In the most recent issue of the Russell Sage Foundation Journal of Social Sciences, Levy, Ying and Bagley,^ looked at each major section of the ACA as it was passed in 2010 and inventoried what was still in effect as of late 2019. A lot of the law is still in effect as written:
Legal challenges have done less damage than is commonly appreciated, with the exception of the Supreme Court case that thwarted full expansion of Medicaid. Most of the important changes have other sources. Some parts were born to fail. Others were dismantled in response to interest-group pressure. Still others have failed to thrive for any number of reasons. Finally, the sabotage campaign by the Trump administration has had modest effects so far, but could pose a serious threat in the coming years….
Measured using our rough quantitative score, we find that 83 percent of the ACA has been implemented as written (see table 1). Here, we review the content of the ACA and the progress of implementation title by title.
They find three major areas where the law is not working as written:
- Voluntary Medicaid Expansion instead of nationwide Medicaid Expansion
- CLASS ACT for long term care insurance
- Certain revenue provisions.
Medicaid Expansion was seen by the Supreme Court to be too coercive as the ACA intended to make the Expansion population a mandatory population. A state faces a total take it or lose it proposition when faced with a new mandatory population; they can either expand to the new mandatory population or they can lose the entire federal match for all Medicaid program activities. The Supreme Court disconnected the legacy Medicaid funding to expansion funding. It has been a long slow slog to get states to adopt Medicaid Expansion with Oklahoma adopting it earlier this month and Missouri’s primary voters will be voting in a few weeks to expand Medicaid.
The CLASS ACT was designed to be a voluntary, self-financed long term, community based case insurance program. The math on it never worked out beyond getting a good CBO score in the first decade. The law stated that it had to be actuarial sound. The Obama Administration in 2011 declared that they could not figure out any plausible pathway to making the program actuarial sound and self-sustaining in the face of massive selection risk.
Congress likes to cut taxes especially when the taxes are borne by influential, vocal and well organized groups. Congress has eliminated the 40% excise tax on high cost health plans, wiped out the individual mandate and the medical device sales tax. However, Congress has not reduced or eliminated the changes to Medicare Advantage payment policies nor eliminated or reduced the taxes levied on high incomes.
I had seen Dr. Levy present this paper in May 2019 at the RSF pre-issue conference. I was surprised. My November 2016 self was shocked.
The conclusions of the paper will hold true as long as the Supreme Court does not have five votes for trolls. A decade into the law, and most of the core elements are working, although not always as intended or designed (CSR funding!).
^ Disclaimer, I’ve written with Nick Bagley before.
StringOnAStick
This gives me some hope, which is in short supply these days. My husband retires next February and we plan to move further west; we’ll decide then if we do COBRA or an ACA plan given our pre existing conditions. COBRA is expensive, but facing exclusions for pre existing conditions, should that happen, is the decision point.
Baud
Every major reform will have parts that don’t work as anticipated. I think it’s impressive that the ACA has held up as much as it has given the forces arrayed against it.
Matt McIrvin
So much of what’s gone could be fixed in two minutes if Democrats had a Congressional/executive majority sufficient to pass laws (which probably means eliminating the Senate filibuster). They could close up the eligibility gap for the exchanges opened by the lack of Medicaid expansion, and fix all the wording that’s the basis of the various lawsuits. I’m pretty sure that if the Court throws out the whole ACA on troll-argument grounds, they could immediately have it back with a simple legislative patch… right? It’s not as if we’d have to wait 20 years for the stars to align again.
Ken
I sometimes wonder if “repeal the ACA” is Republican theater, put out there just to get votes but with no actual intention of following through. (I’ve had the same suspicion about abortion for even longer.)
The problem is, even if it were once theater, the Republicans who first used it have been getting pushed out by ones who are true believers.
David Anderson
@Ken: Except for the fact that skinny repeal was 1 vote away from happening which would have been massive cuts to Medicaid and significant cuts to individual market subsidies, that story would be believable.
Walker
There are also all the birth control exemptions now.
Brachiator
@Ken:
Trump would kill ACA in a heartbeat and not care about the consequences. The GOP leadership backs him on this.
Evangelicals thought this for years. That many Republicans were lukewarm about abortion because it kept evangelicals in the GOP fold. Again, Trump enters the picture. Hard core evangelicals will tell you that one of the reasons they voted for Trump is because they believe that he will deliver on banning abortion.
Pararllax
There are many small ways in which the ACA gets undermined. For instance, the office manager at my doctor’s office finds a way to code every annual exam as a regular office visit. I don’t know if that costs the insurer more but I know it bypasses my right to avoid a copay. They’ve got it set up now so if you ask the doctor a single question about anything, you’re outside your annual exam. If he sets up a referral, you’re outside your annual exam.
In past years it wasn’t like that. This year I guess they decided they needed more money. The Trump administration isn’t going to crack down on this or a million other things. I don’t know if it will be a death of a thousand cuts but definitely a dilution.