SCOTUS, the Individual Mandate, and Stuart Butler

It’s been a while since I’ve posted here. Just today, a new article of mine was published in Politico Magazine — available by clicking here.

Between now and the end of June, the US Supreme Court will rule on whether the entire Affordable Care Act should be overturned because of, once again, the mandate on individual Americans to purchase health insurance if they can afford to do so, or to pay a tax penalty if they don’t. In late 2017, Pres. Trump and the Republican-controlled Congress reduced the mandate penalty to zero — triggering a new federal lawsuit by the Texas Attorney General to overthrow the whole law.

In anticipation of that, I describe the 33 year history of the mandate in US health policy & politics, with particular attention to the individual who first brought notice to it in 1989, Stuart Butler, then of the Heritage Foundation and now of the Brookings Institution. In the process, I consider the 40 year history of free-market fundamentalism and neoliberalism in the US, an era that I and many others believe is now coming to an end.

I hope you like it and let me know what you think.

Lost in the ACA: Bit Parts in a Landmark Law

I wrote this article for the Journal of Health Policy, Politics and Law for their special edition on the 10th anniversary of the signing of the Affordable Care Act. You can access the full PDF by clicking here. You can view the full Table of Contents of the issue by clicking here. And here’s my abstract:

“The Affordable Care Act (ACA) is a mosaic across a spectrum of health policy domains. The law contains hundreds of smaller and mostly unnoticed reforms aimed at nearly every segment of American health policy. Ten years later, these pro-visions include successes, failures, and mixed bags, which should be considered in any full assessment of the ACA. This article examines 11 from each of these 3 categories, drawn from 9 of the ACA’s 10 titles. These mini-narratives deepen recognition that the ACA is our best example of comprehensive health reform and defies simplistic judgments.”

The Secret Weapon behind State Medicaid Expansions

This post appeared in the Health Affairs Blog on March 29, 2019: “The Fairness Project: A New Kid on the Block’s Role in Voter Driven Medicaid Expansions.”

One surprising outcome from the November 2018 mid-term elections was voter approval of ballot initiatives expanding Medicaid coverage in Idaho, Nebraska, and Utah. These victories were preceded by a similarly successful ballot initiative in Maine in November 2017. In three of the four states (not including Nebraska), Republican leaders have attempted to thwart the will of voters by undermining or negating the initiative wins. In the process, the issue of Medicaid expansion as permitted under the Affordable Care Act (ACA) has become reinvigorated.

Unknown by most is that a relatively new and ambitious national organization called The Fairness Project was key to these significant health access victories in all four states. The Fairness Project’s background story is compelling, as are on-the-ground stories of the roles it played in each state. The Fairness Project also bears watching because as many as 14 state governments still are unwilling to expand Medicaid as authorized by the ACA in the next two years. Six of those states allow citizens to advance policy initiatives to the ballot, including Florida and Missouri. Planning for 2020 is already well underway.

The inspiration for The Fairness Project came in 2014 from Dave Regan, president of the labor union Service Employees International Union-United Healthcare Workers West (SEIU-UHW). Regan wrote a widely distributed letter suggesting that organized labor was squandering power and influence by focusing heavily on collective bargaining while ignoring the economic needs of tens of millions of unorganized lower-income workers. As a Californian, he had seen firsthand how citizen ballot initiatives can achieve wins outside of traditional paths to power. The Fairness Project launched in 2015 with support from the SEIU-UHW.

An Impressive History

Between 2016 and 2018, The Fairness Project played a key role in winning ballot initiatives to mandate minimum wage increases in Arizona, Arkansas, Colorado, Maine, Missouri, and Washington State. In California, the District of Columbia, and Massachusetts, The Fairness Project ballot initiative efforts triggered legislatively mandated minimum wage increases without going to the voters. In the same period, The Fairness Project won ballot initiatives to mandate paid sick leave in Arizona, Michigan, Washington State, and San Antonio, Texas, and to cap payday loan interest rates in Colorado.

And then there is Medicaid for low-income uninsured Americans. By 2019, The Fairness Project’s four Medicaid wins opened doors for expanded coverage for a total of 405,000 uninsured low-income individuals in Idaho (90,000), Maine (70,000), Nebraska (90,000), and Utah (155,000). (Utah lawmakers scaled back the voter-approved expansion—although as detailed below, The Fairness Project helped reduce the legislation’s damage to expansion efforts—while efforts to undo the voters’ decision failed in the Idaho legislature.) The Fairness Project also got involved in the unsuccessful 2018 ballot campaign in Montana to raise tobacco taxes by $2 per pack to permanently finance that state’s Medicaid expansion implemented in 2015. The Montana expansion is likely to survive beyond its initial 2019 authorization, although with a different financing source than tobacco taxes. (See Exhibit 1 for state details.)

Exhibit 1: State Medicaid Expansion Ballot Initiatives 2017–18, Vote Totals And Financing

Source: Ballotpedia.

The Fairness Project’s Methods

The Fairness Project’s executive director is Jonathan Schleifer, former chief policy officer for Iraq and Afghanistan Veterans of America and former executive director of Educators for Excellence in New York. Since 2016, his seven-person team has learned many lessons about winning ballot initiatives.

Most important is the need for early and significant investments in professional polling, policy and legal research, and signature collection. “Most ballot initiative campaigns are underfunded and under-resourced, especially at the beginning, and most funders don’t want to invest in the early and crucial incubation period,” he observes. “Campaigns get bled during signature collection and then lack resources to win. We make early risky investments in incubation work, research, coalition building, grassroots/grasstops organizing, and signature collection.”

The Fairness Project works with local activists and groups to build professional campaign websites, exploit social media, raise local and national funding, hire staff, ensure that polling is rigorous and honest, and ride “shotgun” with state-based partners for the campaign’s duration. As of 2018, its track record is an impressive 16 wins and 1 loss; its minimum wage increases have put an estimated $7 billion into low-income workers’ pockets.

Maria Weeg, who served as general consultant to Idaho’s campaign, saw The Fairness Project as a helpful bridge between the long-time and legislatively focused “Close the Gap Coalition” and the newer “Reclaim Idaho” grassroots movement. “The Fairness Project provided another voice in the room, much-needed resources, cutting-edge data, and facilitation to bring the two groups together.” In the end, the campaign raised $1.77 million, half from instate sources and half from The Fairness Project’s national donor base. Two weeks before Election Day, the campaign secured a public endorsement from outgoing Republican Governor Butch Otter, who had opposed Medicaid expansion up to then.

RyLee Curtis managed the “Utah Decides Healthcare” campaign. “We could not have found someone in Utah who knew how to run at this level,” she concludes. Unlike in Nebraska and Idaho, the Utah initiative included a funding mechanism through a modest 0.15 sales tax hike; opponents exploited this to reduce the final “yes” vote to 53 percent from pre-election polling estimates around 60 percent. Most of the $3.8 million raised in support—except for about $300,000 raised locally—came from The Fairness Project. “This was a blessing,” says Curtis. “We would never have had the money and resources to make this happen without their help along with our countless volunteers.”

The Fairness Project’s effectiveness continued in all three states after the November wins, helping state groups to organize to defend their victories. In Utah, the state Senate had passed a watered-down version that requires a federal Medicaid waiver and specified that if federal approval were not provided, no expansion would happen, negating the entire voter initiative. Local groups descended on the state House of Representatives and won a vital change—signed by Governor Gary Herbert (R)—that if a federal waiver is not approved, the original initiative will be implemented as written.

Unsurprisingly, financing is a challenge. In Montana, the $2 tobacco tax proposal drew $18 million in opposition spending from that industry. The inclusion of sales tax funding in Utah’s plan reduced their expected margin of victory. On the other hand, lack of financing in the 2017 Maine initiative gave then-Governor Paul LePage (R) the argument to stall implementation until his departure 14 months later. Given these experiences, articulating a generalized financing theory is challenging. It will be case by case for the time being.

The Road Ahead

Going forward, The Fairness Project will continue its minimum wage, paid sick leave, and other campaigns to help disadvantaged workers. It also intends to keep working on state Medicaid expansions. Only six of the remaining 14 non-Medicaid expansion states allow citizen ballot initiatives: Florida, Mississippi, Missouri, Oklahoma, South Dakota, and Wyoming. The jewel of these is Florida with as many as 1.25 million potential Medicaid enrollees, including many recent exiles from Puerto Rico. However, the only feasible pathway to voter-driven expansion in Florida requires a constitutional amendment that carries a high voter signature threshold and a required 60 percent voter approval margin; the Sunshine State also has one of the nation’s more expensive media markets. Moreover, lawmakers in Florida and Missouri as well are even now contemplating how to make the ballot requirements even more onerous.

More than a few savvy health policy leaders demurred in supporting The Fairness Project’s Medicaid campaigns in 2017 and 2018. The Project’s leaders, undeterred, saw opportunity where others only saw risks and downsides. As Marcel Proust wrote: “The real voyage of discovery consists not in seeking new landscapes, but in having new eyes.” Schleifer and colleagues’ new eyes have helped to transform the nation’s political landscape regarding Medicaid. Here’s hoping that they keep looking.

The Health Reformers’ Dilemma

[The Milbank Quarterly just published this new commentary that I wrote for their November 2018 edition.]

Ever since the US Supreme Court ruled in 2012 that the expansion of Medicaid as required by the Affordable Care Act (ACA) must be optional rather than mandatory for states, health care advocates have worked heart and soul to convince their state governments to adopt the expansion. For Virginians, the moment arrived in 2018 after years of frustration—with a catch. The only politically viable pathway to expansion included a detested provision, known as the “work requirement,” that obligates many new enrollees to work or else forfeit coverage. What to do?

I explored this dilemma with health justice advocates in Virginia, the first state to confront work requirements that had not previously expanded Medicaid. In November 2017, Virginia voters elected a respected new Democratic governor named Ralph Northam along with an eye-popping jump in the number of Democrats in the state’s House of Delegates, leaving them just 2 votes shy of majorities in the House and Senate. In May 2018, solid bipartisan majorities formed to enact Medicaid expansion after years of discouraging defeats. The wrinkle was including a work requirement and imposing cost sharing on Medicaid beneficiaries. Continue reading “The Health Reformers’ Dilemma”

Might We See a Medicaid Wave Start Next Week?

[This column appeared on the Health Affairs blog on Thursday, November 1.]

Ever since the U.S. Supreme Court ruled in 2012 that states must have an option whether or not to expand Medicaid as authorized in the Affordable Care Act, expansion has been a long, slow slog, state by state, inch by inch. While blue states had mostly lined up to expand Medicaid by 2013, nearly every purple and red state proved to be a battlefield. Today, 19 states have yet to expand, with 31 in the “yes” column (plus the District of Columbia) (see table 1). The last state to expand, #31, was Louisiana in mid-2016. But, might a mighty Medicaid wave be coming courtesy of the November 6^th elections? The answer is a definite maybe.

Right now, all that’s certain is that Virginia will become state #32 to expand Medicaid in January. The state enacted the 400,000-person expansion last May, albeit with a “work requirement” to be filed with the Centers for Medicare and Medicaid Services (CMS) sometime in 2019.

Maine is certain to become #33 early next year if Democratic Attorney General Janet Mills wins the Governor’s Chair. In November 2017, Maine voters approved expansion—59-41 percent—in a state ballot initiative. Departing Republican Governor Paul LePage refused to implement the expansion in spite of strong legislative support to do so, as well as an order from Maine’s highest court. In previous years, the Legislature failed by only a small number of votes to override LePage’s vetoes (5 times). Progressive forces expect to pick up state legislative seats on November 6^th, so it’s also possible expansion could happen with a new Republican governor, supportive or not.

State Adoption Of ACA Medicaid Expansion (By Year)

SOURCE: Advisory Board. “Where the States Stand on Medicaid Expansion.” June 8 2018. Accessed Oct. 29 2018 at: https://www.advisory.com/daily-briefing/resources/primers/medicaidmap

Medicaid On the Ballot

Activists in three states—Idaho, Nebraska, and Utah—are standing in the wings hoping to be states #34, 35, and 36 depending on the outcomes of state ballot initiatives in each of them on November 6^th. Montana has an initiative on the ballot to continue its expansion with dedicated funding.

While Idaho’s departing Governor Butch Otter fought consistently against Medicaid expansion throughout his tenure, he recently changed his position and announced his support for the Medicaid ballot initiative. Republican gubernatorial candidate Brad Little says he will respect the ballot initiative’s outcome—even though the measure does not specify how to finance the 10 percent financing match states will need to pay by 2020 (7 percent in 2019). Two organizations, Idahoans for Healthcare and Reclaim Idaho raised $594,191 by the late September reporting deadline, while the opposition Work, Not ObamaCare has raised $29,999. Idaho’s Hospital and Medical Associations contributed nearly $200,000 to the “yes” effort. Recent polling shows 66 percent support, including 77 percent from independents and 53 percent from Republicans. The yes campaign co-chair is Republican State Representative Christy Perry.

Nebraska previously did not have enough support to overturn a Governor’s veto against expansion. Nebraska Governor Pete Rickets maintains his opposition as he coasts toward an easy re-election. But it’s a spirited race for Nebraska Initiative 427, the Medicaid Expansion Initiative that would cover an estimated 90,000 low-income Nebraskans. The lead organization—Insure the Good Life—has raised $1.69 million as of late September to support a yes vote, versus $0 by the opposition Americans for Prosperity. The “yes” camp’s largest contributor is a national progressive political action committee called the “Fairness Project” which also backed the 2017 Maine Medicaid initiative and which has donated $1.19 million. Other key supporters include the Nebraska Hospital Association, the state health center association, Nebraska AARP and 24 other organizations.

Of the three ballot initiative campaigns, Utah’s is the most compelling. Proposition 3 would raise the state’s sale tax from 4.70 to 4.85 percent to fully finance the expansion for 150,000 low-income Utah residents. In 2021, that is projected to raise $88 million to cover the state’s projected $78 million share of the $846 million total expansion cost (the federal government pays the rest). A February 2018 poll showed 68 percent support among Utah voters. As in Nebraska, the national Fairness Project is driving the campaign, providing $2.7 of the $2.83 million raised as of late September. A wide array of health care and religious organizations are public supporters. No organization is registered with the state in public opposition to the initiative, as of late September.

To thwart the proposal, in March, Governor Gary Herbert signed House Bill 472 into law to expand Medicaid for individuals with household incomes no higher than 95 percent of the federal poverty line, as opposed to 138 percent in Proposition 3, as authorized under the ACA. HB472 would also impose work requirements on many enrollees and would cover 90,000 as opposed to the initiative’s 150,000. Earlier this year, the Trump Administration rejected a plan similar to HB472 that was advanced by Oklahoma to expand Medicaid eligibility no higher than 100 percent of the federal poverty level. So it is unclear whether the Trump Administration will allow the Utah HB472 expansion to go forward.

Montana is another state with a Medicaid expansion ballot initiative facing the voters on November 6^th, but to continue the existing expansion. The state expanded Medicaid in 2015, though only through 2019. The November 6^th ballot will present an initiative, I-185, to continue expansion past 2019 by raising tobacco taxes by $2 a pack as the state’s funding source. Healthy Montana for I-185 backers have raised $4.8 million and are battling the tobacco industry in the form of Montanans Against Tax Hikes (MATH) which has invested at least $12 million to defeat the initiative; 97 percent of the MATH’s money has come from Altria Client Services, maker of Marlboro cigarettes and other smoking products. If voters approve, the expansion will continue without restraints. If the referendum fails, the legislature still could pass a new funding law, likely with a work requirement attached.

Other Election Day Impacts

Of the 14 remaining non-expansion states, the November 6^th results may have consequential impact. If Democratic candidates win currently competitive gubernatorial races in Florida, Georgia, Kansas, and Wisconsin, and pick up legislative seats, that could alter the Medicaid expansion equation. This would be especially true in Kansas where prior expansion efforts were thwarted by a narrow inability to override gubernatorial vetoes by only three votes. In other states, notably North Carolina with Democratic Governor Roy Cooper, significant Democratic gains in the state legislature may also have a consequential impact.

Some noteworthy features of this issue are worth considering. First, in many of these remaining states with Republican control, the price of expansion is likely to include work requirements on many newly eligible enrollees—as occurred in Virginia this past year. Unless ruled illegal by the federal courts, this national experiment will more than likely run at least for the duration of Republican control of the executive branch. As is apparent from the track record in Arkansas thus far, this is about values and ideology more than dollars and sense.

Second, after six years of fighting the Medicaid expansion wars, it is clear that most expansion opponents are not going to change their minds. Not much is left to say that hasn’t been said countless times before. As we saw in Virginia, a change of mind accompanies a change in occupants of legislative and gubernatorial seats. And in the four November 6^th ballot initiative states, if successful, we should anticipate that one or more of the affected Governors may imitate Maine Governor LePage in seeking to block expansion in spite of voter sentiment.

Third, in spite of all the uproar, it is significant that not one expansion state has gone back on it, or even considered doing so. The closest an expansion came to a rollback was the election of hard right conservative Matt Bevin as Kentucky’s governor in 2015. Bevin abandoned his pledge to repeal Kentucky’s ground-breaking and successful Medicaid expansion early in his gubernatorial campaign, and never returned to that stance, turning to mandatory work requirements as the next best thing.

Much like how the public’s support for banning pre-existing condition exclusions has become calcified in the public’s mind from the battles of 2017 and 2018, similarly the expansion of Medicaid has become hard-wired into public consciousness in the states that adopted it.

I have yet to read an insider’s account on how and why the U.S. Supreme Court lined up 7 votes to secure their atrocious 2012 ruling to make Medicaid expansion an option for states. It is true that their decision played a role in compelling Americans to grapple with and understand the rationale and importance for Medicaid expansion. But at what a damn price!

Continue reading “Might We See a Medicaid Wave Start Next Week?”

Health Reform Realism

[I wrote this new commentary for the Milbank Quarterly.]

In noticeable ways our current health reform period resembles the 2005-2006 era when political leaders, stakeholders, and think tanks began formulating proposals to prepare for a future national effort to achieve comprehensive health reform, a process that came to fruition with the signing of the Affordable Care Act (ACA) in March 2010. Though those years were also a time of unitary Republican control of the White House and both houses of Congress, many foresaw the arrival of a new president and Congress in 2009 as a potential and not-to-be-missed window of opportunity for important reform. Waiting until 2009 to begin planning would have been too late. I propose that in 2018 we embrace this renewed possibility for reform with realism and humility.

Today, we already see a plethora of legislative and policy proposals emerging from elected Democratic officials and progressive think tanks such as the Urban Institute and the Center for American Progress. While Sen. Bernie Sanders’s Medicare for All bill seeks the holy grail of single-payer reconstruction, others aim for meaningful yet incremental changes to address critical pain points in the current system.

All of these plans rely on an unreliable expectation that, come January 2021, Democrats will control the White House and governing majorities in the US Senate and House of Representatives, as the federal election cycles of 2018 and 2020 come to resemble the blue-wave cycles of 2006 and 2008. All of these plans recognize little potential for meaningful reform until then. However, if Democrats control all 3 power sources come January 2021, public demands on them for far-reaching national health reform may well be overpowering. Continue reading “Health Reform Realism”

Revisiting the Land of the Individual Mandate

[This new commentary was just published by the Milbank Quarterly.]

The years 2013 through 2016 were excruciating for the Massachusetts Health Connector. In 2013, the Connector was among the nation’s most troubled federal/state health insurance exchanges, as it endured an epic collapse of its new website to help consumers purchase individual health insurance. Since then, it has taken a step-by-step and low-key “no news is good news” approach to rebuilding trust and credibility with its 252,000 clients.

Now the silent period is ending. In 2006, Massachusetts was the first and only state to enact an individual health insurance mandate, the essential model for the federal individual mandate included in the Affordable Care Act (ACA) in 2010 and implemented in 2014. In last December’s Tax Cuts and Jobs Act, President Trump and Congress neutered the ACA mandate by reducing the financial penalty to 0. Despite widespread reports to the contrary, the mandate was not repealed, and the law, with its mandatory reporting requirements, remains on the books.

Thus, Massachusetts now returns to the spotlight as the nation prepares to examine the impact of the federal action, testing 1 state’s experience against that of the other 49. In 2015, the last year for which tax data is publicly available, only 3% of adult tax filers in Massachusetts reported not having insurance meeting state standards, corroborating other data sources indicating that it has the lowest rate of uninsurance in any state (the most recent US Census data shows Massachusetts at 97.5% coverage). Depending on an uninsured person’s household income, the monetary penalty ranges between $21 and $96 for each month without coverage. As of early February, at least 9 other Democratic-leaning states are considering adopting a similar mandate. Continue reading “Revisiting the Land of the Individual Mandate”

Mad About States

[This column was just published on the website of the Milbank Quarterly.]

A consistent theme in 2017 Republican Congressional efforts to repeal and replace the Affordable Care Act (ACA) was the intent to empower the 50 states to use federal funds to reengineer their Medicaid and individual health insurance markets as they see fit. If yet another Republican attempt at ACA repeal and replace happens in 2018, the most likely vehicle will be a reformulated Graham-Cassidy bill, the final 2017 repeal effort in the US Senate that featured far-reaching devolution to states. The idealization of states as the best makers of health policy is a myth worth busting.

States, goes the thinking, are closer to the people than those who govern from Washington, DC, more attuned to real-world preferences and values than feds. States are nimbler, better at adjusting and innovating than the plodding feds. States are, in the high-minded and oft-repeated words of late Supreme Court Justice Louis Brandeis, “the laboratories of democracy.”

As Republican Senator Bill Cassidy (R-LA) wrote in the Washington Post this past July, “Returning the decision-making power to the states is not a Republican plan or a Democratic plan, but an American plan that reflects the faith in states held by our Founding Fathers.”¹

As someone who has labored for decades in the vineyards of state health policy, I reply, nonsense. I give states their due. Massachusetts, for example, provided the inspiration for both the 1997 Children’s Health Insurance Program (CHIP) and the 2010 private health insurance reforms in title 1 of the ACA. Democratic and Republican leaders there and in many other states have forged successful bipartisan approaches to some of America’s thorniest health challenges. Yet the notion that states have innate wisdom and a tighter finger on the pulse of the people always superior to the federal government is not true. One example will do. Continue reading “Mad About States”

Pray for the Dead and Fight like Hell for the Living.

[The Washington Post’s Health 202 Column offered a set of “eulogies” on the fate of the ACA’s individual mandate — the mandate penalty was reduced to zero by the Republican’s newly approved tax-cut legislation. I had the last word…]

… So it’s not shocking that’s the part of Obamacare they chose to target in their tax overhaul, especially since their chance at a health-care bill seems to have passed. Democrats and advocates for the ACA have known for a while this was likely coming down the pipeline – and there was not much they could do to stop it.

Yet Republicans have talked for so long about repealing the mandate, election cycle after election cycle, it’s still hard to believe we’re actually standing here.

The Health 202 asked leading health-care wonks — on the right as well as the left – to offer some parting comments. Let’s call a eulogy of sorts.

–Andy Slavitt, former Centers for Medicare and Medicaid Services administrator under Obama: “The main effect of Republicans’ action today is to raise the cost of insurance for middle class families. The law has proven to be highly resilient and actions against it look increasingly petty. As a larger matter, to Republicans’ chagrin, they have now removed the only unpopular feature of the ACA. The rest of it enjoys overwhelming popular bipartisan support and will be much harder to remove.”

–Chris Jennings, former health-policy advisor to Obama: “Not overly original, but true: You break it, you own it and all the associated increases in premiums, out-of-pocket costs and uninsured Americans. Congratulations.”

–Jim Capretta, former Office of Management and Budget health-care director under George W. Bush: “There’s some exaggeration on both sides of the debate about the individual mandate. Advocates of the mandate say that its repeal will devastate the individual market. There’s not much evidence for this view. On the other hand, opponents of the mandate sometimes say its repeal will have no effect at all. That’s also not true.

“The individual market under the ACA is already somewhat unstable, and is suffering from an elevated level of adverse selection. The repeal of the mandate is going to make this not-so-great situation slightly worse. But the market is unlikely to collapse, as the ACA subsidies are sufficient to induce significant enrollment even without the mandate. Republicans now have some responsibility for the functioning of the marketplaces. Unfortunately, it does not seem like GOP leaders in Congress or the Trump administration have a clear idea of what they would like to do once the mandate is repealed.”

–Tom Scully, CMS administrator under George W. Bush: “I don t think the mandate ‘repeal’ will make a big difference. A Trump IRS was not going to enforce the penalties anyway. I am sure that insurers would prefer that it stay in place, but I bet he real behavioral impact will be minimal.”

–Newt Gingrich, former GOP House speaker (who once supported the idea of an insurance mandate): “A bad idea passed in a bad way and repealed in a classic American model of clumsy but correct.”

–John McDonough, Harvard health-policy professor: “As Mark Twain is reported to have said on May 31, 1897, ‘the report of my death was an exaggeration.’ The legislation reduces the penalty for non-compliance with the mandate to zero. The legal requirement remains intact.

“This is not trivial. It will not take long for the damage from the zeroing out of the ACA penalty to become clear. Because Massachusetts still has an enforceable mandate — and penalty — on its books, we will have speedy evidence of the impact of this policy change.

“In 2019 or 2021, a future Congress that cares about the stability and workability of the nation’s individual health insurance market, unlike the current Congress, will revisit this policy and likely re-establish a workable new policy.”

The Republican Tax Cut’s Silver Linings Playbook

[I’ve been super busy this fall and unable to keep up with writing about the ACA. I’m back in the saddle and here I go again. This commentary was just published on the Commonwealth Magazine website.]

A CORE TENET of behavioral economics is that most of us are biased toward optimism. I plead guilty. Today’s Exhibit A of my optimism bias is the Republican federal tax cut legislation heading toward the desk of President Trump for his signature.

It is true that the tax cut legislation is rigged to disproportionately benefit rich corporations and wealthy individuals; it expands the federal debt by $1.5 trillion or more; it’s biased against blue states that provide better public services and education; yes, it’s the pits. And yet…

In at least two ways, this new tax cut law will present opportunities and advantages for progressives, one next year, and the other in the future when Democrats recapture control of the White House, Senate, and House of Representatives, as early as January 2021. In this column, I’ll discuss the first – the tax legislation’s repeal of the so-called “individual mandate” in the Affordable Care Act (ACA). In my next column, I’ll explain how the tax cuts may empower Democrats to do a lot of good public policy in the near future.

Here’s the first way. The tax cut legislation reduces the ACA’s tax penalties under the so-called “individual mandate” to zero. Despite repeated media reports that the law repeals the individual mandate, that’s incorrect. Straight repeal is not permitted under the Senate’s strict “budget reconciliation” rules under which the tax legislation is moving forward, but reducing the mandate’s monetary penalties to zero is kosher.

Many have predicted that disabling the individual mandate will fatally undermine the ACA. That’s also incorrect. The 13 million people – with incomes between 0-138 percent of the federal poverty line – who got covered because of the ACA’s Medicaid expansion are untouched. Also, the 9 million between 139-400% of poverty who receive private health insurance subsidies will be largely unaffected. Continue reading “The Republican Tax Cut’s Silver Linings Playbook”