In just a few months there is a mid-term election, and both sides of the aisle will be politicking and posturing for votes and—ultimately—control of Congress. One issue that has been part of the landscape since 2010 is Health Care Reform and the Affordable Care Act. In fact, Republicans successfully ran on this issue in the 2014 mid-term and the 2016 Presidential election—and it shows no sign of going away.
Although “repeal and replace” efforts have been unsuccessful since President Trump’s inauguration in January of 2017, several aspects of the ACA have been eroded through Executive Order, Congressional action, and judicial ruling. While the ACA remains the law of the land, the recent tax reform legislation removes the individual mandate’s tax penalty and the means of enforcing the requirement that individuals purchase health insurance. This was a popular move and did not get much blowback from the general public.
In a widely unpopular move, the Department of Justice is supporting legal arguments raised by 19 states that would render the individual mandate unconstitutional, as well as the guaranteed issue and guaranteed renewability provisions of the ACA. Those arguments are part of a court case pending in Texas. If successful, the practical impact of eliminating these provisions would be to eliminate key pre-existing condition protections in the individual health insurance market that came about in 2014. It’s important to note that these protections have strong bipartisan support. According to a Kaiser Family Foundation survey, 70% of those polled approve of them—59% when you slice the data by Republicans only.
As is always the case with pending litigation, this will likely not move through the courts quickly. Our advisory team will continue to monitor this and other important healthcare issues impacting individuals and employers.