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If Trump Wins, Don’t Hold Your Breath Waiting for That ACA Replacement Plan

If President Donald Trump wins reelection next week, it seems unlikely he will unveil the health plan he’s been promising since before his election in 2016. Still, other aspects of health care could be featured in his second-term agenda.

Not having a replacement plan for the Affordable Care Act may be just fine with many of his supporters and conservatives. Most Republicans don’t want the federal government to remake the nation’s health system, said Grace-Marie Turner, of the conservative Galen Institute. “It’s a different philosophy from Democrats, who think it needs to be a big program,” she said. “Conservatives, we think of it in a more targeted way.”

Trump, of course, repeatedly promises something big. “We will have Healthcare which is FAR BETTER than ObamaCare, at a FAR LOWER COST – BIG PREMIUM REDUCTION,” he tweeted Oct. 12 — hardly the first time he’s made a similar promise. “PEOPLE WITH PRE EXISTING CONDITIONS WILL BE PROTECTED AT AN EVEN HIGHER LEVEL THAN NOW. HIGHLY UNPOPULAR AND UNFAIR INDIVIDUAL MANDATE ALREADY TERMINATED. YOU’RE WELCOME!”

But Trump needs a contingency plan if the Supreme Court accepts his argument that the ACA should be overturned. The justices are scheduled to hear the case the week after Election Day. Administration health officials have pledged to have an alternative if the high court does as they ask. But they have refused to publicly share any details.

In September, Trump unveiled a package of health care proposals at a speech in North Carolina. The “America First Healthcare Plan” is less than an actual plan, though. It’s a vague set of claims about things that have not happened yet — like bringing down prescription drug prices — along with a laundry list of some of his administration’s lesser accomplishments on health issues, such as the initiative to help Americans with severe kidney disease and efforts to improve the availability of health care in rural areas.

As part of that overall health plan, Trump issued an executive order declaring “it has been and will continue to be the policy of the United States … to ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.” But there is nothing in the order — or in the broader outline — to ensure that would be the case if the ACA were struck down. It would take congressional action to guarantee that.

The current court controversy over the ACA arose because Congress in its 2017 tax bill eliminated the financial penalty for not having health insurance. But Congress didn’t have the votes to get rid of the mandate itself under the rules for the tax bill. Republican state officials then sued, arguing that since the Supreme Court had once upheld the ACA’s mandate, calling it a tax, once the penalty was gone, the law should also be invalidated.

Trump frequently heralds his actions, erroneously saying he killed the mandate and arguing that he got rid of the most detested part of the law.

“He likes to use words, but I don’t think there’s been a substantive policy yet,” said Len Nichols, a health policy professor at George Mason University. “I have no clue what he would do” in a second term “other than trying to repeal the ACA.”

One thing Trump accomplished in his first term is a set of potentially far-reaching regulatory actions, many of which have been challenged in federal courts. Those include allowing states to implement work requirements for people who receive Medicaid health benefits and requiring hospitals and other health providers to make their negotiated prices available to the public.

Legal analysts have doubted the administration’s authority to implement many changes Trump has proposed. But considering Trump has appointed hundreds of federal judges, including Supreme Court justices, the legal landscape may be changing and more of those proposals could be allowed to proceed.

Still, Trump faces uphill battles on some of his preferred health initiatives, even if Republicans control Congress.

For example, said Dan Mendelson of the consulting group Avalere Health, “I would expect that if he’s reelected there would be a drug pricing agenda he continues to push.” Among his proposals is having Medicare pay for drugs based on what the medicines sell for in countries that negotiate prices. That would be complicated, Mendelson said, by the fact that “the broader Republican Party doesn’t want to move to a regulatory model in this country.”

But the Galen Institute’s Turner said not to discount the changes Trump has made, such as allowing broader sales of short-term health plans that are less expensive but offer fewer benefits than ACA plans. She said to expect actions in a similar vein in a second term. “He really has done a lot, using his executive authority, based on trying to make markets work better and give people more choice,” she said. “They are strategic, targeted approaches to specific problems.”

He’ll certainly have a specific problem if the ACA is struck down. Americans losing their insurance won’t want to wait to find out if he has a plan.

HealthBent, a regular feature of Kaiser Health News, offers insight and analysis of policies and politics from KHN’s chief Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.

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Biden’s Big Health Agenda Won’t Be Easy to Achieve

If Joe Biden wins the presidency in November, health is likely to play a high-profile role in his agenda. Just probably not in the way he or anyone else might have predicted.

Barring something truly unforeseen, it’s fairly certain that on Jan. 20 the U.S. will still be in the grip of the coronavirus pandemic — and the economic dislocation it has caused. Coincidentally, that would put a new President Biden in much the same place as President Barack Obama at his inauguration in 2009: a Democratic administration replacing a Republican one in the midst of a national crisis.

Obama had only a financial crisis to deal with. Still, Biden would have a couple of advantages his Democratic predecessor lacked, including the fact that, as vice president, he helped guide the country through that financial meltdown. He’s also had time to plan how to address the crisis, which was not the case in 2009, when the economy was in freefall just as the new administration was taking office.

But like Obama before him, Biden will face a long must-do list on taking office. He will have to tackle the pandemic and economic crisis before he can turn to some of the big health changes he’s promised, such as expanding the reach of the Affordable Care Act, creating a “public option” that would allow every American to enroll in a government-sponsored plan and lowering the eligibility age for Medicare from 65 to 60.

And even if Democrats do retake the Senate majority and keep control of the House, it is unlikely the majority in either chamber will be as large as in 2009, when Obama had 60 Senate votes.

Still, no matter what the partisan makeup of Congress, “priority one is to get the COVID response going,” said Len Nichols, a professor of health policy at George Mason University.

Biden’s COVID plan includes taking major responsibility for the pandemic back from the states. His federal response would include more money for, and coordination of, testing and contact tracing; ensuring adequate protective equipment for health professionals; and assuring the public that new treatments and vaccines will be based on science, not politics.

In an updated version of his plan, Biden has also promised that one of his first calls if he is elected will be to Dr. Anthony Fauci, the government’s top infectious disease expert, who has been derided by President Donald Trump. “Dr. Fauci will have full access to the Oval Office and an uncensored platform to speak directly to the American people — whether delivering good news or bad,” says Biden’s website.

Biden’s COVID plan also addresses the economy — including calls for emergency paid leave for workers dislocated by the pandemic and more financial aid for workers, families and small businesses.

“If we’ve learned anything, it is that the health sector and the economy are not two separate spheres. They are connected,” said Nichols. “I think health care and the economy are complementary and will be for the foreseeable future.”

Assuming Biden gets beyond the pandemic and recession, he could move onto some of his bigger health promises, including expanding eligibility for Medicare, creating a “public option” health plan and boosting premium subsidies for the ACA.

Biden took heat throughout the primaries for his “moderate” approach to improving health insurance access and costs, compared with the “Medicare for All” plans for a government-run system supported by his top rivals, Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.). But that doesn’t mean his far less sweeping approach would be easy to get through Congress.

“There’s a really big difference when you’re running the government than when you’re running for office,” said Dan Mendelson, a former Clinton administration health official and founder of the health consulting firm Avalere Health.

Many of Biden’s proposals, including a public option and larger subsidies to help low- and middle-income people pay for insurance, are the very things that an overwhelmingly Democratic Congress could not pass as part of the original Affordable Care Act in 2010. Conservative Democratic senators objected to the plan.

“We pushed,” Obama said in a recent interview on the podcast “Pod Save America,” talking about the public option. “I needed 60 votes to get it through the Senate. Joe Lieberman, Ben Nelson and a couple others said, ‘I’m not voting for a public option.’”

Mendelson said another big obstacle is that for all the detail Biden has in his health plan, concepts like the public option “are not well-defined, and there are many different theories of what it should be and where it should be fielded. There’s no common vision about what it really means.”

The same thing is true, he added, for something that seems as simple as reducing the Medicare eligibility age. “More than half these people have commercial insurance,” he said. “What will happen to them?”

Grace-Marie Turner, of the conservative Galen Institute, suggested Biden — or Trump, if he’s reelected — might be better served by pursuing one of the more bipartisan health issues that already have broad support from the public, like prescription drug prices or “surprise” medical bills patients receive after getting care from a doctor outside their insurance network while being treated at an in-network facility. “It would be a big statement,” she said. “Whoever wins would then have the wind at their back.”

But even those issues have a way of getting complicated. Both Democrats and Republicans say they want to bring down drug prices, but Republicans are vehemently against one of the Democrats’ preferred ways of doing that: by allowing Medicare to negotiate with drugmakers. And surprise medical billing has so far defied efforts to fix it, as Congress seems unable to choose between health insurers and health providers, who each want the other to bear the additional costs.

As always, even when health is at the top of the agenda, it proves difficult to address.

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Outnumbered on High Court Nomination, Democrats Campaign for a Different Vote

Democrats on the Senate Judiciary Committee know that, barring something unexpected, they lack the votes to block President Donald Trump from installing his third justice in four years on the Supreme Court and creating a 6-3 conservative majority.

They also know that, in a normal year, by mid-October Congress would be out of session and members home campaigning. But 2020 is obviously no normal year. So, while the rest of Congress is home, Democratic Judiciary members are trying something very different in the hearings for nominee Amy Coney Barrett. Rather than prosecuting their case against Barrett, currently a federal appeals court judge, they are refighting the war that helped them pick up seats in 2018 — banging on Republicans for trying to eliminate the Affordable Care Act.

Conveniently, the ACA is relevant to the Supreme Court debate because the justices are scheduled to hear a case that could invalidate the law on Nov. 10 — exactly a week after Election Day.

As California Sen. Kamala Harris, a member of the Judiciary Committee and the Democratic vice presidential candidate, put it to Barrett on Tuesday, “Republicans are scrambling to confirm this nominee as fast as possible because they need one more Trump judge on the bench before Nov. 10th to win and strike down the entire Affordable Care Act. This is not hyperbole. This is not hypothetical. This is happening.”

Said Sen. Richard Durbin (D-Ill.), also on Tuesday: “We really believe the Supreme Court’s consideration of that case is going — could literally change America for millions of people.”

To be sure, Republicans too were playing to their electorate during the questioning of Barrett, as they expounded on her conservative credentials on issues such as gun rights.

Nonetheless, Democrats were uniformly disciplined in their assault on her potential vote in the ACA case. They chided both Barrett and the Republicans who are rushing her nomination to the floor literally days before a presidential election. In addition, Democrats criticized Republicans for spending time on a nonemergency nomination while continuing to ignore the need for financial and other relief for the COVID-19 pandemic.

And they raised what in more normal times would be the featured talking point for Democrats: the threat to abortion and other reproductive rights from Barrett, who before her elevation to the federal bench publicly opposed abortion and taught law at Notre Dame, one of the nation’s preeminent Catholic universities.

“For many people, and particularly for women, this is a fundamental question,” said Sen. Dianne Feinstein (D-Calif.), the committee’s top Democrat.

Barrett, like every other Supreme Court nominee for the past three decades, declined to offer positions that could suggest which way she might rule on hot-button issues, including abortion and the ACA.

She repeatedly cited what has come to be called the “Ginsburg rule” — after the justice she would replace, Ruth Bader Ginsburg — saying “no hints, no previews, no forecasts.”

Still, Democrats suggested that she may have tipped her hand on the Affordable Care Act case. In pointing out that the issues in the case, now known as California v. Texas, are different from the previous cases upholding the health law in 2012 and 2015, she said the current case will turn on “severability.”

She was referring to the question of whether, if one portion of a law is found to be unconstitutional, the rest of the law can stand without it. In the current ACA case, a group of Republican attorneys general — and the Trump administration — are arguing that when Congress reduced the ACA’s penalty for not having insurance to zero, the requirement to be covered no longer had a tax attached, and therefore the law is now unconstitutional. They based their argument on Chief Justice John Roberts’ 2012 conclusion that the ACA was valid because that penalty was a constitutionally appropriate tax.

The law’s opponents say the rest of the law cannot be “severed” and must therefore fall, too. A federal district judge in Texas agreed with them.

But merely saying the case turns on severability suggests that Barrett has already prejudged major parts of the case, Democrats said. Sen. Chris Coons (D-Del.) noted, “You don’t get to the question of severability if you haven’t already determined the question of constitutionality.”

Barrett insisted repeatedly that despite an article she wrote in 2017 suggesting that the 2012 case upholding the law was wrongly decided, “I have no animus to nor agenda for the ACA,” as she told Sen. Amy Klobuchar (D-Minn.) on Wednesday.

In their rare show of unity of message, Democrats made clear that their primary audience in these hearings was not their Senate colleagues, but the voting public. While this battle looks lost, they hope to win the War of Nov. 3.

HealthBent, a regular feature of KHN, offers insight and analysis of policies and politics from KHN’s chief Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.

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