By my count, Tuesday's national election was the third near-death experience faced by the Affordable Care Act (aka: Obamacare, ACA). The first was the election of Scott Brown to the U.S. Senate in late January 2010, denying Senate Democrats their vital 60th vote -- leading most commentators to declare the drive for health reform dead. The second was the Supreme Court decision released in late June of this year -- again, most commentators thought the law was going down, and it almost did except for a change of mind by Chief Justice John Roberts.
Having been through more than a few national and state health reform campaigns, I can attest that being in a health reform campaign often feels like an Indiana Jones movie -- frequently, we are inches away from doom, and sometimes it happens. We now may be over the "giant boulder chasing us down a hill" phase, but we are far from out of the woods regarding full and effective ACA implementation. Here are some upcoming key challenges and processes:
First, the Obama Administration will soon release many new sets of regulations to define key ACA features, including critical matters such as guidance to states in setting up health insurance exchanges, defining essential health benefits, and lots more.
Second, Congress and the President will work to manage the so-called fiscal cliff and the budget sequestration process; ACA elements will be on the table, especially private insurance subsidies and Medicaid expansions. Republicans will propose postponing coverage expansions to 2016 -- a political trap if there has even been one.
Third, Congress must decide if the Members and the two branches can work together to fix and improve the ACA. Speaker John Boehner said this past week that he now accepts the ACA as "the law of the land." We'll see if that lasts. There are many aspects of the law that could use clarification and reworking, as happens with any major law. Social Security and Medicare, for just two examples, have been constantly revised and reworked since initial passage in countless ways.
Fourth, States must decide whether they will launch their own health insurance exchanges or leave the job to the U.S. Department of Health & Human Services. There is irony here -- during the creation of the ACA, most Democrats preferred a single federal exchange, and only allowed states to have first choice because of objections from conservative Dems such as Nebraska's Sen. Ben Nelson. Ironically, it is conservative Republican governors such as Rick Perry (R-TX), Bobby Jindhal (R-LA), and Rick Scott (R-FL) who now object to the state exchanges the most. Dems may get their wish for a big federal exchange thanks to these governors.
Fifth, States must decide whether to implement the Medicaid expansions to everyone with incomes up to 138% of the federal poverty line, with the federal government paying between 90-100% of the cost. Governors choosing not to expand will leave vast sums of federal dollars on the table and growing numbers of uninsured at their doors. This will become an important political issue in these states heading toward the 2014 gubernatorial elections.
Finally, the nation's health care community needs to decide if they are finally willing to invest in a serious campaign to education the American public about what's in the ACA and what's at stake in its success. National surveys show continuing massive public ignorance about the ACA -- e.g.: believing the law contains death panels and that it does not eliminate pre-existing conditions. And that's just for starters.
Massachusetts health reform succeeded in no small measure because the health care community came together to create a sizable public education campaign to let citizens know what's in the law. This is sorely needed across the nation. I hope Tuesday's election opens a window of opportunity for this finally to happen.
Lastly, expect to hear almost nothing in the future about Massachusetts health reform. Our 15 minutes of fame lasted far longer than we would have imagined possible, due to the serendipity of Mitt Romney as the Republican presidential nominee. I took no small measure of satisfaction in seeing one thing Barack Obama and Mitt Romney agreed on -- Massachusetts health reform is a good thing and has worked out well.
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