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02/10/2017

The Affordable Care Act: It will not depart the same way it entered.

By Kathy Greenlee, JD
I recently learned the Irish superstition that you should exit by the same door through which you entered. The Affordable Care Act will most likely not have that option. The door it entered is closed.
I also recently revisited the unusual circumstances that allowed the ACA to become law. In early 2010, the Democrats held a 60-vote majority in the United States Senate. Then, in August, Massachusetts Senator Ted Kennedy died. In the election for his successor, Massachusetts elected Scott Brown, a Republican. Between the November election and Scott Brown’s swearing in, the Senate approved the ACA. When Senator Brown took office, the Democrats lost their super majority. The House had already passed the law, so they quickly moved to pass the Senate bill.
Having 60 votes in the United States Senate is a big deal. The Senate rules are such that the chamber requires a supermajority – 60 votes – to cut off debate and take a bill to the floor for vote.

Law, Regulations and Money
The ACA is anchored by three things: the law, regulations and money. Currently, the Republicans have a majority but not a supermajority. They don’t have 60 votes to pull the law off the books. They do, however, have enough votes to control the money. The ACA will be made ineffective and inoperable because the funds needed to make the law work will be removed. Money supports the subsidies for qualified people who purchase insurance through the exchanges. Federal money is used to match state money for Medicaid expansion and long term care rebalancing incentives (incentives for states to purchase community rather than institutional services for long term care). It takes money to close the Medicare prescription drug plan donut hole.
The first and most active battles in Congress will focus on money. And that battle has begun. The current 2017 federal fiscal year began on October 1, 2016. But, Congress has not passed a budget for this current year. Congress intends to use the current budget to gut the provisions of the ACA that are budget related. Then, immediately thereafter, the Trump administration will present Congress with a proposed 2018 budget and Congress will begin to work that budget this summer. The ACA will likely remain on the books, but won’t be operable as a comprehensive law. The non-budgetary sections will remain but will be largely inert.
While Congress assures the money dries up, the Trump Administration can begin the process of rolling back the thousands of pages of regulations that support the implementation of the law. Repealing regulations is time and labor intensive. ACA regulation repeal will be a steady slog likely to drag on through most of 2017 and into 2018. Regulations are behemoths.

Democratic Allies Needed
As you watch events unfold, keep in mind the three anchors I mentioned earlier: the money, the regulations and the law. The Republicans in Congress and in the White House will drive the budget and the regulations. They won’t need Democratic support to do so. But, to pull the remnants of the law and to pass a new law, Senate Republicans will need to find Democratic allies to help them get the 60 votes they need to cut off debate and pass legislation. The Democrats had 60 votes when the ACA passed; the Republicans currently do not. The 60-vote door will have to be unlocked in order to make new law.
Next up: Let’s talk in more detail about an ACA budget hot topic: Medicaid.
Kathy Greenlee joined the Center’s staff as Vice President for Health Policy and Aging in November 2016 after serving the past seven years as Assistant Secretary for Aging in the U.S. Department of Health and Human Services.

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