Scorecard: Keeping Track of Potential ACA—and Other—Federal Law Changes

Jan. 4, 2017
Even as Congress comes back into session, with anticipation around possible action to repeal the health insurance elements of the ACA, what might happen to the non-insurance-related internal health system reform elements of the law remains deeply unclear

In an article published yesterday in The New York Times, Abby Goodnough and Robert Pear (with reporting contributed by Gardiner Harris) provide a helpful overview of some of the possible changes that could take place to the Affordable Care Act (ACA) this year, as the U.S. Congress, led by Republican majorities in both the Senate and House of Representatives, considers what to do about the groundbreaking 2010 legislation. As a presidential candidate, Donald J. Trump promised many times to “repeal and replace Obamacare,” as the sweeping federal legislation is often called. Both Trump, who will take office as President on January 20, and most Republican federal candidates and office-holders, have expressed a very strong desire to eliminate or gut the ACA, focusing primarily on its creation of the health insurance exchanges that are providing health insurance products to more than 11 million Americans. Together, the creation of the health insurance exchanges, the expansion of the Medicaid program, partly via federal subsidies, in 31 states and the District of Columbia, and such provisions as parents’ ability to keep their adult children covered under the parents’ health insurance plans until their children reach the age of 26, have led to the access to health insurance of over 20 million Americans.

So members of Congress and the incoming administration will be faced with a series of dilemmas around the health insurance-related provisions of the ACA, and what potentially to do with them, meaning that even that portion of the law may not be completely “repealed,” as has been promised.

Indeed, as a Brookings Institution-sponsored report, authored by Alice M. Rivlin, Loren Adler, and Stuart M. Butler, published on Dec. 13 and entitled, “Why repealing the ACA before replacing it won’t work, and what might,” noted, “Despite the lack of consensus on what a replacement plan looks like, Republicans are signaling that they plan to use the budget reconciliation process (which only requires a simple majority in the Senate rather than the 60 votes needed to bypass a filibuster) to pass a law immediately that repeals the ACA’s Medicaid expansion, premium tax credits, cost-sharing assistance, and the taxes that helped pay for it (leaving in place the law’s insurance market and Medicare reforms) as of a date certain in the future (likely January 1, 2020).” But, the report’s authors add, “[A] reconciliation bill (like the one passed in 2016) would likely destabilize the individual market and very possibly cause it to collapse in some regions of the country during the interim period before any replacement is designed. That’s because some insurers that have stayed in the individual insurance market in hopes of adding customers as they gained experience with the ACA marketplaces would likely pull out of the individual market under the “repeal and delay” scenario, in the face of the law’s uncertain future and thus unpredictable enrollment and costs.” In other words, legislation to repeal the ACA via a reconciliation bill would require leaders in Congress to figure out two things: how to literally “reconcile” such legislation with federal budget stringencies, while also attempting to maintain stability in the national private health insurance market.

Rivlin, Adler, and Butler aren’t the only experts casting doubt on the idea of a “total repeal” of the ACA via the congressional budget reconciliation process. Writing on Jan. 3 in the Health Affairs Blog, Joseph Antos and James Capretta, in an article entitled “The Problems With ‘Repeal and Delay,’” write, “To begin with, ‘repeal’ may not really mean full repeal of the ACA. Congressional leaders have mentioned using H.R. 3762 from the just-completed Congress as the blueprint for what they plan to do in the new year. H.R. 3762 was passed early in 2016 (and then vetoed by President Obama) using the budget reconciliation procedure, which allowed it to be approved in the Senate with a simple majority vote. In practical terms, that meant Republicans could pass it without needing any support from Democratic senators. The assumption is that a similar bill could pass again in 2017. (The GOP will have 52 seats in the Senate in January.) However,” Antos and Capretta note, “the budget reconciliation process comes with strict rules about what provisions can be included in the legislation. Only provisions that directly change taxes or entitlement spending can be included in such bills, which means H.R. 3762 could not repeal large sections of the ACA that are more regulatory than budgetary in nature.”

Antos and Capretta go on to write that “A partial repeal bill passed using reconciliation could put an end date on funding for the premium credits and cost-sharing subsidies provided in the ACA, and reduce the federal government’s payments to states that have adopted the ACA’s Medicaid expansion. It could also terminate the taxes that partially financed the legislation when it was enacted in 2010. The repeal bill will almost certainly eliminate the tax penalty associated with enforcement of the individual mandate but is likely to delay repealing the tax credits and Medicaid expansion until at least 2019.”

In other words, even repealing the health insurance sections of the ACA could end up being a very complicated and messy process. But beyond those provisions lies the very broad set of provisions around internal health system reform, provisions that for the most part have barely been reported on in the mainstream media, either during the run-up to the ACA’s passage in March 2010, or even since. And leaders across U.S. healthcare are in a position of wondering what will happen across that arena, with exceptionally few clues as to what might actually unfold beginning later this month. Meanwhile, more and more experts and observers are making statements to the effect that the ACA will not actually be repealed in its entirety, and that perhaps the most likely outcome will be the defunding or gutting of health insurance provisions, with perhaps much of the provider-focused area either left intact or modified to some extent but not altogether eliminated.

Among the areas that could be affected could be:

Ø  The Center for Medicare and Medicaid Innovation. Rep. Tom Price, whom President-Elect Donald Trump has announced he will nominate as Secretary of Health and Human Services, has lashed out against the CMMI. As Managing Editor Rajiv Leventhal noted in his Nov. 29 news article reporting on Trump’s announcement about Price, “In September, Price and nearly 200 other federal lawmakers wrote a letter to CMS [the federal Centers for Medicare and Medicaid Services] calling out the Obamacare-created Center for Medicare and Medicaid Innovation (CMMI) for overstepping its authority by proposing mandatory healthcare payment and service delivery models. The letter, which was signed by 179 members of Congress, stated that three recently proposed mandatory models [including the agency’s Comprehensive Care for Joint Replacement (CJR) bundled payment model for hip and knee replacements] demonstrate that CMMI has ‘exceeded its authority, failed to engage stakeholders and has upset the balance of power between the legislative and executive branches.’”

Ø  Related to the above, Rep. Price has in the past expressed his opposition to mandatory regulations that change payment systems, including both the total joint replacement bundled payment initiative, and the more recent inpatient cardiac care bundled payment initiative.

Ø  And while Rep. Price has expressed strong opposition as a member of Congress to federal mandates that change provider reimbursement without providers’ voluntary assent, what remains exceptionally unclear is what might happen to the following ACA programs: the Value-Based Purchasing Program and the Hospital Readmissions Reduction Program (HRRP), under Medicare, which are both mandatory under provisions of the ACA; and the now-several accountable care organization (ACO) programs under Medicare, which include the Medicare Shared Savings Program for ACOs, the Pioneer Program for ACOs, and now the Next-Generation ACO Program; as well as the voluntary bundled payments program Bundled Payment Bundled Payments for Care Improvement (BPCI) Initiative, all of which are voluntary.

And though the mainstream media headlines of today have been shouting about a budget resolution introduced to “overturn Obamacare,” those in the know on Capitol Hill are quietly noting that any legislation to repeal even the health insurance provisions of the ACA could quickly run into very deep shoals of legislative complication.

Meanwhile, knowledgeable sources have told me that even the CMMI, which has received opprobrium from some of the more conservative members of Congress, may survive after all, as some of those same members of Congress who have railed against it, are beginning to see the value of a department that is helping to find solutions that save the taxpayers money.

More broadly, the MACRA (Medicare Access and CHIP Reauthorization Act of 2015) law passed in April 2015, may also end up seeing some modifications under Rep. Price, if he is confirmed as Secretary of Health and Human Services, given his stated opposition to what he considers over-regulation of the healthcare industry. Many believe that aspects of the MIPS (Merit-based Incentive Payment Program) program in particular, may end up becoming simplified over time.

What’s more, as the HITECH (Healthcare Information Technology for Economic and Clinical Health) Act, which already was set to see modifications to Stage 3 of the meaningful use program (indeed, the MACRA law had already replaced the meaningful use program for Medicare-participation physicians, shifting physicians’ outcomes measures reporting requirements, leaving only hospitals facing a Stage 3 under meaningful use), could see further tinkering going forward.

And of course, the MACRA and HITECH laws are completely separate from the ACA. But inevitably, because of major shifts in policy that are anticipated under the incoming presidential administration, some of the regulations in effect under those two laws could also end up being changed or modified.

But, back to the ACA: while members of Congress, and representatives of the new administration consider what to do about the health insurance provisions of the ACA, the longer and more complex the legislative deliberations around those health insurance provisions become, the greater the chance that many, perhaps even most, of the internal health system reform elements in the law might survive and continue forward.

Only time will tell. But those elements of the ACA—not only the voluntary delivery and payment reform elements such as the ACO programs, the voluntary bundled payment initiative, and the Comprehensive Primary Care Plus initiative (sponsored by CMMI)—but also such mandatory-participation programs as the Readmissions Reduction Program and Value-Based Purchasing Program—that are improving health outcomes and incenting cost control—may yet survive possible congressional (and administration) action to end or dismember them.

The legislative process around the ACA is very likely to be complicated and messy, and it may be several months before the new administration’s, and Congress’s, intentions around the internal health system reforms embedded in non-health insurance-related provisions of the law. We at Healthcare Informatics will continue to track developments in all these areas, and will bring you all the latest around what we know, as this set of processes unfolds. And yes, you’re going to need your own scorecard to keep track of things.

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