The Supreme Court saved Obamacare. Now supporters want Biden to fix the law.

The Supreme Court saved Obamacare. Now supporters want Biden to fix the law.

Although some Democrats over the years acknowledged problems with the health care law, they were reluctant to spotlight its flaws while it was under heavy GOP attack. But with last week’s Supreme Court decision likely signaling the end of the long-running war of Obamacare, advocates and experts are hoping the Biden administration will focus on shoring up its foundation — even as Democrats intensify their pursuit of other health reforms, like drug pricing and expanding Medicare.

“The ACA has been transformational for the people we represent, but if we allow the decay to happen behind the scenes, these stories are the ones that are going to steal the narrative,” said Katie Berge, a former Obama administration health official who’s now the director of federal relations for the Leukemia & Lymphoma Society.

Biden campaigned on building up Obamacare rather than pursuing an expensive “Medicare for All” model favored by his party’s progressive wing. He’s pushing Congress to make permanent a temporary expansion of the law’s health insurance subsidies that was included in this year’s Covid relief package, but he’s remained tight-lipped about much of his broader health care agenda beyond rolling back Trump administration policies opposed by Democrats.

The Department of Health and Human Services is “always looking for ways to improve oversight and efficiently allocate resources to monitor the compliance of regulated entities,” a spokesperson said in an emailed statement. “We do not take this responsibility lightly and have instituted high standards and regulations that ensure that the millions of people who have health coverage through a marketplace plan are getting the highest possible quality at lowest possible cost.”

Yet experts and advocates say Biden officials must ramp up scrutiny of issues that have lingered since the law’s inception or worsened under the Trump administration’s apathy toward the law.

“We’re at a moment when insurers are no longer running away from the exchanges and there’s relative stability in the individual market — and this is a moment that insurance regulators and policymakers should be asking how do your marketplace plans work better for consumers?” said Kevin Lucia, a former Obama administration health official who worked on the law’s implementation.

Some experts pointed to a Kaiser Family Foundation report earlier this year finding that insurers on HealthCare.gov, the federal insurance marketplace serving about two-thirds of states, denied 17 percent of submitted medical claims in 2019. Customers appealed those denials just 0.1 percent of the time. Depending on the service, a claims denial could leave patients on the hook for thousands of dollars in unexpected health costs.

Denial rates varied significantly by state and didn’t necessarily correspond with its political leanings. They ranged from under 8 percent in Oregon to nearly 20 percent in New Mexico and over 38 percent in Tennessee, KFF found.

“There’s no excuse for this data, and we should all be asking what it means for patient care and outcomes,” said Katie Keith, a Georgetown University professor who specializes in the ACA.

Health insurers argue the report doesn’t represent an accurate picture because the data is spotty and there’s a lack of reporting standards. Obamacare relies on insurers to self-report denial rates but doesn’t require federal officials to audit companies’ submissions. Nor does the law allow the government to nix an insurer’s contract to sell Obamacare plans for rejecting too many claims. The HHS spokesperson noted that state insurance regulators have primary authority over claims denials.

Numerous consumer advocacy groups have already approached the Biden administration with their recommendations for shoring up ACA coverage, said Cheryl Fish-Parcham, director of access initiatives at Families USA. The groups have called on HHS to audit health plans’ denials of out-of-network claims, which can be a sign that provider networks aren’t strong enough, and set standards ensuring that patients can see a doctor without traveling too far or waiting too long.

There’s also a dearth of data on whether the ACA insurers’ provider networks have grown more robust since the law’s early days, experts say. Narrow networks allowed insurers to keep down costs, but insufficient networks can undermine the law’s coverage promises, particularly for those with greater health needs. One study from 2015, a year after the insurance marketplaces opened, found that nearly 15 percent of ACA plans failed to contract with at least one specialty provider, likely in violation of the law.

Experts worry that provider networks may have narrowed further as health care costs continued to climb. Moreover, the Trump administration eliminated federal review on whether ACA health plans met the law’s network standards, leaving that oversight to states, which have typically led regulation of the individual and small group insurance markets.

Kristine Grow, a spokesperson for the lobbying group America’s Health Insurance Plans, said state regulators have provided effective oversight of ACA provider networks. While noting that many insurers loosened network restrictions during the pandemic — like those on telemedicine — to make it easier for patients to get care, she blamed some network problems on consolidation of provider groups that hike prices in some markets.

Conservative critics say these problems stem from flaws in the ACA itself.

“The incentives in the ACA are not to provide the best care to people who are in the most medical need,” said Doug Badger, a research fellow in health policy for the conservative Heritage Foundation. “They’ll cover your premiums but the quality of care you get and your access to the providers of that care is greatly limited.”

Supporters of the law argue instead that it’s a matter of providing long-overdue scrutiny to the insurance marketplaces.

“The process is sound, but do they have the resources and manpower and political will to take on some of this stuff and push back?” said Keith, the Georgetown professor.

The Biden administration has signaled it will boost enforcement of provider network standards after a federal judge in March sided with cities in a lawsuit that claimed the Trump administration failed to properly execute the law. However, the Biden administration said that won’t happen until 2023, because its annual update to the insurance marketplace rules is already well underway for 2022.

The health department “intends to revisit this policy and the Biden administration is committed to advocating for consumers in the health insurance marketplace,” the HHS spokesperson said.

Experts across the political spectrum have also said there’s growing evidence that insurers are overpricing their plans, even though the ACA essentially caps their profits by requiring them to provide rebates over a certain threshold. Health plans this year are expected to make a record-breaking level of rebate payments for the third straight time, Keith said.

Insurers and the Biden administration said the rebates, which totaled about $2.5 billion last year, were an indication that the marketplaces were still adjusting after the law’s chaotic early years. But Keith and others say it’s a trend that bears watching.

“It suggests the products are overpriced,” said Karen Pollitz, a health policy analyst with KFF. “Yay for the rebates, but premiums should be lower — it could help with the uninsured.”