Big Changes to ACA Unlikely During Current Congress, Expert Suggests

Republicans likely will be successful in blocking any significant expansion of the Affordable Care Act (ACA), former Health and Human Services official Thomas Barker, JD, predicted at an event hosted by the Alliance for Health Policy on the future of the ACA.

“It’s hard for me to see how, for example, a public option can pass,” especially given the slim majorities that Democrats have in the House and Senate, said Barker, who is now a partner at the law firm Foley Hoag. In addition, Barker said at the event last week, it’s hard to imagine that Congress would be able to increase incentives for states to expand Medicaid or to lower the age of Medicare eligibility. “I can’t see how how that can pass in this closely divided Congress.”

On the other hand, “it’s hard for me to see how the Republicans in Congress are going to going to be able to successfully make any significant changes to the ACA, at least in the near term,” he continued. “I just don’t see any significant changes being successful, again, because of the Democratic majorities in Congress, and what would certainly be an uncooperative administration.” In addition, Republicans have always had trouble articulating an overall vision for healthcare, “but I think it’s possible that they’ll try to do that.”

The Republican vision could come in two different flavors, said Barker — “small-bore initiatives like high-risk pools and more FQHCs [federally qualified health centers] and other initiatives that Republicans have historically supported, but it’s also possible there could be a much larger vision,” such as taking the money currently allocated for subsidies to enrollees in the ACA health insurance exchanges and turning that money over to the states to develop their own programs for the uninsured.

Panelists also discussed what might happen in the courts now that the Supreme Court has struck down a challenge to the ACA. Katie Keith, JD, a law professor at Georgetown University in Washington, noted that in its 7-2 decision, the court really only addressed the issue of whether the plaintiffs, which included a group of attorneys general in Republican-led states as well as several individuals, had “standing” — that is, the authority — to sue. “Anyone who comes to court and sues has to have an injury; it has to be fairly traceable to the person that you’re suing, and it has to be actually addressable by the court,” she said. Since the plaintiffs did not meet that test, the case was dismissed on those grounds, without any adjudication of the actual issues in the case itself.

The question at the heart of the case was whether the ACA would remain standing without the individual mandate — the requirement that people must purchase health insurance or pay a monetary penalty. Congress reduced the penalty to zero as part of the Tax Cuts and Jobs Act of 2017, and the plaintiffs argued that the law couldn’t survive if the penalty was eliminated. But the Supreme Court ruled that because the penalty had been eliminated, the plaintiffs couldn’t demonstrate that they had been harmed by the law.

Keith noted that the court said, “‘The government can’t take any action against you if you don’t comply with [the mandate],” she said. “‘Even if we were to strike down the mandate,’ Justice [Stephen] Breyer wrote, ‘nothing would happen.’ And so this would essentially amount to an advisory opinion, which is not what the federal court system is supposed to be used for.”

The high court also rejected another legal theory known as “standing through inseverability,” Keith continued. “This is the idea that even if I’m not harmed from the individual mandate itself, I’m harmed from other parts of the Affordable Care Act. The individuals [in the case] had argued that they were harmed by the insurance market reforms — having to buy a plan that covers essential health benefits drives up premiums. And the states had pointed to Medicaid expansion and the employer mandate and all these other things that they believe harmed them … The court really rejected that theory, particularly for the state plaintiffs.”

But that doesn’t mean there won’t be any more cases regarding the ACA to come before the court. “Even yesterday, the court was scheduled for a conference on whether it should hear insurance companies’ appeals over a case for unpaid cost-sharing reduction payments,” Keith said, referring to funds that the government formerly paid to insurers to offset the cost of covering low-income enrollees.

Another type of case the court may see on the ACA involves “non-delegation” — the idea that public health officials, rather than Congress, are deciding which preventive health services health plans must cover without charge.” “It’s not a laughable challenge,” said Barker. However, he added that “at the end of the day, I would be very, very surprised if the courts were to invalidate the preventive services.”

Keith noted that the case, known as Kelley v. Becerra (formerly Kelley v. Azar), is currently before U.S. District Judge Reed O’Connor, who has been sympathetic to challenges to the ACA. “I do think he’s going to strike down the preventive services mandate, so it boils down to what the Fifth Circuit will do,” she said; the Fifth Circuit is where the case would be appealed. “The idea of non-delegation is that Congress…should not be deferring to those other entities; it should be writing these laws and provisions itself.”

“If non-delegation does take off in the courts, I think the healthcare world is going to be in for a world of hurt,” she added.