A decade has passed since the Patient Protection and Affordable Care Act (ACA) became law. This legislation continues to be controversial, however, as evidenced by a series of exchanges between members of the U.S. Senate Judiciary Committee and Judge Amy Coney Barrett, a nominee to the Supreme Court to fill a vacancy resulting from the death of Judge Ruth Bader Ginsburg. Democrats on the committee pressed her on her views regarding how she might vote on the case California v. Texas, which is scheduled for oral argument at the Supreme Court on November 10. These individuals are expected to vote against her confirmation because of a fear that she will be instrumental in overturning the ACA.

Apart from several attempts by Congressional Republicans over the past 10 years to repeal the ACA, this latest manifestation of opposition stems from a case, NFIB v. Sebelius, in which the deciding vote cast by Chief Justice John Roberts found that the individual mandate could not be justified under the constitution’s Commerce or Necessary and Proper clauses, but it could be upheld as an exercise of Congress’ taxing power. Since then, the 2017 Tax Cuts and Jobs Act set the mandate penalty at zero beginning in 2019. Subsequently, Attorneys General in 17 states argued in court that since the mandate no longer produces revenue and is not a tax, not only the mandate, but the entire law is unconstitutional. A district court agreed, indicating that the mandate was an essential part of the law, was not severable, thereby rendering the entire law as being unconstitutional. Next, the Fifth U.S. Circuit Court of Appeals allowed the Democrat-controlled House of Representatives to intervene to defend the ACA on appeal. That step led to a decision by the Supreme Court to accept a petition to conduct an immediate review.

Policies To Achieve Near-Universal Health Insurance Coverage

A report from the Congressional Budget Office (CBO) in October 2020 examines policy approaches to achieve near-universal health insurance coverage using some form of automatic coverage through a default plan. As defined by CBO, a proposal would achieve near-universal coverage if close to 99% of citizens and noncitizens who are lawfully present in this country were insured either by enrolling in a comprehensive major medical plan or government program or by receiving automatic coverage through a default plan. Proposals to achieve near-universal coverage would have two primary features. At a minimum, if they required premiums, those premiums would be subsidized for low- and moderate-income individuals, and would include a mandatory component that would not allow them to forgo coverage or that would provide such coverage automatically.

CBO organized existing proposals into four general approaches, ranging from one that would retain existing sources of coverage to one that would almost entirely replace the current system with a government-run program. All four approaches would provide automatic coverage to individuals who did not enroll in a plan on their own. Two approaches would fully subsidize coverage for lower-income people and partially subsidize coverage for middle-income and some higher-income people while retaining employment-based coverage. Another two approaches would fully subsidize coverage for individuals at all income levels.

Nationwide Evaluation Of Health Care Prices Paid By Private Health Plans

A new analysis from the RAND Corporation indicates that private health plans in the U.S. pay hospitals an average of 247% percent of what Medicare would pay for the same services at the same facilities. Wide variation exists in pricing among states (e.g., Michigan under 200% and Florida more than 325%). Addressing prices paid by employer-sponsored and other private insurance plans represents a tangible way to reduce health care spending. Where quality and convenience are comparable, employers can use network and benefit design approaches to move patient volume away from higher-priced, lower-value hospitals and hospital systems and toward lower-priced, higher-value providers. Employers also can use this information to reformulate how contracts are negotiated on their behalf. Various changes are not possible without price transparency information. Price transparency by itself will not be sufficient, however, if employers do not act on price information. In some cases, employers may need state or federal policy interventions to rebalance negotiating leverage between hospitals and their health plans.

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