The “repeal” of Obamacare has become the top priority for the incoming Trump administration in the chaotic week after his surprise win. The president-elect has a Republican-dominated House and Senate in Congress to help him try, but experts say full repeal won’t be so easy.
Trump promised to repeal the 2010 Patient Protection and Affordable Care Act on Day One of his administration. But a president cannot actually repeal a law – Congress has to do that.
That doesn’t mean it can’t be gutted, however. It just may take a while.
The Obama administration for its part shot back with an announcement via Twitter on Thursday that 100,000 people signed up for coverage on the “Obamacare” exchanges on Wednesday, the day after the election.
The law, known as the ACA or Obamacare, has been the signature achievement of Obama’s two terms. It sought to transform the unruly, expensive and inefficient U.S. health care system by stopping what were widely considered insurance company abuses, such as dumping people when their health conditions got too expensive to cover and refusing to pay for “pre-existing conditions”.
The ACA requires health insurance companies to pay for cancer screenings, wellness checks and vaccinations with no co-pay, and it allows adult children to stay on their parents’ policies until age 26.
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It puts into place gradual incentives to move from a system where people pay piecemeal for health treatments and, instead, reward doctors and hospitals for keeping patients well and managing their diseases. And most of all, it sought to provide health insurance to the 15 percent of Americans who did not have it before the law passed.
It’s gone a long way to doing that. Only 8.9 percent of Americans now lack health insurance.
Republicans actually like many of these aspects of Obamacare, which was loosely based on Mitt Romney’s plan for Massachusetts when he was the Republican governor there. Much of the public debate has come because the average person does not understand what Obamacare does and what it doesn’t do, said Timothy Jost, an emeritus professor at the Washington and Lee University School of Law and an expert on health care.
“People who think we can just repeal Obamacare and everything will be great are in for a very, very, very rude surprise.”
“Frankly, everything that has gone wrong with the health care system for the past six years has been blamed on Obamacare,” Jost said. “Everything that goes wrong with the health care system for the next four years will be blamed on Trump care. People who think we can just repeal Obamacare and everything will be great are in for a very, very, very rude surprise.”
Unlikely to lose coverage in 2017
For one thing, the Trump administration is going to worry about the political risks of leaving 20 million people suddenly without health insurance.
“The number of uninsured is expected to grow to about 50 million people with ‘repeal and replace’,” PriceWaterhouseCoopers (PwC) says in a report released this week. “Trump’s challenge will be to lower that number through his replacement proposals.”
Related: Obamacare as We Know it May Be Done For
And he cannot do much alone.
“The White House is just one part of a much larger machine. To really put his stamp on health policy, Trump must work with a patchwork of federal lawmakers, regulatory agencies, trade and advocacy groups, and the Supreme Court. These institutions will either accelerate or decelerate Trump’s agenda,” PwC said.
The people who now have coverage on the exchanges – including people signing up right now during open enrollment – are unlikely to lose their coverage in the coming year, experts from all political viewpoints agree.
“The new administration is going to want to do something fast to show that they are keeping their promise to fundamentally change the federal role in the health care system,” said Michael Sparer, a professor of health policy and management at Columbia University.
One thing a new Republican administration could do immediately is drop appeals against last May’s federal court ruling that said the Obama administration was illegally paying insurance companies to help keep health insurance costs down for low-income clients.
“The new administration is going to want to do something fast to show that they are keeping their promise to fundamentally change the federal role in the health care system.”
These so-called cost sharing reductions reimburse health insurers for charging lower co-pays and deductibles for more than 60 percent of Obamacare customers. Congress refused to allocate money to do that, and a federal district judge ruled in May that the administration couldn’t spend that money. The federal government kept on doing so while it appealed.
Related: How Trump Could Erase Obama’s Legacy
A new administration could stop fighting that right away, although it’s not a particularly sexy issue for voters. And it might irritate health insurance companies, Jost said.
“I don’t think anyone disagrees that it would be the insurers left holding the bag,” Jost told NBC News.
A new administration could also stop fighting lawsuits against the mandate that employers pay for birth control for women covered under their insurance plans, Sparer said. That might be popular with conservatives who said the requirement forced them to violate their religious beliefs.
There could be symbolic moves, also. The new Republican-led Congress may immediately vote on a repeal that will almost certainly be stopped by a Democratic filibuster in the Senate. While the Democrats do not have a majority in the Senate, they have enough seats to stop some legislation with a filibuster.
“I think the only grand gesture they can make is to blame Democrats for filibustering their attempts to repeal the Affordable Care Act,” said Jost.
Sparer agreed that is likely. Republicans could campaign to get more seats in the Senate in the 2018 elections. “That gives them a couple of years to think about what the replacement plan they want to come up with is,” Sparer said.
A new Trump Health and Human Services Department could also stop promoting open enrollment onto the Obamacare exchanges, which closes at the end of January -10 days after Inauguration Day. Enrollment usually spikes right at the deadline, and simply stopping outreach could hit numbers.
Related: Obamacare Premiums Are Up But What Does That Mean?
In fact, doing nothing could accomplish a lot, said Jost.
“It has been a full court press by the Obama administration since 2010 to get this thing implemented and it has taken a Herculean effort,” Jost said. “As soon as it stops moving forward, it could start moving backward pretty quickly. Almost just by doing nothing there could be some very negative effects.”
“I think the only grand gesture they can make is to blame Democrats for filibustering their attempts to repeal the Affordable Care Act.”
Tevi Troy, president of the American Health Policy Institute, says Republicans plan to use the budget process to tweak the law. “I would look to the reconciliation package,” he told NBC News. “This is the mechanism for how we move forward on this.”
Budget issues can pass the Senate with a simple majority, bypassing Democrats who may object, although they must go through a lengthy process involving committees.
Troy said the GOP has been discussing ways to provide a transition period so as not to throw the health insurance and health care industries into chaos.
“What I always hear is that Republicans have no plans on replacing the Affordable Care Act. I think that is not only untrue, but unfair,” Troy said.
An immediate target may be the unpopular exchanges, the web-based system for buying health insurance. Troy says they are unnecessary, and changing them up would be an easy way for Republicans to re-brand Obamacare. “People can get health care without exchanges,” he said.
“People can get health care without exchanges.”
Trump has put forward the idea of allowing people to buy health insurance across state lines, and Troy said that could lower costs by creating more competition, although it will be a messy task to undertake since insurance is now firmly regulated by states.
Trump’s also advocated the use of health savings accounts and tax credits to help people pay for health insurance, although experts such as Jost say it’s not clear how those would help low-income people.
The mandate to buy health insurance is another obvious target for a new administration, even though Republicans originally supported the idea. It’s there to try to ensure that enough healthy people buy health insurance so that companies can profitably pay for the sick, but it’s been seen as onerous.
And it hasn’t worked well as an incentive, said Caroline Pearson of consultancy Avalere Health. Simply dropping enforcement of the mandate would be popular and easy, while causing little damage to existing coverage.