Four Ways Obamacare Could Still Fail

February 15, 2013 12:33 a.m.

Now that Obamacare has survived at the Supreme Court and the ballot box, proponents and opponents of the law agree it’s here to stay. But Republicans remain committed to botching its implementation, which — along with inherent complexities in implementing parts of the law — leaves in place significant obstacles to achieving its key goals.

Although the GOP’s efforts to repeal, invalidate and defund the law have not succeeded, here are the four biggest obstacles the law faces in meeting its key goals:

1) Ongoing Disapproval Of The Law

Two leading health policy experts argue that the overarching threat to Obamacare is the fact that many Americans continue to disapprove of it.

“I would rank the number one obstacle to be ‘social acceptance,'” said Jonathan Gruber, a professor at MIT who helped craft the Affordable Care Act and the Massachusetts health care law that inspired it. “When we put in the mandate in Massachusetts we were worried that it would cause protests. None came. This was partly because we did a terrific job of advertising and promoting reform. The same is unlikely to be true in all other states. If folks are protesting, it undercuts the whole reform — if folks don’t sign up, then prices are higher, which leads to more protests, and so on.”

If the public doesn’t come around (supporters of the law are convinced it will), that could also encourage congressional Republicans to keep threatening to withhold funds for implementation, as they have been wont to do in recent years. In the future, with a Republican president or GOP-controlled Senate, they may seek to deny appropriating money for the ACA’s essential functions.

“I think that the biggest obstacle to ACA implementation is the relentless negativity and opposition of the Republicans and their media outlets,” said Tim Jost, a law professor at Washington and Lee University and an expert on health care law. “Every step the administration takes toward implementation is resisted by the Republicans in Congress and in the state houses and sympathetic media.”

2) States Declining To Expand Medicaid

Seventeen million Americans were projected to obtain coverage through the Medicaid expansion in the Affordable Care Act — until the Supreme Court made it optional for states. Even then, proponents believed the generous federal funding — 100 percent for the first few years and 90 percent after 2020 — would make the deal too good to pass up.

They miscalculated. Democratic governors are on board, but just six Republicans have said they’ll participate. Under pressure from the right, thirteen Republican governors have rejected the expansion, including blue staters like Scott Walker of Wisconsin and Tom Corbett of Pennsylvania. Ten GOP governors have yet to announce a decision.

The problem: Even though some Republican governors say they’ll look for other ways to expand coverage, it’s an open question how — or whether — Americans below 133 percent of the poverty line will obtain insurance in the states that do not participate.

3) States Refusing To Build Insurance Marketplaces

The law encourages states to set up and run their own one-stop marketplaces to connect sellers and buyers of health insurance — the central mechanism through which its subsidies and coverage guarantees are actualized. Although states had the ability to opt out, it seemed like a no-brainer because if they decline to set one up, the federal government is required to craft and operate one for them. Building and operating the exchanges in according with the complex regulations in the statute was never going to be easy, but this unanticipated political hurdle adds a new dimension of problems.

Conservatives are working to portray any governor who sets up an exchange as pro-Obamacare, despite the irony that refusing to do so would relinquish power over their health care to Washington. As a result, most Republican governors have refused to build a state-run exchange under the law. Others are looking for a way around some of the rules.

The problem: The ACA lacks a funding mechanism for Department of Health and Human Services to set up exchanges for states that decline to do so themselves — and congressional Republicans are unlikely to appropriate additional money for that. HHS, already stretched thin with the law’s implementation, must find the money within its budget.

4) Nullification Of The Medicare Cost-Cutting Board

The centerpiece of President Obama’s plan to save Medicare from bankruptcy in the long-haul is already law under the Affordable Care Act. Set to take effect in 2015, the Independent Payment Advisory Board will be tasked with cutting Medicare reimbursements to providers if per-beneficiary spending rises above per-capita GDP plus 1 percent. It cannot cut seniors’ benefits. IPAB will be composed of 15 Senate-confirmed experts.

The problem: Senate Republicans can — and have signaled their intention to — filibuster nominees to the board unless it’s altered. They’ve already demonstrated their willingness to use the blocking tactic to nullify or reform agencies they dislike. They’d have motive to do the same with IPAB: not only is it a key element of Obama’s agenda, the health industry despises it, and even some House Democrats have voted to repeal it.

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