In this week’s episode we speak with Kimberly Leonard, senior reporter for Business Insider, about the upcoming Supreme Court hearing on the constitutionality of the ACA and what the ruling could mean for the US healthcare system.


Jeffrey Freedman. Hello and welcome to the RP HealthCast. I am your host Jeffrey Freedman. One of the most controversial issues in this year’s political race as well as part of the recent Supreme Court nomination is around the patient protection and Affordable Care Act also known as the ACA or Obamacare.

Jeffrey: Literally one week following the November 3rd national election. The US Supreme Court will hear oral arguments in a case titled California V Texas The case in which the Trump Administration and a group of Attorneys General are challenging the constitutionality of the Affordable Care Act.

Jeffrey: Now will the court strike down the health care law? Some of the key provisions. in this nine hundred-plus page act that was approved ten years ago, provisions are expanded access to health insurance, increased consumer protections, emphasize prevention and wellness, and expanded healthcare workforce, and a curb to rising health care costs.

Jeffrey: And one of its main aims was to extend health insurance coverage to about thirty-two million uninsured Americans, about ten percent of our country. And they do this by expanding both private and public insurance.

Jeffrey: Now for me, from a very high level point of view, one would think that these humanistic goals should have bipartisan support. I mean quality healthcare at affordable prices should be a right for every American, not a privilege.

Jeffrey: But I guess it’s how you package it and how you intend to pay for it. This is where we get into these heated debates. So to get into the details and to make sense of this health care debate. We are very lucky to welcome Kimberly Leonard.

Jeffrey: Kimberly is a senior health care reporter for Business Insider. Reporting about the intersection of policy politics and business and she often appears on and covers live political events for CNBC, MSNBC, Fox News, and C-SPAN. And she has written about the ins and outs of the Affordable Care Act. She has interviewed communities in the midst of the opioid crisis and she shed light on major social policies affecting our country today.

Jeffrey: Kimberly thank you so much for joining us today.

Kimberly Leonard. Thanks for having me.

Jeffrey: Great. Now today as you know, we are going to talk about and dissect the Affordable Care Act and discuss what makes it so controversial. For me, from a high-level point of view, that does not sound too bad. But what I want you to do if you could break this down for a bit and we are going to start at a very high level. What the ACA is supposed to do and what are some of the controversial issues? And after that, we are going to dig a little bit deeper into a few of these issues. Sounds good?

Kimberly: Definitely.

Jeffrey: Excellent. So why don’t you start telling us a little bit about the Affordable Care Act?

Kimberly: Well, the main portion of the Affordable Care Act that people sort of think of right away is that it gave more robust health insurance to more people. So about twenty million people were able to enroll through the Affordable Care Act. That means either getting government-subsidized, health insurance that is private insurance, or it means signing up through Medicaid, which is a fully government program that is for low-income people. But that is not really used in every state.

It also has a few other measures that make sure that insurance covers a lot more than it did prior to when the ACA passed. So, it allows it– obligates insurers to cover sick people. It obligates them not to charge them more than healthy people. That is what you hear about when you hear about protections for pre-existing conditions being talked about a lot on Capitol Hill.

It also allowed adults to stay on their parent’s health insurance until the age of twenty-six. That is another popular provision and created all kinds of other programs and portions of– and changes to the health system and the health insurance system that people might out not always know about. So for example, when you go into a chain restaurant and you now see calories on the menu. That is actually a direct result of the Affordable Care Act.

Seniors on Medicare pay less out of pocket for drugs because of the ACA. There has been a whole kind of new sub-agency created due to the ACA that allows the government to sort of test out different ways of paying for health care in order to improve health care but also pay less for it.

And so, there is this whole, wide-ranging, undergirding, I would say at this point of the Affordable Care Act that reaches into a lot of different parts of the healthcare system. And now that it has been over ten years, we have seen how it is interlocked with a lot of different parts of the industry.

Jeffrey: All right. Now that was great. Thank you. But we are going to start to get into these a little bit deeper. I mean everything that you said, talks about the healthcare system today and seems so important but it seems, when I opened the paper every day, there is so much controversy and that is what I want to figure out and figure out why right?

Jeffrey: So if we talk about some of these items, let us talk about you mentioned, pre-existing conditions. Now, obviously, we are in the middle of a global pandemic, right now. We have close to eight million Americans that have contracted Covid-19. And unfortunately, these eight million numbers is very highly skewed to the middle and lower-income wage earners, who have historically had issues getting health insurance to begin with.

Jeffrey: You talk about government-subsidized health care, you talk about Medicaid, what is going to happen here? What is the debate about and how could this be taken away?

Kimberly: Well, one of the problems that has really followed the Affordable Care Act all along was that it was passed along party lines. So it was passed only by Democrats and so for a long time, the fact that Democrats went at it alone with something that Republicans could attack in different campaign cycles. They could say that your health insurance was being taken away and that people would not get to keep the same doctors and so and so forth.

Kimberly: It is true that the ACA had some problems because it was disruptive at the beginning. When you tell people they can not have the insurance they had before, which by the way was not always very good insurance, and they are moved on to a new plan that is significantly more expensive because not everyone gets subsidies, then you got a lot of backlash there.

Kimberly: You also see that at the beginning of the ACA and we will get into this more I think later in the conversation, but there was a penalty that would be incurred on people who did not get health insurance. And that was an extremely unpopular part of the law.

Kimberly: On top of that, there were a lot of problems initially when they tried to set up these health insurance marketplaces. A lot of websites did not work for people to purchase insurance, there were all kinds of glitches, and waiting lines, and things like that.

Kimberly: And so, because it was not really handled so well, it definitely reflected poorly on what the law would look like and gave a political attack and one that definitely was probably something that people were very frustrated with. In order to say this is what happens when the government tries to take over your health care.

Kimberly: And so that led was the beginning underpinning of what we have today, which is that the Affordable Care Act is still controversial with Republicans, and it is facing another lawsuit. One of many. But this one will actually hit the Supreme Court one week after election day.

Jeffrey: Right and we will talk about that. So, besides the pride of the authorship issue that you are talking about, whereas this was written by Democrats without a lot of Republican intervention or say, there were growing pains. There was certainly a lot of consternation because this was a change This was something new. But you did mention some points that there were a lot of issues on the rollout. Is this still the ‘hangover’ from that?

Kimberly: I do not know if it’s still applies as much right now just because it has been a little while. I do think that probably one of the things that people are learning during the middle of this pandemic is that, if they lose their health insurance that often going to the marketplaces is not as affordable as they might like it to be.

Kimberly: Because you do get subsidies to pay for private health insurance, except if you make above a certain income threshold, which is roughly, for an individual about fifty thousand dollars a year. So anytime you get above that threshold you are responsible for this health insurance, which can be expensive and the deductibles can also be expensive.

Kimberly: So I think some negative feelings that remain about that have to do with affordability. Having said that, in some states because of the Affordable Care Act you can sign up for Medicaid which is almost no cost to the individual and is a popular program. And having that option in the pandemic and we have seen Medicaid enrollment grow in States.

Kimberly: We will probably see it grow even more. Depending on how all this shakes out. I do not know that people necessarily connect it to the Affordable Care Act very much, but it is one of the parts of the ACA that we have seen people who are enrolled in Medicaid plans have a positive experience with it. Pulls well with them.

Jeffrey: Now. one of the aspects to keeping the overall cost low and you started to talk about this was with the individual mandate. Now, as I understand it, this mandate said that either you have health insurance or you have to pay a penalty.
Now from again, just my understanding was basically forcing all Americans to have health insurance. But by doing that, it ensured that there were more healthy people entering the health insurance market which lowered the risk for the insurers and therefore, lowering the overall cost of health care insurance. Now is my understanding correct? Can you talk about the pros and the cons of this provision? And then what happened had that–?

Kimberly: For sure. You are correct in how it was argued into law. That was what they hope to achieve that the– it was it sort of the carrot and the stick argument, right? And that what is the stick the penalty enough to get people to purchase health insurance.

Kimberly: One of the things that we sort of largely found is that it did not seem to matter that much as to whether people purchase insurance or not. The penalty in a lot of cases was lower than what people would have paid for health insurance. And it also had a lot of exceptions. I had one person tell me, “You know, if you are paying the penalty, you are doing it wrong.”

Kimberly: Just because there were so many ways out of it. It was if you missed certain utility bills, or cell phone bills, and things like that. You could actually apply to not pay the fine for being uninsured. So it was unpopular just because I think that people do not like to be forced into purchasing something. Especially if they feel that it is something that is extremely expensive.

Kimberly: But I think one of the things that we have learned is that since the penalty was zeroed out as part of the Republican tax law, that President Trump signed into law and that took effect in 2019, is that what really causes people to sign up for health insurance is if they feel like they can afford it. And so because of a lot of the changes of– and I am not going to really get into it that much because a lot of the changes that the Trump Administration made to the health care law, it actually made it so that people are getting far more generous subsidies for health insurance.

Kimberly: And so, if they are paying zero dollars out-of-pocket, do you need a fine to encourage them to do that? Probably not. They will probably, gladly, sign up. It seems as though making health insurance more affordable is a more important mechanism to getting people to sign up for coverage.

Jeffrey: So as you said that penalty was zeroed out. So instead of it being a dollar tax or a dollar penalty went to zero, but it has still stayed on the books. So went to court, the individual mandate was upheld as a constitutional exercise of Congress, calling it a taxing power. But the individual mandate is still being litigated right now, and it has changed a little bit. There is you mentioned.
California V, Texas, and that is going in front of the Supreme Court the week after the election. So talk about that a little bit, how can this affect the ACA just this one portion of the ACA?

Kimberly: Right. And the AC has been before the court so many times just for a lot of its different provisions and also because it leaves a lot of role making up to an administration. So it has spent a lot of time in and out of Courts and at times its whole being has been threatened.

And so, back in 2012, the Supreme Court decided to uphold the health care law and they were asked to look at it because those opposed said that Congress could not force people to buy health insurance and the Supreme Court decided that they could. They decided that the mandate was important and crucial to making the rest of the health care law work, which is the Obama Administration argued at the time.

And so they upheld the law, most of it. And the reason why this whole question is back is a little bit different this time essentially Republican state officials after Congress zeroed out the find on the uninsured waged a lawsuit saying, “You argued that this fine was so crucial to the law working before and now there is no fine. And so obviously the law does not work anymore.”

Kimberly: This is an argument that many conservative legal scholars opposed even if they were opposed to the way the Supreme Court upheld the ACA back in 2012. And so that is the argument that they are looking at. It is an argument that the Trump Administration has sided with, but it is not one interestingly enough that republicans in Congress at least in the Senate side with.

Kimberly: The idea of striking down the entire law or the idea of only striking down provisions. Like protections for people with pre-existing conditions without having some sort of a backstop, and some sort of a plan in place, some sort of a conservative alternative, is not attractive to lawmakers, and it certainly is not attractive to them heading into a crucial election.

Jeffrey: Right, but this case in front of the Supreme Court has a chance of striking down the entire ACA act or law?

Kimberly: Well, I think that Democrats would like to frame it that way as they are looking at this confirmation happening. They do not see any way to stop it and they are hoping that voters instead will be motivated to go to the ballot box. So they are running on this confirmation means your health care will be taken away. That is their big message heading into the election there on that.

Kimberly: That is what the Senate is arguing. That is what the House is arguing. That is what you see the Biden campaign arguing. And I think that it is less clear where Justice Barrett would be? If she were to be confirmed? But as I mentioned earlier, this is not the same argument as in 2012, and it is not the same case that we had before.

Kimberly: And if you talk to a lot of conservatives who oppose the ACA they think this is a shaky legal argument. And so, it is hard to see how you get to an argument that is in favor of striking down the entire law. However, anything could happen for sure. And it does mean replacing a sure vote for the ACA with one, that is I would say a question mark.

Jeffrey: Now, is the ruling from this case would it be a binary type of ruling? Meaning that either they say no, and let things go on as they happen or if they vote against California be taxes and they say we are invalidating this tax or this penalty. Would that negate the entire ACA? I mean, are we at risk of losing everything overnight? I guess is the question.

Kimberly: Well even if they did go in that direction, that were probably be some sort of stay on the law and I think that is what a lot of Republicans are banking on. That even if they were to strike it down, which they do not believe it will. That there would be a sort of holding period until some back-up plan arrives.

Kimberly: So it is not as though people would lose their insurance overnight, but it does introduce a lot of chaos potentially. As I mentioned at the beginning of this podcast the ACA touches a lot of different parts of our health insurance system and a lot of different parts of healthcare. And so, that is where it becomes complicated, which parts of the law really relied on this penalty?

Kimberly: And as I mentioned it seems like, it was not even that important to begin with. Maybe they would have been better off never have had it in the first place. I am not sure. But it could go in a lot of different directions. They could just strike down the protections for people with pre-existing conditions. They could just roll the mandate unconstitutional and leave it at that, if there is a democratic House, Senate, and White House, they could reinstitute a very small fine if they wanted to, to just kind of quickly deal with the problem.

Kimberly: So it could go on a lot of different directions. I do not want to downplay necessarily the threat but it does seem as though if you talk to a lot of different experts on this, they would be shocked if this were to go through.

Kimberly: However, a lot of it is going to be up to whoever is in the White House. Whoever is in the House and Senate should just kind of getting everything on a more stable footing.

Jeffrey: All right. So I guess, you are saying the ten percent of Americans in the country, they are not at risk of losing whatever health insurance they have right now overnight, but this will kind of kickstart further discussion around where do we go from here? And what do we do?

Kimberly: For sure. And you know one thing I will point out is that House Democrats already have a sort of enhancement bill for the Affordable Care Act. A lot of the issues that I mentioned earlier on in the podcast about affordability, that is something that they do recognize.

Kimberly: And they have a plan called the Affordable Care Enhancement act that would actually pour a lot more money into these health insurance marketplaces. So that people would only pay about nine percent of their income or so on health insurance and the rest would be picked up by the government.

Kimberly: Now, is that the best way to get prices under control in this country? I am not sure. But that is their proposal and it certainly would reduce what individuals directly pay for their premiums.

Jeffrey: Right. That is interesting because it is been said by the president and I am quoting his words, “The ACA is a broken mess and awful for the American people.” We talked about a couple of controversial issues but what is the administration offered up? What if the Republicans have offered up over the past four years other than these complaints and using them as talking points for the election and scare people. What have they done to provide an alternative or solution?

Kimberly: Yes, I spoke with a White House official just very recently about this. They say that they are still working on a plan. They do not have a plan quite ready. My understanding is from speaking with folks who have left the White House, who had been there for a time, is that they are banking on the fact that A, it would not get repealed or B, that if it does then there will be time to figure it all out and that nothing would go right away.

Kimberly: One of the problems with presenting an alternative is that then you have something to fight against. So it is almost easier to be vague and I think both sides have realized this over the years. It was always really impactful and successful for Republicans to run against the Affordable Care Act and to run on repeal the Affordable Care Act, without having a unified replacement.

Kimberly: Democrats in 2018 ran on the fact that Republicans tried to get rid of the Affordable Care Act. Suddenly, its very being was threatened, it got more popular among voters. And so, sometimes, well, more often than not it helps to be vague and politics and if the administration were to provide a plan. Then that is when all the criticisms would come out and I think that is what they learned back when they tried to repeal the ACA.

Kimberly: Having said that, I do think that there are some actions the Administration has taken that they could point to. For example, they did allow these State waivers that provide Federal funding to health insurance marketplace, they are known as reinsurance. And they really helped to bring down the cost of health insurance it is state by state. So it is not across the country, but it is one way to help out.

Kimberly: They also created this rule in which employers instead of offering their own health insurance to their workers can say to the workers, “Okay some tax-free money and you can go buy your own health insurance on the marketplace.” Now, if there were to be a huge uptake in that it could really make a difference because you would see a lot more people on these ACA marketplaces and that would really help to bring costs down for health insurance. And we just do not know how much uptake there will be on that.

Kimberly: But they have also done a lot in terms of trying to get more information to patients, whether it is their doctor’s notes, whether it is having access to their own health information, whether it is having hospitals post prices of what they charge for different services. So they have done a lot of actions. They have not always unified and how to speak about them. And they also have done things that Democrats criticized in terms of providing what are known as short-term plans which, do not cover pre-existing conditions.

Kimberly: But at the same time, Republicans could argue. Well, the alternative is that people would just be uninsured. So is it better to have something than nothing? So that is the back and forth that has been going on and much more detail than we get on the campaign trail for sure.

Jeffrey: Right. Now you mentioned besides the government-subsidized insurance and the Medicaid insurance in either case for either party, is anybody looking to get away from private insurance as well? I mean, what is all the talk about socialized medicine as a whole for the country?

Kimberly: Well, former Vice President Joe Biden, if he wins has said that he would like to see what is known as a public option introduced which would give more people the ability to purchase a government plan instead of a private plan. That will be very hard to get across the finish line.

Kimberly: If there is one thing that health insurance companies love, it is the Enhancement Act the Democrats have put forward. They would go all-in against the idea of having to compete with the price of a public plan. And so that was something that the original makers of the Affordable Care Act wanted in there. It did not make it through. It be hard to do it again. But they may try.

Kimberly: I will say they are not really unified on how to do it. The question of whether to let more people sign up for Medicaid, whether to let people buy into Medicare, whether to sort of create like a Medicare Advantage plan. There is just all these different public option ideas that are floating around. And that they are not really unified on. Not to mention that progressives want to see Medicare for all, which would abolish private health insurance in favor of putting everyone into a public plan.

Kimberly: And so there is definitely a brewing battle coming even if Democrats do get unified control of government. There is a lot of intra-party disagreements about what the best next step will be for health care in this country. And I should mention one sort of final piece to this is that, another way to kind of think about going at this that former Vice President, Joe Biden has presented would let people buy into MediCare at age sixty. So basically, reducing that eligibility level.
So that is one that might be less controversial with ensures.

Jeffrey: That is a great segue. And for my final question and probably one you are going to hate, but it is crystal ball, right? What do you think? What do you see happening, to our Health Care system over the next four years or eight years, whether it be a Republican or a Democratic led government irrespective of that, What do you think of that?

Kimberly: I definitely think that Health Care will continue to get more and more expensive. This is the Affordable Care Act for all the things that it did do and it did do a lot. It did not really get a hold of the prices that you see for health care. What you are paying at the pharmacy, the surprise medical bill that you get when you go to the hospital, even when you think you have done all your homework and checked all the boxes to make sure that you understand the care that you get.

Kimberly: So, unless there is some major appetite to reduce what we pay for health care. It will be very hard to get a handle on that. One of the problems is, that as soon as you to talk about price-controlled. The question is, who takes the hit? Is it the doctor? Is it the health insurance company? And so that is why they tend to unite together against the idea of any sort of price controls.

Kimberly: I do think that if Democrats gained and I do not typically like to make predictions, but just based on what we are seeing and based on the battle lines, I sort of see being drawn and the fact that Democrats are basically running this whole, 2018 or 2020 election on Health Care just like they did in 2018.

Kimberly: I think that probably the ACA enhancement act would be the direction they would go in first and then move on to other priorities after a stimulus. A stimulus would probably be first.But I see them more as trying to stabilize the ACA as opposed to trying to make any major changes. They will be under a lot of pressure to go bolder than that. I just do not know that it will be strong enough to persuade the entire party.

Kimberly: That would help to reduce what some individuals pay for their health insurance. I am not as persuaded that as part of that bill, there is actually the ability for Medicare to negotiate the price of up to two hundred and fifty prescription drugs that tucked into this bigger Health Care Reform Bill.

Kimberly: I am not as persuaded that they will be able to get that across the finish line as they promised to do that. Just because I noticed the way that patient groups which are often funded by pharmaceutical companies the way that they held back and did not criticize those that bill when Democrats passed it in the House knowing that it would go nowhere.

Kimberly: But if it was an actual threat, I just think that the backlash would be a lot stronger and the pressure would be a lot stronger. I think it is certain that prices will go up but I think that depending on who has control of government. I see them working first toward pouring additional funding and to the ACA.

Jeffrey: Kimberly, this is wonderful, You have educated me. I am sure all our listeners as well. And this has been terrific. Thank you so much for your time.

Jeffrey: We hope you enjoyed this week’s podcast. If you have any questions comments, or future story suggestions, please reach out to us on social media. Thank you, and we hope you enjoyed the RP Healthcast.

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