What a Trump presidency means for the ACA

Power split in the Senate, and regulatory process constraints, may shape the possibilities

Nov 09, 2016 | By Allison Bell

Donald Trump gave an election victory speech early Wednesday morning.

Trump's victory could mean big, immediate changes in how the U.S. federal government approaches health policy, along with smaller, slower changes in federal health laws, regulations and programs.

Trump has said, repeatedly, that he wants to repeal and replace the Affordable Care Act.

Trump has talked about replacing the ACA with a combination of an expanded health savings account program, interstate sales of health insurance, and a subsidized risk pool program for people with health problems.

During the victory speech, he thanked Dr. Ben Carson, a surgeon who was a strong advocate of making expanded health savings accounts the core of an ACA alternative.

Trump has also talked during the recent presidential debates and at campaign events about wanting to replace the current, federally driven Medicaid funding system that would rely more on block grants, or giving states fixed amounts of cash and letting them decide how to spend the cash.

At other points, Trump has said that he wants to preserve Medicare benefits for the elderly and increase spending on Alzheimer's research.  

Drafters of several Republican ACA replacement proposals, such as the Sessions-Cassidy proposal, have talked about keeping some of the more popular ACA consumer protection provisions, such as the mandate requiring insurers to offer parents a chance to keep young adults on their health coverage up to age 26, and at least some kind of one-time access to major medical coverage on a guaranteed-issue basis.

Some of the proposals would give states the option of keeping their ACA exchange.

All of the Republican ACA replacement proposals have called for eliminvating the ACA provision that requires many individuals to own health coverage, and the ACA provision that requires many employers to offer health coverage.

The official Republican Party platform calls for providing more support for helping people who need long-term care stay in their own homes.

Obstacles, and opportunities

One big obstacle a Trump administration would face is, Republicans have only a slim lead in the Senate.

At press time, Democrats appeared to be on track to have at least 47 firm Democratic and independent votes in the Senate. 

The Trump administration will only need a majority vote to get certain kinds of budget measures through the Senate, but they will need 60 votes to get other kinds of legislation to the Senate floor. That means getting major ACA change or repeal bills to the Senate floor may be about as difficult during the next two years as it's been for the past eight.

Another challenge: Federal regulatory process rules put tight limits on what a president can do to eliminate a predecessor's regulations.

Stuart Shapiro, a regulation law expert at Rutgers University, described the regulatory process constraints that any new president faces in an article for The Hill published back in December.

A new administration can avoid implementing any relatively new regulations. That means, for example, that the Trump administration might be able to avoid implementing the recently released draft ACA parameters for 2018.

But a new administration has to get Congress to pass legislation or go through the full rulemaking process to revoke or rewrite regulations and kill established regulations, Shapiro says.

Even when an administration goes through the rulemaking process to eliminate an established regulation, the federal courts may reverse the administration's actions, Shapiro adds.

One possible source of strength that Trump may have in his favor is that he seems to have had a good relationship with Charles Schumer, the New York senator who is on track to be the next Senate minority leader. He contributed to Schumer's campaigns several times, and, in 2008, he hosted a major fundraiser for a Democratic Senate fundraising committee Schumer ran.

Schumer told an audience in April that he thought Trump was a relatively moderate Republican who could help break the gridlock in Congress, according to Maxwell Tani of Business Insider.

Another opening for Trump is that the strength of his victory could help uncork the frustration of Senate Democrats who have supported the ACA for the sake of Democratic unity but have had their own concerns about how ACA rules and programs have worked.

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