Now What? 5 Looming Challenges For The Affordable Care Act

Republicans officially pulled the plug on their last-ditch effort to repeal and replace the Affordable Care Act on Tuesday.

"We don't have the votes," said Sen. Bill Cassidy, R-La., after a closed-door meeting of Senate Republicans. "And since we don't have the votes, we've made the decision to postpone the vote." Cassidy, along with Sen. Lindsey Graham, R-S.C., put together the proposal they hoped could pass the Senate.

As of Sunday, though, the Senate will no longer be able to pass a health law overhaul bill with only a simple majority. That means the bill is effectively dead, for now.

That message was underscored by Senate Majority Leader Mitch McConnell, R-Ky., who said, "Where we go from here is tax reform."

But that does not mean all is smooth sailing for the ACA. Here are five ongoing challenges the law faces.

1. Insurers still face tremendous uncertainty.

Wednesday is the deadline for health insurers to finalize rates for the 2018 individual market open enrollment season, which starts Nov. 1. Yet there has been no resolution to the question of whether the federal government will continue to reimburse insurers for subsidies known as cost-sharing reductions. Those are payments insurers are required to provide to moderate-income enrollees to help them afford deductibles and out-of-pocket costs. The law says the federal government is supposed to make those payments, but a lawsuit has left that an open question, and the Trump administration has repeatedly threatened to stop making the payments.

Without reimbursement of those subsidies, Pennsylvania Health and Human Services Secretary Teresa Miller told the Senate Finance Committee Monday, insurers in her state "reported they would need to request a statewide average increase of 20.3 percent" in the cost of health plan premiums. Those increases are similar nationwide.

A bipartisan effort led by Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., to advance legislation to affirmatively fund the payments was reportedly progressing until Republican leaders stopped them to concentrate on efforts to pass the Graham-Cassidy legislation.

But Alexander and Murray now appear back at it.

Murray said Tuesday she is "ready to keep working on the bipartisan path that could lead to results."

Alexander similarly released a statement that he would "consult" with Murray and others "on a limited bipartisan plan that could be enacted into law to help lower premiums and make insurance available to the 18 million Americans in the individual market in 2018 and 2019."

2. The Trump administration has cut funding for efforts to sign people up for insurance.

Administration officials announced earlier this month major cuts to the "navigator" program, which provides funding to community groups that guide people through the complex task of signing up for health insurance through the online marketplaces. Some groups are losing more than 90 percent of their budgets.

The cuts have forced many groups to lay off workers just before open enrollment begins and to limit the areas they serve.

3. The 2018 enrollment period is half the length of 2017's, and now it will be shorter still.

Trump officials are also slashing by 90 percent the advertising budget that reminds people about open enrollment and how to sign up — from $100 million to $10 million.

Those cuts are even more significant this year because for the first time since the law's implementation, open enrollment starts in November, rather than December, and lasts only 45 days.

"Most people don't know the open enrollment dates, and they don't know that the deadline this year is Dec. 15, not Jan. 31, like last year," wrote Lori Lodes, who ran outreach for the ACA in the Obama administration, in a recent op-ed for Vox.

Trump administration officials said they don't think advertising is cost-effective, but Lodes wrote that "my office produced reams of data that proved the overall effectiveness of outreach advertising."

Additionally, HHS announced late last week that it will shut down HealthCare.gov for maintenance from 12 a.m. to 12 p.m. every Sunday during open enrollment, except for Dec. 10 – a step critics say could further undermine enrollment efforts.

4. The Trump administration is dragging its feet on giving states flexibility to stabilize their markets.

Back in March, Health and Human Services Secretary Tom Price and Centers for Medicare & Medicaid Services chief Seema Verma, who oversees the ACA, sent a letter to states encouraging them to use the law's waiver process to improve the functioning of their individual insurance markets. In particular, they suggested states could create "reinsurance" programs that would help lower premiums by providing a payment mechanism for the most expensive patients.

But when Minnesota took up that invitation, the administration delayed its response. When it finally did grant permission last week, HHS also informed the state that it will lose significant funding for a program that provides insurance to the state's low-income residents.

Gov. Mark Dayton, a former Democratic senator, said in a letter to Price that "we have now been informed that Minnesota would lose more federal Basic Health Plan funding than we would receive in federal support for reinsurance," and described the entire waiver process as "nightmarish."

5. Republicans could take another shot at a full overhaul next year — or even this year.

While the acknowledgment that the GOP lacks the votes to overhaul the health law means an immediate vote will not happen, the Republicans have potentially two more shots to try to pass a bill with a simple majority vote.

What triggers the ability to pass a bill in the Senate without threat of filibuster is a formal budget resolution. Republicans have still not passed a budget resolution for fiscal 2018, which begins Oct. 1. The upcoming resolution is expected to call for a major tax cut bill. Some Republicans, notably Graham himself, have suggested adding health language to that resolution, which would be allowed.

But that would complicate efforts for both bills.

More likely is that Republicans could try again for a health overhaul via its fiscal 2019 budget resolution, which is due next April. That would leave them only a few months before the 2018 elections. Still, it's possible, particularly if they can use the time to reach consensus.

That is clearly what sponsors of the latest GOP bill have in mind.

"We're on a path to pass" his bill, Graham told reporters. "It's just a matter of when. It will be in this Congress, under a better process."

Kaiser Health News, a nonprofit health newsroom, is an editorially independent part of the Kaiser Family Foundation.

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