Congress won’t be able to repeal and replace the Affordable Care Act (ACA) after the midterm elections handed Democrats control of the House of Representatives — but that doesn’t mean lawmakers are done tinkering with the 2010 health care overhaul law.
Democrats ran and won on health care and the new House majority is expected to make strengthening the ACA a top priority next year. For some lawmakers, this means passing measures to further stabilize the marketplace, where over 10 million consumers purchase private insurance. For others, this involves investigating federal sabotage efforts. Lawmakers are also feeling pressure to do something about protections for people with pre-existing conditions, which was a central campaign issue, particularly following the Trump administration’s announcement that it would no longer defend the ACA in court.
Meanwhile, Democrats are going to continue to debate Medicare buy-in and Medicare for All legislation, jump-starting talks about where the party goes from here. Senators also want to tackle drug prices.
But there’s only so much political capital Democrats can spend on shoring up the ACA marketplace where people access health care when they can’t get employer-based plans: ThinkProgress reached out to six experts familiar with how policy affects people, to see what they think Congress should prioritize. While everyone was concerned about the Texas lawsuit trying to end the ACA, most agreed that the best strategy for lawmakers when it comes to defending consumer protections is to simply not repeal the law. Also, although Trump stopped paying for subsidies in 2017 that offset costs for insurers covering low-income people, none of the experts prioritized restoring those subsidies unless the administration outlaws the workaround that effectively gets companies paid. No one emphasized restoring the federal individual mandate either.
Here’s the immediate action experts recommend:
Nevada marketplace director: Kill the subsidy cap
“The emphasis and energy from federal lawmakers should absolutely be on stabilizing the individual market and finding more opportunities to offer affordable, qualified health plans [with] comprehensive benefits,” said Nevada Exchange Executive Director Heather Korbulic.
For Korbulic, that means subsidizing health plans for people who earn over 400 percent of the federal poverty level, or $100,400 for a family of four. Currently, only people who earn between 100 and 400 percent of FPL qualify for ACA premium tax credits.
“Those individuals are the ones who are being priced out of the market and those are the individuals that are seeing short-term limited duration plans as a more affordable option — potentially not understanding the whole ramifications of purchasing such a subpar plan,” Korbulic told ThinkProgress. “I worry about those people and think we should focus initiatives on them.”
It’s worth noting, legislation to kill the 400 percent cap already exists in the Senate.
Korbulic would also like lawmakers to fix the “family glitch,” a rule that bases premium subsidies on whether an employer-based health plan is available and affordable for only the employee and not the entire family. A Senate bill tries to fix the glitch but, like the kill-the-cap bill, hasn’t moved forward.
Finally, if federal officials are already asking the Department of Health and Human Services (HHS) questions, Korbulic would like to know where dollars from user fees that federally-facilitated marketplaces pay are going. “Especially when you are cutting outreach and advertising so significantly, what is happening?” she said.
Colorado’s chief insurer regulator: Do something for folks who don’t get subsidies
Colorado officials are doing all they can to protect patients from certain federal health policies — namely, the administration’s expansion of skimpy health plans. The state is already regulating short-term health plans and is even trying to make them less skimpy, requiring these plans to cover essential health benefits. The goal is to make sure patients don’t accidentally buy plans they assume will cover, for example, maternity care, but don’t. (The ACA covers maternity care, but no short-term plan does.)
“If it is the case, as it appears to be right now, that Congress isn’t going to move anything, at least substantively, through both chambers and have the president sign anything that really helps with the consumer confusion piece… we are going to do what we can in the state of Colorado and lots of other states will do that too,” said interim Insurance Commissioner Michael Conway.
That said, states can’t do it all alone. Like Korbulic, Conway is hoping federal lawmakers do something to help middle-income folks afford quality insurance. That could be federal reinsurance, or insurance for insurers. Colorado state lawmakers tried to get a state reinsurance program but the GOP-controlled senate blocked it.
“But if we are going to do anything sustainable for folks — if we are going to provide real relief for people in the health care markets — we have to address costs, whether that’s pharmaceutical costs or hospital costs or doctors costs,” Conway told ThinkProgress. “We have to figure out a way to reduce the amount of money that is going into the health care system.”
New Jersey governor: open enrollment
Unlike Colorado, New Jersey successfully implemented a reinsurance program, which brought down premiums, and also has a state mandate requiring people to have insurance. State officials have done all they can to counteract the administration’s efforts to undermine the ACA and, yet, enrollment is still down compared to last year.
Gov. Phil Murphy (D) is optimistic that a lot more people will sign up during the final days of enrollment, and previous periods suggest he’s right, as there’s usually a last-minute surge. But states can only do so much.
“We’ve done everything we can do, but I don’t think we can underestimate the damage that’s been done by the Trump administration and GOP-controlled Congress,” Murphy told ThinkProgress by phone.
So, he’s calling on lawmakers to, at the very least, take modest action.
“I’ll give you a simple one … I’d hope that we could get the enrollment period back to the amount of time that it used to be and fund the public service announcements that need to go hand-in-hand with that,” said Murphy. (In 2017, the administration shorted enrollment by more than half and slashed advertisement and outreach.)
Having lawmakers intervene in the Texas lawsuit, on the other hand, might be harder. So while the governor wants Congress to “weigh in heavily” on the lawsuit, he understands GOP lawmakers might impede. (The administration, itself, isn’t defending the law.)
Mom who fought against Obamacare repeal: consumer protections
President and Co-founder of Little Lobbyists Elena Hung was the only expert to suggest that Congress immediately prioritize action against the Texas lawsuit. The ACA has meant the difference between life or death for her family, as her daughter has chronic lung and kidney disease; this is why her organization was formed — to help defeat the GOP health bill.
“Families like mine are extremely concerned about the TX lawsuit and absolutely want congressional intervention,” Hung told ThinkProgress by email.
“Without the preexisting condition protections in the ACA, health care for medically complex children — and millions of other Americans — is at risk. Members of Congress — both Ds and Rs — should make good on their campaign rhetoric and do whatever they can to ensure the ACA’s protections for preexisting conditions continue uninterrupted.”
The ACA isn’t perfect, she admitted. The long term solution should be “ensuring universal, quality, affordable health care for all — including long term supports and services and home and community-based care.”
Obama-era official turned advocate: Hold HHS accountable
Congressional lawmakers do have the power to ask federal agencies tough questions — and that doesn’t require much political capital, as it’s their job. Get America Covered co-founder Joshua Peck worked at HHS during the Obama administration and knows firsthand that members can and did request documents to see if the agency’s decisions were in sync with the law.
“I think they have a lot of power to hold HHS accountable for the decisions that they are making right now,” Peck told ThinkProgress. This includes asking HHS what was considered and what criteria was used when deciding to cut marketing for open enrollment? He’d ask similar questions about cuts to the navigator program and the shortening of the enrollment period.
Leading consultant: Pass a reinsurance bill
Avalere Health’s Chris Sloan, who’s spent a lot of time studying ACA marketplaces country-wide, thinks that if lawmakers are going to pass any measure, it should be a federal reinsurance program.
“If you are sort of weighing political feasibility and effectiveness, that really seems like it comes out on top,” he said.
The drawback, he noted, is that lawmakers have to fund it; meaning they’ll have to spend federal dollars on Obamacare. But any short fix would have to.
“It’s tough to solve,” he said. “But generally the solving will cost money.”
Overall, Congress might want to devote more energy to alleviating headaches for people outside of the relatively small ACA marketplace too, especially because lawmakers have already spent a great deal of their political capital on this.
“The ACA was a great success in reducing the number of people of uninsured, but most of that success came from expanding a program that already existed — Medicaid — and there were pretty dramatic political consequences for the people who did that,” said Sloan.
This post has been updated to correct that Colorado, not Nevada, tried to implement a state reinsurance program.