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The latest chapter of “WrestleMania: Health Policy & Politics” again reveals how much of what passes for our health policy debates remains full of well-rehearsed, staged fights aimed at entertaining respective partisans while distracting them from the disappointing, mediocre status quo that muddles along relatively undisturbed in the meantime.
Almost exactly three years ago (April 10, 2016 to be specific), I closed one of the featured 60-minute keynote debate sessions opposite Neera Tanden of the Center for American Progress at the annual World Health Care Congress with this pre-presidential election prediction:
(It’s literally at the very end of one of my greatest hits albums, which sounds like “Obamacare Isn’t Dead,” if you play it backwards.)
All of this comes to mind amidst the exaggerated conflicts (again) over purported moves and countermoves to take away, preserve, or restore insurance coverage protections for Americans with pre-existing health conditions. The threat de jour returns to the stage in the form of the Trump administration’s latest legal strategy to support, on appeal, the federal district court ruling in Texas v. United States last December. That decision by Judge Reed O’Connor not only declared the Affordable Care Act’s individual mandate unconstitutional but also held that the rest of the ACA’s provisions could not be severed from it and therefore would become unenforceable (not immediately, but only after final appeals were exhausted). Next, cue up the various expressions of renewed alarm and outrage about how this latest move by the Trump White House would (fill in the blanks) be an affront to the rule of law, represented another blatant effort to kill Obamacare by any means necessary — and without anything to replace it, jeopardized the health and very lives of more than a hundred million Americans, and could wreck most of the health care system to boot.
Leave aside for the moment that NONE of this is ever going to happen, ultimately, through our court system. It does re-energize the songbooks of both extremes of our increasingly bipolar political world to keep this “grave threat to the ACA” narrative alive. It also keeps many health policy commentators busier (including this one!). However, the more interesting points for fresher discussion involve, first, how much has changed between November 2016 and today; and second, what many Republican members of Congress are trying to do to dodge and redirect the bullets they see headed toward them.
A Quick Recap: Opposition to the ACA before, and after, its passage in March 2010 worked very well politically for Republican candidates for quite a while, enabling them to retake majority control of both houses of Congress. (The Trump victory in 2016 had more complex roots). The ACA started out unpopular even before its passage and mostly went downhill in public opinion from there. Various attempts to overturn the law in court ultimately came up short at the Supreme Court level, but they kept the anti-ACA coalition angry and energized.
However, once Republicans gained control of Congress AND the White House in 2017, efforts to repeal, replace, or do much of anything legislatively against the ACA were failures. By appearing to threaten disruption to “pre-existing” insurance arrangements and to practices and policies to which most other health sector interests had adjusted and adapted, such attempts actually moved public opinion remarkably more in favor of the ACA than ever before.
In short, they actually helped institutionalize further a law that had performed poorly but offered something compared to nothing!
Since then, a medley of lesser regulatory and administrative actions by the Trump administration to temper, work around, or limit the reach of some ACA provisions have had a relatively modest impact before hitting legal, political, and practical barriers. For example, a belated effort to cut off payments of cost-sharing reduction subsidies for certain insurance plans was overcome through revised insurer pricing (so-called premium loading of Silver-level ACA exchange plans that leveraged taxpayer subsidies to insurers higher and broader) and the increased likelihood of additional damage recoveries eventually in federal court cases. A few more Republican-led states managed to belly up to the ACA’s Medicaid expansion subsidy bar after all, while others found that their cover-story of conditioning expansion on new work requirements for some Medicaid enrollees is running into further legal problems in court. More creative waiver theories to work around ACA requirements for Medicaid and state-level insurance markets remain more aspirational than operational thus far. Individual insurance markets remain in troubled but far from critical condition, as even the Trump administration can’t decide whether it should claim that it is hampering or helping ACA insurance coverage. Other regulatory ventures to bypass ACA-style coverage either, quite literally, involve “short-term and limited-duration plans” or, in the case of expanded Association Health Plans for small businesses and the self-employed, recently hit new speed and scale barriers in court.
Moreover, it’s getting harder for Republican officeholders to remember what ELSE they objected to in the ACA, now that they have effectively eliminated most of the individual mandate (its tax penalty), are starting to see opportunities to use tools like the Center for Medicare and Medicaid Innovation for their own purposes, get little further political credit for working to eliminate or reduce ACA taxes on various health care sectors, and object more to WHO benefits most, or least, from ACA subsidies rather than HOW MUCH they cost overall.
It’s Pre-Existing, Chronic & Political-Life-Threatening: Apparently, the toughest ACA nut to crack has involved the law’s politically successful claim to protect everyone against the risks of losing, or failing to get, insurance coverage because they might someday develop a pre-existing health condition. The empirical evidence behind such claims remains far less convincing, but that did not stop a host of endangered Republican incumbents in Congress from filming various “hostage tapes” last fall professing their deepest commitments to ensuring that such regulatory protections (in one ambiguous or vacuous form or another) would be preserved, enacted, or restored regardless of what else happened to the ACA. The hypothetical dark cloud of the Texas lawsuit actually overturning some or all of the ACA, as now augmented by the Trump administration’s recent move to support that legal stance, has accelerated the desperation of Republicans in Congress (particularly in the Senate) to exclaim, “Me, too, to preserve pre-ex protections, sort of, someday, somehow…” Hence, at least 17 Republican senators last Wednesday (with more on the way) co-sponsored a revised bill called the Protect Act that claims to do the job (and keep their political jobs, too).
A previous version of such legislation, introduced more haphazardly last fall, was criticized for falling short of the thorough protection it promised. The latest bill appears to promise more, at least rhetorically, than before. The magic words in the accompanying press release are focus-grouped and poll-tested to reassure voters. The Protect Act “guarantees coverage for pre-existing conditions and prohibits insurance companies from excluding coverage of treatments for a patient’s pre-existing condition.” It “prohibits insurance companies from charging you higher premiums due to pre-existing conditions.” And the bill “guarantees the availability of health insurance coverage in the employer or individual markets for you and your loved ones, regardless of whether or not you have a pre-existing condition.”
On the one hand, an initial search for actual bill text fails to reveal thus far exactly HOW these goals and seemingly unequivocal guarantees actually will be accomplished, particularly in any way different from how the ACA did so (with mixed success). On the other hand, some critics literally cannot be persuaded that anything short of mandating virtually the same exact coverage for everyone at the same cost (and then subsidizing it even more generously and progressively based on income and other factors to come …) will ever suffice to prevent nefarious schemes to deny care to anyone who might become ill someday. For the latter advocates, “free,” “mandatory,” and “universal” always appear in the same sentence.
A different perspective might ask whether the sweeping guarantees give away too much ground in the direction of the politically mandated and more uniform coverage that the ACA promised (without actually delivering). Fulfilling the press release language would necessitate almost a daily guaranteed issue option, covered treatment of every illness (because they all eventually become “pre-existing”), and, arguably, full community rating. One backup dodge could be the distinction between guaranteed availability (not necessarily “guaranteed affordability”) and universal coverage. Of course, all things are possible if taxpayer subsidies are large enough or higher costs are hidden and shifted under bigger rugs. But trying to accomplish those perennial political tricks is far easier to say loosely than to accomplish through practical and resilient implementation.
Nevertheless, such free-floating rhetoric by Senate Republicans reflects their basic instinct to tell voters that they can get what the latter say they want, before the incumbents lose their seats. The rest is negotiable, and promises are made to be broken or at least fudged and forgotten. Besides, more pragmatic voters might observe of most office holders regarding health policy “We all know what you are. We’re just arguing about (where to hide) the price!”
The simpler calculation behind the senators’ move involves two hopes: to get the threat of losing ACA-like coverage protections out of their incoming complaint box and get voters’ minds on a different threat — the potential system wide disruption posed by extreme versions of Medicare for All proposals. In other words, ‘The other side is even crazier than we used to be!”
So what is a more limited-government, pro-market (not simply pro-business) health policy reformer supposed to do? There are plenty of other short-term poses one might adopt. Accept a lot of givens as too politically difficult to challenge and then suggest quarter-way compromises that slow the pace of retreat. Or try procedural sidesteps that alter the venue of policy development (let the states do it!), without greater guarantees than what shuffling a somewhat altered deck of cards with a different set of political intermediaries offers. Or propose new tricks of manipulating magic money from somewhere else (reinsurance, reshuffled subsidies, formulaic reimbursement and benefit cuts) in the further away future.
Then again, one might consider trying what’s rarely suggested: a more straightforward argument for addressing real questions and choices.
Distinguish between different policy problems and their policy solutionsIncome
Health risk
Health care delivery
Personal health decision making
Income
Health risk
Health care delivery
Personal health decision making
Develop alternative coverage incentives to replace the individual mandate Ceilings on penalties ($, income-related, duration)
Time and tier limits on coverage switching
Based on defensible values & principles
Pre-commitment pledge enforcement
Ceilings on penalties ($, income-related, duration)
Time and tier limits on coverage switching
Based on defensible values & principles
Pre-commitment pledge enforcement
Determine who should manage risks?Predictable vs. random
Prospective identification vs. retrospective adjustment
Longer-term horizons
Predictable vs. random
Prospective identification vs. retrospective adjustment
Longer-term horizons
Decide who NEEDS to be subsidized?Reducing churn and deadweight losses
Buying out high risks to free up rest of market
Transparency vs. obfuscation
Reducing churn and deadweight losses
Buying out high risks to free up rest of market
Transparency vs. obfuscation
In short, we have lots of chronic, pre-existing conditions in health policymaking. We’re just doing a poor job in diagnosing and treating the most important ones.
We have lots of chronic, pre-existing conditions in health policymaking. We’re just doing a poor job in diagnosing and treating the most important ones.
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