From the Tower to the Trenches: The Future of the Affordable Health Care Act

Following the 2016 election and attempting to make good on campaign promises, Republican leaders in Congress moved to repeal and replace the ACA. To examine these efforts, the Center for Law, Health & Society co-hosted a session as part of the College of Law’s From the Tower to the Trenches series, focused on emerging health care proposals, how health care entities prepare for possible changes, and how to advise health care clients in a time of uncertainty.

From the Tower to the Trenches is a continuing legal education series that brings together faculty members and graduates or other legal experts to discuss current legal topics.

Titled “The Future of the Affordable Health Care Act: A Legal Perspective,” the session, held in January, featured Russell Sullivan, partner at McGuire Woods and former staff director for the U.S. Senate Finance Committee, Kirkland McGhee (J.D. ’85), vice president and senior counsel at Kaiser Permanente, and Charlotte Combre (J.D. ’97), partner at BakerHostetler, LLP. Erin Fuse Brown, assistant professor of law, moderated the session.

If President Donald Trump “knocks out enough legs of the stool then suddenly there is no stool to stand on anymore and the ACA falls apart,” Fuse Brown said. While 60 votes in the Senate would be needed to comprehensively alter the ACA’s insurance regulations in replacement legislation only a simple majority is needed to repeal key parts of the ACA that affect the federal budget, such as the ACA’s taxes and Medicaid expansion, through budget reconciliation.

Sullivan added that because the ACA was drafted with broad and flexible language, the Trump administration could take steps independent of Congressional action that could have significant impact on the ACA.  For example, President Trump could stop enforcing the individual mandate, change Medicaid requirements through the waiver process or stop making key payments to insurance companies participating in the exchanges.

Even a small change in the provisions in the ACA could have big implications for providers, Combre said. Attorneys must advise their clients to comply with the current regulations while looking ahead to protect them from risk of future changes.

McGhee argued that the current debate is not about health care reform, but an insurance reform, which is holding back real progress. “We have to figure out how to assess the overall health of the country and how to structure health care to address those needs. That will lead us to the correct answers,” McGhee said.