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Republicans Hazy on What Would Come After the Death of the ACA

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A day after the Justice Department gave its full backing to a legal repeal of the Affordable Care Act, the Trump administration provided no indication it had any specifics for what would take the law’s place.

“He didn’t offer a plan,” Sen. Marco Rubio of Florida said after Senate Republicans had lunch with President Donald Trump on Tuesday. “He referred to some of the ideas that have been debated in the past.”

(Related: Trump Administration Asks 5th Circuit to Let All of ACA Die)

The failure by Republicans to overturn the Affordable Care Act has been a sore point for the president. In recent weeks, Trump has taken to Twitter to attack the late Sen. John McCain, who in 2017 cast the decisive vote against a bill packaged as a “skinny repeal” of the health law. The following year, Republicans lost control of the House, as many Democrats campaigned on a promises to shield Obamacare from its GOP critics.

Despite those setbacks, the Trump administration has succeeded in weakening key planks of the nine-year-old health law, including by using the president’s tax overhaul to eliminate the ACA’s penalty for not buying health insurance. Twenty Republican-leaning states seized on that development to argue that defanging the mandate invalidated the rest of the law.

On Monday, the Justice Department changed its position in that fight, saying a lower court was correct in finding that the entire law should be undone. That’s a switch from its earlier stance that only parts of the law protecting access to health coverage for people with pre-existing medical conditions should go.

The full ACA package includes many provisions unrelated to what is commonly thought of as Obamacare, such as provisions related to the training of doctors and nurses, and the provision that began the phaseout of the Medicare Part D prescription drug plan donut hole, or the gap between when routine coverage ends and catastrophic coverage begins.

Wide Fallout

Wiping the ACA off the books could end subsidies for millions of people, eliminate expanded Medicaid coverage in 37 states, roll back requirements for employer health plans, and even change rules regarding menu labeling in restaurants. It’s not clear how such policies would be unwound if courts agree with the Trump administration’s new position.

“The Trump administration stands ready to work with Congress on policy solutions like those in our budget that empower consumers and states to regain control over their health care and increase affordability and continue to protect individuals with pre-existing conditions,” Health and Human Services Deputy Secretary Eric Hargan told the House Budget Committee on Tuesday.

President Donald Trump also weighed in via Twitter following his meeting with Senate Republicans:

Republicans who attended the meeting with the president on Tuesday said that Trump was intent on a renewed attempt to undo his predecessor’s signature legislative achievement.

“More than anything else, he focused on health care,” said Sen. John Kennedy of Louisiana. “He said we need to do better than what we have. And he hopes we’ll take another run at it.”

The administration declined to say anything more specific about what it would do if it gets its way. Caitlin Oakley, a spokeswoman for HHS, declined to answer detailed questions about its plan if the lawsuit succeeds. She referred the questions to the Justice Department.

“The Department of Justice has determined that the district court’s comprehensive opinion came to the correct conclusion and will support it on appeal,” DOJ spokeswoman Kerri Kupac said in an email.

Seema Verma, the administrator of the Centers for Medicare and Medicaid Services, has previously said that the administration wants to preserve coverage for people with pre-existing conditions and has contingency plans if the law is overturned. A spokesman for her agency didn’t respond to detailed questions about what those plans were.

Some Senate Republicans said that while Trump didn’t offer any details on what health care in the U.S. might look like if the states’ challenge succeeds, they said it was too early to be certain.

“I don’t think you can really rethink health care until you know if Obamacare will be part of the system,” said Sen. Roy Blunt of Kansas.

Policymakers are saying nothing about how they would proceed after the elimination of the ACA provisions related to matters such as the Medicare Part D drug coverage donut hole.

Democrats Pounce

Democrats seized on the change in the administration’s position, arguing that it reversed promises that President Donald Trump and Republican lawmakers had made in the midterm election campaign.

“This is an escalation of the Trump administration and Republicans’ attacks on protections for people with pre-existing conditions,” said Sen. Chuck Schumer, the New York Democrat and minority leader, in a speech Tuesday. “From the moment this administration and this Republican majority came to power, they have waged a wholesale attack on our health care system.”

About 52 million adults under 65 could have been excluded from buying individual health insurance under the pre-Obamacare rules, according to estimates from the Kaiser Family Foundation.

The DOJ’s new stance aligns with Texas and other conservative states that challenged the ACA. In December, a district court judge in Texas agreed with that position. The question is before the Fifth Circuit Court of Appeals.

The dispute could go to the Supreme Court, which has twice upheld much of Obamacare. Legal experts, including some who oppose the ACA, have said that they expect the courts to uphold the law.

—With assistance from Anna Edney.

— Read Federal Judge Nominated by Obama Dismisses Maryland ‘Obamacare’ Suiton ThinkAdvisor.

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