Here are six non-legislative markers to watch to judge whether Trump is doing everything in his power to ensure that what Paul Ryan recently called the “the law of the land” will work as well as possible, or whether he chooses the cynical and even vindictive path of putting the health care of millions at risk to sabotage the ACA.
Will Trump sustain cost-sharing subsidies?
A common critique of the ACA is that its deductibles and co-pays are too high. Republicans have both argued for more patient-centered—or skin-in-the-game, or cost-conscious—models of insurance, and pushed for lower-actuarial value plans. Both of these moves would lead to even higher co-pays and deductibles. But at the same time the Republicans have sought to castigate ACA for higher deductibles they have been actively working through the courts and legislation to end cost-sharing subsidies in the ACA. As Politico’s Michael Grunwald has written, the “current Sword of Damocles hanging above Obamacare … has nothing to do with congressional legislation or Trump’s executive powers. It’s a lawsuit that now goes by the unlikely name of House v. Price, an ongoing effort by Republicans in the House of Representatives to block HHS (now run by one of those former House Republicans, Tom Price) from spending billions of dollars on ACA subsidies.” While it pushed for repeal-and-replace, the Trump administration—and the House—put the lawsuit on hold, so the subsidies remain in place. But if they re-start the lawsuit, and it is successful, it would severely weaken—not strengthen—the exchanges. The ACA subsidies at the center of the suit—otherwise known as cost-sharing reductions, which are different than the ACA tax credits for premiums—limit out-of-pocket costs for the 6 million people who both bought insurance through the ACA exchanges and who earn up to 250 percent of the federal poverty level. These subsidies are expected to total over $7 billion in 2017, and if insurers do not receive these funds, they may leave the exchanges altogether—ending coverage for customers.
Moreover, health plans priced their 2017 plan offerings based on the assumption that the cost-sharing subsidy would be available. If they stayed in the marketplace at all, they would likely have to increase premiums substantially and would fear more problems with adverse selection because those remaining in the market would probably be sicker; as the healthier populations would no longer believe the benefit was worth it. The critical test for the president will be whether he can work with the Congress to move to withdraw the House’s lawsuit and ensure ongoing funding for cost-sharing, and do so before the court-imposed deadline of May 22nd.
Will Trump fail to enforce the ACA’s individual mandate?
The individual mandate—a core part of Obamacare with heavy Republican and conservative roots—is designed to ensure healthier and therefore more stable insurance pools. Trump’s first executive order, though, asked for all parts of his government to “minimize the burdens” of the ACA, which many feared could result in a refusal to enforce the individual mandate. For this filing season, the Obama administration, for example, planned to reject returns from taxpayers who didn’t identify their health-insurance status, as a means to better enforce the mandate. The IRS recently reversed this policy. The Center for Budget and Policy Priorities’ vice president for health policy, Edwin Park, argues that this serves to undermine the effectiveness of the individual mandate: if they don’t have to pick, they aren’t subject to the mandate, and that discourages them from enrolling, he told ThinkProgress. So while Trump’s executive order did not by itself weaken the mandate, it did send a message that the tax penalties used to incentivize mandatory health coverage are not likely to be strictly enforced. The second major test to determine whether the President is choosing sabotage over governing will be if he directs his administration not to enforce the current individual-mandate provisions within the ACA.