Hostname: page-component-cd9895bd7-7cvxr Total loading time: 0 Render date: 2024-12-26T07:53:59.756Z Has data issue: false hasContentIssue false
  • English
  • Français

Following the Money

The ACA’s Fiscal-Political Economy and Lessons for Future Health Care Reform

Published online by Cambridge University Press:  01 January 2021

William M. Sage  and
Timothy M. Westmoreland
Get access Rights & Permissions [Opens in a new window]

Abstract

It is no exaggeration to say that American health policy is frequently subordinated to budgetary policies and procedures. The Affordable Care Act (ACA) was undeniably ambitious, reaching health care services and underlying health as well as health insurance. Yet fiscal politics determined the ACA’s design and guided its implementation, as well as sometimes assisting and sometimes constraining efforts to repeal or replace it. In particular, the ACA’s vulnerability to litigation has been the price its drafters paid in exchange for fiscal-political acceptability. Future health care reformers should consider whether the nation is well served by perpetuating such an artificial relationship between financial commitments and health returns.

Type
Symposium Articles
Information
Journal of Law, Medicine & Ethics , Volume 48 , Issue 3: A Bold Agenda for the Next Steps in Health Reform , Fall 2020 , pp. 434 - 442
Copyright
Copyright © American Society of Law, Medicine and Ethics 2020

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Westmoreland, T., “Invisible Forces at Work: Health Legislation and Budget Processes” in Cohen, Hoffman, and Sage, eds. (The Oxford Handbook of U.S. Health Care Law (Oxford 2017).Google Scholar
W. Sage, “No, the ACA Isn't ‘Unconstitutional’: Ends and Means in a Dysfunctional Democracy,” Health Affairs, December 19, 2018, available at <https://www.healthaffairs.org/do/10.1377/hblog20181219.912615/full/> (last visited July 15, 2020). (last visited July 15, 2020).' href=https://scholar.google.com/scholar?q=W.+Sage,+“No,+the+ACA+Isn't+‘Unconstitutional’:+Ends+and+Means+in+a+Dysfunctional+Democracy,”+Health+Affairs,+December+19,+2018,+available+at++(last+visited+July+15,+2020).>Google Scholar
The Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297 (codified as amended in scattered sections of 2 and 31 U.S.C.).Google Scholar
The procedures required for the overall Federal budget overall have been described in detail by others. See generally, Schick, A., The Federal Budget: Politics, Policy, Process, 3rd ed., (Washington, D.C.: Brookings Insitute Prress, 2007); J. Saturno, Introduction to the Federal Budget Process, Congressional Research Service, February 26, 2020, available at <https://crsreports.congress.gov/product/pdf/R/R46240> (last visited July 15, 2020).Google Scholar
J. Davis, “The Rule That Broke the Senate,” Politico, October 15, 2017, available at <https://www.politico.com/magazine/story/2017/10/15/how-budget-reconciliation-broke-congress-215706> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
For a more extensive discussion of the types of spending, see Westmoreland, T., “Standard Errors: How Budget Rules Distort Lawmaking,” Standard Errors: How Budget Rules Distort Lawmaking, 95, no. 5 (2007): 1555–1610.Google Scholar
For a more in-depth discussion of the baseline and its vagaries, see Kamin, D., “Basing Budget Baselines” Basing Budget Baselines 57, no. 1 (2015): 143–219.Google Scholar
The Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31 (2009).Google Scholar
CBO, “Cost Estimate: H.R. 1256 — The Family Smoking Prevention and Tobacco Control Act,” March 16, 2009, available at <https://www.cbo.gov/sites/default/files/111th-congress-2009-2010/costestimate/hr125680.pdf> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
Westmoreland, supra note 1, 885-886.Google Scholar
R. Tikkanen and M. K. Abrams, U.S. Health Care from a Global Perspective, 2019: Higher Spending, Worse Outcomes (Commonwealth Fund, Jan. 2020). In 2018, direct government spending per capita in Norway and Germany slightly exceeded that in the United States, but tax spending in the United States adds another nearly $1,000 per capita to U.S. public spending on health care.Google Scholar
CBO, Options for Reducing the Deficit: 2019 to 2028, December 2018, available at <https://www.cbo.gov/system/files/2019-06/54667-budgetoptions-2.pdf> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
B. Obama, “Weekly Address: President Obama Outlines Goals for Health Care Reform” June 6, 2009, available at <https://obamawhitehouse.archives.gov/the-press-office/weekly-address-president-obama-outlines-goals-health-carereform> (last visited July 15, 2020); see also, Poynter Institute, “Obama: ‘If you like your health care plan, you’ll be able to keep your health care plan,’” Politifact, available at <https://www.politifact.com/obama-like-health-care-keep/> (last visited July 15, 2020).+(last+visited+July+15,+2020);+see+also,+Poynter+Institute,+“Obama:+‘If+you+like+your+health+care+plan,+you’ll+be+able+to+keep+your+health+care+plan,’”+Politifact,+available+at++(last+visited+July+15,+2020).>Google Scholar
Health Care Reform, Testimony of CBO Director Reischauer before the House of Representatives, Committee on Energy and Commerce, Feb. 10, 1994, available at <https://books.google.com/books?id=8JkyAAAAMAAJ&pg=PA1&lpg=PA1&dq=reischauer+testimony+1994+health+security+act&source=bl&ots=Dc7TwZNuHi&sig=ACfU3U3rXBV3tKOQPoChTGDQxMQIKL-lbA&hl=en&a=X&ved=2ahUKEwiKv96WwffkAhUhneAKHeTEC4UQ6AEwB3oECAgQAQ#v=onepage&q=reischauer%20testimony%201994%20health%20security%20act&f=false> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
KFF, American Recovery and Reinvestment Act: Medicaid and Health Provisions, March 2009, available at <https://www.kff.org/wp-content/uploads/2013/01/7872.pdf> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
“Remarks by the President to a Joint Session of Congress on Health Care,” September 9, 2009, available at <https://obamawhitehouse.archives.gov/video/President-Obama-Addressto-Congress-on-Health-Insurance-Reform#transcript> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
S. M. Butler, “Don't Blame Heritage for ObamaCare Mandate,” Feb. 6, 2012, available at <https://www.heritage.org/healthcare-reform/commentary/dont-blame-heritage-obamacaremandate> (last visited July 15, 2020). (last visited July 15, 2020).' href=https://scholar.google.com/scholar?q=S.+M.+Butler,+“Don't+Blame+Heritage+for+ObamaCare+Mandate,”+Feb.+6,+2012,+available+at++(last+visited+July+15,+2020).>Google Scholar
“ACA Note: When 133 Equals 138 — FPL Calculations in the Affordable Care Act,” State Health Access Data Assistance Center, January 27, 2019, available at <https://www.shadac.org/news/aca-note-when-133-equals-138-fpl-calculationsaffordable-care-act> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
J. Kenen, The CLASS Act, Health Affairs Health Policy Brief, May 12, 2011, available at <https://www.healthaffairs.org/do/10.1377/hpb20110512.840200/full/> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
Moda Health Plan, Inc. v. United States, __ U.S. __ (2020) ruled that “risk corridor” payments promised to private insurers in the ACA were enforceable obligations of the federal government notwithstanding the Trump administration's reluctance to disburse them. The partisan dispute over these limited public subsidies to overcome potential incentives for adverse selection also reflects a degree of fiscal gamesmanship in the ACA's design and implementation.Google Scholar
567 U.S. 519 (2012).Google Scholar
134 S. Ct. 2751 (2014).Google Scholar
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431 (U.S. Jul. 8, 2020), available at <https://www.supremecourt.gov/opinions/19pdf/19-431_5i36.pdf> (last visited August 21, 2020).+(last+visited+August+21,+2020).>Google Scholar
135 S. Ct. 2480 (2015).Google Scholar
V. R. Newkirk II, “‘Skinny Repeal’ Gets a Score,” The Atlantic, July 27, 2017, available at <https://www.theatlantic.com/politics/archive/2017/07/the-skinny-repeal-gets-ascore/535038/> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
See A.Yeager, “Cuts to Prevention and Public Health Fund Puts CDC Programs at Risk,” The Scientist, Feb. 8, 2018, available at <https://www.the-scientist.com/daily-news/cutsto-prevention-and-public-health-fund-puts-cdc-program-atrisk-30298> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
See Memorandum Opinion, U.S. House of Representatives v. Burwell, No. 1:14-cv-01967, slip op. at 22 (D.D.C. Sept. 9, 2015), available at <https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1967-41> (last visited July 15, 2020); A. M. Dolan, House of Representatives v. Burwell and Congressional Standing to Sue, Congressional Research Service, Sept. 12, 2016, available at <https://fas.org/sgp/crs/misc/R44450. pdf> (last visited July 15, 2020).+(last+visited+July+15,+2020);+A.+M.+Dolan,+House+of+Representatives+v.+Burwell+and+Congressional+Standing+to+Sue,+Congressional+Research+Service,+Sept.+12,+2016,+available+at++(last+visited+July+15,+2020).>Google Scholar
Congressional Budget Office, The Effects of Terminating Payments for Cost-Sharing Reductions, Aug. 2017, available at <https://www.cbo.gov/system/files/115th-congress-2017-2018/reports/53009-costsharingreductions.pdf> (last visited July 15, 2020).+(last+visited+July+15,+2020).>Google Scholar
Texas v. United States, 340 F. Supp. 3d 579 (N.D. Tex. 2018). On appeal, a panel of the Fifth Circuit affirmed the unconstitutionality of the individual mandate, but it remanded the case with respect to severability. The Supreme Court agreed to hear the case, but has not yet set a date for oral argument. Texas v. U.S., No. 19-10011, slip op. (5th Cir. Dec. 20, 2019), cert. granted sub nom. California v. Texas (Mar. 2, 2020).Google Scholar
Westmoreland, supra note 1, “The platitude is ‘for want of a nail, a kingdom was lost.’ In this instance, it might be said that ‘for want of a PAYGO offset for [Medicaid] costs scored against a ten-year baseline, universal coverage of all Americans was lost.’ Not poetry, perhaps, but it is a tragedy.”Google Scholar