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Undermining the ACA through the Executive Branch and Federalism: implications for older Americans

2018 Conference Presentation

Specific user groups United States

10 September 2018

Undermining the ACA through the Executive Branch and Federalism: implications for older Americans

Michael Gusmano, Rutgers, the State University of New Jersey, United States

David Jones, Boston University, United States
Pamela Nadash, University of Massachusetts Boston, United States
Edward Miller, University of Massachusetts Boston, United States


Background: The Patient Protection and Affordable Care Act (ACA) is one of the most fiercely contested laws enacted by Congress in generations. The debate over its passage in 2009 and 2010 was highly partisan, as was the attempt by Congressional Republicans to repeal the ACA in 2017. Both of these fights have been enormously consequential for Americans aged 55 years and older. On the one hand, many of the most vulnerable older Americans depend critically on the Medicaid program, which is now facing retrenchment under the Trump administration. On the other hand, reforms under the Trump administration will also mean that many of the gains for near elderly Americans will disappear, as they see reduced access to primary health insurance through health exchanges and the Medicaid program, and as they see the policies available to them covering less as guarantees under the ACA are increasingly whittled down.

Although Congress was the venue for these struggles, what the reform has actually accomplished and meant to the lives of people across the country has been shaped just as intensely by the courts, the executive branch, and states. In part, this was integral to the ACA’s design: for example, health insurance exchanges were meant to be run by states and, indeed, 16 states chose to do so; ironically, it was the states that were opposed to the ACA that ceded control over eligibility, enrollment, and technology to the federal government. The U.S. Supreme Court ruled that states could choose whether or not to expand their Medicaid program. Accordingly, nineteen states have to date rejected this major element of the ACA, resulting in 2.4 million remaining uninsured. The law also gave the U.S. Department of Health and Human Services (HHS) responsibility for operationalizing many components of the ACA, having left certain provisions intentionally vague to ensure passage. In some cases, this meant passing the buck to states. In other cases, HHS is empowered to make decisions that significantly shape coverage, such as how much effort to put into promoting enrollment: under a new administration, these decisions may be changed.

To date, the ACA has survived every legislative and legal challenge – with the major exception of the repeal of the individual mandate in the 2017 tax bill – but the fight over its meaning and impact is far from over. The Trump administration has aggressively sought to use executive action to undermine the ACA by weakening programs and limiting participation. In response, many states are requesting significant flexibility to deviate from the status quo, particularly through the use of waivers to change Medicaid. In some cases these efforts would expand coverage. More often, though, they aim to weaken ACA rules or the state’s Medicaid program.

Objectives: In this presentation we examine what is at stake for older Americans in this new phase in the decades-long debate over health reform. We begin by highlighting what the Trump administration has done and turn to its occasionally mixed signals on state flexibility; we then examine state responses.