How Trump's win puts the ACA in peril

Congress could partially repeal the ACA through reconciliation

On Tuesday, Donald Trump (R) was elected president of the United States, and Republicans retained control of the House and Senate.

Nov. 18 webconference: What's the post-election outlook for health policy?

The Associated Press called the race for Trump early Wednesday morning.

Trump has long pledged to repeal the Affordable Care Act (ACA), which he has called a "total disaster," and he made that pledge a major part of his closing argument over the last stretch of the presidential campaign, Harris Meyer reports for Modern Healthcare.

But because Republicans will not have a filibuster-proof majority in the Senate, it's unlikely they will be able to fully repeal the ACA, Margot Sanger-Katz writes for the New York Times' "The Upshot." It's more likely, she writes, that the GOP will pursue a partial repeal of the ACA through the budget reconciliation process, which allows bills related to spending and revenue to be passed by a simple majority, without being subject to a potential filibuster.

What partial repeal could look like

Any repeal plan that the GOP Congress attempts to pass through reconciliation "would have to go through [an] elaborate review" by a Senate parliamentarian "to make sure it complies with intricate budget rules, and Democrats can challenge the" parliamentarian's ruling, Jennifer Haberkorn writes for Politico.

Despite that uncertainty, observers "have a pretty good idea of what such legislation would look like," Sanger-Katz writes, since the House and Senate earlier this year passed a partial ACA repeal bill through the reconciliation process, before it was vetoed by President Obama.

That bill would have eliminated the ACA's Medicaid expansion, insurance subsidies, individual and employer mandates, and several taxes that help fund the law, effective two years after the bill's passage. (Other parts of the law, including the ACA's Medicare reforms, its provision allowing young people to stay on their parents' plans until age 26, and its requirement that insurers sell policies to individuals regardless of whether they have preexisting conditions, could not be repealed through reconciliation, Sanger-Katz writes.)

The Congressional Budget Office estimated that the measure would result in 22 million fewer U.S. residents having health insurance.

Trump "would seem likely to sign" a bill similar to the one GOP lawmakers passed earlier this year, Sanger-Katz says. Lanhee Chen, policy director of Mitt Romney's 2012 presidential campaign, told Politco's "Pulse" that "Trump and the GOP-controlled Congress will face tremendous political pressure to move quickly to repeal the ACA and replace it with market-oriented reforms."

Meanwhile, some observers expressed skepticism that a GOP Congress would actually pass a partial repeal of the ACA now that it has a clearer path to becoming law. Jim Capretta, a resident fellow at the American Enterprise Institute, told Politico, "I think the Congress will end up being unable to pass [such a partial repeal] again if it were real. People who supported it would want to make sure their [constituents] are protected."

In addition, some stakeholders are concerned a partial repeal that leaves in place requirements on insurers but scraps the individual mandate and subsidies would "cause a death spiral" for insurers.

Replacement plan uncertain

How Trump and GOP lawmakers would try to replace the ACA is also uncertain. Trump and House Speaker Paul Ryan (R) have put forward broad outlines of replacement proposals, but "neither has filled in details," Politico reports.

House GOP releases its first-ever ACA replacement plan

Ryan's proposal would replace the ACA's subsidies with a refundable tax credit available to all individuals and families who lack access to employer-sponsored insurance, Medicare, or Medicaid, which could be used to purchase health plans on the individual market. Trump's plan, meanwhile, would "allow individuals to fully deduct health insurance premium payments from their tax returns." Both plans would expand the ability of Americans to use tax-deductible Health Savings Accounts to cover out-of-pocket health care costs, would reduce barriers to selling insurance across state lines, and would turn Medicaid into a block grant program.

However, it would be difficult for the Senate to pass an ACA replacement bill because the GOP will not have a filibuster-proof majority, Sanger-Katz writes. There's also a question of timing: Trump has called for a "special session" of Congress to "repeal and replace" the law shortly after he takes office. However, Chris Condeluci, who worked for Republicans on the Senate Finance Committee during the ACA debate, told Vox that Republicans would likely first pass a repeal that provides for a transition period, then use that time to try to pass a replacement plan.

Other unanswered questions

It's also unclear what the election results will mean for the fate of other health care debates, including issues surrounding Medicare, the CMS Innovation Center, and drug prices.

For instance, Trump has said he would keep Medicare "the way it is" if elected president, while Ryan supports transitioning the program to a premium-support model. Trump has also:

  • Called for the United States to allow importation of prescription drugs from other countries as a way to increase competition and drive down costs, a policy that has divided both Democrats and Republicans in recent years; and
  • Touted a proposal to allow Medicare to negotiate drug prices directly with pharmaceutical companies—a policy GOP lawmakers have blocked for more than a decade.

Trump also has called for requiring all providers to post prices of medical procedures to enable consumers "to shop to find the best prices." However, Casey Ross notes for STAT News' "On Call" that "many providers are already estimating prices for consumers, and the president-elect has not proposed a specific measure to accelerate those efforts."

One policy area that has received broad bipartisan support in Congress is payment reform: MACRA , which incentives providers to take part in risk-based payment models, passed with huge majorities in both the House and Senate.

Nov. 29 webconference: Get a detailed analysis of the MACRA final rule

But not all payment models have been met with a warm response. Congressional Republicans have criticized the role of the CMS' Center for Medicare & Medicaid Innovation (CMMI) that is responsible for many new Medicare models, particularly as CMMI has proposed mandatory programs.

Eric Cragun, who leads Advisory Board's health policy team, said earlier this year, "A Trump presidency might lead those lawmakers and new staff at CMS to reduce CMMI's role as a payment reform facilitator and rely more on Congress to drive new payment models forward" (Sanger Katz, "The Upshot,"New York Times, 11/9; Haberkorn, Politico, 11/9; Meyer, Modern Healthcare, 11/9; Kliff, Vox, 11/9; Diamond, "Pulse,"Politico, 11/9; Ross, "On Call,"STAT News, 11/9; Kodjak, "Shots,"NPR, 11/9)

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