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JAMA Forum Archive, 2012-2019: Health policy commentary from leaders in the field
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The (Individual) Mandate That Wouldn’t Die

Last December, President Trump signed into law a Republican tax bill that included a provision that was intended to undermine one of the central features of the Affordable Care Act, the individual mandate. Because the individual mandate was designed to offset the costs of the sicker individuals who enroll by encouraging healthier individuals to participate in the market (or pay a tax penalty if they decline to buy insurance), experts predicted that loss of the ACA mandate’s tax penalty would lead to much higher premiums and fewer people being covered.

Image: Rex_Wholster/Thinkstock

Concerns over the destabilization of the local insurance market ran rampant. However, before the new provision takes effect next year, the District of Columbia and some states are attempting to create their own versions of the mandate.

District of Columbia Mandate

Within a matter of weeks after the tax bill was passed, Washington, DC, Mayor Muriel E. Bowser requested a local impact assessment. The resultant report, the product of 8 public meetings, offered unanimous support for crafting local health insurance requirements that would provide a substitute for the ACA’s individual mandate. Ratification by the Executive Board of the District of Columbia Health Benefit Exchange Authority followed.

By March 21, 2018, at the request of Mayor Bowser, an amendment was incorporated into the legislation for the District of Columbia’s fiscal-year 2019 budget. Set to take effect on January 1, 2019, the District of Columbia’s health insurance mandate is intended to substitute for its sunsetting federal counterpart.

Congressional Counterstrikes

None of these developments were lost on the Republican-led US Congress, and attempts to preclude the reestablishment of District-level health insurance requirements soon followed. On July 18, 2018, Rep Gary J. Palmer (R, Alabama) introduced an amendment (to an appropriations bill, HR 6147) designed to override the District of Columbia’s mandate. Federally appropriated funds were not to be used to carry out the District of Columbia's mandate, Palmer said, He argued that the mandate forces “residents to buy insurance coverage they neither want nor need,” and noted that the plans offered through the District’s health insurance marketplace all cover elective abortion. In response, Rep Eleanor H. Norton (D, DC) warned that approval of the amendment would “deny the 700 000 Federal taxpaying Americans who live in the District of Columbia access to quality, affordable health insurance coverage.”

Another amendment, sponsored by Rep Keith J. Rothfus (R, Pennsylvania), sought to preclude the seizure of property as means of enforcing the District of Columbia individual mandate. Rising in opposition, Rep Norton suggested that the amendment was merely designed to “score points” with opponents of the ACA. “So the ACA remains popular throughout the United States,” she said. “They just can’t bear that.”

Both amendments passed the House along party lines and the bill was referred to the Senate for its consideration.

In the US Senate, Sen Ted Cruz (R, Texas) sponsored an amendment nearly identical to its House counterpart, the amendment introduced by Rep Palmer. As written, the Cruz-sponsored  amendment was “to prohibit the use of funds to carry out the District of Columbia’s health insurance individual mandate,” which Sen Cruz described as “one of the cruelest and most unfair aspects of ObamaCare.” In a separate statement, Cruz said that “we need to finish the job on Obamacare, not prop it up with a broken system.”

Speaking in opposition, Sen Patrick J. Leahy (D, Vermont), vice chairman of the Senate Committee on Appropriations, characterized the Cruz amendment as a “partisan poison pill” rider, noting that “the District of Columbia and States like Vermont passed their own mandates to keep premiums down. Just like Vermont, DC should have the authority to make its own laws.” A motion to table the amendment passed by a 54-44 roll call vote.

By every indication, the House and Senate versions of the appropriations bill are heading toward resolution by a House-Senate conference committee. It is there that the ultimate fate of the Palmer and Rothfus amendments will be determined as the appropriations bill is finalized. A reappearance of the Cruz amendment is deemed unlikely, given that its terms are faithfully represented in its counterpart in the House.

Should the Senate prevail in conference, it is possible that the District of Columbia, like New Jersey, Vermont, and Massachusetts, will have its own individual mandate. The alternative, however, would force the District to cope with the resultant health care insurance turmoil, as the ACA, still the law of the land, is progressively undermined by executive authority.

About the author: Eli Y. Adashi, MD, MS, is a professor of Medical Science and the former dean of Medicine and Biological Sciences at the Warren Alpert Medical School of Brown University in Providence, Rhode Island. (Image: Brown University)
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