The ACA's fate may be determined this week

While Republicans have made amply clear their intention to swiftly pass an ACA repeal-and-delay bill in early 2017, it seems to me that a few facts about this looming prospect have not fully sunk in.

The first is that success is not a foregone conclusion. If three Republican senators balk at ripping up the ACA without a replacement in hand -- or at least, without a clear blueprint of how to get to replacement without throwing the individual market for health insurance into turmoil -- then the process slows, and the damage may be mitigated or avoided entirely.

Second, Republicans will never pass "repeal" and "replace" together -- unless perhaps they win 60 senate seats in 2018. Repeal-and-delay is their only option for delivering on their promises.

Third,  the time to stop the train is now -- in the coming week, between Christmas and New Year's, when senators and members of Congress will be home. The ACA had its long hot summer of rabid town halls, demonstration and counter-demonstration. ACA repeal gets a cold short week. And a lot of action is in planning.

These rather basic points were confirmed to me by Christopher Condeluci, a healthcare consultant who was tax and benefits counsel to Republicans on the Senate Finance Committee in 2009, when the ACA was being drafted.

Republican conundrum: Can the federal government subsidize private health insurance without regulating it?

Two moderate conservatives, neither of them averse to a federal effort to make health insurance affordable for all Americans, walk into a conference session and disagree about likely Republican behavior should the Supreme Court rule for the plaintiffs in King v. Burwell, thus cutting off subsidies for some eight million Americans who bought their health plans on healthcare.gov.

This happened earlier this month at the Health Insurance Exchange Summit in Washington, D.C. The disagreement was between Stuart Butler, a longtime Heritage Foundation scholar now at the Brookings Institute, and Christopher Condeluci, who was tax and benefits counsel to the Senate Finance Committee while the ACA was being drafted.

Butler, generally considered the father of the individual mandate (though he has renounced his brainchild and its bastard stepchild, the ACA), kicked off the session by sketching out a post-King settlement that he hoped might lead to a "kumbaya moment" and win 400 votes in the House.  That settlement would build on the ACA's existing "innovation waivers," provided in Section 1332, which empower states to propose alternative schemes that meet the ACA's coverage and affordability goals by different means.

Section 1332 puts everything up for grabs -- the individual and employer mandates, health plan coverage rules, exchange structure, and subsidy allocations. Since alternative schemes must meet ACA standards for coverage and affordability, however, Republicans complain that Section 1332 takes away with the left hand the freedom it proffers with the right. Butler proposed that in a post-King negotiation Republicans and Democrats might negotiate a "superwaiver" process that would loosen the ACA standards and lighten HHS oversight while also moving up the timeline -- at present, approved state proposals can't take effect until 2017.

Condeluci, who has said that Republicans on the Senate Finance Committee had signed off on 80% of the bill that eventually became the ACA, agreed that Republicans post-King would look to "1332-like" alterations to the ACA. But he said that Republicans would not accept the waiver structure as a framework. Instead they would invite states to opt into a Republican alternative that would include repeal of the individual and employer mandates as well as of the essential health benefits that every plan qualified under the ACA must provide.

Afterward, I asked Condeluci whether the plan he envisioned would give states free reign to take federal subsidy money and reorder their insurance markets as they saw fit, or rather to opt into a prepackaged Republican scheme that would lay out new coverage rules. He said, in effect, either/or. His answer spotlights an important...let's call it tension in Republican thinking about healthcare reform.

Post-King fallout: Waiting for Superwaiver?

I have a post up at healthinsurance.org that recounts opposing forecasts from two moderate conservatives about likely Republican behavior if the Supreme Court rules for the plaintiffs in King v. Burwell.  invalidating subsidies credited through healthcare.gov.

First up is Stuart Butler, generally considered the father of the individual mandate, long at Heritage, now at Brookings. The other is Christopher Condeluci, a former Republican Senate Finance Committee staffer who was involved in that committee's efforts to report out a bill with bipartisan backing (he has said that there was agreement between Republicans and Democrats on the committee on about 80% of the substance of what became the ACA).

The two were on a panel on likely post-King fallout at the Health Insurance Exchange Summit in D.C. last week. Here's the upshot of their disagreement:

Stuart Butler.. suggested that Democrats who wanted to preserve the ACA's core framework and Republicans looking to alter it might find "Houdini-like" escape from their impasse by taking inspiration from the ACA's "innovation waivers." These waivers empower states to propose alternative schemes that meet the ACA's coverage and affordability goals by different means...Butler spoke hopefully of a "superwaiver process" that would speed up the timeline and ease the application process,  giving states more freedom to shape their health insurance markets with less oversight from the federal government.