Incoming Health and Human Services Secretary Tom Price is now assisted, instead of annoyed, by the big, executive powers granted by Obamacare.
As Price takes the helm at HHS, he will succeed Obama appointees he had sharply criticized for taking wide latitude in implementing the Affordable Care Act.
Now that the tables have turned, and Republicans hold the White House, Price will have the ability to reverse, rewrite or do away with dozens of rules and guidance spelling out exactly how individuals, businesses, health providers, insurers and states should comply with the healthcare law’s many requirements.
He also will be able to influence how the law is marketed, how innovation efforts are carried out and how the new administration interacts with the insurers whose participation is crucial to the law’s success.
The Georgia Republican has been one of the harshest critics of the Obama administration, even introducing legislation last spring to suspend its ability to finalize new rules until President Obama leaves office.
The administration has issued a swath of guidance and rules around the healthcare law, partly because the law didn’t spell out many details, instead granting that authority to the HHS secretary.
Republicans long resented that reality, frustrated that the administration could exert further power over a law they didn’t want to begin with. But now it’s working to their advantage, as many of the rules they don’t like are reversible.
Price will have different options for how to make changes to Obamacare policies he doesn’t like. He could issue guidance, which can be done immediately but is also more easily dismantled, or he could issue a rule, a process that takes many months but embeds the policy more firmly into law.
“He has to understand ‘easy come, easy go’ and the looser the format he chooses, the more vulnerable it will be to the next administration,” said Gail Wilensky, a prominent health economist who has worked for Republicans in the past.
Here are seven changes Price could make to Obamacare, even without Congress voting to repeal or replace it:
1. Go with the court ruling knocking down Obamacare’s cost-sharing subsidies.
Price could decide to let stand a court ruling upholding part of House Republicans’ lawsuit against Obamacare. A federal judge said this year that the Obama administration illegally appropriated subsidies that help low-income people pay for co-pays and other out-of-pocket costs associated with their health plan.
The Obama administration has appealed the ruling, but Price could withdraw it. If he did that, and the subsidies were blocked, it could have a hugely damaging effect on the ability of poor Americans to pay for their healthcare, even if they have insurance.
2. Change the direction of Obamacare’s innovation center.
Republicans have long been wary of a new innovation center the healthcare law created to test new payment models. They say the Center for Medicare and Medicaid Innovation, or CMMI, has overstepped its authority and they have pressured the center to scale back some of its efforts.
Price couldn’t disband the center, since it is mandated in the text of the Affordable Care Act, but he could redirect its experiments toward more conservative approaches to healthcare payments. One model he could test are “premium support” payments long championed by House Speaker Paul Ryan. Under premium support, Medicare pays a set payment per senior to a private plan to cover them.
3. Eliminate birth control from the list of preventive services insurers must cover.
Price could lift the requirement for employers to include all birth control approved by the Food and Drug Administration in their employee health plans, a requirement that dozens of religious groups have challenged in court.
While the healthcare law requires employer health plans to cover preventive health benefits without charging a co-pay, the Obama administration had specified that the list would include contraception.
4. Halt outreach efforts to publicize healthcare.gov.
The administration is in the midst of an advertising blitz to convince people to sign up for marketplace coverage before enrollment ends at the end of January. It has been running ads on gaming and social media websites and partnering with companies such as Lyft, since reaching younger people is crucial to the health of the marketplaces.
As HHS secretary, Price has discretion over how that marketing money is used, or whether it’s spent at all. He could ramp down advertising efforts in the final days of open enrollment, when many people typically sign up.
5. Stop trying to convince new insurers to enter the marketplaces.
Obama appointees worked behind the scenes to ensure no counties this year are without an Obamacare insurer. The administration’s relationship with insurers has played a huge role in the healthcare law rollout, as insurers need to sell plans on the marketplaces for them to work.
If Price halted those conversations, it could have a big impact on the 2018 marketplace if even fewer insurers participate.
6. Grant states more flexibility to move health reform in a conservative direction.
The healthcare law makes waivers available to states that want to flexibility to implement it in alternative ways, and Price will have the authority to decide which waiver requests to grant.
The waivers can’t be used to completely duck the law, as any changes have to provide coverage “at least as comprehensive,” limit out-of-pocket payments to currently approved levels, cover at least as many people and can’t increase the federal deficit.
But with help from Price and a Republican administration, the waivers could give states a way of implementing reforms that are friendlier to conservative ideals.
7. Change a transgender nondiscrimination rule.
The Obama administration has interpreted the healthcare law’s nondiscrimination provision to mean that if a doctor provides a sex-specific service—like treatment for ovarian cancer—they must provide that service to every patient who needs it regardless of their gender identity.
While advocates for the rule say it equalizes treatment for transgender individuals, conservatives argue it could force health providers to perform sex transition surgeries or treatments. Price could modify or eliminate the rule.
