The Balking Dead: the undying effort to repeal and replace the ACA’s attempt to provide greater access to health care in the U.S.
Rory Kraft

Editor’s Note: Scroll to the bottom of this blog entry by Rory Kraft for a list of his prior blog articles on attempts to “repeal and replace” the Affordable Care Act, AKA Obamacare, as well as other IJFAB blog entries on these topics.

It has come to be known as a zombie of a bill.  Eight months after the inauguration of Donald Trump and after multiple failures to “replace and repeal” the Affordable Care Act, we again are facing another attempt to use budgetary maneuvers to rollback Barack Obama’s signature health care reform.

The current fiscal year ends on September 30th, so the latest attempt (the “Graham-Cassidy” bill) appears to be the last possible attempt to utilize the budgetary mechanisms to reverse the expansion of the federal government’s role in health care/insurance.  If Graham-Cassidy does not pass both the Senate and the House, any future attempts at repeal and replace will be more likely to occur through direct changes to the ACA as opposed to changes through budgetary maneuvers.

This image shows a screen cap from the Chicago Tribune on September 20, 2017. The headline reads "Graham-Cassidy bill would cut funding to 34 states, report shows."

As I am writing this, the future for this bill remains quite murky. In order to become law the biggest hurdle is the Senate which has a slim Republican majority. Because VP Pence can cast a tie breaking vote, the GOP needs 50 yes-votes. Thus, they can afford only two defections from the party line.  But some fiscal conservatives remain unhappy with the continued spending of a much-reduced ACA and are threatening to vote against the bill.  The easiest political maneuver would be to adjust the bill to take account of their concerns.  However, several moderate Republicans and those from states who stand to lose the most are concerned that the bill goes too far.  Squaring this circle seems impossible.  The bill cannot become more conservative and more moderate at the same time.  (Assuming the bill passes the Senate it would have to pass the House un-altered in order to take affect.  The difficulty in the House is just as hard.)

I have not yet addressed the content of the bill.  This is in part because the bill, while less secretive than some earlier attempts to repeal the ACA, is still very much in flux.  It has not come to the Senate through the “regular order” of going through committees with hearings, public markup, and time for consideration.  Instead it essentially will be released in its final form as it coming up for vote.  This irregular method is indeed what has led some Republicans, most notably John McCain, to speak out against the bill.

What do we know of Graham-Cassidy?  The biggest change that the bill takes is to move the funds currently utilized to subsidize health insurance plans, expand Medicaid in most states, and currently connected to the mandated coverage (for both individuals and employers to provide insurance).  These funds instead would go in “block grants” to states who could then use the funds with much more flexibility.  This move to give states greater control over how to use the funds is attractive to many of the Republican senators because it is a push toward more “local control.”

But this local control comes at a cost.  Many states would receive less money than they currently do, necessitating cuts in coverage.  This can just be pushing the “bad guy” down to the state level from the federal level.  As Nevada Governor Brian Sandoval said, “I don’t want the flexibility to make cuts.  That’s not flexibility to me.”

Other changes include allowing again for people to be denied insurance due to pre-existing conditions.  (In order to ensure that pre-existing conditions are insured it is essentially necessary to mandate everyone to have coverage – a component of the ACA that has been widely decried by Republicans.)  In addition, insurance companies would again be able to charge different rates for people depending upon past history.  Because greater control would be given to states, there could be wide difference in what it is included as covered in different areas of the country.  From mandated coverage of mental health services to changes in payment levels for skilled nursing inpatient facilities (SNIFs, generally called “nursing homes”) it would again be the case that a plan offered in Missouri could be radically different from one offered in Illinois.  This creates the fear that a “race to the bottom” would occur as states attempt to provide cheaper and cheaper subsidized plans but cutting requirements for expensive care.

(All of this assumes that we are discussing individual plans, not health insurance plans signed onto through an employer’s offering of the benefit.  Despite the fact that the vast majority of insurance in the United States is tied to employment, the political conversation has almost entirely focused on those purchasing individual plans on the open market.)

Further complicating any consideration of the bill is that the Congressional Budget Office (CBO) has stated that they will not be able to produce a “scoring” or report on the financial impact of the bill until after the 9/30 deadline for voting on Graham-Cassidy.  A different group (the Center for Budget and Policy Priorities) has estimated that the changes would result in $239 billion less for health care spending.  The only way such a shortfall could be addressed would be through the cutting back of coverage or the increasing of premiums.  Estimates have placed the impact of these cuts at 32 million people losing or dropping coverage and a baseline increase of premiums of about 20 percent.  Those with specific diagnosis would see more drastic changes:  people with metastatic cancer will pay $142,650 more a year to get coverage, and people with diabetes, pregnancy, autism, and many other conditions will see huge spikes.

Medical associations like the AMA and American Hospital Association have come out against the bill.  Somewhat obviously political liberals see this as a disaster.  But even Republican governors like John Kasich and Phil Scot have voiced their opposition.

Much of what has been said above is more explicitly political deal-following then a consideration of the underlying ethics of repeal and replace.  In part this is because in my prior attempts to capture the ethical side of this ongoing attempt I believe I have pointed to most of the ethical issues.  But also because it seems clear to me that whether one follows a consequentialist approach to ethics or endorses a Beuchaump and Childress call for justice, the Graham-Cassidy bill is one which produces sufficiently bad outcomes as to be plainly ethically wrong.  Those who approach the question of the ACA as a denial of individual freedom and needless governmental interference might be happier, but even these libertarian thinkers would look askance at elements such as the differential treatment of the wealthy and others through expansion of tax sheltering money in health savings accounts (HSAs).

To me, Graham-Cassidy is yet another flawed attempt to address difficult aspects of the ACA.  Rather than examining the pieces of the law which are problematic, it drops whole aspects of the law and sends the money to the states to figure out the mess.  We could easily end up with fifty-one (I am including DC here) different approaches to “fixing” the ACA.  None of which work nearly as well as what could come out of a well-reasoned work of congressional committees, hearings, and public revision of the law.

I’m inclined to think that Graham-Cassidy will narrowly fail, either in the Senate or if it is taken up by the House.  But these attempts to reverse the ACA have been rather zombie-like.  Let’s just hope we can survive the latest scare.

Previous IJFAB Blog entries on the ACA and “repeal and replace.”

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