The Supreme Court on Obamacare

August 06, 2015

Dean Baker
The Hankyoreh, August 4, 2015

View article at original source.

Last week the United States Supreme Court turned back the last major legal challenge to the Affordable Care Act (ACA), ruling for the government in the King v. Burwell case. This should end any remaining legal issues about the program’s survival and open the door to efforts to improve the program.

This King v. Burwell case posed a bizarre challenge to the ACA, since the essence of the lawsuit was a mistake in wording in the law. One paragraph in the 900 page law seemed to imply that subsidies for insurance would only be available in states that set up their own insurance exchanges. This would have meant that the 36 states that relied on the insurance exchange set up by the federal government would lose access to subsidies.

Without these subsidies, most people would not be able to afford insurance. This would have left few people in the exchanges, basically destroying the individual insurance markets in these 36 states.

A 6 to 3 majority of the court agreed that this was absurd. There was no record of any member of Congress or any congressional staffer or any member of the Obama administration arguing about the benefits or harm from only having subsidies in the state-run exchanges. In other words, no one thought this would be the impact of the law. It was simply a mistake in wording that never should have provided the basis for a serious legal challenge.

Now that it seems the ACA is here to stay, it should be possible to have serious discussions about improving the law since it has many serious failings. At the top of the list is the coverage of various types of screenings for cancer victims. Many of these screenings are very expensive, but patients with high deductible policies will have to pay the full cost out of their own pocket. Many cancer patients will have lost their jobs so these payments, which can run into the thousands of dollars, are especially painful. Since these screenings are really forms of essential preventable care, they are exactly the sort of procedure that should be covered in full by the ACA.

More generally, the deductibles in the lowest cost policies, which can be as high as $6,000 a person, limit their usefulness as anything other than catastrophic insurance. Most people in most years will not cross this $6,000 threshold, meaning that would get almost nothing back from their insurance. It would be desirable to knock down the limits. Even a $1,000 reduction in the deductible limits would make a big difference to many people.

In the same vein, there are many cases where middle income people find themselves just above the income thresholds for getting subsidies. In these cases, insurance can be a serious strain on their budget, especially for older people. It would not require too much funding to raise these income thresholds and expand the subsidies.

There also have been reports of many insurers raising their premiums sharply for some of their plans. While prices increases have on average been reasonable in the first two years of the program, many people have to switch insurers to avoid paying sharply higher premiums. Since different insurers have different networks of doctors and often different quality of coverage, switching insurers can be time-consuming and stressful, especially for people with serious health conditions.

For this reason, insurers should be sharply limited in their ability to raise prices for their current enrollees. If an insurer has badly underpriced a plan, they should be allowed to charge higher prices to new enrollees, but their current enrollees should be protected.

This gets back to the question of having a public option to compete with private insurers. Given the greater efficiency of government-run plans like Medicare and Medicaid, and many people’s well justified suspicions of private insurers, it would be desirable to see Medicare offer an insurance option to compete with private plans. If it is too much of a lift to have this done nationally, as President Obama had proposed during his 2008 campaign perhaps this public option can be tested on a more limited basis. Medicare could be allowed to offer plans in the many markets where there are a limited number of private competitors, or just to people over the age of 55.

These are just a few of the ways in which the ACA can be improved. There can be little doubt that the ACA was a huge step forward in extending insurance to a much wider segment of the population and, almost as importantly, removing people’s dependence on their employer for insurance. But the ACA is still hugely inferior to the systems of national health insurance in other wealthy countries.

However, it will not be possible to start improving the program until its supporters begin to talk about the ACA and to point out the ways in which it has benefitted the country. As it stands, very few of the Democrats who helped pass the ACA have been willing to speak about the bill, apparently listening to political consultants who urge them to distance themselves from the ACA.

Perhaps this Supreme Court ruling will drive home the idea that the ACA is here to stay and the only question going forward is how to change it to make it better. That would be a big positive turn in the public debate.

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