One of the most significant roadblocks to the implementation of the Affordable Care Act is the strident opposition that it faces. That opposition has been unrelenting and will have far-reaching impacts for millions of Americans – for many, it will determine if they have access to affordable health care.
There is a political component to the opposition, and it usually breaks along party lines, but the opposition shows that, after years of debate, there remains a strong philosophical, emotional and ideological divide around health care reform.
Since passage of the law in 2010, the House of Representatives has voted to repeal, de-fund or amend the ACA 46 times. This month, another attempt to defund the law led to a partial shutdown of the government and a threat not to extend the debt ceiling. Sen. Ted Cruz of Texas stated on ABC's "This Week" that "I would do anything, and will continue to do anything, to stop the train wreck that is Obamacare."(1) Even the popular name for the law, "Obamacare," was a partisan invention. Not surprisingly, according to the September 2013 Kaiser Health Tracking Poll, 67 percent of Democrats, 34 percent of independents and 11 percent of Republicans support the law.(2)
National and, more important, state opposition to the ACA has led to implementation roadblocks, limited outreach and education and a health-insurance coverage gap that will leave more than 5 million Americans under the federal poverty level without health insurance. Access to health care and the effectiveness of the Affordable Care Act for many Americans could be determined by which state they live in – and the degree to which it worked to implement the ACA. Consider:
- Since 2010, according to the National Conference of State Legislatures, 21 state legislatures have enacted legislation designed to opt out of the ACA or challenge some of its broad or mandatory provisions.(3) In 2013 alone, 81 bills in 32 states challenged, opposed or promoted alternatives to health care reforms.(4)
- In June 2013, Gov. Rick Scott of Florida signed a law that limits the authority of the state's insurance commissioner to review insurance-premium rate increases for 2014 and 2015. Florida Sen. Bill Nelson, a Democrat and former state insurance commissioner, described that Florida law as "unconscionable" and suggested that state legislators removed rate regulation in order to blame the ACA should premiums go up.(5)
- In both state and federal insurance exchanges, counselors known as "navigators" have been enlisted to assist those interested in enrolling through the new health insurance marketplaces. Navigators must pass 20 hours of training, meet federal requirements of the ACA and can offer only educational or instructional assistance.
Nevertheless, 16 states have decided to place additional training and licensing requirements on navigators. For example, a bill in Georgia would regulate and license navigators like insurance agents. Two states, Missouri and Ohio, have gone so far as to "restrict navigators from giving advice about plans and benefits."(6) Florida's governor made the decision to ban navigators from health care facilities.(7) And thirteen Republican state attorneys general have raised concerns that inadequate training could result in private information ending up in the wrong hands.(8)
- Recently, Oklahoma's attorney general filed a lawsuit challenging the federal government's authority to offer tax credit subsidies in the federal health insurance exchanges. In the lawsuit, he argues that the ACA's language allows premium-assistance subsidies to be offered only through state-run exchanges.(9) Oklahoma, you might have guessed, has chosen to implement the federal exchange. If the suit succeeds, it would do little more than deny affordable insurance coverage to thousands of low- and moderate-income Oklahomans.
While those various initiatives can clearly affect implementation and education, perhaps the biggest impact that state legislatures and governors can have on health care reform is the decision to expand Medicaid eligibility.
Prior to the Affordable Care Act, many Americans did not qualify for Medicaid under state eligibility laws and therefore remained uninsured. In order to address this problem, the ACA proposed expanding Medicaid eligibility in order to provide health care to any American living under 138 percent of the federal poverty level ($32,499 for a family of four).
As written, the ACA made all state Medicaid funding contingent upon expansion of eligibility. It offered states a carrot by covering 90 percent of the cost of the expansions over the long run. Because of these provisions, Congress expected that the vast majority of states would expand Medicaid. As a result, the ACA does not allow for insurance subsidies for people with incomes below 100 percent of the federal poverty level.
However, in 2012 the Supreme Court ruled that the language of the law, tying all Medicaid funding to expanding eligibility, was "unconstitutionally coercive." As a result of this ruling, the decision not to expand Medicaid became much less onerous for state governors or legislatures.
Since then, the decision to expand eligibility appears to have been a largely partisan one. The majority of Democratic governors opted to expand Medicaid eligibility. Five Republican governors have chosen to expand, while 23 others have made the decision to opt out of or are leaning toward opting out. Only three Democratic governors have or are leaning toward opting out.(10)
That decision will lead to a large coverage gap for low-income Americans. Almost 5 million people will not have access to Medicaid and will not be eligible to receive federal subsidies to purchase private insurance.(11) Almost half of the people in this coverage gap come from just four states: Texas, Florida, Georgia and North Carolina. Texas and Florida alone represent 35 percent of the coverage gap.(12)
According to the Kaiser Family Foundation, the average private insurance premium for a 40-year-old individual in the lower income range of this coverage gap would be equal to half of his or her annual income. In a less partisan and polarized political environment, this shortcoming could be solved by simply amending the ACA.
Last but not least was the decision at the state level to build a state-based exchange or use the federal Healthcare.gov marketplace. Congress assumed that most states would build a state exchange, since it would be funded almost exclusively through federal dollars and would allow a greater degree of local control. As it turned out, opposition to the ACA was so strong that the large majority of Republican governors, 26 in all, chose not to build a state exchange.(13) We can see the initial results of that decision in the bogged-down federal exchange. For the most part, state-based exchanges have had a more successful rollout than the federal marketplace.
Strident opposition hasn't created an equal opportunity for success or failure - it's tilted the playing field. Now, how well health care reform works for many Americans may well depend upon whether their state government leaders support or oppose the law and to what degree they help or hinder implementation. We need to keep this in mind as we evaluate the Affordable Care Act in the future. Whether a train wreck happens or not sometimes depends upon who's driving the train.
– Bob Semro
1) Justin Sink, Cruz defiant on stopping ObamaCare, The Hill, Oct. 20, 2013.
2) Kaiser Health Tracking Poll, September 2013, Kaiser Family Foundation.
3, 4) National Conference on State Legislatures, State Legislation and Actions Opting-out or Opposing Certain Health Reforms, Updated July 2013.
5) Gary Fineout, Florida Gov. Scott Signs Bill Limiting State Review of Health Insurance Rates, Insurance Journal, June 4, 2013.
6, 7 and 8) Sheila P. Burke and Elaine Kamarck, The Affordable Care Act: A User's Guide to Implementation, The Brookings Institution, Oct. 15, 2013.
9) Dick Morris, Suit in Oklahoma could knock out ObamaCare, The Hill, Oct. 8, 2013.
10) Sheila P. Burke and Elaine Kamarck, The Affordable Care Act: A User's Guide to Implementation, The Brookings Institution, Oct. 15, 2013.
11, 12) Kaiser Commission on Medicaid and the Uninsured, The Coverage Gap: Uninsured Poor Adults in States that Do Not Expand Medicaid, Kaiser Family Foundation, October 2013.
13). Sheila P. Burke and Elaine Kamarck, The Affordable Care Act: A User's Guide to Implementation, The Brookings Institution, Oct. 15, 2013.