Navigating the ACA in the Trump Era

by Bass, Berry & Sims PLC
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Overview

On November 8, 2016, the future of the Patient Protection and Affordable Care Act (ACA) became more uncertain. Republicans in Congress have been working to repeal the ACA since it was passed in 2010, and now, with control of both houses of Congress and the White House, they may finally get the chance to do so. President-elect Trump has stated that the Trump Administration will work with Congress to repeal the ACA and replace it with a "patient-centered healthcare system" that includes Health Savings Accounts (HSAs), the return of high-risk pools and the "modernization" of Medicare. Trump announced this week the nomination of Georgia Congressman Tom Price, a physician and long-time critic of the ACA, as Secretary of the Department of Health and Human Services. Additionally, Speaker Paul Ryan has set forth his "A Better Way" healthcare reform plan that would repeal and replace the ACA. Ryan's plan includes substantial reform to Medicaid through per capita allotment financing and block grants; the creation of a "Medicare Exchange" in which private plans would compete with traditional fee-for-service Medicare; and Medicare "premium support" payments that would be paid by Medicare directly to the private plan or the fee-for-service program to subsidize its cost.

The ACA cannot be repealed in its entirety without a 60-vote supermajority in the Senate, so a sweeping repeal will face a number of hurdles. But even without a complete repeal, Republicans can move to eliminate key provisions of the ACA through the budgetary reconciliation process. The 2015 reconciliation bill may provide some useful clues into what the future of healthcare reform in 2017 may hold.

The Restoring Americans' Healthcare Freedom Reconciliation Act of 2015 

The Restoring Americans' Healthcare Freedom Reconciliation Act of 2015 (2015 Reconciliation Act) was passed by the Senate and the House but ultimately vetoed by President Obama. The bill removed large portions of the ACA. If the 2015 Reconciliation Act works as a template for future legislation passed by a new Congress, the following changes to the ACA could result:

  • Premium tax credits and other cost-sharing subsidies would be eliminated.
  • The individual mandate would be amended, eliminating tax penalties for individuals without health insurance.
  • The small business tax credit would be repealed.
  • The employer mandate would be repealed.
  • Chronic care, net investment and tanning taxes would be repealed.
  • Medicare tax increases as applied to individuals with income surpassing certain thresholds would be repealed.
  • Limitations on contributions to Flexible Savings Accounts (FSAs) would be repealed.
  • The medical device excise tax would be repealed.
  • The annual tax imposed on health insurers would be repealed.
  • Prohibitions on using FSAs or HSAs for non-prescription healthcare expenses would be repealed. 
  • The tax penalty on non-qualified purchases from FSAs would be reduced from 20% to 10%.
  • The prescription drug tax imposed on manufacturers and importers of prescription drugs would be repealed.
  • Disproportionate Share Hospital (DSH) allotment reductions would be repealed.
  • The "Cadillac Tax" on high-cost employer-sponsored health insurance premiums and health plan benefits would be repealed.
  • Funding for Medicaid expansion would be cut. 
  • The Prevention of Public Health Fund would be repealed.

Potential Winners and Losers

If Congress passes, and President Trump signs into a law, legislation similar to the 2015 Reconciliation Act, health insurance companies and medical device companies stand to benefit the most from the changes to the ACA and the repeal of many taxes and fees. Conversely, hospitals potentially would feel the most negative repercussions as they would bear the financial burden of providing care to the approximately 20 million people who would no longer have health insurance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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