By Peter Sullivan - 06/30/15 06:00 AM EDT
The White House’s victory at the Supreme Court last week removed a major threat to ObamaCare that could have rolled back coverage for 6.4 million people.
President Obama declared after the ruling that the law has “been woven into the fabric of America,” while allies said the new insurance program and its related policy changes are here to stay.
But the law is hardly out of the woods. The battle of public opinion over the Affordable Care Act rages on, with Republicans expressing confidence they will ultimately prevail.
Here are five remaining threats to Obama’s signature domestic program.
Republicans are already turning their attention back to repealing the law, perhaps using a fast-track process called reconciliation that could move legislation through the Senate with just 51 votes.
But there are major obstacles ahead. Senate rules limit what parts of the law can be repealed using the process, and whatever legislation emerges would likely face a veto from Obama.
Facing long odds for success through reconciliation, many Republicans are pinning their hopes on the 2016 presidential election, when they hope their party will recapture the White House and control the legislative agenda.
But even if they won control of Congress and the White House, Republicans could find it difficult to get ObamaCare repeal past a Democratic filibuster in the Senate.
Under questioning from radio host Hugh Hewitt last week, presidential candidate Jeb Bush said he was open to the idea of curbing the filibuster to repeal ObamaCare.
2.) Marketplaces failing
Some of the 13 states that opted to set up ObamaCare marketplaces, known as exchanges, are considering turning over part or all of their operations to the federal government due to financial and technical problems.
New Mexico, Nevada and Oregon have already handed over the toughest aspects of their operations to the federal IT system. Hawaii decided earlier this year to follow suit, and other states, including Vermont and Minnesota, are considering their options.
“The chances are good that some of the state-based marketplaces struggle, especially in the smaller states,” said Michael Adelberg, who formerly helped oversee the exchanges in the Obama administration and is now a consultant at FaegreBD.
The stakes of failing state exchanges are far lower now that the Supreme Court has ruled that subsidies can be made available on federal or state exchanges. But states have invested significant resources into their exchanges, with some costing as much as $200 million.
“We’re going to work with states that want to do state-based exchanges,” Health and Human Services Secretary Sylvia Mathews Burwell told reporters last week. “We’ll do federal exchanges where there aren’t those.”
3.) Rising costs
Republicans have latched on to proposed 2016 premium increases of as much as 30 percent in some states to argue that costs are skyrocketing under ObamaCare.
States are likely to block any premium increases of that size, and the average premium increase appears to be trending at somewhere between 4 percent and 6 percent.
A Kaiser Family Foundation study found that in 11 cities with complete data so far, premiums are set to rise 4.4 percent, compared to 2 percent last year. Similarly, an analysis from Avalere Health, a consulting firm, found that premiums will rise 5.8 percent across eight states with complete data.
“The growth looks to be pretty modest,” said Larry Levitt, a vice president at the Kaiser Family Foundation, though “somewhat bigger this year than last year.”
Perhaps a bigger problem for the law is the cost of deductibles — the amount patients have to pay before insurance kicks in. A study from the Commonwealth Fund finds that 31 million people are “underinsured” because they face such high deductibles and out-of-pocket costs.
“Are the people buying lower cost plans in the Exchanges underinsured?” Adelberg said. “That is one place people are going to turn their attention.”
4.) Enrollment challenges
Expanding coverage is the main goal of ObamaCare, and the administration faces a daunting projection, set by the Congressional Budget Office, of 20 million sign-ups by 2016, up from 10.2 million currently.
Robust enrollment is important for creating the mix of healthy and sick that is needed to limit increases in premiums.
“The biggest challenge ahead is increasing enrollment. Getting more people signed up is central to the law's primary aim,” Levitt said. “Increasing enrollment is also key to keeping premiums under control.”
People who have signed up for ObamaCare so far tend to be sicker and poorer than the population at large. The challenge for the administration will be getting middle-income, healthier people enrolled. A higher penalty for lacking insurance next year (the greater of $695 or 2.5 percent of income) could help.
5.) Another lawsuit
The legal challenges to the law are not over.
House Republicans have sued Obama over his handling of ObamaCare, citing executive overreach. They say he has spent money on the law’s cost-sharing reductions, which give money to insurers so that they can reduce deductibles and co-pays for low-income people, even though Congress declined to appropriate the money.
“It could have very serious ramifications because about 60 percent of ACA enrollees receive cost-sharing reductions,” said Tim Jost, a health law expert at Washington and Lee University.
The case is still in its early stages and at the lowest level of federal courts. One court has yet to decide whether it will allow the case to go forward, given precedent saying that Congress does not have legal standing to sue the president. But at a hearing on a motion to dismiss the case last month, the judge levied tough questions at the Obama administration’s lawyer.
Some Republicans are putting the focus on 2016, however.
“I think next steps, whatever they are, really do need to include the ballot box and 2016 election,” Rep. Michael BurgessMichael BurgessGOP rebuffs doctors on gun research Overnight Healthcare: Congress kicks off opioid talks | GOP rebuffs doctors on gun research | Philly passes first soda tax Senior Trump aide assures conservatives on court picks MORE (R-Texas) said last week.
“Obviously, I don’t see any other court challenges coming in the next 18 months,” he added. “So we’re probably done with the court as a remedy.”
— Sarah Ferris contributed.