ALTHOUGH THE Senate’s effort to repeal and replace the Affordable Care Act has failed, the Trump administration seems intent on not enforcing the regulations governing the law in order to make it fail.

In the last weeks of July Senate Republicans were busy trying to repeal the ACA, but each of their efforts fell short. A vote on legislation to repeal and replace the ACA failed, as did a vote on a straight-out repeal, as concerns mounted about the fallout for millions of Americans.

Then came the death knell when the Senate failed to pass a “skinny” repeal, which the leadership had hoped would be the basis for a bill that was sent to a conference committee and that would be hashed out with assistance from the House.

The GOP failed in part because of the likely fallout from their legislation. The  Congressional Budget Office in January said in a report that repealing the Medicaid expansion and exchange subsidies while not touching other parts of the ACA would spell the end for many insurance markets.

It noted that under such a scenario 32 million more people would be uninsured and premiums would almost double.

Senate Majority Leader Mitch McConnell in early July said publicly that if the GOP could not move the current legislation or repeal the ACA, they would quickly have to cooperate with Democrats to shore up some state insurance markets which have been losing insurers willing to write coverage.

Letting it implode

So what’s left now is a law that is still in jeopardy as President Trump has promised to let the ACA die by not enforcing the regulations that govern it. That would mean:

  • Not enforcing the employer mandate.
  • Not enforcing the individual mandate to purchase coverage for people who do not receive it from their work.
  • Not enforcing the penalties for not complying with the employer and individual mandates.
  • Not pursuing an appeal against a lawsuit challenging the legality of the tax credits used to help people buying coverage to afford it. If the Trump administration fails to appeal an earlier ruling, which has been stayed pending appeal, the subsidies would be deemed illegal and disappear.
  • Not enforcing the IRS reporting requirements

The individual mandate and its associated penalties are a key pillar of the ACA.

If there is no penalty for people not to comply with the law and purchase coverage, exchanges are likely to be left with a sicker and older pool of insureds, which will drive up premiums.

And if the appeal against the subsidy lawsuit is dropped and subsidies disappear, it would put the cost of insurance out of reach for many individuals and families that currently purchase insurance on exchanges.

Trump said that if he let if fail by not funding tax credits and not enforcing regulations, the Republicans would not “own it.”

“We’ll let Obamacare fail, and then the Democrats are going to come to us to repair it,” he said.

Is a bipartisan effort on the horizon?

There seems to be some willingness to explore a bipartisan solution to shore up the ACA, particularly in markets that have seen an exodus of insurers willing to write coverage in the individual market and through government-run exchanges.

Lamar Alexander, the Republican chair of the Senate Health, Education, Labor and Pensions Committee, said in a statement that his panel would hold hearings to explore “how to stabilize the individual market” under the existing law.

And Democrats seem willing to work with the GOP, as Senate Minority Leader Charles Schumer and House Minority Leader Nancy Pelosi have called on Republicans to work with Democrats on making the ACA stronger.