In court, the Trump administration is trying to get all of the Affordable Care act erased. But at the White House, President Donald Trump and his officials are busily using the law to pursue key proposals.
Last week, the president highlighted a policy in the works meant to narrow the gaps between what drugs cost in the U.S. and overseas. On Wednesday, he signed an executive order to transform care for patients with kidney disease.
Both measures were made possible by a provision in the ACA, and both would be effectively gutted if the administration’s position prevails in court.
In between, administration lawyers told a receptive panel of judges in New Orleans that the entire ACA should be overturned.
“What they’re doing now is tolerating this ambiguity between the flat-out rhetoric of ‘repeal Obamacare’ and the reality that they love many aspects of what was enacted in the Affordable Care Act,” said Dan Mendelson, founder of Avalere Health.
The crucial provision is known as the innovation authority. It allows Medicare and Medicaid to test strategies for paying for medical care in pursuit of ways to lower costs and improve the quality of care.
Before the ACA, most changes to Medicare required special legislation. Congress can move slowly, and medical industries tend to oppose provisions that would result in less spending on treatment. With the innovation authority, the Department of Health and Human Services can introduce experiments, and it has the power to take successful pilot programs national, without involving Congress.
That’s a power that has been welcomed in an administration that has embraced broad executive power. Obama administration officials liked the innovation center power, too. But the Trump administration has gone further, experts said, in pursuing a variety of ideas about how to reform health care.
When asked about the court case, Seema Verma, a top deputy in the department, told Bloomberg News that the department had a “plan in place” to preserve some parts of the health law even if the court overturned it. She mentioned the innovation authority.
Wednesday’s changes in kidney care featured an executive order and a speech from the president. But the meat of the proposal was four projects begun under the innovation authority. One was devised to reshape how kidney care providers are paid and would affect around half of all patients with renal disease, a sweeping change.
The president also mentioned a policy under review that would make some of the prices charged by drug companies more aligned with those in other developed nations. That proposal, too, was authorized under the ACA’s innovation authority.
But the administration’s position in court could jeopardize all those initiatives. If the ACA is overturned, as government lawyers have pushed for, the innovation authority will go with it. That outcome would undermine large parts of the administration’s health care agenda, said Ashish Jha, a Harvard professor.