Speaker 1: President Trump has called the Affordable Care Act a disaster
Speaker 1: and has pledged to repeal it and replace it with
Speaker 1: something better. One of President Trump's first official acts was
Speaker 1: to sign an executive order commanding federal agencies were legally
Speaker 1: possible to waive, delay, or defer parts of the law
Speaker 1: that would burden states, individuals, or healthcare providers. It's not
Speaker 1: clear what this order is going to mean in practice,
Speaker 1: but on Sunday, Presidential advisor Kelly Anne Conway said that
Speaker 1: the President may decide not to enforce the Affordable Care
Speaker 1: Acts mandate that individuals purchase health insurance, and she also
Speaker 1: seemed to suggest that the administration may refuse to enforce
Speaker 1: the requirement that businesses with fifty or more employees provide
Speaker 1: health insurance to their employees. Meanwhile, to Republican senators have
Speaker 1: introduced a bill that they say would let states keep Obamacare,
Speaker 1: abandon it, or replace it with a system of catastrophic
Speaker 1: insurance for the uninsured. So what does this all mean?
Speaker 1: Here today to talk with us about the future of
Speaker 1: the Affordable Care acter ALDN. Bianchi, leader of the Employee
Speaker 1: Benefits and Executive Compensation practice Group at mince Levin, who
Speaker 1: is the author of the Bloomberg Bienna Healthcare Reform advisor,
Speaker 1: and Abbey G. Look, Faculty director of the Solomon Center
Speaker 1: for Health Law and Policy at Yale University. Abbey the
Speaker 1: Presidents signed an executive order that many are confused by
Speaker 1: UM and it's not really seemed to think, it's not
Speaker 1: really clear about what he what he wants agencies to
Speaker 1: do with the Affordable Care Act. And then his advisor Ms.
Speaker 1: Conway goes on TV and says that he may not
Speaker 1: enforce these mandates. Let's start with that. Can the administration
Speaker 1: refused to enforce the two mandates to purchase insurance and
Speaker 1: to have employers provide insurance if they have fifty or
Speaker 1: more employees. Well, first of all, I think you're right
Speaker 1: that this action has sort of injected more uncertain change
Speaker 1: from already very uncertain business contacts for insurers because nobody
Speaker 1: really knows what's going to happen. The executive order makes
Speaker 1: very clear that the agencies can only act to the
Speaker 1: extent authorized by law UM With respect to the individual mandate,
Speaker 1: the requirement that everybody has to get themselves insured or
Speaker 1: pay attacks a very very controversial requirement under the Affordable
Speaker 1: Care Act, UM. As a legal matter, it's very unlikely
Speaker 1: that the Trump administration could use that executive order the
Speaker 1: wholesale abandoned the individual mandate. That would not be permitted
Speaker 1: consistent with the law as the executive order requires. They
Speaker 1: could extend some of the hardship exemptions that were offered
Speaker 1: by the Obama administration, but the exception can swallow the rule.
Speaker 1: So the Trump is serious about obeying the law, and
Speaker 1: that you think is not consistently um. I don't think
Speaker 1: that what Kelly and Conway said is likely to hold forth.
Speaker 1: I also just know that Tom Price, the HHS nominee,
Speaker 1: and his confirmation hearing, also alluded to the idea that
Speaker 1: they were not going to use that executive order, uh,
Speaker 1: the wholesale stop enforcing the individual mandate. All. Then, what
Speaker 1: do you make of Tom Price's testimony where Trump's choice
Speaker 1: for Health Secretary repeatedly refused used during the confirmation hearing
Speaker 1: to promise that no Americans will be worse off under
Speaker 1: Trump's executive order to ease provisions of the Affordable Care Act. Well,
Speaker 1: one thing I begin by noting is is that I
Speaker 1: think Tom Price was not at all bloodied during yesterday's
Speaker 1: confirmation hearing. So if Democrats thought that they were going
Speaker 1: to somehow derail that domination, I think the hopes of
Speaker 1: that are fading very quickly. Then the question is is
Speaker 1: how does the how does replace go forward? And I
Speaker 1: think Representative Price has been been very cryptic in any numbers.
Speaker 1: We have no idea or very little idea from his
Speaker 1: from his his public statements and testimony, exactly what he's
Speaker 1: going to do. But we do have a comprehensive bill
Speaker 1: that he had two comprehensive bills, one a pure repeal
Speaker 1: bill on the reconciliation and the other repeal and replace
Speaker 1: that Tom that Tom Price either offered authored or as
Speaker 1: a co author, so we has we have his policy prescriptions,
Speaker 1: so we know I think we know what he wants
Speaker 1: to do and and and those prescriptions are very similar
Speaker 1: to the prescriptions in in five other major Republican proposals,
Speaker 1: So I think he's uh, we we we pretty much
Speaker 1: know where he's going to go. You're listening to Bloomberg
Speaker 1: Law with Michael Best, June Grosso, and Greg Store and
Speaker 1: we are talking about the Affordable Care Act. The President's
Speaker 1: actions and statements have not yet repealed the law, and
Speaker 1: neither has Congress. UH. He's talking about it today, He's
Speaker 1: been talking about it since he took office, But it's
Speaker 1: not entirely clear what is going to happen to what
Speaker 1: is known as Obamacare. Talking to us about the future
Speaker 1: of the health care law are Alden Bianchi, a member
Speaker 1: at mince Levin UH, and Abby glucka professor at Yale
Speaker 1: Law School. Abbey the President's executive Order, as you noted earlier,
Speaker 1: only allows agencies to do to take actions that are
Speaker 1: within the current law. But what has to the extent
Speaker 1: we can figure it out, what has the President ordered
Speaker 1: agencies to do in regard to the Affordable Care Act? Well?
Speaker 1: Nothing yet. I mean, that's that's what's caused all this uncertainty.
Speaker 1: There's been a lot of talk, and you also have
Speaker 1: Trump throughout making statements like every American who currently has
Speaker 1: health insurance is going to keep their health insurance or
Speaker 1: get health insurance. Um. And yet you've got these Republican
Speaker 1: plans voting around that don't all do that? Right? And
Speaker 1: we've had now eight years of Republicans trying to come
Speaker 1: up with the consensus agreement on what their replacement plan
Speaker 1: would be. We shouldn't be surprised that two weeks into
Speaker 1: the new administration they don't have their plan yet. They
Speaker 1: haven't had one for eight years for getting sort of
Speaker 1: different plans every day. I don't think anybody knows what's
Speaker 1: going on except the one thing I think that I
Speaker 1: think the administration and the Senate have heard the business
Speaker 1: community's complaints about the idea of repealing without having a replacement,
Speaker 1: or at least a partial replacement up in the wings.
Speaker 1: Early on, it looked like they were going to get
Speaker 1: repealed with nothing. Looking now like um, there are at
Speaker 1: least some people in there who are really trying to
Speaker 1: have something to say before they get to repeal, and
Speaker 1: that would may make repeal take a lot longer, frankly,
Speaker 1: um than Trump would have wanted. All Republican Senators Susan
Speaker 1: Collins and Bill Cassidy, unveiled in Obamacare replacement bill this week,
Speaker 1: tell us about some of the proposals that are out there. Well,
Speaker 1: if you look at that, there are probably give or
Speaker 1: take five key Republican proposals, and they do share an
Speaker 1: awful lot of common features. So if we could tick
Speaker 1: down the major ones pretty quickly rather than an individual mandate,
Speaker 1: that would be something called a continuous coverage requirement. This
Speaker 1: has been around since with HIPPA, and it has worked
Speaker 1: very well in the group market, and it should work
Speaker 1: fine so long as people are generally employed. I think
Speaker 1: the problem with it comes where people are in and
Speaker 1: out of employment on routinely and they're at that feature
Speaker 1: not work so well. There's also the issue of of
Speaker 1: tax subsidies for employees, and they're both the replacement proposals
Speaker 1: in Obamacare have tax subsidies for low income folks to
Speaker 1: help purchase coverage, but what they do is very different.
Speaker 1: So in Obamacare, those subsidies are are applied to the
Speaker 1: metallic tears of coverage goal bronze, silver, goal platinum, which
Speaker 1: are very very prescribed arrangements, whereas under the Republican proposals,
Speaker 1: it's it's kind of the wild West. You can purchase
Speaker 1: coverage across state lines, and perhaps and and and the
Speaker 1: design of these policies would they'll be huge variations in
Speaker 1: what they cover or don't cover. Importantly, and lastly, in
Speaker 1: regard to the individual mandate, there's a provision in most
Speaker 1: of these proposals that says, um, if you can't get coverage,
Speaker 1: then we're going to revert to the state high risk polls.
Speaker 1: I don't have time really here to go through all
Speaker 1: of them. But one other feature I'll mention that is,
Speaker 1: UM sounds like a good idea, but it has been
Speaker 1: problematic in the past in terms of enforcement. And that's
Speaker 1: the idea of small groups banning together to form association
Speaker 1: health plans. Uh. These have been abused commercially for the
Speaker 1: last twenty years, so enforcement would be the big deal here.
Speaker 1: They would also cannibalize the state small group markets. So
Speaker 1: those are a flavor of some of the proposals that
Speaker 1: are common to all of the five five Republican proposals. ABBY.
Speaker 1: There there is a relatively new proposal from Senators Cassidy
Speaker 1: and Collins that seems to depart from some of the
Speaker 1: previous Republican proposals and that it would allow states if
Speaker 1: they want to to keep Obamacare in place. What what
Speaker 1: is their proposal? Yeah, it's an interesting, uh sort of
Speaker 1: compromise proposal. UM. It won't make some people happy because
Speaker 1: it's not actually repealing Obamacare. But what it does is
Speaker 1: it gives the states three options. UM. You might call
Speaker 1: it a federalist proposal. One that's about state choice. Option
Speaker 1: one is you get to keep obama Care the way
Speaker 1: you have it if your state is happy with how
Speaker 1: it's functioning. That would probably happen, say in New York,
Speaker 1: for example. Option two is that you get to just
Speaker 1: be done with Obamacare. You get to stop receiving funds
Speaker 1: and you're out of the system and the state funds
Speaker 1: for it self as if Obamacare never been enacted. And
Speaker 1: a third option is this idea of sort of state innovation,
Speaker 1: state choice. The state would be able to get I
Speaker 1: think it's of the money they would otherwise be getting
Speaker 1: under the Affordable Care Act, and they get to use
Speaker 1: that to put it into a state designed healthcare system
Speaker 1: of their choice. Right, so it's almost like a waiver.
Speaker 1: You might think of it as a souped up waiver
Speaker 1: from Obamacare, which we already had this wavor provision and
Speaker 1: the original Affordable Care Act, and you might think of
Speaker 1: this is sort of cheering off of that. It does
Speaker 1: get rid of the individual mandate because that is the
Speaker 1: least popular, uh, the least popular provision, and it would
Speaker 1: adopt this continuous coverage requirement that all them just talked
Speaker 1: about all the is this uncertainty about the Affordable Care
Speaker 1: Act having any effect on the insurance marketplace right now,
Speaker 1: it is too early to tell that for certain, but
Speaker 1: there has to be some uncertainty underneath the hood that
Speaker 1: hasn't bubbled to the surface yet. It just would be
Speaker 1: inconceivable to me that the carriers, in particular, we've got
Speaker 1: to be scratching their head saying where's our revenue coming from?
Speaker 1: And the individuals that are covered, or saying is my
Speaker 1: coverage even going to be there? Coincidentally, I just I
Speaker 1: had a call last night just from one of my
Speaker 1: my partners who has a young son who is going
Speaker 1: to age out of the hit aged and has would
Speaker 1: have some real pre existing condition concerns, And this question
Speaker 1: to me, is my kid going to be all right?
Speaker 1: So yeah, I mean there has to be, although I
Speaker 1: can't I can't point you to to particular evidence at
Speaker 1: this point, Abby. One of the issues that seems to
Speaker 1: have slowed down the trained to repeal Obamacare was that
Speaker 1: any replacement plan probably would have to survive a Democratic
Speaker 1: filibuster in the Senate, meaning it would need sixty votes
Speaker 1: in order to go forward, and that's going to be
Speaker 1: very difficult for the Republicans to pull off. It seems
Speaker 1: do any of the Republican plans that we've been talking about,
Speaker 1: this replacement plan that the two senators have come up with,
Speaker 1: do any of them have any chance of getting to
Speaker 1: a point where Democrats might start supporting them. So I
Speaker 1: haven't seen democratic leadership commentary on Cassidy Collins, but I
Speaker 1: do think that just based on its one day of
Speaker 1: life existence so far, that's probably the one that has
Speaker 1: the greatest possible chance, particularly if it were strengthened and
Speaker 1: in certain areas. I mean, it preserves things that Democrats
Speaker 1: care about. It preserves a Medicaid expansion, which is very important.
Speaker 1: It doesn't aim to privatize Medicare like the Paul ryan
Speaker 1: Ran plan would. I could see maybe having the individual
Speaker 1: mandate remain optional, um and that would probably help these concerns.
Speaker 1: I think there is concern among progressives that the continuous
Speaker 1: coverage requirement would be punitive against people UH with less
Speaker 1: steady employment employment, which tends to be people that are
Speaker 1: falling in the gap between Medicaid and the private insurance market,
Speaker 1: the less fortunate um And so I could see that
Speaker 1: being a starting point, UM. But we really have the
Speaker 1: act to see UM. How the Democrats are going to
Speaker 1: react to it. And I also think that Strucumer has
Speaker 1: been very clear that he doesn't want to help Trump
Speaker 1: out of this problem. Right. Um, they've created this uncertainty,
Speaker 1: that sort of created this mess, and I think the
Speaker 1: Democrats wanted to say, you know, we're not going to
Speaker 1: take the blame by helping you enact a subpar replacement
Speaker 1: for the Affordable Care Act. So that's a challenge. All
Speaker 1: then we have about thirty seconds left. Do you think
Speaker 1: the Republicans can come up with something that will they'll
Speaker 1: be able to replace Obamacare with anytime in the near future.
Speaker 1: I think they do, and I think if you want
Speaker 1: to know what that's going to look like, probably the
Speaker 1: most thoughtful proposal is the one that was put forward
Speaker 1: by Range Hatch. Now it's not a it's not legislation yet,
Speaker 1: say it's a five or six or seven page set
Speaker 1: of bullet points, but it is and I think it's
Speaker 1: been been reviewed fairly favorably. Um, whether it will do
Speaker 1: what I doubt very seriously do what the Affordable Care
Speaker 1: Act did, but it's pretty good. And lastly, i'd point
Speaker 1: out that that people have seemed to have forgotten very
Speaker 1: quickly that the Affordable Care Act was really a Republican proposal.
Speaker 1: It was, it was done by a Republican governor, Mitt Romney,
Speaker 1: and it was designed by the Heritage in large part
Speaker 1: by the Heritage Foundation. So it just shows you how
Speaker 1: far we've we've we've gone from our moorings on this
Speaker 1: on this topic, well, I suspect we also won't stop
Speaker 1: talking about it for some time to come. Thank you
Speaker 1: to Aldon Bianchi of mince Levin and Abbey Gluck of
Speaker 1: Yeah Law School for being with us today on Bloomberg
Speaker 1: Law