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Donald Trump owns Obamacare now

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We've spent months now watching Congress debate and decide the future of the Affordable Care Act. Sometimes, we've even done so until 2 am, spending a very late night with C-SPAN.

Congress has had, since January, control over the health law's fate. Legislators got to propose, debate, and (in the House) pass bills that would repeal and replace Obamacare.

But for the next few months, I'm going to spend significantly less time watching Congress — and significantly more watching the executive branch.

It has become nearly certain that the health law will survive long enough for the Trump administration to oversee the 2018 open enrollment period. This now puts the Trump administration in control of what happens to the health care law. And it is the decisions the administration makes that will determine whether Obamacare survives or sinks.

It is true that Congress is working on a bipartisan approach to fixing the health care bill. Sens. Lamar Alexander (R-TN) and Patty Murray (D-WA) plan to hold hearings on the topic the week of September 4.

But it is also true that these hearings may come too late to actually help stabilize the Obamacare marketplaces in 2018. As Paul Demko astutely reported for Politico last Friday, the effort "may be too late."

Insurance plans need to finalize their premiums by mid-August (the deadline can vary from state to state) and, by September 27, make a final decision about whether to sell Obamacare coverage next year.

There are exactly 10 legislative days (when both the House and Senate are in session) left before that deadline. Ten days to see if a bipartisan deal can fix a health law Republicans have spent years campaigning to repeal.

Some marketplace officials say the timeline is even shorter. I recently spoke with Peter Lee, who runs California's health law marketplace, Covered California. This is one of the biggest Obamacare marketplaces in the country with about 1.5 million enrollees.

Lee says that he needs insurance plans to finalize their rates by the end of August. If the Trump administration hasn't made clear by then whether it will pay cost-sharing reduction subsidies, for example, Lee will instruct California plans to add a 12.4 percentage-point surcharge onto certain plans to make up for the lost funding.

"By the end of August, if there is no more news, we need to lock down our rates," Lee says.

In other words: Lee isn't sure he can wait for whatever plan might come out of the bipartisan hearings.

Congress might not be able to act quickly enough to affect the marketplaces in 2018. But the Trump administration certainly can — and will.

The Trump administration has all sorts of decisions to make about how it manages the health law. It will have to decide how to fund numerous programs, everything from subsidies for current low-income health law enrollees to outreach to potential enrollees. It will need to decide whether to enforce the individual mandate.

There are dozens of decisions, some big (like enforcing the individual mandate) and some small (like how aggressively to staff the call center, which will affect enrollees' ability to seek help when signing up).

And unlike Congress, these are decisions that have to happen. There is no avoiding a decision on whether to enforce the individual mandate. There are different options, each of which will affect the health care law — but there isn't the option of making no decision at all.

These decisions are why I'll be turning my focus to the executive branch over the coming months and suggest those following the health law debate do the same. This is where the future of the health care law now rests, and the next few months will be absolutely crucial to understanding what direction we're headed

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Kliff’s Notes

Your daily top health care reads, with research help from Caitlin Davis

News of the day

Analysis and longer reads

  • “The first Affordable Care Act enrollment season of the Trump era is still a mystery”: The government appears to be operating on contradictory tracks, according to insurers, state insurance commissioners, health-policy experts and leaders of grass-roots groups that have worked to enroll the roughly 10 million consumers around the country who now have ACA coverage.” —Amy Goldstein and Paige Winfield Cunningham, the Washington Post
  • “Caretaker for Obamacare? Trump’s health care role may shift”: With Republicans unable to advance a health care bill in Congress, President Donald Trump’s administration may find itself in an awkward role as caretaker of the Affordable Care Act, which he still promises to repeal and replace.” —Ricardo Alonso-Zaldivar, Associated Press
  • “Supporting The Individual Health Insurance Market”: “What’s driving the instability in this market, and what can be done to improve it for the long term? In part, the current market status can be traced back to a series of regulatory and implementation failures that served to undermine the market including lax enforcement of the individual mandate, incomplete payouts to insurers, and regulatory uncertainty.” —Michael Chernew and Christopher Barbey, Health Affairs

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