. as a senior executive. Rep. Elijah Cummings (D-Md.) called the Azar nomination a “slap in the face to millions of Americans who are waiting on POTUS to take action to lower drug prices:"

Cummings reminded that he and Sen. Bernie Sanders (I-Vt.) sent letters to the Justice Department about Eli Lily’s insulin prices last year.

From Sanders:

Cummings told the Washington Examiner that he wants to meet with Azar in an effort to move forward on slashing drug prices.

--Top Finance Committee Democrat Ron Wyden (D-Ore.) -- whose committee will consider Azar’s nomination -- signaled drug prices would be part of the hearings, and vowed he would “closely scrutinize Mr. Azar’s record and ask for his commitment to faithfully implement the Affordable Care Act and take decisive, meaningful action to curtail the runaway train of prescription drug costs.”

“It ups the ante in terms of showing how he will be independent, how he would be specific in controlling costs,” Wyden said, per the Examiner.


--Our colleague Lena H. Sun tells the story of how she was able to travel to the Congo Republic earlier this year with CDC scientists studying monkeypox, a rare and fatal disease. By accompanying them to a remote village deep inside the Congo rainforest, reachable only by boat, Lena was able to write her firsthand report on how monkeypox is spreading rapidly across Africa.

"I’ve tried to get permission for years to accompany scientists tracking disease outbreaks. The answer has always been no," Lena writes. "This time, the CDC and the Congolese health ministry said yes, with the condition that we report only on the scientists' investigation. The CDC had already been to the Congo Republic twice earlier in the year to help with monkeypox investigations. CDC officials had developed a good relationship with the government, and when they asked whether we could be part of the team, Congolese officials agreed. Officials felt like there was a good story to tell and that we could safely be included."

"The biologists were looking for monkeypox in wild animals to figure out which species harbor the virus. Contact with wild animals is how human outbreaks start, and then the virus can spread from person to person. There’s been an increase in reports of suspected human cases across Africa, including in Congo," Lena continues. "Many of those suspected cases trace back to the village of Manfouete. We camped there for several days with the CDC and their Congolese and international partners as they trapped and sampled animals in the surrounding forest."

Lena adds that many readers, friends and colleagues saw her initial story and wanted to know more. She answers some of their biggest questions here.


--Signaling a possible probe into whether Planned Parenthood illegally sold fetal tissue, the FBI has asked the Senate Judiciary Committee for unredacted documents it obtained from abortion providers, the Hill reports. Late last year, the panel had referred Planned Parenthood and several other groups to the FBI for investigation after it looked into transfers of fetal tissue, prompted by a series of undercover videos by antiabortion activist David Daleiden.

"[Sen. Charles E.] Grassley said at the time that his committee had uncovered enough evidence in its final investigative report to show abortion providers had transferred tissue and body parts from aborted fetuses to firms for use in research by charging dollar amounts above their actual costs," John Solomon writes. "Abortion providers are allowed under a 1993 law to transfer fetal tissue for research at a cost equal to the price of obtaining it, but are not allowed to sell it at a profit."

The Justice Department declined to comment, saying it doesn't confirm or deny whether an investigation is taking place. Planned Parenthood spokeswoman Dana Singiser said the accusations are "baseless and are part of a widely discredited attempt to end access to reproductive health care at Planned Parenthood. Planned Parenthood has never, and would never, profit while facilitating its patients’ choice to donate fetal tissue for use in important medical research,” Singiser said.

A few more good reads from The Post and around the Internet:

FDA warns of ‘deadly risks’ of the herb kratom, citing 36 deaths (Laurie McGinley)


Trump Administration Plan to Add Medicaid Work Requirement Stirs Fears (Kaiser Health News)

GOP senators seek to 'gut' ACA via state waivers (Modern Healthcare)



  • Advocates for Opioid Recovery & Collaborative for Effective Prescription Opioid Policies hold an event.
  • The Cato Institute holds an event on liberating telemedicine with Sen. Brian Schatz (D-Hawaii).

Rep. Barbara Comstock (R-Va.) described incidents of sexual harassment in Congress at a House Administration Committee hearing, including one by an unnamed "member who is here now:"

Rep. Barbara Comstock (R-Va.) described lewd behavior from an unnamed House member "who is here now," she said. (Video: House Administration Committee)

Rep. Jackie Speier (D-Calif.) outlined three steps to stop harassment before the House Administration Committee:

Rep. Jackie Speier (D-Calif.) spoke out about incidents of sexual harassment in Congress before the House Administration Committee on Nov. 14. (Video: House Administration Committee)

Watch Sessions's House Judiciary testimony, in three minutes:

Attorney General Jeff Sessions answered questions about Russia, President Trump and Roy Moore at the House Judiciary committee hearing Nov. 14. (Video: The Washington Post, Photo: Bill O'Leary/The Washington Post)

Stephen Colbert on Attorney General Jeff Sessions's testimony before the House Judiciary Committee: