A lot has happened in the past few weeks when it comes to healthcare legislation. We’ve seen bipartisan efforts to reform the Affordable Care Act (ACA), a failed partisan effort to repeal it, and now, President Trump has expressed the intent to sign an executive order that would allow insurers to offer plans across state lines.

The questions remain: where are we now? And what will we see next?

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Bipartisan Stabilisation Efforts

For the first two weeks of September, the Health Education Labor and Pensions (HELP) Committee held hearings to discuss bipartisan policy solutions to stabilize the individual insurance market. These hearings included testimony from witnesses such as governors, state insurance commissioners, health insurance company executives, actuaries and other representatives of organizations within the healthcare industry. At their conclusion on September 14, it seemed there were at least a few agreed upon methods of stabilizing the individual insurance market, including:

  • Funding cost-sharing reduction payments
  • Giving states federal seed money to fund either reinsurance or invisible high-risk pools
  • Streamlining the 1332 waiver process so it is easier for states to test customized solutions for problems arising under the ACA

Having sat in on the hearings, I will admit that for the first time since January, I was hopeful the Senate would return to regular order, and for once, I anticipated the ACA’s improvement instead of its demise.

Unfortunately, one day after the hearings concluded, it seemed that another effort to repeal and replace the ACA, the Graham-Cassidy bill, was gaining enough support to thwart the HELP Committee’s progress. Senator Alexander, Chairman of the Committee, released a statement on September 15, just one day after the hearings concluded, in which he said both sides had made a good-faith effort to come to an agreement, but no consensus was possible at that time.

Where are we now?

As we now know, Sens. Graham and Cassidy introduced a repeal effort, but it did not succeed. And even during the period in which the Graham-Cassidy bill was gaining steam, several moderate republicans bemoaned the stalling of the bipartisan efforts witnessed in the Senate HELP Committee hearings. Susan Collins who sits on the HELP Committee said “it’s disappointing that this bipartisan effort — which should be our approach — was not allowed to proceed to conclusion.”

On September 26, as the spectre of repeal passed over Capitol Hill, Senator Alexander said he would be willing to resume work on stabilizing the individual market. The statement he released on the 15th has since disappeared from his website, replaced instead with this press release. While Senator Alexander wants to give states more freedom from ACA rules than Senator Murray, and there are discrepancies over how many years of guaranteed funding will go to the cost-sharing reductions, Senator Alexander has implied we could see a draft of a stabilization bill this week.

The Graham-Cassidy Repeal Bill

While the Graham Cassidy bill was not by any means a new piece of legislation, last week it certainly seemed to come out of left field and pick up a surprising amount of momentum in a short period of time.

This was likely due to it being considered the “last car leaving town,” meaning it was the last chance republicans would have to use the budget reconciliation process, which requires only a simple majority, rather than 60 votes, to repeal the Affordable Care Act. Throughout its tenure on the Hill, the Graham-Cassidy bill has been known by many monikers and has dramatically changed in both what it aims to do and what it seemingly would do. The bill changed so rapidly, in fact, that a new version was released on the very day the bill went to a hearing, this iteration involving incentives for senators who had come out against the bill in the days prior.

This version of the bill also failed to ensure basic patient protections guaranteed under the Affordable Care Act, such as essential health benefits, restrictions on lifetime caps and community rating.

For this reason, over 40 patient organizations, including Fight Colorectal Cancer, signed letters, ran ads and raised their voices against the harm this bill would do to people with pre-existing conditions.

The Senate Committee on Finance commenced what would be a 5-hour hearing on the bill at 2:00 PM on Monday, September 24. The hallways were swamped with angry patient advocates who chanted so loudly in the hall outside the hearing that their voices could be heard on the hearing’s television coverage.

The line to get into the hearing extended into the next office building. In all the chaos, cramped quarters and confusion, over 150 arrests were made. The hearing itself was also far from dull:  tensions ran high as one of the bill’s authors and namesakes, Senator Bill Cassidy, pulled double-duty as both witness and Committee member. Senators used the hearing as an opportunity to debate the bill, arguing on party lines for or against the bill. Republicans mostly spoke in favor of the legislation, arguing that the bill is necessary to address the failures of the ACA. However, some republicans expressed reservation about the plan. Democrats universally condemned the proposal and characterized it as dangerous policy that would significantly reduce funding for states and leave millions of people without coverage.

During the hearing, Senator Susan Collins of Maine released a statement on why she would not be supporting the bill. Her vote for the bill dealt the killing blow as the bill had already lost the votes of Senator John McCain of Arizona, Senator Shelley Capito of West Virginia and Senator Rand Paul of Kentucky. The next day, the republican members of the Senate met for lunch and decided not to bring the bill to the floor because it lacked sufficient support to pass.

Where are we now?

Even though this latest repeal attempt was unsuccessful and the deadline for using budget reconciliation passed on September 30, a repeal remains possible in the weeks and months ahead. Republicans could provide reconciliation instructions for both healthcare and tax reform in the fiscal 2018 budget resolution that Congress must pass to unlock fast-track procedural powers. That might entail some procedural challenges and Senate leadership has implied some reluctance to couple already complex tax reform with increasingly unpopular healthcare reform, but still, the possibility remains.

Trump’s Executive Order

In the days following the failed repeal effort, President Trump told reporters, “I’ll probably be signing a very major executive order where people can go out, cross state lines, do lots of things and buy their own health care, and that will be probably signed next week.” That executive order, if signed, is unlikely to have a large impact for a couple of reasons.

First, somes states have already tried to do this using pacts: States experiencing difficulties with insurers leaving the market have partnered with nearby states to allow insurers to offer plans across state lines. But this has been largely unsuccessful for the sole reason that insurers just aren’t that interested: creating competitive provider networks in states where they don’t have any current customers is incredibly difficult.

Second, allowing insurers to offer plans across state lines could mean insurers risk violating state insurance regulations. This presents a potentially complex legal challenge, wherein following an executive order would conflict with state authority over health insurance requirements. This potential hurdle makes it even more unlikely that we will see insurers offering plans across state lines, even if this order would give them the freedom to do so.

Where are we now?

Even if this executive order is implemented, insurers will need a very compelling reason to take on the potential legal and economic challenges of competing in new markets. If they navigate those challenges successfully, it will mean there are more insurance options on the individual market for states like Georgia and Wyoming, where some counties have only one insurer offering plans.

What’s next?

Only time will tell how these efforts will affect the landscape of healthcare, but what we do know without a doubt, as the past few weeks have demonstrated, is that patient voices absolutely make a difference.

We will do our best to keep you updated with any news on bipartisan stabilization efforts, the effect of the executive order and any potential repeal efforts. Should patient protections come under attack again, Fight CRC and our advocacy partners will stand together to oppose it and we’re counting on YOU to stand with us.

Make sure you are registered as an advocate and follow our Facebook Advocate page so you can be part of the discussion and take action!

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