As Republicans scramble to figure out what to do about Obamacare now that that Donald Trump’s surprise election gave them the White House, a contingency of hardliners have rallied around repealing the Affordable Care Act almost immediately — but with a delay to buy Congress some time to cobble together a replacement.
“It’s my own opinion that we should make a decisive move to repeal promptly with a trigger date so that all of us are motivated to come up with the best possible replacement plan,” Rep. Trent Franks (R-AZ) told TPM on the Hill prior to the Thanksgiving recess. And other conservative firebrands, like Sen. Ted Cruz (R-TX), have endorsed the idea of dismantling the ACA right off the bat and letting an alternative plan come together after.
The delay element allows ACA foes to claim that they’re not just kicking millions of people off the insurance rolls without putting into place some sort of transition period and ultimately a replacement plan. A swift move to repeal Obamacare also has the political benefit of feeding their base the red meat that Republicans have been campaigning on for the last six years.
But health care policy experts across the ideological spectrum have warned that even a delayed repeal, if passed without a replacement bill queued up, could wreak havoc on the insurance industry, and harm not just ACA users, but consumers in the broader market. They say that the test run of a delay-repeal bill conducted by GOP lawmakers last year still contains major trouble spots if followed through with again, this time with the President’s signature. And they cautioned that the already hard task of passing a GOP consensus replacement plan will be even more difficult against a backdrop of near-term chaos.
“Insurers, more than any other business, hate uncertainty, so if there is still a big battle going on about the future then insurers are going to be gun shy,” said Timothy Jost, a professor at the Washington and Lee University School of Law, who is supportive of the ACA.
While some GOP lawmakers are signaling that they want to pump the brakes on the repeal efforts, other Republicans are pointing to the repeal legislation Congress already passed that was ultimately vetoed by President Obama last January. That legislation — even though crafted with a delay of two years for most elements of Obamacare it repealed — provides a hint of the conundrum an immediate repeal effort would pose.
“Their strategy of repealing now and replacing later was designed to provide false assurance that everything would be okay,” said Topher Spiro, a health policy expert at the left-leaning Center for American Progress. “Now there’s a growing awareness that in fact this strategy would case a lot of chaos and perhaps even collapse the market before a replacement plan can be put into place.”
The repeal legislation that Obama vetoed was passed through a maneuver known as budget reconciliation, which crucially only requires a bare majority vote in the Senate, allowing Republicans to avoid a presumed Democratic filibuster. But it can only be applied to budget-related items, and thus only undoes some aspects of Obamacare. And though most of the legislation in that effort was written with a delay, that 2015 version repealed the individual mandate and the employee mandate immediately.
“Republicans are in a bit of box here,” said Larry Levitt, an expert on health care law at the Kaiser Family Foundation, “because the individual mandate is an anathema to them, but repealing the individual mandate immediately while keeping the protections for people with pre-existing conditions would likely lead to immediate chaos in the insurance market.”
Without the mandate pushing healthy people into buying insurance, the risk pools would become sicker because insurers would still face the ACA’s requirement to accept people with pre-existing conditions as well its ban on discrimination based on health status or gender. That would mean higher premiums for everyone buying insurance through Obamacare, and less choice, if insurers decided to cut bait altogether.
“It’s hard to imagine any insurers willing to participate under the circumstances,” Levitt said.
But even if Republicans took this risk and retooled the repeal legislation to delay the repeal across the board, they face a tough task in convincing insurers they should stick around in the exchanges on the assumption that a replacement was coming in a year or two. The 2017 plans are already locked in, but by late April or early May, insurers will begin submitting to state insurance regulators their plans for the 2018 plan year.
“Lots of things can happen over the course of next year and in particular, the most obvious issue would be what kind a deal will Republicans make with insurers to have them continue to participate in the exchange mechanism for the second year of that transition, and that’s hard to say,” said Joseph Antos, a health policy scholar at the right-leaning American Enterprise Institute. He predicted that the right mix of pressure and promises could keep insurers on for one more year, but if a replacement wasn’t ready by the end 2017, then “all bets are off.”
For its part, the trade association for health insurers, which typically plays its cards close to the vest, is urging continuity of coverage.
“We also have a commitment to continuous coverage. Consumers should be covered and patients should be protected – and sudden disruptions would jeopardize both,” said Kristine Grow, a spokesperson for America’s Health Insurance Plans, in a statement. “Consumers, patients, and plans should be given enough time, flexibility and support so that any changes ensure safe and stable coverage.”
Compounding the problem for Republicans is that it’s not just ACA users who would suffer if the already fragile marketplaces were further crippled going into 2018, but everyone in the individual market.
“The entire individual market rises and falls with the marketplaces,” Jost said. As the larger risk pool gets sicker, premiums will rise — and not just for the low- income people who now depend on the subsidies through the exchanges, but also for the self-employed, the small business owners, and GOP constituencies like ranchers and farmers who tend to receive coverage on individual plans.
“The individual insurance market could collapse in between a repeal vote and a replacement vote,” Levitt said.
It would be in this environment that lawmakers will be hammering out the hard trade-offs that come with health care policy, and trying to come up with an Obamacare replacement that will likely need some Democratic votes to overcome a filibuster if the GOP can’t pass an ACA alternative using reconciliation alone.
“As the car is hurtling towards the cliff, it’s driving on quicksand,” Levitt said. “Keeping insurance in place for people amidst the uncertainty of a replacement debate will be very tough.”