Question

6. What are the key aspects, elements, actions involved in implementation and oversight of the ACA? [Identify these elements according to the following topic areas.] (20 points) a) Implementation b) Rules and Guidance Documents c) Congressional Oversight

7. What legal challenges has the ACA faced as identified in the written overview? What were the outcomes of those challenges? (20 points)

Answer 1

AFFORDABLE CARE ACT

The comprehensive Health Care Reform Law enacted in March 2010 (sometimes known as ACA, PPACA, or “Obamacare”).

The law has 3 primary goals:

1. Make affordable health insurance available to more people. The law provides consumers with subsidies (“premium tax credits”) that lower costs for households with incomes between 100% and 400% of the federal poverty level.
2. Expand the Medicaid program to cover all adults with income below 138% of the federal poverty level. (Not all states have expanded their Medicaid programs.
3. Support innovative medical care delivery methods designed to lower the costs of health care generally.

A. Overview of Health Reform Law

The primary goal of ACA is to increase access to affordable health insurance for the millions of Americans without coverage and make health insurance more affordable for those already covered. In addition, ACA makes numerous changes in the way health care is financed, organized, and delivered. Among its many provisions, ACA restructures the private health insurance market, sets minimum standards for health coverage, creates a mandate for most U.S. residents to obtain health insurance coverage, and provides for the establishment by 2014 of state-based insurance exchanges for the purchase of private health insurance. Certain individuals and families will be able to receive federal subsidies to reduce the cost of purchasing coverage through the exchanges. The new law also expands eligibility for Medicaid; amends the Medicare program in ways that are intended to reduce the growth in Medicare spending; imposes an excise tax on insurance plans found to have high premiums; and makes numerous other changes to the tax code, Medicare, Medicaid, the State Children’s Health Insurance Program (CHIP), and many other federal programs.

ACA is projected to have a significant impact on federal spending and revenues. The law includes spending to subsidize the purchase of health insurance coverage through the exchanges, as well as increased outlays for the expansion of the Medicaid program. ACA also includes numerous mandatory appropriations to fund temporary programs to increase access and funding for targeted groups, provide funding to states to plan and establish exchanges, and support many other research and demonstration programs and activities. The costs of expanding public and private health insurance coverage and other spending are offset by revenues from new taxes and fees, and by savings from payment and health care delivery system reforms designed to reduce spending on Medicare and other federal health care programs.

While most of the major provisions of the law do not take effect until 2014, some provisions are already in place, with others to be phased in over the next few years.

B. Implementation

Prior to passage of the Affordable Care Act (ACA), an estimated 36 percent of Americans who tried to purchase health insurance directly from an insurance company were denied coverage, charged higher premiums, or received limited benefits because they had a pre-existing condition. (Commonwealth Fund) ACA outlaws such discriminatory practices, but people with chronic conditions still face barriers to health care because of unfair plan design.

Working with member organizations represented on the NHC Government Relations Affinity Group (GRAG) and the Health Care Reform Action Team, the NHC has been active on major policy areas during the implementation of ACA. The main areas of emphasis are ensuring health insurance plans meet the needs of people with chronic conditions and reforming the health care delivery system to improve access to quality care.

The NHC is focused on five core issues to make sure that insurance plans meet the needs of patients: nondiscrimination, transparency, uniformity of plan materials, continuity of care, and enforcement of patient protections.

At the urging of the NHC, the 2017 Notice of Benefit and Payment Parameters (NBPP) included many patient-centered proposals. However, ground-breaking opportunities to enhance the delivery of care did not make it into the final rule.

The 2016 Notice of Benefit and Payment Parameters for insurance exchanges includes many of the NHC’s recommended patient protections.  

In 2015, the NHC created state-specific progress reports to assess the patient-centeredness of health insurance markets, conducted a national study of the patient experience enrolling in the exchanges, and relaunched a website dedicated to helping people pick the right insurance plan that meets their health and budget needs, including an out-of-pocket cost calculator. The successful implementation of ACA relies on states as regulators of the health insurance market. State support is critical to guaranteeing the ACA's goals of high-quality and affordable health care for all.

In 2011, the NHC developed in 2011 a diagram that addresses the elements for getting the Right Care, at the Right Time, for the Right Patient, at the Right Price.To provide true value in health care, there must be a confluence of health research and personal circumstances, which include the patient's genetic, ethnic, religious, and social-economic status at the point of care. The marriage of health research with real-world application leads to improved health outcomes and helps us to curb costs responsibly.

C.Rules and Guidance Documents

ACA is being implemented in a variety of ways, including new agency programs, grants, demonstration projects, guidance documents, and regulations. Whereas regulations or rules have the force and effect of law, agency guidance documents do not. The federal rulemaking process is governed by the Administrative Procedure Act (APA),14 other statutes, and executive orders.
Under the APA’s informal rulemaking procedures, agencies generally are required to publish notice of a proposed rulemaking, provide opportunity for the submission of comments by the public, and publish a final rule and a general statement of basis and purpose in the Federal Register at least 30 days before the effective date of the rule.15 Agencies’ compliance with the APA is subject to judicial review. The APA’s rulemaking requirements do not apply to guidance
documents.16 More than 40 provisions in ACA require or permit agencies to issue rules, with some allowing the agencies to “prescribe such regulations as may be necessary.

D. Congressional Oversight
Congress has a range of options as it oversees the implementation of ACA, including oversight hearings, confirmation hearings for agency officials, letters to and meetings with agency officials and the Office of Information and Regulatory Affairs regarding particular rules, comments on proposed rules, and new legislation regarding specific rules. Congress, committees, and individual Members can also request that the GovernmentAccountability Office or federal offices of inspectors general (OIGs) evaluate agencies’ actions to implement, or agency decisions not to implement, certain provisions of ACA. Congress can also include provisions in the text of agencies’ appropriations bills directing or preventing the development or enforcement of particular regulations, or use the Congressional Review Act to disapprove an agency rule implementing ACA.

E. Legal Challenges
Following enactment of ACA, state attorneys general and others brought a number of lawsuits challenging provisions of the act on constitutional grounds. While some of these cases were dismissed for procedural reasons, others moved forward, eventually reaching the U.S. Supreme
Court. During the last week of March 2012, the Court heard arguments in HHS v. Florida, a case in which attorneys general and governors in 26 states as well as others brought an action against the Administration, seeking to invalidate the individual mandate and other provisions of ACA.
U.S. Supreme Court Decision On June 28, 2012, the United States Supreme Court issued its decision in National Federation of
Independent Business v. Sebelius,
19 finding that the individual mandate in ACA is a constitutional
exercise of Congress’s authority to levy taxes. However, the Court held that it was not a valid exercise of Congress’s power under the Commerce Clause or the Necessary and Proper Clause.
With regard to the Medicaid expansion provision, the Court, in an opinion written by Chief Justice Roberts, accepted an argument that the scope of the changes imposed by the Medicaid expansion transformed the ACA requirements into a “new” Medicaid benefit program. As this “new” program was to be enforced by the threat of withholding of existing federal Medicaid matching funds, the Court found that the states were being “coerced” in violation of the Tenth Amendment into administering this new program. Chief Justice Roberts’ opinion, however, went on to note that the Medicaid requirement in question was subject to other statutory language providing for severance of unconstitutional provisions. Since it was only the withholding of existing federal Medicaid matching funds that was unconstitutional, the Chief Justice held that severance under the statute could be limited to termination of those funds. Thus the federal government would still be allowed, under the statute and the Tenth Amendment, to provide federal matching funds associated with the expansion. In other words, states can now decline to participate in the Medicaid expansion without financial penalty, but, if they wish to participate, must comply with the new requirements in order to receive the expansion-related funds.

It is unclear how many states may now decide not to participate in the Medicaid expansion. In so doing, they would forgo a substantial amount of federal funding. As already noted, the federal government will provide 100% of the costs of the expansion for the first three years, phasing down to 90% in the years thereafter. Moreover, if a state were to decide not to implement the Medicaid expansion, low-income adults below the poverty line (i.e., 100% FPL) who were not covered by, or eligible for, the state’s existing Medicaid program would in general be ineligible for the exchange subsidies.