{"id":74547,"date":"2020-11-20T08:25:00","date_gmt":"2020-11-20T13:25:00","guid":{"rendered":"https:\/\/www.bu.edu\/law\/?post_type=bu-article&p=74547"},"modified":"2022-11-16T14:11:43","modified_gmt":"2022-11-16T19:11:43","slug":"assessing-the-affordable-care-act","status":"publish","type":"bu-article","link":"https:\/\/www.bu.edu\/law\/record\/articles\/2020\/assessing-the-affordable-care-act\/","title":{"rendered":"Assessing the Affordable Care Act"},"content":{"rendered":"
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Assessing the Affordable Care Act<\/h1><\/div>\n

A decade after passage of the landmark healthcare reform legislation, BU Law faculty and alumni weigh in on its impact.<\/h3><\/div>\n
BY Rebecca Beyer<\/span><\/div>\n <\/div>\n <\/div>\n <\/div>\n<\/div>\n\n\n

For more than 10 years, BU Law and School of Public Health Professor Wendy Mariner<\/a> has taught Health Insurance and the Affordable Care Act<\/a>, a seminar exploring the role public and private insurers play in US health policy. But, during that time, she\u2019s never used the same syllabus twice.<\/p><\/div><\/div>\n\n\n\n

No wonder. Since the 2010 passage of the Patient Protection and Affordable Care Act (ACA)<\/a>\u2014President Barack Obama\u2019s signature healthcare reform law\u2014the legislation has made multiple trips to the US Supreme Court and survived congressional Republicans\u2019 \u201crepeal-and-replace\u201d campaign. In May, in the middle of the global COVID-19 pandemic, President Donald Trump pressed ahead<\/a> with his argument to overturn the law in the latest Supreme Court case, despite the advice of his own attorney general.<\/p>\n\n\n\n

But somehow the beleaguered law remains on the books, continuing to provide health insurance for millions of Americans. As the legislation completes its first\u2014and, if opponents have their way, perhaps only\u2014decade, its successes and failures are more apparent than ever. Much of the law\u2019s 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<\/a>, 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\u2014because of a legal attack from opponents\u2014millions of low-income people remain uninsured in states that have refused to expand their Medicaid programs as the legislation intended.<\/p>\n\n\n\n

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<\/a>; 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 \u201cexchanges.\u201d<\/p>\n\n\n\n

\u201cIt\u2019s a net positive,\u201d says Professor Nicole Huberfeld<\/a>, who spent five years<\/a> studying the dynamics of implementation of the law<\/a> and recently contributed a chapter to a book about how it transformed healthcare in the United States<\/a>. \u201cEven with all of the implementation issues and political pushback, millions of people have gained health insurance.\u201d<\/p>\n\n\n\n

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

\u201cIt moved us toward what every other developed country has, which is universal coverage,\u201d he says. \u201cGetting more access to insurance is a huge win.\u201d<\/p>\n\n\n\n

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\u201cOur dependence on employer-provided health insurance is a serious problem in an economic downturn. That\u2019s always been true, but it is painfully obvious now.\u201d<\/p>\u2014 Wendy Mariner<\/cite><\/blockquote><\/figure>\n<\/div><\/div><\/div>\n\n\n\n

WENDY MARINER<\/strong> has published more than 100 articles in the legal, medical, and health policy literature on patients and consumers\u2019 rights, healthcare reform, insurance benefits, insurance regulation, public health, AIDS policy, research with human beings, and reproductive rights.<\/p>\n\n\n\n

A Shift in Perception<\/h3>\n\n\n\n

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<\/a>.<\/p>\n\n\n\n

Mariner attributes that change in part to a provision of the law requiring insurers to cover 10 categories of \u201cessential health benefits<\/a>,\u201d 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.<\/p>\n\n\n\n

\u201cIn many ways, it is conceptualizing healthcare as a social responsibility that everyone ought to participate in,\u201d Mariner says.<\/p>\n\n\n\n

Practically speaking, however, the law changed very little about how<\/em> people are insured. The majority of Americans have long obtained health insurance through their employers<\/a>, 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.<\/p>\n\n\n\n

\u201cAll these buckets have their own separate rules for eligibility and benefits<\/a> and cost sharing of one kind or another,\u201d Mariner says.<\/p>\n\n\n\n

Huberfeld, who is also a School of Public Health professor, says the ACA\u2019s failure to address that complexity is one of its \u201cgreatest faults.\u201d<\/p>\n\n\n\n

\u201cIt really just built new scaffolding around an old foundation,\u201d she says. \u201cBecause it didn\u2019t create a more coherent and administratively simple system, healthcare remains bewildering to so many regular people.\u201d<\/p>\n\n\n\n

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Under Attack<\/h3>\n\n\n\n

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\u2019s opponents less than an hour after President Obama signed the legislation into law<\/a>.<\/p>\n\n\n\n

When Andrea-Gale Okoro<\/a> (\u201918) 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<\/a>; it ruled on another<\/a> in the summer before she started at BU Law. The first ruling, National Federation of Independent Business v. Sebelius<\/em>, upheld the ACA\u2019s 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<\/em>, 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.<\/p>\n\n\n\n

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