By: NB Law
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Obamacare under the Trump Administration: A Discussion of the Healthcare Challenges Employers and Business Attorneys Face in Today’s Political Environment
By: Brett Lininger, Catherine Grason, Kimberly Y. Robinson, Charles B. Cliett, Jr.
Introduction. The Patient Protection and Affordable Care Act and related statutes passed in 2010 (collectively the Affordable Care Act or ACA) created a complex but comprehensive approach to closing gaps to availability and affordability of major medical coverage. The ACA was passed by a Democratic majority in Congress and signed into law by President Obama. Although the health care and health insurance industries came to the negotiating table and impacted the final version of the bill, Republicans almost unanimously opposed the bill in Congress and have continued to oppose key parts of it.
With both a Republican administration and Congress beginning in 2017, efforts began almost immediately to repeal the ACA, but the law has remained resilient, and efforts to completely repeal the law have been unsuccessful. Over the course of 2018, more Republicans expressed support for the law’s popular ban on preexisting conditions. It is not clear, however, what cost and risk-pool protections would go in place to help offset the added costs to insurers of covering high-risk individuals and high-risk preexisting illnesses in lieu of those in the ACA. One of the key tools to offset added risk to the preexisting condition ban in the ACA is the individual mandate to purchase coverage or face a tax penalty. As will be addressed in later parts of this three-part series, in late 2017, Congress reduced the penalty to zero, and on Friday, December 14, 2018, a Texas federal judge struck down the law in its entirety based on Congress no longer exercising its tax power. Although the judge stayed his own ruling on December 30 and his ruling will not be enforced while it is appealed, the ruling opens the possibility that the entire law, including the preexisting condition ban, will be struck down by the courts, leaving a divided Congress and individual states to pick up the pieces.
In this first abstract of a three-part series, we first briefly discuss laws governing comprehensive health care before the ACA and then discuss the key changes introduced to health coverage in America by the ACA. We then discuss efforts by Congress and the Trump Administration to address particular issues with the ACA after the failure of repeal and also alternative paths to health coverage and the continued impact of litigation. Finally, we discuss state responses to the federal activity, including requests for waivers that would permit states to best tailor the ACA framework to their particular circumstances.