A chance to improve the Affordable Care Act


January 26, 2021 – John McDonough, professor of the practice of public health at Harvard T.H. Chan School of Public Health, discusses the road ahead for the Affordable Care Act (ACA). McDonough was instrumental in developing and passing the ACA while working as an adviser to a U.S. Senate committee from 2008 to 2010.

Q: What were some of the most damaging actions taken to undermine the ACA during the Trump administration?

A: The law was continually under siege during the Trump administration. That means four years of lost opportunities to try to enhance, improve, and build on the ACA.

In 2017, Republicans tried to repeal the entire law, and failed completely. They did get a bill through the House of Representatives and it died in the Senate.

The Trump administration then embraced the California v. Texas lawsuit, in which Texas and several other states argued that the ACA’s individual mandate is unconstitutional, and therefore the entire ACA should be invalidated. The suit seeks to toss out the entire law without replacing it or mitigating the damage that would occur from abolishing it. The case had a hearing before the Supreme Court on November 10 last year, the week after the general election. The strong sense from observers is that the court will uphold the law and dismiss the challenge.

We saw a series of administrative, executive, and regulatory actions to try to weaken and undermine the law. One example is that the Trump administration extended the time period that people can hold so-called short-term health care policies. These policies were permitted under the ACA for three-month periods for people who needed coverage for short gaps in insurance, for instance if they lost a job or were moving. The Trump administration changed the rule, allowing people to hold these policies for up to three years. The plans don’t include the consumer protections guaranteed under the ACA, such as banning preexisting condition exclusions or allowing young people up to age 26 to stay on their family’s policy. The result has been significant growth in short-term plans over the past three years, with an alarming and predictable escalation in insurer fraud. It was like opening the gates of hell, with all of these bats and ghosts and vipers streaming out into the insurance market advertising short-term plans as ACA coverage with all of its guarantees, when they have none. Now it’s up to the Biden administration to reign these plans back in.

Another example is Georgia, where the Republican governor got approval from the Trump administration to get rid of the federal health insurance exchange, healthcare.gov, where consumers can go and do apples-to-apples comparisons of ACA-verified plans. It’s not the easiest thing to do, and far better than when consumers had to go from insurer to insurer to insurer to do these comparisons. Under Georgia’s plan, scheduled to take effect next fall, consumers would have to get an insurance broker to buy coverage. And brokers are not obligated to tell you if insurers give them bonus payments to steer consumers in their direction. It abandons the core principle that government makes sure that consumers can do smart effective shopping. The Biden administration will be trying to walk back the Trump administration’s approval of Georgia’s plan.

Q: What should the Biden administration’s top priority be in trying to improve the ACA?

A: The single most important and achievable thing is to improve the health insurance subsidies, the advance premium tax credits, that make the purchase of individual insurance affordable for people who are eligible. We knew in 2010 when the law was signed that the subsidies were not adequate, and that for many people the ACA was not affordable enough.

After the law was signed, there was no possibility to fix these inadequacies. Since 2011, as Republicans have controlled either the House, the Senate, or both, there’s been no time, until now, that the Democrats have controlled the White House, the Senate, and the House of Representatives. With that control, it is possible, using the budget reconciliation process—which can bypass filibusters—for Congress to amend the law and make the ACA more genuinely affordable. It’s long overdue and badly needed.

Q: Will it be tough for the Biden administration to undo some of the changes that occurred during the Trump administration or to make new improvements to the ACA?

A: When they try to reverse the regulations put in place by the Trump administration, they have to do it carefully. If they mess up on any detail, a federal court may stop what they’re trying to do. Rushing too quickly is a recipe for having these policies in place even longer. It has to be done carefully, thoughtfully, and scrupulously.

For improving affordability, they don’t have to go slowly. President Biden has already proposed affordability enhancements in his proposed $1.9 trillion package for COVID-19 relief and other economic improvements, and they should be able to move that plan along quickly.

Karen Feldscher