By Nathaniel Weixel - 07/23/17 08:16 PM EDT 217
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If Congress isn’t able to repeal ObamaCare, it’s likely that the Trump administration will follow through on the president's vow to let the law fail.
President Trump regularly asserts that ObamaCare is dead or dying, and the administration has already taken steps to undermine the law while congressional Republicans struggle to enact healthcare legislation.
The administration has broad authority over the implementation of ObamaCare, giving officials the power to limit the law's effectiveness even without congressional involvement.
Here are four ways Trump could cripple the law.
Stop the cost-sharing subsidies.
The biggest thing the Trump administration can do to hurt ObamaCare would be to stop making key subsidy payments to insurers, known as cost-sharing reductions (CSR).
Should the subsidies stop, the insurance markets would likely be thrown into chaos, which could bolster claims from Senate Republicans and the White House that ObamaCare is failing.
Trump has publicly waffled on whether he will continue the payments. At times he’s threatened to withhold them, let the ObamaCare markets collapse and then blame Democrats. At other times, he’s acknowledged the political risks and said the payments would continue.
“We pay hundreds of millions of dollars a month in subsidy that the courts don't even want us to pay,” Trump said during a lunch with Republican senators Wednesday. “And when those payments stop, it stops immediately. It doesn't take two years, three years, one year — it stops immediately.”
The White House made the payments for July, but has not made a commitment beyond this month. Insurers have called the payments critical, saying that without them, they would have to massively increase premiums for 2018 or exit the individual market.
Many insurers blamed uncertainty surrounding the payments for proposed double-digit rate increases for 2018.
Stop enforcing the individual mandate.
ObamaCare requires everyone in the country to have health insurance, or pay a penalty. Trump can’t unilaterally abolish the mandate, but he can instruct the IRS to stop enforcing it.
Trump hinted at such a move on the first day he took office, issuing a vaguely worded executive order instructing federal agencies to waive or defer any part of ObamaCare that imposed a “fiscal burden” on states.
But despite the threats, the mandate is still the law and people are still supposed to pay a penalty for lacking coverage.
Insurers are worried that if the Trump administration eases up on the mandate or creates more exemptions to it, it would create a “death spiral” in the ObamaCare markets.
The mandate helps bring in healthy enrollees to balance out the sick ones, with the goal of preventing premiums from spiking. If the healthy people don’t buy insurance, only the sickest will, and premiums will skyrocket.
The mixed signals from the administration about the mandate are spooking insurers. They don’t know what to plan for, and that’s showing in their filings.
“With open enrollment for 2018 only three months away, our members and all Americans need the certainty and security of knowing coverage will be available and affordable for them," the BlueCross BlueShield Association said in a statement.
Pennsylvania’s five insurers, for example, filed premium increase requests averaging nearly 9 percent. But that increase could be hiked up to 36 percent without the individual mandate and the cost-sharing reduction payments.
Stop advertising and outreach.
The Obama administration used each open enrollment period to heavily promote exchange signups. Administration officials would appear in ads online and on TV.
The Trump administration has taken the opposite approach.
Shortly after Trump took office, the Department of Health and Human Services said it withdrew about $5 million of advertising that was intended to encourage people to sign up for insurance through ObamaCare.
HHS has also shortened the annual open enrollment period from three months to six weeks, and the agency churns out anti-ObamaCare charts, studies and graphics on a regular basis.
HHS Secretary Tom Price has also been producing swaths of ads showcasing “victims” of ObamaCare to promote the law’s repeal.
According to an AP report, the administration recently cancelled contracts with two companies that helped facilitate ObamaCare signups in 18 cities.
Advocates worry that without outreach from the government, Americans who need insurance won’t know they can sign up. Lower signups generally mean higher prices, which has been one of the most consistent Republican critiques of the law.
There’s also no indication that the administration is doing anything to convince insurers to stay in any of the “bare” counties across the country without an ObamaCare plan to buy.
The Centers for Medicare and Medicaid Services under Obama played an active role in enticing insurers back into the markets, but the Trump administration has taken a more hands-off approach.
Use administrative flexibility.
HHS Secretary Tom Price has enormous flexibility within the law to redefine some of its parameters. The powers given to the HHS secretary were meant to help implement ObamaCare, but Price has indicated he’ll use them to dismantle the law.
"Fourteen hundred and forty-two times the ACA said 'the secretary shall' or 'the secretary may,' " Price said during his confirmation hearing in March.
Congressional Republicans have urged Price to use every regulatory lever possible.
“There are a lot of things that can be done with regulations, that people don’t see happening on a daily basis,” Sen. John Barrasso (R-Wyo.) told The Hill recently.
For example, Price could change the rules requiring how much insurers would have to cover under the category of essential benefits. While the administration can’t repeal the requirement completely, they can change the definition.
Many congressional Republicans would like to either eliminate the essential health benefit requirement, or at the very least, let states and insurers opt out, so long as they also offer plans that comply with the rules.
If ObamaCare repeal fails in Congress, Republicans will be looking for Price to do the next best thing.
Tags John Barrasso