The Obamacare bait and switch.

Paul Howard & Yevgeniy Feyman

Democrats sold -and continue to sell the ACA - as a way to cover the "millions of people" with pre-existing conditions who can't get affordable insurance. For instance, in defending their recently released guaranteed issue regulations, HHS claimed that 129 million Americans have pre-existing conditions.

This is a huge bait and switch. The vast majority of Americans with "pre-existing conditions" already have insurance. Why? Age is strongly correlated with developing a chronic illness - and seniors are covered by Medicare. If you're disabled and poor, and can't work, you're eligible for Medicare and Medicaid. The low-income poor (healthy or not) are already eligible for Medicaid. In between, the majority of Americans have employer-provided insurance, and are also already protected from pre-existing insurance exclusions or rate hikes due to illness, through HIPAA.
Who's left then? Not that many people.

In fact, preliminary results from the Center for Disease Control and Prevention's (CDC) National Health Interview Survey indicate that even among the uninsured, only 1.7 percent considered themselves to be in poor health, compared to 6.8 percent of those in Medicaid, and just .6 percent of those with private insurance.

A Medical Expenditure Panel Survey report from 2007-08 also estimated that only 16 percent of the uninsured had two or more chronic conditions - compared to one-third of those with private insurance and 50 percent for public (Medicare and Medicaid).

In a 2010 National Affairs article, James Capretta and Tom Miller estimate that only 2-4 million uninsured Americans with pre-existing conditions need additional financial help accessing insurance, preferably through high risk pools.

High risk pools allow people with serious pre-existing conditions get affordable coverage without increasing insurance costs for young and healthy uninsured. Yet this is where Obamacare has also failed, despite a modest effort. Under the law, federal high-risk pools were established to provide access to healthcare for patients without insurance, and with pre-existing conditions. A recent evaluation has found that only about 45,000 people signed up for these pools; a fraction of the 375,000 that CMS expected. Reasons proposed for the failure of the pools include low funding (only about $5 billion) and high costs for signing up. Regardless, for the last four years Obamacare has failed to expand healthcare to those with pre-existing conditions who really needed it.

Ironically, Obamacare also attacks consumer driven health plans - which a recent Mercer report credits with helping to hold down health insurance inflation to a 15-year low - threatening to drive up insurance costs just as we're identifying the tools to keep them in check . Various requirements such as the Minimum Loss Ratio (that insurers must spend at least 80 percent of premiums on benefits) and minimum actuarial value (that plans must cover a minimum of 60 percent of expected healthcare costs) make consumer driven health plans - which often have low premiums with high deductibles - less viable.

Ultimately, the biggest flaw with the ACA's insurance market reform is that it enforces expensive insurance regulations on the entire small group and individual insurance markets, increasing the cost of getting insurance for the vast majority of uninsured who are basically in good health. It also scales those subsidies up to 400% of the poverty level, to people who could easily afford to purchase it on their own.

Obamacare's failure at what should have been its primary goals leaves the door open for conservatives to start pushing for reform. The House could pass legislation repealing Obamacare's community rating and guaranteed issue regulations (as our colleague Avik Roy has suggested), and fixing Obamacare's flawed high risk pools. Paring back the subsidies (from 400% to 200% or 300%) would also lower Obamacare's price tag while still helping people who need it the most.

Governors of states that refuse to establish Obamacare's health exchanges (or expand Medicaid coverage) could also push for legislation to allow Medicaid funds to be used to help purchase private insurance for that vast majority of non-disabled or elderly Medicaid enrollees. This would provide high quality private coverage, and prevent people from shuffling between Medicaid and private insurance as their income changed. True state flexibility in Medicaid program design might also convince many governors to re-think their opposition to Obamacare's Medicaid expansion.

The debate on fixing or fighting Obamacare is likely to continue to for years to come. In the meantime, moderates and conservatives should point out that Obamacare's biggest shortcomings are self-inflicted - they didn't have to happen in the first place but can (and should) be remedied.

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