Obamacare: 3 years in, it faces steep challenges

Susan Page @SusanPage | USA TODAY

WASHINGTON -- The Affordable Care Act is sure to survive the latest vote by the House of Representatives Thursday to repeal it — since the Senate doesn't plan to take it up and President Obama would veto a repeal bill if it somehow reached his desk — but the administration's signature legislative achievement still faces serious perils ahead.

Americans have a dimmer view of the health care law now than they did when Obama triumphantly signed it three years ago, according to monthly tracking polls by the Kaiser Family Foundation. The public's divided view and relentless Republican attacks have made it easier for governors and state legislators to balk at cooperating with the law. It is designed to provide coverage for millions of Americans who haven't qualified for Medicaid in the past and don't get insurance through their employers.

That could have a cascading effect: Resistance by the states will make it harder for the law to work as promised when Medicaid expands next year and the health-insurance marketplaces where the uninsured can shop for plans open this fall.

That could fortify the arguments of those who warned the law was a mistake from the start and threaten fundamental provisions of it down the road.

"For most of the Obama administration, the thought was the bill was passed and it's over," says Robert Blendon, a Harvard professor and influential analyst who supports the law. The president understandably turned his attention to the fragile economy, and the most far-reaching expansions of coverage were delayed until 2014 — leaving the door open for opponents to warn of calamity ahead. "By the time they returned to it," Blendon says of White House officials, "opinions were really embedded."

Just over a third of Americans, 35%, have a favorable opinion of the health law, according to the Kaiser survey taken last month, down from 46% who had a positive view when it was signed in 2010. Now 40% have an unfavorable opinion — precisely the same as three years ago — and nearly one in four, 24%, say they don't have an opinion.

The poll of 1,203 adults, taken April 15-20, has a margin of error of +/–3 percentage points.

Uncertainty about the law has risen as time has passed, and confusion about what it does and how it works is especially high among those it is designed to help. In fact, four in 10 Americans don't believe the law is still in place, saying inaccurately that it's been overturned by the Supreme Court or repealed by Congress.

"People haven't really seen the benefits of it, and it's had hundreds of millions of dollars in ads attacking it," says Neera Tanden, who helped shape the law as Obama adviser and now heads the liberal Center for American Progress. "One party was definitely consistently criticizing it, and Democrats have not been sufficiently defending it. So it's been a lopsided argument."

The White House is scrambling to bolster support for and knowledge about the law, in part to encourage younger and healthier Americans who lack health insurance to shop for a plan when the exchanges open Oct. 1. Officials are trying to spotlight popular policies that already have gone into effect, including provisions that provide free preventive care for seniors and allow young adults to stay on their parents' insurance plans.

They also are trying to reassure skeptical employers about the law and its provisions. In a Gallup Poll last month, owners of small businesses predicted by 5-1, 48%-9%, that the Affordable Care Act was going to be bad rather than good for their businesses. About four in 10 said they had held off plans to hire new workers and pulled back on plans to grow their businesses because of the law and its mandates.

"The law is here to stay," Obama declared at an East Room event last week — not an assertion presidents typically feel compelled to make. He noted that not only did Congress pass the law in 2010 (albeit without a single Republican vote) but also the Supreme Court upheld it last year. Then voters "went to the polls and decided to keep going in this direction" by re-electing him last November.

"With something as personal as health care, I realize there are people who are anxious, people who are nervous, making sure that we get this done right," the president said. "I'm here to tell you, I am 110% committed to getting it done right. It's not an easy undertaking, but if it were easy, it would have already been done a long time ago. Undoubtedly, there will be some mistakes and hiccups as the thing get started up, but we're learning already from them."

REMEMBERING TOWN HALLS

Among those most anxious and nervous about possible "mistakes and hiccups" ahead are Democratic members of Congress who voted for the law.

Opposition to Obamacare fueled the rise of the Tea Party and the Republican takeover of the House in the 2010 congressional elections. "Those of us who remember 2009 and the town-hall meetings, we want to be fully prepared now," says Rep. Jan Schakowsky, D-Ill., recalling raucous meetings with constituents who saw the health care plan as an expensive and dangerous government overreach. "People are concerned that we do some better messaging before the August recess."

She and other congressional Democrats met last week with Ron Pollack, head of Families USA, a leading backer of the law. "People are very much wanting to make sure the implementation goes as smoothly as possible," Pollack says. "In 2009 and 2010, congressional Democrats played rope-a-dope and they got hurt." This time, he advised, they should be prepared to detail the law's benefits and rebut any "false claims" about it.

Meanwhile, Republicans relish the idea of brandishing Obamacare as a political weapon in the midterms. House Speaker John Boehner says the House brought up overall repeal of the law for the third time since it was enacted simply to give Republican freshmen a chance to stand against it. "We've got 70 new members who have not had an opportunity to vote on the president's health care law," he told reporters beforehand.

Boehner's office says it is the 37th vote in the House on repealing, curtailing or defunding all or part of the Affordable Care Act.

This time, the repeal passed 229-195.

Republicans have failed to repeal the law in its entirety, but seven bills revising particular provisions have been enacted. The GOP also has denied funding requests by the Department of Health and Human Services to help implement the law, including the campaign to boost participation in the insurance exchanges. That's particularly important because if only people with chronic conditions and higher medical bills sign up, premiums would soar and the underpinnings of the system would be undercut.

While the law mandates that most of the uninsured get insurance, the annual penalty for failing to do so is low enough ($95 in 2014, rising to $695 in 2016) that some people simply will choose to pay it.

News reports that HHS Secretary Kathleen Sebelius has been raising private money for the effort sparked objections and demands for information this week from Republican lawmakers. Tennessee Sen. Lamar Alexander, the top Republican on the Senate Health committee, says he will formally request an investigation by the congressional General Accounting Office this week, comparing her actions to the Iran-contra scandal in the Reagan administration.

Since March, Sebelius has made fundraising calls on behalf of Enroll America to the Robert Wood Johnson Foundation and H&R Block, according to her spokesman, Jason Young. Enroll America, a non-profit organization created to encourage the uninsured Americans to sign up for the exchanges, is headed by Anne Filipic, a former aide to Obama and Sebelius who worked in the White House before resigning to lead the group.

Sebelius also made more public appeals to charitable groups, insurers, pharmaceutical companies and others to help the enrollment effort.

Young says Sebelius' fundraising efforts were permitted under provisions that date to 1976 in the Public Health Service Act, which allows the HHS secretary to encourage support for non-profit groups that promote public health. He said her predecessors made similar appeals when other new federal programs were launched, including the Medicare prescription drug benefit during the Bush administration and the children's health insurance program during the Clinton years.

Alexander is not persuaded. "I don't see how that's different from what Oliver North did at the end of the Reagan administration to raise money privately and use it to support the contra rebels" in Nicaragua, he said in an interview. "A joint select committee of Congress that was bipartisan said the principle problem with Iran-contra is that the Reagan administration was using private funds and private entities to do something that Congress had refused to do."

He said that Sebelius may be violating the Constitution and the Anti-deficiency Act, which prohibits federal employees from spending money beyond that authorized by law.

26 STATES: YOU DO IT

The Affordable Care Act envisioned most states establishing and running their own insurance exchanges. But only 17 states and the District of Columbia are moving ahead with plans to do that; another seven are setting up "partnership exchanges" with the federal government.

But 26 states, including six of the 10 most populous ones, are leaving the job entirely to the federal government. The administration says one-third of the prime target group nationwide — healthy 18- to 34-year-olds who don't have insurance — live in California, Florida and Texas. Of that trio of states, only California is setting up a state exchange.

The other major part of the Affordable Care Act to cover the uninsured, expanding Medicaid to include more low-income Americans, is opposed by at least 20 governors, according to the Kaiser foundation. The Supreme Court ruling last year upheld the law's controversial individual mandate but gave states the option of choosing not to participate in the Medicaid expansion. In the states that don't, the uninsured who are too poor to afford to buy coverage in the exchanges, even with a federal subsidy, are out of luck.

Democratic pollster Mark Mellman says the public still could be won over to embrace the law. "It's slightly more unpopular than popular, but it's not radioactive," he says, despite a concerted and well-funded campaign against it.

In the end, views of the law will depend on whether it works as promised, Republican pollster Bill McInturff agrees. "If in fact this is a good and affordable product that works, it will work," he says. "If what starts to happen is small employers start dumping people into the exchanges and they lose good private coverage; if healthy people would rather pay the penalty than sign up — then it's going to immediately turn into a problem with demands to change it."

Over the next year, the health care law is likely to succeed in some states and fail in others, analyst Blendon says.

"Best case: the governor and the legislature support it, they have a state exchange, and what I call the civic leadership is all behind it — the business people, the unions, the religious leaders. Then the problem is just technically, how do we get this set up and how do we get people to understand" how it works?

At the other extreme are states that are declining to participate in the Medicaid expansion and to put the force of the state government and local leadership behind the new marketplaces. "If you don't offer Medicaid and you don't have a lot of support for the federally run exchange, it will be incredibly easy for the one-third of people younger and healthier not to enroll," he cautions. "At least in 20 states, it's set up to fail."

Follow @SusanPage on Twitter.