//  9/21/17  //  Commentary

Zombie Trumpcare is back. Again. Motivated by their looming September 30th deadline to pass anything that can get 50 votes, Senate Republicans are pushing the cruelest health care bill yet. The Graham-Cassidy bill would end the Medicaid expansion, weaken or eliminate the protections the Affordable Care Act (ACA) created for the individual insurance market, and take money from states (blue and red alike) that have enrolled the most people under the ACA and give it to states that have been most resistant to implement the Act. There is a lot to say about Graham-Cassidy, but in this post I want to address some of the tragic choices the bill would force states to make under the guise of “flexibility.”

As a reminder, the text of this bill was released just last week, and the Republicans are attempting to ram the bill through without real hearings or amendments and without receiving a CBO score that would measure the bill’s impact on how many Americans have health insurance, their out of pocket costs, or the deficit. But independentanalyses have estimated that the bill would cut funding to the states by hundreds of billions of dollars over the next decades and would lead to tens of millions more uninsured by that time.

Graham-Cassidy’s sponsors are trying to sell the bill under the guise of state flexibility and federalism. (Although some Senators are concerned that the block grant would enable states to set up their own single payer programs and would like to prevent them from doing so, so the professed “federalism” argument seems less than sincere.) Why have decisions made about state health care needs by DC bureaucrats, the argument goes? Why not give the states themselves the latitude to decide how to use the (ever-shrinking) pot of money to take care of their own citizens? 

In theory, sure (at least for now). On some dimensions, Graham-Cassidy does return power to the states. It allows states to discriminate against patients with pre-existing conditions. It allows the states to get rid of the essential health benefit requirement, so that plans in the individual market wouldn’t have to cover mental health treatment, or maternity care, or hospitalization, or whatever the state decides. Relatedly, it allows the states to eliminate the lifetime caps on healthcare coverage that some states had before the ACA, even for people in employer-sponsored plans. Graham-Cassidy gives states less money and also empowers them to make these terrible choices.

In Graham-Cassidy’s changes to Medicaid, the illusory promise of flexibility is even more clear. Recall that a central feature of most of the Republican ACA repeal plans actually goes far beyond the ACA – they aim to fundamentally transform the Medicaid program, imposing per capita caps on Medicaid federal funding for seniors, the disabled, and families with children. Avalere has estimated that by 2036, Graham-Cassidy will cut Medicaid spending on children by 31% and on the disabled by 15%.

What kind of flexibility does the bill provide in return? Nothing, really. It just expects states to get by with significantly less money. But in scoring other Republican bills which included these cuts, the CBO noted existing flexibility states have under the Medicaid program: states can “cut[] payments to health care providers and health plans, eliminat[e] optional services, restrict[] eligibility for enrollment through work requirements and other changes, or (to the extent feasible) arriv[e] at more efficient methods for delivering services.” States have the flexibility to enroll fewer people in Medicaid, in other words, or provide them with fewer optional services.

It’s important to be clear about what “optional” services are, under Medicaid. Prescription drugs are considered to be an optional service under the program, although they are a service all states have chosen to provide. But choosing to cover prescription drugs comes with burdens, as well – states must cover essentially all FDA-approved drugs, and as prices for such drugs continues to rise, so too will the impact on state Medicaid budgets. Former Director of the Office of Management and Budget Peter Orszag (who, before that, was the director of the CBO) has predicted that states may choose to jettison this service and severely restrict patients’ access to medicines as a result of the per capita cap restrictions.

The supposed flexibility underlying Graham-Cassidy is a lie. The flexibility to discriminate against people with pre-existing conditions is not real flexibility. The flexibility to limit enrollment in Medicaid is not real flexibility. The flexibility to deprive Americans of access to essential services like hospitalization or mental health treatment is not real flexibility. Bill sponsors Senators Graham, Cassidy, Heller, and Johnson either do not know – or do not care – about the difference.


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Abbe R. Gluck

Yale Law School

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