Bad health care legislation was made worse – then it passed the house

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My Forecaster piece of March 15 was critical of the Ryan health care plan; I laid out six problems, not the least of which was that millions would lose their health insurance. Days later the Congressional Budget Office confirmed that fact; 24 million people would lose coverage.

That plan couldn’t get the needed votes – Tea Party Republicans wanted a more draconian bill. Obama care (the ACA) remained the law. Trump/Congress moved on to tax relief. Then two realizations dawned: 1) Failing to keep their promise to repeal the ACA would outrage the Republican base – that could hurt in the 2018 elections; 2) they needed the revenue that repealing the ACA would produce in order to pay for the tax cuts they envisioned.

At this point a disappointed Trump became the wheeler-dealer Trump, the snake-oil salesman of the campaign trail; he and Ryan began to talk up party unity, the need for a “win.” While leaving the original Ryan care provisions in place, they had to fashion amendments that would placate both Tea Party conservatives and moderate House members whose constituents were benefiting from the ACA.

Two amendments carried the day. The first, a sop to ultra-conservatives, would allow two types of state waivers – one would allow states to reduce minimum ACA insurance coverage requirements – many preventive and/or essential services will be eliminated, capped, or see deductible (patient share) costs rise prohibitively.

A second type of waiver would throw people with preexisting conditions under the bus. States, if they provide some ill-defined alternative such as a high-risk pool, would be allowed to remove the ACA prohibition on charging people with such conditions higher insurance premiums – how much higher these premiums would go is unknown.

Ostensibly these higher premiums would apply only to those with such conditions who do not maintain existing (employer or ACA) insurance coverage; but with 24 million people likely to lose coverage because of Ryan care individual subsidy and Medicaid cuts, a lot of people with such conditions are likely to lose coverage – it will simply be unaffordable.

The second critical amendment, a feel-good bow to more moderate House members, would allocate $8 billion dollars over five years to offset rising health insurance costs which those with preexisting conditions will face. There is no empirical basis for this number.

High-risk pools are usually underfunded; moreover, there is almost no experience with such pools for individuals with high-cost pre-existing conditions, and there is certainly no commitment to increase this level of funding to meet the actual costs of insuring these individuals when those costs become apparent.

Republicans argue these waivers return important health care decision-making to the states – true, but they ignore the facts. Before the ACA, when states were fully in charge, only one (Massachusetts) responded creatively; health care costs were rising sharply, and over 50 million people were uninsured.

Some final Trump care twists are worth noting. If an individual who drops or loses employer or ACA health insurance coverage, for example, a person with a preexisting condition who no longer can afford insurance, that individual (if their financial position improves) can resume coverage by paying the higher premiums they now face plus a one-year 30 percent penalty.

The amendments were on such a fast track that a printed version of them was not available until a few hours before the vote – few members of the House had actually read them; there were no hearings on them and, most importantly, there was no CBO review that would give us the health care and cost consequences of these amendments.

Finally, as a gratuitous political stick in the eye to House Democrats, women, and low-income people who rely on Planned Parenthood for basic health care, the organization is defunded for at least a year.

It is no answer to say that “Repeal and Replace” is now before the Senate. It is, and one hopes for a better outcome. Nor is it correct to say, the ACA is failing. Republicans have obstructed it at every turn for six years, but it has insured 21 million people. The only thing to be said of the House action is shame, shame, shame.

Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at