Boston University Law School: Assessing the Affordable Care Act

BOSTON, Massachusetts, Nov. 21 -- Boston University School of Law issued the following news:

For more than 10 years, BU Law and School of Public Health Professor Wendy Mariner has taught Health Insurance and the Affordable Care Act, a seminar exploring the role public and private insurers play in US health policy. But, during that time, she's never used the same syllabus twice.

No wonder. Since the 2010 passage of the Patient Protection and Affordable Care Act (ACA)--President Barack Obama's signature healthcare reform law--the legislation has made multiple trips to the US Supreme Court and survived congressional Republicans' "repeal-and-replace" campaign. In May, in the middle of the global COVID-19 pandemic, President Donald Trump pressed ahead with his argument to overturn the law in the latest Supreme Court case, despite the advice of his own attorney general.

But somehow the beleaguered law remains on the books, continuing to provide health insurance for millions of Americans. As the legislation completes its first--and, if opponents have their way, perhaps only--decade, its successes and failures are more apparent than ever. Much of the law's impact has been positive: more people have more comprehensive health insurance now than did before. But, as increased public support for a national health plan demonstrates, the law has left much to be desired. Healthcare can still be prohibitively expensive, layoffs in the wake of the pandemic revealed the pitfalls of relying on employer-sponsored coverage, and--because of a legal attack from opponents--millions of low-income people remain uninsured in states that have refused to expand their Medicaid programs as the legislation intended.

Yet, according to Mariner and other faculty and alumni working in health law, the ACA withstands the test of time because it provides insurance for millions of additional Americans. When the law was passed in 2010, 46.5 million people were uninsured in the United States; by 2018, that number had dropped to 27.9 million. Most of that additional coverage came with the ACA-enabled Medicaid expansion available to states, but people also bought individual private plans through ACA-created "exchanges."

"It's a net positive," says Professor Nicole Huberfeld, who spent five years studying the dynamics of implementation of the law and recently contributed a chapter to a book about how it transformed healthcare in the United States. "Even with all of the implementation issues and political pushback, millions of people have gained health insurance."

Professor Christopher Robertson, who joined the BU Law faculty in July 2020 and recently published a book on the problem of under insurance, agrees.

"It moved us toward what every other developed country has, which is universal coverage," he says. "Getting more access to insurance is a huge win."

WENDY MARINER has published more than 100 articles in the legal, medical, and health policy literature on patients and consumers' rights, healthcare reform, insurance benefits, insurance regulation, public health, AIDS policy, research with human beings, and reproductive rights.

A Shift in Perception

The Affordable Care Act is generally considered the most significant healthcare reform law since the creation of Medicare and Medicaid under President Lyndon Johnson in 1965. But Mariner says the biggest change the law made was to public perception. Before the ACA, she explains, many people thought of health insurance as a voluntary, commercial product indemnifying the insured from certain, specific losses. Today, more people see insurance as a form of social responsibility.

Mariner attributes that change in part to a provision of the law requiring insurers to cover 10 categories of "essential health benefits," including preexisting conditions, prescription drug coverage, pregnancy and childbirth, mental health, and preventive services. That provision did more than improve the quality of care, she says.

"In many ways, it is conceptualizing healthcare as a social responsibility that everyone ought to participate in," Mariner says.

Practically speaking, however, the law changed very little about how people are insured. The majority of Americans have long obtained health insurance through their employers, with smaller percentages paying for or receiving coverage through entities like Medicare, Medicaid, or the US Department of Veterans Affairs. The ACA allows states to expand Medicaid and added a new mechanism for purchasing coverage (the exchanges) but otherwise left that fragmented structure in place.

"All these buckets have their own separate rules for eligibility and benefits and cost sharing of one kind or another," Mariner says.

Huberfeld, who is also a School of Public Health professor, says the ACA's failure to address that complexity is one of its "greatest faults."

"It really just built new scaffolding around an old foundation," she says. "Because it didn't create a more coherent and administratively simple system, healthcare remains bewildering to so many regular people."

Under Attack

After a contentious path through Congress, in which the ACA was passed by Democrats in the House and Senate without a single vote from across the aisle, at least two lawsuits were filed by the law's opponents less than an hour after President Obama signed the legislation into law.

When Andrea-Gale Okoro ('18) was an undergraduate intern at the Center for American Progress in 2013, part of her job was to analyze the many lawsuits against the ACA and think about ways to defend the law against them. By that time, the US Supreme Court had already ruled on one of those challenges; it ruled on another in the summer before she started at BU Law. The first ruling, National Federation of Independent Business v. Sebelius, upheld the ACA's so-called individual mandate requiring all Americans to have health insurance but struck the provision requiring Medicaid expansion. In the second ruling, King v. Burwell, the justices ruled that tax credits that help offset the cost of private insurance are available to people who buy insurance on either a state-created or federally created exchange.

As a student at the University of Arizona, Andrea-Gale Okoro cowrote a paper with Christopher Robertson that examined physician conflicts of interest and whether and how those should be disclosed to patients.

"It's kind of crazy that by the time I took Constitutional Law--five years after the law's passage--two of the ACA's cases had already become seminal cases," says Okoro, who concentrated in health law at BU and now advises clients on healthcare matters as an associate at McDermott. "I think that speaks to the breadth and impact of the law."

Other healthcare reform laws have been controversial. Years before he became president, Ronald Reagan famously criticized early proposals for Medicare as "socialized medicine" in a recording for the American Medical Association. But opposition to the ACA--often derisively called "Obamacare"--has been especially vitriolic and driven mostly by politics.

"I'm not a political scientist, but I don't think the opposition stems so much from the idea of having access to a method of financing healthcare for everyone," Mariner says. "I think it stems largely from partisanship."

The Sebelius ruling in 2012 put a huge hole in the law's plan for near-universal coverage (the law never intended to cover everyone; undocumented immigrants are barred from purchasing insurance on the exchanges and excluded from Medicaid coverage). In their 5-4 decision, the justices held that threatening to withhold funding from states that refused to expand their Medicaid programs to include more people was unconstitutional.

"Medicaid expansion is the most important feature of the ACA in terms of getting vulnerable populations that have long experienced uninsurance to be in a place where they could access insurance," says Huberfeld, who has written extensively about the role of federalism in healthcare programs, including Medicaid. (In a dissent to the majority opinion in the 2012 case, the late US Supreme Court Justice Ruth Bader Ginsburg cited Huberfeld's work to make the point that expanding Medicaid coverage was permissible.)

In her research, Huberfeld points out that hundreds of studies have shown the positive effects of Medicaid expansion. In addition to the obvious benefits for the insured, those effects include reduced health disparities, fewer rural hospital closures, and improved financial stability for individuals, healthcare providers, and even state budgets. Nevertheless, 10 years after the law's passage, only 39 states and the District of Columbia have expanded Medicaid, meaning whether low-income Americans qualify for free health insurance depends largely on where in the country they live.

"It is unconscionable to allow zip codes to dictate whether millions of people have basic access to healthcare," Huberfeld says. "That gap was not meant to exist."

In Case of Emergency

The dangers of that gap became even more clear in the wake of the pandemic. When employers began laying off millions of Americans as the economic and public health effects of the COVID-19 virus took hold, people who had health insurance through their job but lived in states with limited Medicaid coverage were left without protection, just when they needed it most.

"Our dependence on employer-provided health insurance is a serious problem in an economic downturn," Mariner says. "That's always been true, but it is painfully obvious now."

Huberfeld agrees.

"The novel coronavirus is making it very clear that nonexpansion states are missing a huge tool in the toolbox for dealing with a public health emergency," she says. "Their response cannot be nearly as complete because they just don't have the same safety net. A lot of people will need to seek Medicaid enrollment, and it isn't going to be there."

In his 2019 book, Exposed: Why Our Health Insurance Is Incomplete and What Can Be Done About It, Robertson explores cost exposure in the US healthcare system. More recently, he points out that the pandemic laid bare some of the absurdities of health plans' coverage limitations and so-called "cost-sharing" methods (including deductibles, copays, and coinsurance). Congress made COVID-19 testing free, and some insurers voluntarily agreed to cover the full costs of treatment, but "what if you go in for COVID-19 testing and instead they tell you that you have pneumonia?" Robertson asks, noting that treatment for pneumonia can cost thousands of dollars even for people with insurance. "If it's true for coronavirus, it should be true for pneumonia and other diseases. Leaving people with cost exposure makes no sense."

But Robertson says the pandemic also highlighted at least one positive aspect of the ACA. Because of the essential benefits covered under ACA plans, newly insured people have had more opportunities to interact with their doctors during routine visits for preventive or other care. The relationships formed during such visits are especially important when public health is at risk.

"One of the things the ACA has tried to do is help people get reliable and consistent access to care, so they don't just have to show up at the emergency room," Robertson says. "In the time of coronavirus, what we really want if someone starts to sneeze or cough is for them to call their physician and talk it through. That really requires having a standing relationship with the healthcare system, and the ACA promotes those sorts of relationships."

CHRISTOPHER ROBERTSON is an expert in health law, institutional design, and decision making. His wide-ranging work includes torts, bioethics, professional responsibility, conflicts of interest, criminal justice, evidence, the First Amendment, racial disparities, and corruption.

A Lasting Legacy

One perhaps unintended positive consequence of the decade-long assault on the Affordable Care Act is that people are more informed about healthcare than ever before. The law--and its successes and failures--has been the subject of countless debates, town hall meetings, grassroots campaigns, and presidential candidate platforms. In other words, efforts to eliminate the law--or improve upon it or replace it with something more progressive--have only further entrenched it in the public's consciousness. That, in turn, has led to "robust public engagement," including ACA-enabled Medicaid expansion by ballot initiatives in Maine, Utah, Idaho, and Nebraska, according to Huberfeld.

"If we didn't have this fighting about the ACA all the time, I think people would have forgotten about it," she says. "If we didn't have this fighting about the ACA all the time, I think people would have forgotten about it," she says. "Instead, it's been this constant reminder that there's this law that could be doing things for people. People wanted what they couldn't have."

Meanwhile, the majority of the public is clamoring for even more. Since the 2016 Democratic presidential primary campaign, when Senator Bernie Sanders made his case for "Medicare-for-All," a majority of Americans have favored some sort of national health insurance plan.

That's a change Mariner has seen reflected in her class on the ACA. Each semester, she says, most students come in believing the United States should find a way to provide healthcare, free of charge, to all its people.

Then, she challenges them.

"I say, 'Okay, you want to cover this? How are you going to do it? Give me your design, your payment structure. Who are you contracting with? How do you write the contracts?'" she says. "They are often frustrated, always grappling with a problem that's real."

By the end of the term, she adds, they have "sympathy for the devil."

"I see their eyes open very wide. It forces them to really recognize how hard it is, and yet how important."