We will soon have Donald Trump as president, and that is bad news for the Affordable Care Act, aka Obamacare, President Obama’s signature legislation designed to provide better, comprehensive health care to all Americans. Trump has repeatedly said he wants to repeal and replace it, though his stance seems to be shifting somewhat since the election. But this is established law we’re talking about, and throwing 24 million people off the insurance rolls is no small matter. What drastic changes can Trump and the Republican Congress realistically make to Obamacare?
An abbreviation of campaign promises
“A full repeal [of the Affordable Care Act] will be tricky and tedious. The law has fully taken effect and many provisions, such as extended coverage for kids on their parents’ insurance and no denials for pre-existing conditions, now enjoy bipartisan support,” says Anthony M. Shallat, an associate with Angstman Johnson in Boise, Idaho.
While Trump’s presidential campaign website announced the plan for his first 100 days in office, which included the creation of legislation titled the “Repeal and Replace Obamacare Act,” Trump himself may have had a change of heart since the election. He commented in his recent 60 Minutes interview with Leslie Stahl that the ACA’s insuring people with pre-existing conditions “happens to be one of the strongest assets. It adds cost, but it’s very much something we’re gonna try and keep.” He also indicated an openness to retaining the extended coverage of young adults on their parents’ plan.
The logistics
Whatever it is that Trump ultimately decides to do with Obamacare, there are steps that must be followed in order for any change to take place. “Any repeal will take time, and unwinding the ACA will be a complicated process,” says Shallat.
Once legislation is offered up to repeal Obamacare, “The Senate can pass a bill repealing Obamacare with only a simple majority given that ‘reconciliation’ or budgetary measure bills only need 51 votes to pass,” says Shallat. He’s referring to those sections of the ACA that are related to taxes and spending, including subsidies to buy health insurance, tax credits, penalties for not having insurance, and the expansion of Medicaid.
Should the budgetary repeal pass in the Senate—and with 51 Republican seats, that appears probable—the bill would then go to the House, where the Republican majority would likely pass the repeal measure. From there the matter goes to President Trump to sign, and the new bill would then become law.
Repealing other Obamacare provisions will be much trickier. “The Senate needs 60 votes to repeal provisions that are not tied to spending, such as allowing children to stay on their parents’ insurance until they are 26 and the pre-existing condition portion of the ACA,” notes Shallat. Why? Because Senate debate on such changes would be open to filibuster, which takes a supermajority of 60 votes to shut off. And while Trump’s post-election comments indicate a softening against repealing the extended coverage of adult children and exclusion of pre-existing conditions, he and the Republican-controlled Congress might still try to undo such non-spending provisions as ending the cap on lifetime benefits and ensuring women cannot be charged higher premiums than men.
Resistance is futile…or is it?
A great number of people find the prospect of any major Obamacare changes to be distressing. It will massively disrupt the insurance market, as well as, obviously, impact citizens’ rights to healthcare. The Trump administration can expect to face aggressive opposition to ACA changes, such as protests from Democratic politicians and Americans who will be negatively affected by the changes.
“Senate Democrats have the procedural tool of the filibuster as an act of defiance, but they have no way to stop the budget reconciliation process and the Republicans’ ability to kill the ACA via spending cuts,” says Harry Nelson, managing and founding partner of Nelson Hardiman, LLP, a Los Angeles-based healthcare law firm. This being said, “The election also showed that the ACA was deeply unpopular with other Americans, so we expect that protesters will be on both sides and will not affect the outcome,” says Nelson.
Republican alternatives
Because Obamacare replacement may become an “a la carte” piece of legislation, it’s tricky to anticipate the kind of changes the country might see in lieu of the ACA, but Elise Schuller Barajas, a healthcare attorney with Gray Reed & McGraw in Dallas, was willing to give it a shot. “The repeal—or at least significant paring back—of the Affordable Care Act, as promised by Mr. Trump, could potentially change the current model that pushes providers away from traditional fee-for-service medicine and toward the delivery of value-based health care,” says Barajas, who points out that Trump has expressed his intent to implement reforms that follow free-market principles.
“Mr. Trump and Congressional Republicans will likely push to eliminate the individual and employer mandates, eliminate certain ACA insurance reforms (such as minimum essential benefits packages), expand the use of Health Savings Accounts, and modify existing law to permit the sale of health insurance across state lines,” says Barajas.
Other potential changes, as identified by Barajas, include:
- Medicaid block-grants to states
- Lump sums provided to states so they have more latitude to run their healthcare programs
- End to Medicaid expansion in states that have not yet implemented it, and potential jeopardy for states that have
- Rollback in women’s abortion rights (depending on Supreme Court appointments and efforts)
- Federal agencies looking more favorably on mergers and consolidations in the healthcare industry
Shallat suggests that one Trump administration strategy may involve passing two reconciliation bills that will work to repeal the ACA in tandem: “The first bill could quickly strike down the ACA but delay the effect by tying the mechanics of the repeal to a tax reform and budgetary funding bill. This way, the repeal of Obamacare would have a delayed effect and would not be fully implemented until the second bill passes. The first bill would be more symbolic but the repeal would not take effect until the second bill passes.”
Whatever approach the new administration settles on, it seems likely that the current health care law is in for some big changes, for better or worse.