When You Don’t Believe in the Product (That You’re Statutorily Required to Sell): HHS’ Marketing of the Affordable Care Act

By David Fegley*

Have you heard? More than six years after being signed into law—and after failed repeal effort[1] after failed repeal effort[2] after failed repeal effort[3]—the Affordable Care Act remains the law of the land, providing health insurance to more than 20 million Americans through the expansion of Medicaid and individual coverage through the Marketplace.[4]

If you haven’t heard, though, that may be by design.

With the delicacy one may expect from a man who predicted the ACA would “destroy American health care forever,” the Trump Administration is using every tool at its disposal to help make the law as ineffective as the President already believes it to be.[5] The administration slashed the ACA’s advertising budget from $100 million last year to $10 million this year and abruptly cut the in-person outreach budget by 43 percent.[6] These cuts were announced just two months before the start of the fifth annual Open Enrollment Period, leaving advocates scrambling to fill the void.[7]

As we come to crucial closing days of that Open Enrollment Period, the ACA finds itself confronted with an administration that is statutorily required to implement it but doesn’t think it should exist. The Administration’s acts of sabotage are shameful. They may also be illegal.

First, some history: given the ACA’s sprawling nature, it relied heavily on the Department of Health and Human Services (HHS) and other federal agencies to map out regulations governing the law’s implementation. HHS came to require that “[t]he Exchange must conduct outreach and education activities . . . to educate consumers about the Exchange and insurance affordability programs to encourage participation.”[8]

In the first Open Enrollment Period, which lasted six months, the Obama Administration spent nearly $700 million blanketing the country’s airwaves to promote the brand-new health coverage options.[9] More than 8 million enrolled.[10] A recent study looking at county-level health insurance changes during that first Open Enrollment Period found that “counties exposed to higher volumes of local insurance advertisements during the first open enrollment period experienced larger reductions in their uninsurance rates than other counties.”[11]

Fast-forward to October 2017, though, and HHS has opted to change course. The agency justified its 90 percent advertising cut by citing “diminishing returns” in the form of a reduction in first-time enrollees and most Americans’ growing familiarity with the exchange.[12] That rationale makes some sense: nobody would reasonably expect a service in its fifth year of operation to require the same level of advertising investment that was needed to introduce it to an unknowing American public five years prior. But the 90 percent cut seems especially draconian, given that it arrived shortly before the shortest Open Enrollment Period to date and in a political climate that has led 24 percent of Americans to (falsely) believe the ACA has been repealed.[13] Educating Americans that the exchange has not actually been repealed and that their window to enroll in coverage is shorter than ever would seem like HHS dollars well-spent.

Of course, HHS has the discretion to “conduct outreach and education activities” at whatever funding level it deems appropriate. Regulations do require, though, that the outreach and education activities “encourage participation.” Here, HHS’ adherence to the law is far more suspect.

Through a variety of media, HHS has sponsored a public relations campaign against the law they are required to implement.[14] Perhaps the most egregious example comes from a series of 23 video testimonials that HHS published on its website in June 2017, grouped into three categories: “Families Burdened by Obamacare,” “Doctors and Healthcare Professionals Burdened by Obamacare,” and “Women Small Biz Owners Burdened by Obamacare.”[15] As you may suspect from the titles, the documentary-style videos aren’t “encouraging participation” in the exchange. Instead, they are cautionary tales about the dangers of the ACA, in which couples share their dismay at being forced to take money out of retirement savings to pay insurance premiums and parents of children with developmental disabilities struggle to find adequate care. A reasonable viewer would be left with the impression that health coverage through the exchange is unaffordable, inadequate and not worth pursuing.

HHS’s press releases and infographics about the ACA tell a similar story. The HHS Press Office regularly lambasts the ACA, with releases like “Statement on Declining Obamacare Insurance Market,” “Secretary Price Applauds Senate Proposal to Repeal and Replace Obamacare,” and “The Status Quo is not Acceptable or Sustainable.”[16] HHS, tasked with education and outreach to encourage participation in the exchange, is publicly releasing press statements about how, “Obamacare is flawed, failing, and harming the American people with higher costs and fewer healthcare choices.”[17]

The ACA-bashing also extends to social media. Tom Price, who served as HHS Secretary from February 2017 to September 2017, posted 48 HHS-produced, anti-ACA infographics on his Twitter page during his tenure.[18] For instance, a post from July 18, 2017 lamented the price of an average Obamacare plan in Kentucky and listed the real-world impact of such high-cost insurance: “canceling family vacations,” “skipping birthday and Christmas presents,” and “missing the big game,” among others.[19] The infographic fails to mention any of the government subsidies available to insulate most consumers from price increases, nor does it mention how ACA coverage is more comprehensive with greater consumer protections than individual market coverage prior to the ACA. While it’s unclear from the infographic whether it’s now official HHS policy that Americans should forego health insurance and instead get tickets for “the big game,” the infographic—like the thrust of HHS’ communications in the Trump era—actively discourages participation.

The change in administration — from a president who enacted the ACA to one who campaigned on its repeal — has understandably brought about a change in priorities for the federal agency tasked with implementing it. But despite the preferences of new high-level officials at HHS, the ACA still stands, as does the agency’s obligation to “educate consumers about the Exchange and insurance affordability programs to encourage participation.”[20] Trump’s HHS has slashed the advertising budget by 90 percent and used what’s left to push ACA messaging that serves as a scare tactic rather than an inducement to apply for coverage.

* David Fegley is a Junior Editor on MJEAL. He can be reached at dfegley@umich.edu.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] Robert Pear, Thomas Kaplan and Maggie Haberman, In Major Defeat for Trump, Push to Repeal Health Law Fails, N.Y. Times (March 24, 2017), https://www.nytimes.com/2017/03/24/us/politics/health-care-affordable-care-act.html.

[2] Rebecca Shabad, Senate GOP’s Obamacare Repeal and Replace Plan Fails on Procedural Vote, CBS News (July 26, 2017), https://www.cbsnews.com/news/senate-gop-obamacare-repeal-replace-plan-fails-procedural-vote/.

[3] Seung Min Kim, Jennifer Haberkorn and Burgess Everett, Senate Won’t Vote on Last-Ditch Obamacare Repeal Bill, Politico (Sept. 26, 2017), https://www.politico.com/story/2017/09/26/obamacare-repeal-failure-republican-senate-243148.

[4] Alicia A. Caldwell and Ricardo Alonso-Zaldivar, AP FACT CHECK: Trump Considers 20 Million People ‘Very Few,’ Associated Press (Feb. 24, 2017), https://www.usnews.com/news/politics/articles/2017-02-24/ap-fact-check-too-much-credit-going-to-president-trump.

[5] Rebecca Shabad, Donald Trump Calls for Special Congressional Session to Repeal Obamacare, CBS News (Nov. 2, 2016), https://www.cbsnews.com/news/donald-trump-calls-for-special-congressional-session-to-repeal-obamacare/.

[6] Abby Goodnough and Robert Pear, Trump Administration Sharply Cuts Spending on Health Law Enrollment, N.Y. Times (Aug. 31, 2017), https://www.nytimes.com/2017/08/31/health/affordable-care-act-trump-spending.html.

[7] Julie Rovner, Timeline: Roadblocks to Affordable Care Act Enrollment, Kaiser Health News (Nov. 1, 2017) https://khn.org/news/timeline-roadblocks-to-affordable-care-act-enrollment/.

[8] 45 C.F.R. § 155.205(e) (2012).

[9] Carla Johnson, Obamacare National Marketing Campaign to Cost Nearly $700 Million, Associated Press (July 25, 2013), http://washington.cbslocal.com/2013/07/24/obamacare-national-marketing-campaign-to-cost-nearly-700-million/.

[10] Office of the Assistant Secretary for Planning and Evaluation, Health Insurance Marketplace: Summary Enrollment Report for the Initial Annual Open Enrollment Period (2014) . https://aspe.hhs.gov/pdf-report/health-insurance-marketplace-summary-enrollment-report-initial-annual-open-enrollment-period.

[11] Pinar Karaca-Mandic, et al., The Volume of TV Advertisements During The ACA’s First Enrollment Period Was Associated With Increased Insurance Coverage, Health Affairs, Vol. 36, no. 4, http://www.healthaffairs.org/doi/abs/10.1377/hlthaff.2016.1440.

[12] Abby Goodnough and Robert Pear, Trump Administration Sharply Cuts Spending on Health Law Enrollment, N.Y. Times (Aug. 31, 2017), https://www.nytimes.com/2017/08/31/health/affordable-care-act-trump-spending.html.

[13] Dan Mangan, Nearly 1 in 4 Americans Believe — Wrongly — That Obamacare is Partially Repealed, CNBC (Oct. 25, 2017), https://www.cnbc.com/2017/10/25/nearly-1-in-4-americans-believe–wrongly–that-obamacare-is-partially-repealed.html.

[14] Sam Stein, Team Trump Used Obamacare Money to Run PR Effort Against It, Daily Beast (July 20, 2017), https://www.thedailybeast.com/team-trump-used-obamacare-money-to-run-ads-against-it.

[15] U.S. Department of Health and Human Services, Families Burdened by Obamacare, Youtube (June 30 2017) https://www.youtube.com/playlist?list=PLrl7E8KABz1EifD5BWCrauFUNqrMEKAQ0.

[16] U.S. Department of Health and Human Services, 2017 News Releases, https://www.hhs.gov/about/news/2017-news-releases/index.html. [I’m choosing R18.1 online-only sources, with small caps for the institution, but I’m not certain it’s the best/only formatting.]

[17] U.S. Department of Health and Human Services, Secretary Price: “The Status Quo is not Acceptable or Sustainable,” July 18, 2017, https://www.hhs.gov/about/news/2017/07/18/secretary-price-the-status-quo-is-not-acceptable-or-sustainable.html.

[18] Audrey Carlsen & Haeyoun Park, The Same Agency That Runs Obamacare Is Using Taxpayer Money to Undermine It, N.Y. Times (Sept. 4, 2017), https://www.nytimes.com/interactive/2017/09/04/us/hhs-anti-obamacare-campaign.html.

[19] Tom Price (@SecPriceMD), Twitter, (July 18, 2017, 7:47 AM), https://twitter.com/SecPriceMD/status/887322830031003652.

[20] 45 C.F.R. § 155.205(e) (2012).

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