Nov. 7, 2012 at 5:08 AM ET
One of the biggest winners Tuesday night was health reform. Now that President Barack Obama has won a second term and kept a Democratic majority in the Senate to back him up, Republicans have lost any chance at repealing his biggest domestic initiative.
“Health reform goes ahead,” Timothy Jost, an expert on health law at Washington and Lee University, told NBC news. “It has survived two near-death experiences, with the Supreme Court decision (in June) and now with the election. Now it is time to move forward.”
For most Americans who get their health insurance through their employers, that could mean some significant changes as they are asked to make more and more of their own decisions about how coverage they want.
Republican analysts agree. “What it means is implementation of the law,” said Christopher Condeluci, a former Tax and Benefits Counsel to the Senate Finance Committee who is now at Washington law firm Venable LLP.
It doesn’t mean smooth sailing, however. Many rules have yet to be rolled out – and there is little time to do that before the law begins to take full effect in 2014.
Much of the law’s implementation is up to the states. And Republicans still control the House, which means they hold the initiative on setting the budget. As they’ve done over the past four years, they can hold the budget hostage. And this year the administration and Congress will have to negotiate on an especially tricky budget issue – the fiscal cliff.
Unless Congress makes a budget deal fast, $600 billion in tax increases and spending cuts - known as the fiscal cliff – go into effect in January. Some of the money used to fund the health care law will undoubtedly be on the table for the last-minute bargaining. The Congressional Budget Office has projected the law will cost about $1.2 billion over 10 years.
“I would expect that Republicans are going to push pretty hard to get some money out of the Affordable Care Act,” Jost said. “There is a lot of money there,” Condeluci agreed.
Some parts supposedly cannot be touched – the money to be used to subsidize health insurance for people who want to buy it on the new marker provided by health insurance exchanges, for instance. People who earn up to 400 percent of the federal poverty level, or about $92,000 for a family of four, would be able to get a subsidy and conservatives may want to bargain against some of this money to try and cut the federal deficit.
And the federal government has promised to pay the full cost of expanding Medicaid in the states for the first few years. It’s not clear how much this will cost until states choose what to do. The Supreme Court ruling that upheld the health care law in June made it clear that states get to decide whether they’ll offer Medicaid to more people. Congress may want to try to negotiate against that money, also.
But Harry Conaway, who heads the Washington office of consulting group Mercer, notes that budget projections show the Affordable Care Act will save money over 10 years, so it may be risky to play with it too much.
States that have refused to set up their own health insurance exchanges can expect the federal government to do it for them. But it now has just under a year to get that done.
“The administration has a mountain to climb,” Condeluci said. “There are a lot of rules that it appears that they slow-walked until after the election. I understand why they did slow-walk those rules. Those rules are related to some very, very important parts of this law.”
One rule everyone is waiting for is the so-called essential benefits package -- the list of minimum requirements for plans to cover.
Condeluci worries that the process will be rushed now, which may not allow for proper consideration of public comments on administration proposals.
“We haven’t seen the rules on the federally facilitated (health insurance) exchange. We don’t even know if will be up and running by open enrollment, which is October 2013,” Condeluci said.
Conaway thinks the administration may have to delay some of the deadlines. "The Obama administration will have to make an assessment later this year or early next year about whether a 2014 implementation will go smoothly or be chaotic and disruptive," he said.
What it means for you
Mercer's Tracy Watts says employers are already beginning to make changes to what they offer workers. "Over the next several years everybody will continue to see changes to their benefits," she said. More people may see bare-bones plans, because of changes in the rules about how much employers have to cover.
The 2010 health care law actually lowers the average actuarial value for a plan -- the percentage of the total bill that an employer has to cover. On average, a health insurance plan now pays for about 85 percent of the costs, with the patient making up 15 percent. The health reform law says plans only have to pay 60 percent -- meaning some people may end up being on the hook for 40 percent of their costs with a new, slimmed-down plan.
"Let's say you have an outpatient procedure that costs $3,000," Watts said. A new-style plan might require a $2,000 deductible and 50 percent co-insurance, meaning the patient has to pay $2,500 for the procedure and the employer picks up $500. But, she adds, employees will have the option to add better coverage a la carte. The difference is the employers will no longer simply offer a single package -- people will have to work out what particular pieces of coverage they want, and pay a little more each month for the extras.
Watts says Mercer's surveys show that 90 percent of employers who currently offer health insurance to their workers will continue to do so.
Another Supreme Court challenge?
Rules that insurers are waiting to see include the community rating requirements — these are the different premiums that insurers may charge people based on their sex, age and health status. For instance, the law aims to stop the common practice of insurers charging women more than they charge men of similar age and health status. But they will be able to charge people higher premiums as they get older, and just how much more needs to be laid out.
There’s also the guaranteed issue rule – this will require insurers to cover people even if they have existing health conditions. Again, this isn’t detailed yet.
And then there are the states. Many Republican governors are already resisting some of the most important aspects of healthcare reform, such as expanding Medicaid to cover people who can’t easily get health insurance any other way.
“At this point it really comes down to the states,” Condeluci said. “The biggest bogey out there is what the states are going to do. We could have a situation where states continue to resist implementing the law.’
That, Condeluci predicts, could even create another Supreme Court challenge to the law.
“Dare I say it -- if their resistance continues, we will have a federalism issue where a federal law is essentially telling a state to do something and the state is saying ‘no’ to that federal law. Arguably, that would have to be decided by the Supreme Court.”
Jost is a little more hopeful. “I think we will see states move toward a more cooperative and less confrontational relationship,” he said. “One hopes that at some time, people are going to act practically rather than ideologically.”
There could also still be friction over the law’s requirements that insurers and employers provide birth control coverage free of charge to women. Conservative employers continue to challenge the requirement in court.
Lisa Maatz, policy director for the American Association of University Women, thinks that issue galvanized many women voters – especially when some conservatives framed the issue as one of religious freedom as opposed to women’s health.
“The conversation itself was not only disheartening, but it also shook women down to their toes,” Maatz told NBC News. “It was an eye-opener for younger women who never believed such rights could be taken away, and a galvanizer for older women as well.”
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