By Amy Killelea, Senior Manager, Health Care Access, NASTAD
Since its passage in March of 2010, the Affordable Care Act (ACA) has arguably had two near-death experiences. The first came this past June when the Supreme Court ruled on the law’s constitutionality, upholding the entire law by a razor-thin margin. The second came a few short weeks ago as the country voted to reelect President Obama to a second term and beat back several Senate candidates who had voiced pointed opposition to the ACA.
Post Election Affordable Care Act Implementation
As the dust of the election results settles and the nation collectively recovers from a long and contentious election season, a couple of things are clear. First, much of the uncertainty about the law’s survival has been removed, as wholesale repeal is virtually impossible given the current make-up in Congress. The removal of this uncertainty means that the hold on federal implementing regulations is over. We have already seen a flurry of regulatory activity:
- Development of the essential health benefits and affordability requirements by the Department of Health and Human Services (HHS)
- Initial guidance in the form of a State Medicaid Director Letter from the Centers for Medicare and Medicaid Services (CMS) on the Medicaid expansion benefits requirements
- Preliminary analysis of ACA regulations on Essential Health Benefits and Affordability by NASTAD (NASTAD will be submitting comments to HHS in the coming weeks)
- Federal regulations on the Medicaid expansion and federally facilitated exchanges are also expected to be released very shortly
- This federal guidance is absolutely essential as states move ahead with preparing their systems for a significant influx of newly insured people in a little over a year.
Implementation at the State Level
In addition to renewed federal implementation activity, the survival of the ACA also signals implementation at the state level is moving full steam ahead. This, however, is not without its challenges. Many states have been in “wait and see” mode, delaying state action until the law’s future was more secure. These states find themselves with much to do and an ever-shrinking timeline in which to do it. For instance, as of early November only about one-third of states had moved forward definitively to implement a state-based exchange. In states that opt not to run their own exchange, HHS will run the exchange for them. In recognition of the fact that many states had delayed action on deciding whether to run their own exchange until after the election, HHS has extended the deadline for this decision until December 14th. In addition, states must be prepared for open enrollment in exchange coverage to begin October 2013, less than a year away, and for a significant Medicaid expansion in January 2014. It is important to recognize that though the presidential and congressional elections favored ACA supporters, state governors’ mansions are occupied by a number of governors who continue to resist ACA implementation. The ACA remains the law of the land and pragmatic governors of both political parties are in the process of determining the best interests of their states; however, opposition in some states – particularly to full implementation the law’s Medicaid expansion – will continue to be a challenge.
State health departments should stay tuned for NASTAD resources analyzing the expected regulations that will be released over the coming weeks and months.