Mid-term Elections and the Fate of the ACA

The Affordable Care Act ("ACA") is just one of many issues important to voters in today's mid-term election. According to a Kaiser Health Tracking Poll, less than 1 in 10 registered voters identify the ACA as the issue most important to their vote.

The ACA is the 5th most important issue, behind the economy, dissatisfaction with government, education and the situation in Iraq and Syria. But, at the same time, 6 in 10 people report seeing political advertising related to the ACA, with ads being mostly negative.

Even though the ACA is not the most important issue to voters, candidates are clearly including the topic in their political advertisements, and the outcome of the election may impact the fate of the ACA, whether voters think it's an important issue or not.

If Republicans take control of the Senate today, while it's unlikely the ACA will be repealed, an attempt at some sort of major scaling back or replacement of the law is inevitable. The ACA is not likely to be repealed because any such legislation will face a Democratic filibuster in the Senate and then encounter an inevitable veto by President Obama. Despite this realistic outcome of an attempt to repeal the law, Republican candidates for Senate in swing-states take the position that repeal is necessary. For example, Thom Tillis in North Carolina, David Perdue in Georgia and Pat Roberts in Kansas, all advocate for complete repeal of the ACA.

Since repeal is unlikely, if in control, Republicans' second option is to try to chip away at unpopular ACA provisions. Any Republicans elected to the Senate will have presumably made commitments to their constituencies about modifications to the ACA, so the issue will certainly be presented to Congress promptly. Probable targets for revisions or replacement are the provisions providing funding for coverage expansions, such as risk corridors, health insurance subsidies, Medicaid expansion, public health grants, innovation investments, the individual and employer mandates, and various new taxes.

Whether it is a full repeal or revision, one thing for sure is that if Republicans take control of the Senate, the next two years will be replete with legislation and debate regarding the fate of the ACA.

Medicaid Expansion

Another hotly contested Obamacare issue that hinges on the outcome of today's elections is Medicaid Expansion. The ACA included a requirement that states expand their eligibility for the low-income insurance program by making it available to the poorest individuals, or risk losing federal funding for the program. Medicaid is a joint federal and state funded program that provides health care for over 60 million low income Americans, mostly children, pregnant women, people with disabilities and elderly people who need help or live in nursing homes. The ACA requirement to expand Medicaid was challenged, but in 2012 the US Supreme Court held that states cannot be forced to expand the program, making it voluntary for states to participate.

To date, 28 states, including D.C., expanded Medicaid. Every State that opted out of expansion (except Vermont) has a Republican governor that is against the program. Indeed, the outcome of some gubernatorial elections may result in further expansion or repeal of Medicaid Expansion. States with close elections where the outcome could lead to Medicaid expansions include Florida, Georgia, Kansas, Maine and Wisconsin. States where the outcome could lead to repeal include Arizona, Arkansas, Colorado and Kentucky. For example, in Arkansas, Democratic Governor Mike Beebe expanded Medicaid, but that coverage expansion could be threatened if Republicans win and decide to roll it back. If all states opted to expand Medicaid, almost half of the nations uninsured would have access to health insurance. It's fair to say that the result of today's elections will have an impact on Medicaid expansion and whether our nations' poorest individuals will have access to insurance across the country.

If you have questions about the ACA or other legal or business issues related to the Affordable Care Act, please call Attorney Jillian Jagling at 401.824.5100 or email jjagling@pldolaw.com. We welcome your comments, questions and suggestions.

Sources: The Politics of Obamacare: How the Affordable Care Act is Playing in the Midterm Elections, The Henry J. Kaiser Family Foundation, September 9, 2014.; Republicans strategize attack on Obamacare if they win the Senate, Modern Healthcare, October 27, 2014.; http://obamacarefacts.com/obamacares-medicaid-expansion/; Medicaid expansion's fate may hang on governors' races, Modern Healthcare, October 27, 2014.; Arkansas' Medicaid expansion model could hinge on election outcomes, Modern Healthcare, October 30, 2014, and http://obamacarefacts.com/obamacares-medicaid-expansion/.

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