Despite passionate opposition and a Supreme Court challenge in 2012, the Affordable Care Act will mark its fifth anniversary on March 23.
Last week, the law was in front of the Supreme Court once again. Most experts agree that King v. Burwell is the most significant threat to the ACA since 2012. According to an Urban Institute analysis, if the court strikes down the federal exchange subsidies, the ruling would eliminate about $28.8 billion in assistance to 9.3 million individuals in 34 states in 2016. Such a ruling would kick off a cascade of events — many people would likely drop coverage because of the cost, forcing premiums up for sicker people who can’t drop coverage and pushing the individual market into a “death spiral.”
But King v. Burwell isn’t the only challenge the ACA faces. California Healthline spoke with experts and pored over recent research to determine some of the other biggest threats to the law’s viability and success. Here’s what we found.
A Republican President and a GOP-Controlled Congress
Most of the experts California Healthline spoke with agreed that Republicans represent the largest single threat to the law.
With the GOP already in control of the House and Senate, the party is one presidential election from having the ability to scrap the law.
Timothy Jost, a health law professor at Washington & Lee University and one of the nation’s leading experts on the ACA, said GOP control of the presidency, House and Senate “clearly” is the “biggest challenge” to the ACA. However, he added that “by the time that could happen, the ACA reforms may be firmly enough entrenched and the Republicans so divided that the ACA could still survive.”
Republicans’ focus as of late has been on developing backup plans in case subsidies in federal exchange be struck down. However, if the subsidies are upheld, many observers expect the GOP to return to trying to replacing the ACA. Republican Sens. Richard Burr (N.C.) and Orrin Hatch (Utah) and Rep. Fred Upton (Mich.) in February unveiled a plan to replace the ACA that the party could come back to.
Meanwhile, the GOP also could return to its efforts to dismantle the law piece by piece. For example, the GOP recently wrote letters to HHS and the Department of Treasury claiming that payments to health insurers under the ACA’s cost-sharing reduction program are “unlawful.” Republicans also have introduced legislation (S 30) that would change the definition of full-time employee to those who work 40 hours per week.
There currently aren’t any pressing cases that threaten the viability of the ACA besides King v. Burwell; however, many people believed Halbig v. Burwell, the predecessor to King, never had a chance to reach the high court, and yet, here it is, threatening to take down the entire law.
There are a handful of pending lawsuits that can chip away at the law’s foundation, if not threaten its entire existence. For example, one suit — Vining v. Executive Board of the District of Columbia Health Benefit Exchange Authority — challenges the legality of requiring members of Congress and their staffers to obtain coverage through D.C.’s small-business exchange. The suit ultimately could result in a much smaller pool of enrollees and, consequently, higher premiums for future enrollees.
No amount of insurance matters if there aren’t enough doctors to provide care.
In January 2013, a Congressional Research Service report sounded the alarm that the ACA “may affect both the demand for physician services as well as the volume of physician services available, and therefore may influence determinations of the appropriate size of the physician population.”
And earlier this month, a report by the Association of American Medical Colleges found that although the number of physicians is expected to increase, it will not grow quickly enough to meet demand. Meanwhile, the Health Resources and Services Administration says nearly 20% of U.S. residents live in an area with too few primary care physicians.
A number of states have been resistant to certain provisions of the ACA or have outright opposed the law in its entirety. For example, according to the National Conference of State Legislatures, 21 state legislatures between 2010 and the end of 2014 enacted laws or measures “related to challenging or opting out of broad health reform related to mandatory provisions” in the ACA.
The most visible evidence of states’ efforts to push back against the law has been certain states’ reticence to participate in the Medicaid expansion, particularly in large states with outsized uninsured populations, like Florida and Texas.
Or, as Don Taylor, an associate professor of public policy at Duke University with a focus on health care policy, said, “We have to find a version of health reform that the South will be willing to carry out.”
According to Urban Institute Fellow John Holahan, there are “going to [be] issues around affordability” related to ACA coverage, namely the “family glitch.”
Under the ACA, coverage is considered unaffordable if a worker’s share of the premium is greater than 9.5% of his or her household income. However, IRS said the calculation should be based solely on what an employee would pay for “self-only coverage,” which usually costs less than family coverage.
As Holahan said, “The cost of a family plan might be 20% of income, and so there are a certain number of families that either can’t afford to buy coverage and the law doesn’t deal with that.”
Meanwhile, other experts have noted that certain high-deductible exchange plans could result in individuals delaying or forgoing both unnecessary and necessary care.
Convincing U.S. Residents To Get Insurance
Now that millions of U.S. residents have signed up for coverage through the exchanges, convincing the remaining uninsured to follow suit will be difficult at best and impossible in certain circumstances, some experts say.
According to Bryan Fisher of Families USA, “The more people that enroll on the front side, on the back side, it’s going to be harder to get in touch with those people.” Further, Fisher said many of the uninsured still aren’t very knowledgeable about what coverage is. “You have to have that conversation so that people can see value in coverage,” he said, adding, “Getting that message across takes a lot of time.”
Around the nation
Here’s a look at other stories making news on the road to reform.
Let us count the ways. The Atlanta Journal-Constitution‘s Jay Bookman examines the many ways he considers the ACA a success, starting with the recent Congressional Budget Office report that the projected cost of the law has declined by 11%.
Not so fast. However, AJC‘s Kyle Wingfield questions Bookman’s proclamation, noting that the ACA is not a “success” just because “Obamacare was supposed to be even more of a fiscal drag.”
Still not equal. Although the ACA promised to bolster mental health and substance use disorder treatment parity laws, a new study finds that as many as one-quarter of exchange plans still don’t feature equal coverage. The insurance industry, for its part, questions the finding.