Hospitals In Focus

The Survival of the Affordable Care Act


The Affordable Care Act (ACA) has just survived its most recent challenge at the Supreme Court. We wanted to hear both its incredible history of survival in the courts and the basic tenets of the ACA. Chip is joined by the founder of Families, USA, Ron Pollack. The two discuss their personal stories of working to help support the ACA and how the ACA should be expanded under the Biden Administration to help end coverage gaps.

Interested in learning more about the ACA and its expansion? Check out What the Nation Could Learn from ACA Health Coverage Expansion in CA with Peter Lee

Speaker 1 (00:05):

Welcome to Hospitals In Focus from the Federation of American Hospitals. Here’s your host, Chip Kahn.

Chip Kahn (00:14):

Every American should have high quality, affordable health coverage and care. That is a core principle of the Federation and it is the main reason we were a leader in the hospital industry for the passage of the Affordable Care Act and have remained staunch supporters of the ACA since its enactment. The ACA framework is well-suited as a pluralistic pathway to universal coverage in this country. Despite the continuous assault from its political opponents, from the moment ACA became law, its framework has prevailed and this year its programs covered a record 31 million Americans. Recent congressional action to increase subsidies and investments in better enrollment processes are helping at least temporarily, but enrollment could be even higher if the new levels of ACA subsidies were made permanent, and effective action is needed to get the ACA Medicaid eligible, but uncovered in the non-expansion states covered either by Medicaid or through the exchange health insurance.

We who support the ACA framework hope the most recent Supreme Court decision in favor of the act will be its final challenge. The debate needs to stop and all of us need to focus on improving the ACA so the aspiration of universal coverage becomes an inspirational reality. We need to build on the ACA framework so that all coverage gaps are closed in this country. Here to discuss how we achieve this end is someone whose life’s work has been to stretch the possible to make life better for all Americans, Ron Pollack, chair emeritus of Families USA. Thanks so much for being with us today, Ron.

Ron Pollack (02:00):

I’m delighted to be with you once again, Chip, and thank you so much for inviting me.

Chip Kahn (02:04):

To started, Ron, would you tell us a bit about your career and accomplishments?

Ron Pollack (02:09):

Well, I’m not sure any of my accomplishments compete with being a friend of yours. That’s something that’s very dear to me. In terms of my background, briefly, in the 1960s, I worked in the Mississippi civil rights movement, particularly in 1966 and 1967. I’m a lawyer, background, don’t hold it against me, but I started a group in 1970 called FRAC, Food, Research and Action Center, which was an anti-hunger, anti-advocacy organization. It still is an existence. I still serve on the board of the organization. As part of FRAC, what we did, there were a thousand plus counties in the country that had no food assistance program at all. One of the first things we did was we brought two dozen lawsuits on the same day in the states that had one or more counties that didn’t have a food stamp program or a commodity distribution program.

As a result of that, after we won the first two of those lawsuits, President Nixon decided that he was going to expand the food stamp program because he was advised that the administration might probably lose the other pending lawsuits. We also brought the litigation that started the so-called WIC program for pregnant and nursing mothers and infants. So we did some rather significant things in terms of helping to reduce poverty and hunger in America. I worked at FRAC for 10 years, and then for three years, I was Dean of the Antioch University School of Law, which was a law school that trained aspiring public interest lawyers. After that, I was the founding executive director of Families USA, which worked on healthcare. We pushed for expanded coverage. We helped to push for the CHIP program, the Children’s Health Insurance Program, pushed for expansion of Medicaid. And we played, I would like to think, a significant role in helping to get the Affordable Care Act enacted.

In the process, Chip, you and I became what some people nicely called strange bedfellows, and we worked to get consumer groups and industry groups to work together so that we could actually pass meaningful healthcare reform. So that’s my background.

Chip Kahn (04:30):

Ron, I finally remember our working together on the strange bedfellows movement and like to think that it contributed directly to the action 10 years ago that led to ACA. I don’t know about you, but I have never thought, though, that we’d still be discussing the basic tenets of ACA this many years later. I thought we’d just see it working, much as Medicare and Medicaid for seniors and low-income Americans. The Supreme Court recently upheld the ACA for the third time with an even larger margin than before. I know you were at the first hearing. What was that like when ACA was up before the court?

Ron Pollack (05:09):

Well, I’m happy to respond to your question, Chip. Let me just say, with respect to your prefatory comment, I thought the work that you did and I collaborated with, and we had significant cooperation from the insurance industry, from physicians, from nurses, and I think that made a huge difference because as you know, as well as anybody, the failed history of health reform was that each and every time there was a meaningful opportunity to pass significant health reform, there was at least one industry group that strongly opposed it, spent a lot of money in opposition and played a significant role in defeating this. Because of the strange bedfellows effort that involved the hospitals and the insurers and the physicians and the pharmaceutical companies, we did not have that kind of opposition. That made a real difference and I know Barack Obama remarked about that as well. So, I think that was very important.

Now, with respect to your question, I actually sat in the Supreme Court all three days of the oral law in the first case that challenged the Affordable Care Act, NFIB versus Sebelius, I actually sat in on the second case, King v. Burwell, which was a very different challenge. What was very interesting, I have argued cases in Supreme Court … Actually I’ve argued two cases literally on the same day, both constitutional law cases. In any case that is brought, there’s usually each side gets half an hour. So that oral argument usually takes one hour and that’s it. With respect to NFIB versus Sebelius, there were three days of oral argument and altogether there were six hours of argument.

One of the stories I like to tell is I was there when the Chief Justice announced the decision. I was sitting next to a person well, Liz Fowler, who played a significant role on the Senate Finance Committee in drafting the legislation, she was seated on my left and seated on my immediate right in his wheelchair was Texas governor Greg Abbott. When the Chief Justice started to read the summary of his appeal opinion, he first talked about how the commerce clause, which all of us thought was the key constitutional authority for passing the Affordable Care Act, he said it did not provide constitutional authority for the passage of the Affordable Care Act. I remember slouching further and further and further in my seat feeling that the case was going to be lost, and so was Liz Fowler seated on my left.

Then the Chief Justice started talking about the taxing provision and how the taxing clause provided a constitutional basis for the Affordable Care Act. I popped up in my seat because even though I didn’t expect that to be the basis of the decision, it was actually going to be sufficient to make sure that the Affordable Care Act would not be declared unconstitutional. Then finally, the Chief Justice spoke about the Medicaid mandate that was in the Affordable Care Act, which required states to expand Medicaid. He said that it was unconstitutional because it was too coercive of the states in the way it was set up, and I started slouching again. So it was literally an up and down experience.

Now, we had a lot of people outside the Supreme Court on that day, and I was supposed to lead a rally right afterwards and I came out of the court, the last thing in my mind was what the Chief Justice had said about Medicaid. I was very unhappy about it and the deputy director of Families USA, who was helping to orchestrate the rally we were going to have, saw me and literally she punched me in the chest and she said, “Would you please put a smile on your face? We live for another day. The Affordable Care Act is constitutional.” Indeed, I tried to keep a warm smile on. So yes, that was a very important day and thankfully the five, four decision upheld the core of the Affordable Care Act.

Chip Kahn (09:32):

As I pointed out in my introduction, Ron, the ACA has proven to be a remarkably resilient, surviving the hostile environment that led to those court cases, the ones you described and sort of years from the last administration of trying to find all the ways they could to slow it down, to neutralize it, and with Republicans even trying to pass repeal and replace legislation, which failed. They were unable to do it. It seems that ACA was meant to survive. What do you think over the last four years enabled it to be so resilient despite the fact that those implementing it from at least the federal level really wanted to see it repealed?

Ron Pollack (10:11):

Well, of course, you’re speaking about the previous administration, which had pledged to repeal and replace the Affordable Care Act. The Obama administration clearly had great pride in the passage of the Affordable Care Act. I think the key thing that has kept the program that was developed through the Affordable Care Act viable is that a lot of people are getting help. There are now over 20 million people who are getting help from the Affordable Care Act. Some are getting it through the expansion of Medicaid with the states that have decided that they were going to expand the program. There were very significant subsidies provided for people who were perhaps ineligible for Medicaid, but still could not afford premiums.

By the way, that was the key issue in the second Supreme Court case, King v. Burwell, where there was a challenge as to whether the subsidies, the premium subsidies provided, actually were permitted under the statute. Thankfully, the court agreed six to three that the statute did authorize those subsidies because that’s made a big difference. But I think the key answer to your question, Chip, is that the reason I think the program has survived, it really serves a real need for real people and it is not easy to withdraw something that is so important to millions of people whose lives really depend on it.

Chip Kahn (11:47):

Ron, along those lines, fortunately, the Biden administration is 100% behind the ACA, so the tables have turned. How do you see the administration strengthening ACA and what were the incentives and opportunities placed in the American Rescue Plan to expand exchange coverage and encourage states to expand Medicaid? Those states that haven’t expanded Medicaid yet for the ACA eligibles.

Ron Pollack (12:11):

Let’s divide that into two parts. The first part really is the new legislation provides improved subsidies for people, and it’s especially important for low income people. Let me give you an example. For those between 138 and 150% of the federal poverty level, under the Affordable Care Act as previously implemented, people would have to pay over 3% and some even over 4% of their income in premiums. Under the revised Affordable Care Act that the Biden administration helped to push, those families now do not have to pay a premium at all, and that makes a huge difference. So I think perhaps the most significant improvement that’s been made in the Biden administration, but it’s only temporary, is that people are not having to pay such a large portion of their income for premiums, and especially for people at the lower end of the income scale, that makes quite a difference.

That provision is only applicable through 2022. So one of the remaining issues is will that improvement be continued beyond 2022? It’s a very important improvement and my hope is that Congress, as part of one of the pieces of legislation that are pending, whether it’s infrastructure or the legislation that the Biden administration has been proposing to go along with infrastructure, hopefully that this improvement in subsidies will be extended. So that’s one key change and I think it has made a huge difference. The second change was very well-intended and that was to provide fiscal incentives to the states that had not yet expanded the Medicaid program. There are a dozen states that have not yet expanded Medicaid. They’re predominantly in the Southeast and the Biden administration provided opportunities for states to get significant increases in federal matching dollars if they chose expand the program.

Now, unfortunately none of the states have so far opted into taking this generous offer from the Biden administration, and so we still have a dozen states that haven’t expanded Medicaid. The states that have expanded Medicaid in the last four or five years have done so largely as a result of state based referenda that were passed in states like Idaho and Utah and Nebraska and Oklahoma. Missouri also approved it, but the governor has held up funding for it so it’s not clear yet what’s going to happen in Missouri. So we still have a problem with respect to a dozen states that have millions of people who are very low income, who don’t have healthcare coverage, who need it. Despite what the Biden administration has done with his generosity, it doesn’t look like it’s moved the needle.

Chip Kahn (15:57):

It’s really important to get these lower income Americans who, through ACA, are eligible for Medicaid but frankly just don’t live in the right state to get the coverage. The referendum seemed to have gone as far as they can go with states pushing back. Mississippi. Probably there’ll be pushed back in Florida and clearly in Missouri. They literally passed it and the state legislature and the governor are pushing back. So assuming that the incentives in the recent bill that you described are not going to be taken up, what are other avenues do you think that could be considered in federal legislation in the reconciliation or some upcoming legislation where we could, I don’t want to say circumvent the state, but find a way to get coverage for these uninsured that are eligible, but just in the wrong geographic location? How can we get them coverage most effectively you think, if the state is just not going to go ahead with the Medicaid expansion?

Ron Pollack (16:52):

First, I don’t want to give up on every one of the states. There are three states that are part of the 12 that haven’t expanded coverage that have a referenda. The other nine do not. Those states are South Dakota, Mississippi and Florida, and Florida obviously is a huge state. So there still are some possibilities. Mississippi legislature is trying to make it more difficult to pass a referendum, so I don’t know what will happen ultimately in that state. So there might be some opportunities, in Florida. It’s a big hurdle that needs to be overcome because in order to actually win the referendum, you don’t need 51%, you need over 60%. So that takes us back to your question. It seems to me, there are two possible alternatives to think about. Hopefully there’ll be others. I worry about each of these.

So one of them is that, as you know, Chip, people who are below the poverty level, if the Medicaid program has not been expanded in their state, they’re not eligible for getting subsidies under the Affordable Care Act. So one of the things that could be done is that we could change that hole with respect to subsidies and we could say that people who fall below poverty can get coverage through the Affordable Care Act, through the marketplace and they would get subsidies. Those subsidies would result in people literally paying zero in premiums because of their low income. Now, let me express an issue that I’m concerned about with respect to that suggestion as an alternative. My concern is that if we solve this problem in the 12 states, by enabling people who are low income in those states to get coverage through the marketplace via the Affordable Care Act, the subsidies are such that people pay zero. I think that could be very helpful to those folks. My concern is think about the other 38 states and the district of Columbia.

What will they say when we’ve done some kind of a detour to get coverage for those low income people, whereas in those 38 states in the district of Columbia, the states are contributing a portion of the Medicaid program? Even though it’s a relatively low percentage, 10% at this juncture. Well, some of the states feel that they should drop out of the expansion of Medicaid. I don’t know, but there is a question of fiscal equity that needs to be concerned.

There’s another idea that is being floated around. I don’t know how well it would work, but some on the House Ways and Means Committee are talking about in the states that have not expanded Medicaid, allow the cities to expand Medicaid and they would do so under the same conditions that the states and the other 38 states and the district of Columbia have done. So they would get a substantial federal subsidy. The cities would have to pay some portion after the first three years of implementation. Now, how well would that work? What would happen if you were in Texas and Houston and San Antonio and Dallas decided they wanted to implement the program because those parts of the state are more progressive? Will the state try and prevent that from happening and what happens under those circumstances? So it’s not clear how well that would work.

Chip Kahn (20:54):

Well, it’s a complicated problem, but we really need to get those people coverage. I sort of wonder whether you could combine the two options you presented and make the first one time limited, and then, second, provide maybe some other incentives or something so that there could be a cure after three years when you’ve got people covered. The question is, are the state then going to let those people just hang? So I don’t know. It’s a difficult problem, but I think we need to take it on because we’re at a point at which … I think we’re at 2.1 or two and a half million people that don’t have the wherewithal to purchase coverage, but are left bare.

Ron Pollack (21:28):

I couldn’t agree with you more. Now, Chip, it is clear that the early, if you don’t mind my using the term, recalcitrants on the part of the states that refuse to implement the Medicaid expansion. I think part of it was they were so strongly convinced that the Affordable Care Act should go away. They thought it was unconstitutional. These were states that actually played a significant role in challenging the constitutionality of the ACA. So I think a number of them felt that there’s no reason to expand Medicaid when the Affordable Care Act may ultimately be declared unconstitutional. Well, now that that fear or aspiration on the part of some of these conservative states no longer seems to be realistic, it may be more possible that some of these states will give this more serious consideration.

Remember, in the first three years of expansion, the states received 100% funding from the federal government for the expansion. That’s a pretty good deal. So maybe there’ll be some slippage on the part of the opposition that has existed to the Medicaid expansion.

Chip Kahn (22:49):

Well, I guess to conclude, many years ago when Medicare and Medicaid passed, Arizona, I think, on the Medicaid side held out for many, many years before they got in. So maybe we’re at about that same point, since the tables have turned and the opposition to ACA will never see it repealed. I think the law is here to stay.

Ron Pollack (23:08):

Well, I agree with that and now that this third Supreme Court decision has been rendered and it’s clear the Affordable Care Act is here to stay, hopefully you’re right and hopefully what we experienced after 1964, after Medicaid and Medicare were enacted, and it took Arizona a while to come into the program, maybe we will experience that with the 12 states that haven’t expanded the coverage. I certainly hope so. It really is critically important.

Chip Kahn (23:41):

Well, Ron, thank you so much for joining us today and I just deeply appreciate our friendship and, more important, what you and I in our small ways have helped accomplish in terms of more Americans being covered and hopefully one day all Americans being covered.

Ron Pollack (23:56):

Well, thank you, Chip. I not only cherish our friendship, but you and I, as some of our friends called us, strange bedfellows, we work closely together and I think we help make a difference, and I really appreciated how hard you worked to get the Affordable Care Act adopted. Thank you.

Speaker 1 (24:20):

Thanks for listening to Hospitals In Focus from the Federation of American Hospitals. Learn more at fah.org. Follow the Federation on social media @fahhospitals, and follow Chip @chipkahn. Please rate, review and subscribe to Hospitals In Focus. Join us next time for more in-depth conversations with healthcare leaders.


Families USA, Founding Executive Director (1983-2017), Chair Emeritus (2017 onward)

Families USA is the national organization for health care consumers. Its mission is to achieve high-quality, affordable health coverage and care for everyone in the U.S. Key organizational accomplishments under Ron’s leadership include:

  • Promoting and securing passage of the historic Affordable Care Act (ACA) – The ACA is the most significant health legislation in half a century; over 20 million uninsured people have already gained health coverage through it. Building towards and throughout the ACA debate, Ron played a leading spokesperson role in the electronic and print media for its passage, and he built coalitions among diverse, key stakeholder groups to support the legislation. These leadership roles are reflected in written expressions of gratitude inscribed on the historic law displayed in Families USA’s office. They include President Barack Obama (“To Ron and Families USA–You made this happen!”), then-House Speaker Nancy Pelosi (“To Ron, Thanks for making this great bill possible”), and literally all the House and Senate committee chairs who crafted the law.
  • Establishing and extending the Children’s Health Insurance Program (CHIP) – Families USA played a strong leadership and coalition role promoting CHIP’s creation in 1997 and its expansion in 2009. The program provides health coverage to 8 million low-income children.
  • Growing and protecting the safety-net Medicaid program – Medicaid is the largest social safety-net program for low-income families. Along with CHIP it serves almost 73 million men, women, and children. As Founder and Chair of the National Medicaid Coalition (now composed of over 400 national organizations), Families USA led serial campaigns that successfully defeated ongoing right-wing proposals designed to convert Medicaid to a block grant with substantially diminished funding. Other successful efforts produced major program expansions starting in 2014 in 31 states and the District of Columbia.
  • Adopting the Patients’ Bill of Rights in states across the country – President Bill Clinton appointed Ron as the sole consumer representative on a national commission tasked with crafting the Patients’ Bill of Rights. Although it was not enacted by Congress, Families USA succeeded in promoting its adoption in many states across the country.

Ron’s work at Families USA resulted in his receiving various honors. The Hill, a publication serving members of Congress and their staffs, named him one of the nine top nonprofit lobbyists. Modern Healthcare named him one of the 100 Most Powerful People in Healthcare. National Journal named him one of the top 25 players in Congress, the Administration, and the lobbying community on Medicare prescription drug benefits. And from Search for Common Ground, a nationally renowned conflict management organization, he received the “Common Ground” co-award for his work with ideologically diverse health organizations that reached an historic consensus about expanded health coverage for the uninsured, a key prelude to the ACA; previous year winners of the award included former President Jimmy Carter, Archbishop Desmond Tutu, and Muhammad Ali.

Enroll America, Founder and Board Chair (2011 and onward)

After the adoption of the ACA, Ron founded, and continues to serve as Board Chair, of Enroll America – the national organizational leader promoting optimal enrollment in health coverage through the ACA for uninsured people. The organization created a collaborative among thousands of organizations across the country to help enroll millions of people into private or public health insurance.

Antioch University School of Law, Dean (1980-1983)

This D.C.-based law school was unique in three ways: (1) it had the largest clinical-teaching program in the country, with students and faculty handling legal work together; (2) it was designed for students seeking a career in public interest law; and (3) other than the traditionally all-black schools, it had the highest percentage of students from communities of color.

Food Research and Action Center (FRAC), Founding Executive Director (1970-1980)

FRAC is the leading national advocacy organization focused on eliminating hunger in the U.S. During Ron’s tenure as Executive Director, the organization achieved a number of significant successes, including:

  • Winning the federal litigation that created the Supplemental Feeding Program for Women, Children and Infants (WIC), the key nutrient program for malnourished mothers and infants.
  • Ron initiated 26 federal lawsuits that ultimately resulted in establishing food assistance through the Food Stamp Program in over 1,000 counties that, prior to the litigation, provided no food aid for any low-income and malnourished people.
  • Ron successfully argued two U.S. Supreme Court cases on the same day that declared two different congressional statutes unconstitutional, both of which would have resulted in terminating food stamp aid for huge numbers of low-income people.
  • Suing on behalf of half the states (as authorized by their state attorneys’ general) and numerous low-income families, Ron successfully enjoined Agriculture Secretary Earl Butz from terminating or reducing food stamp aid to 10.8 million low-income people.

Ron continues to serve on the Executive Committee of FRAC’s Board of Directors.

Center on Social Welfare Policy and Law, Staff Attorney (1968-1970)

Ron periodically represented the National Welfare Rights Organization and initiated national advocacy efforts to reduce hunger and malnutrition in the U.S. (which ultimately led to the creation of FRAC).

That the reason I think the [ACA] has survived, it really serves a real need for real people and it is not easy to withdraw something that is so important to millions of people whose lives really depend on it.

Ron Pollack