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Biden's victory means ACA isn't doomed — impending SCOTUS challenge threatens survival

Biden's victory means ACA isn't doomed — impending SCOTUS challenge threatens survival
© Greg Nash

For four years, President TrumpDonald John TrumpPennsylvania Supreme Court strikes down GOP bid to stop election certification Biden looks to career officials to restore trust, morale in government agencies Sunday shows preview: US health officials brace for post-holiday COVID-19 surge MORE variously described the Affordable Care Act (ACA) as a “disaster” or even “dead.” Despite pledges creating a replacement plan, promises that became more frantic in the run-up to the election, no such alternative ever surfaced. Meanwhile, the Trump administration administratively chipped away at aspects of the ACA, much of which can now be swiftly reversed by the incoming Biden administration. 

Trump attempted to gut Medicaid by approving work requirements and block grants, stiffed insurers under statutory mandates to support the individual market, increased friction for those interested in marketplace coverages, and confused consumers by promoting “junk” insurance plans. 

Zero progress was made in dealing with the spiraling costs of health care, particularly prescription drugs, the growing problem of underinsurance, and out-of-network “surprise” billing. A Biden presidency should mark a swift end to those dismantling tactics as well as the destructive escalations that were, no doubt, planned to follow. However, the survival or at least long-term health of the ACA is a long way from guaranteed, with the conservative Supreme Court and a still-divided Congress standing in the way.

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First up is the ongoing constitutional challenge to the ACA. Oral arguments are scheduled before the Supreme Court today. Initiated by a group of Republican states, and then, contrary to usual norms, supported by the Department of Justice, the case seeks to reverse the Supreme Court’s 2012 finding of the ACA’s individual mandate's constitutionality, based on the taxing power of the government. Let’s assume that the Chief Justice can wrangle his new right-leaning court into a compromise decision that retains the law's key provisions. Even then, the ACA and, more importantly, U.S. health care policy, is far from being on a positive trajectory.

The ACA did wonders for health care access, primarily by expanding Medicaid beyond the extremely poor and subsidizing the individual market. However, there is still legislative work to be done to shore up its coverage. Fourteen states, including those with large populations such as Florida, Georgia, North Carolina, and Texas, still have not expanded their Medicaid coverage. Congressional action will be needed to incentivize their participation by reinstituting the 100% federal funding match. Fortunately, the incoming Secretary of Health and Human Services will have extensive regulatory and waiver authorities. Whether time-limited to the pandemic or not, the Secretary will have the power to liberalize many of the Medicaid restrictions, allowing states to improve their safety nets. 

January should bring a flurry of regulations reversing some of the more egregious Trump regulatory actions. These should include reestablishing the ACA’s anti-discrimination protections for prejudice based on sex stereotyping and gender identity, re-regulating “skinny,” short-term, and association health plans, re-banning nursing home arbitration clauses, and removing the Title X gag order. Other, swifter changes will be achieved through simple policy changes, such as dropping existing litigation or reinstituting cost-sharing subsidies.

The ten years since the passage of the ACA have seen little progress in the legislation’s authors’ stated goal of care being “affordable.” Health insurance premiums continue to increase while their actuarial values decrease, reallocating more costs to patients through deductibles and copays. Hospital and drug costs continue to increase at a rate far beyond that of “normal” inflation. 

Nevertheless, practical reforms can be made to reduce patient costs. After cleaning up the regulatory mess left by the Trump Department of Health and Human Services, there may be space for some ACA tweaks, such as drug formulary waivers from the Center for Medicare and Medicaid Services. Other changes designed to improve the long-term health of the ACA, such as a “public option," will require legislation, and so will require the cooperation of a still divided Senate.

The election of President-Elect Biden means that, if the ACA survives its Supreme Court challenge, the constant barrage of incoming attacks on the law should be weakened considerably. The Biden-Harris ticket made several campaigns promise to strengthen the law, and there are administrative tools they can use to shore up coverage. If the Supreme Court critically injures the ACA, it will create even more pressure on Congress and the new administration to resuscitate it, ensuring the law lives up to its stated ideals of granting affordable coverage for all.

Nicolas P. Terry, LLM, is the Hall Render professor of law and the executive director of the William S. and Christine S. Hall Center for Law and Health at Indiana University Robert H. McKinney School of Law