“What went wrong?” poses an erroneous query about the American Health Care Act. The question is not why it failed, but why anyone thought it might succeed. Irrespective of what one thinks of the bill’s policy particulars—whether the bill represents a positive, coherent governing document and vision for the health care system—this thinking demonstrates that Republicans have to re-learn not just how to govern, but also how to legislate. As a policy matter, Obamacare imposed a more sweeping scope on the nation’s health care system. But the tactics used to “sell” AHCA—“We’re doing this now, and in this way. Get on board, or get out of the way”—were far more brutal, and resulted in a brutal outcome, an outcome easily predicted, but the one its authors did not intend.
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It is premature to assume health care legislation won’t be brought up again this year; there is too much instability in the individual insurance market under the ACA to expect the problem to resolve itself without a significant policy intervention. Republican leaders should look again at the AHCA and correct the flaws that made it difficult to pass in the first place. As a replacement for the individual mandate, the AHCA as written would have imposed a new, one-year 30 percent surcharge on premiums for customers who have experienced more than a two-month break in their insurance enrollment over the previous year. A major flaw is that the surcharge is not adjusted to correspond to the length of the spell without insurance.
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The Trump administration, working with governors and state legislatures, could make dramatic state by state changes to Medicaid and the ACA marketplaces using two types of state innovation waivers. Section 1332 of the ACA, which went into effect on Jan. 1, 2017, lets states waive several key provisions of the ACA, including the individual mandate, the employer mandate, the premium tax credit, cost-sharing subsidies, and essential health benefits for ACA marketplace plans. In short, Section 1332 (ACA) waivers let states operate their health care systems as if major parts of the ACA do not exist. Additionally, Section 1115 (Medicaid) waivers give states the opportunity to waive federal Medicaid law. The changes made possible by Section 1115 waivers aren’t as dramatic as those contained in the AHCA—for example, states can’t use these waivers to fully restructure Medicaid under block grants or per capita caps, nor can the federal government use them to take away federal reimbursements for Medicaid expansion—but they are still significant.
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