Flush with victory from election night, Republican strategists are delving into possible measures to repeal or significantly hamper existing health care reform legislation.
As the smoke cleared Wednesday morning the new political landscape for 2011 began to reveal itself. It showed that Democrats retained a narrower grip on the Senate, by a projected 53 to 47 margin over Republicans, with some votes still being counted at this writing. In the House, projections say the GOP gained 60 seats for a controlling 243 members vs. 192 for Democrats.
What’s more, incoming Republicans bring with them the strong sense that voters want them to throw a wrench in the health reform machinery.
In a USA Today/Gallup poll of 1,500 likely voters released Nov. 1, 38% of Republicans said repealing the health care law should be the top legislative priority next year.
How might they go about it? After speaking with experts, we’ve compiled the following list of five things Republicans might do to disrupt the implementation of the Patient Protection and Affordable Care Act.
1. "Repeal and replace." Despite presumptive Speaker of the House John Boehner’s call for repeal, Daniel Sulton, partner with Ford & Harrison LLP, believes this is a long shot.
In the realm of possibilities, this option "probably ranks pretty low on the list," he says. After all, the Republican Party does not have sufficient votes to push repeal through the Senate, and even if they did the President would exercise his veto power and neither Houses of Congress would be able to override a veto.
"A lot of [the "repeal and replace" language] was campaign rhetoric. Realistically, the President is not going to sign legislation that significantly alters one of his signature legislation," says Steve Wojcik, vice president of public policy at the National Business Group on Health. So not until 2012 would they likely have the ability to repeal the entire law.
2. A piecemeal approach. The President himself says he’s willing to "tweak" aspects of the law, and most likely this is the approach to hinder reform that would have the greatest impact and is most likely. Provisions most likely to be addressed would be the individual mandate, the "play or pay" requirement for employers, and the medical loss ratios.
Republicans in Congress may even garner support from more conservative Democrats in amending the law.
"I think we’ll see a lot of compromise, a lot of mending of the legislation or perhaps even releasing certain provisions, but certainly not a repeal of the entire legislation," says Sulton.
3. "Starvation." In what Sulton refers to as "starvation," House Republicans could decide not to appropriate any funds for further development for certain regulations, which would put that aspect of the law in limbo.
By delaying a provision, as seen with the W-2 reporting requirements, fees could be delayed, reduced, or eliminated altogether.
The issue is whether it will have a mitigating effect on the implementation of health care reform, wonders Sulton.
4. Legal challenge and investigations. Legal suits have already been filed by 21 states, declaring, primarily, that the individual mandate is unconstitutional. This issue will most likely make its way to the Supreme Court, experts predict, though they don’t expect it to slow the implementation process.
Additionally, the government oversight committee can subpoena and investigate administration agencies. They may, for example, examine more closely how the White House struck deals with the health care industry, specifically with hospitals and physicians.
5. State-level intervention. Due to large GOP gains in gubernatorial and state legislature contests, Republicans could begin to pass mandates stating that the states would not be obligated to enforce an individual mandate or incur additional expense on health care reform.
Further, the Republican majority of Governors are tasked with implementing Medicaid expansions as well as the state-run health insurance exchanges for small businesses and the uninsured. They could decide how many resources go into developing exchanges with the option not to develop exchanges and leave their set-up to the Federal government.
"One important factor in the election was the pick-up at the state level. The states have a significant role in implementing this health care law, in terms of the exchanges and the Medicaid expansions. The elections have profound implications at the state level possibly even more than the congressional level here in Washington," Wojcik informs.
Whether this will be a top priority in Congress remains to be seen. Sulton guesses that Congress will attempt to address unemployment at the same time as health care reform due to the intertwined nature between the two.
Wojcik believes Congress will primarily focus on jobs, and adds that it wouldn’t be wise to spend too much time on health care repeal or retardation because if they do, then they will be in the same position the prior congress was in.
After all, exit polls show that while health care reform was an issue, it was not a decisive factor as was the rebuilding the economy and creating more jobs. He concludes that Republicans will work "around the edges," delaying the implementation of the landmark legislation. They may even add amendments to buy insurance across state lines while delaying, reducing or even eliminating certain taxes and fees in reform.
In both the short and long term this means confusion and great uncertainty for employers, says Sulton. In the short term, employers are unsure whether upcoming implementation dates will come to pass, but Sulton expects them to continue making changes based off current law.
In the longer term, there is uncertainty as to business strategy.
Until employers know for sure what alterations Republicans will make to health care reform’s structure and implementation, they will wait and see, says Sulton, leaving them in an uncomfortable position. Still the goal for conservatives is added flexibility for employers, says Sulton, who predicts that long term changes will be favorable for health plan sponsors.
"In the big picture it probably means more flexibility for employer plans," says Wojcik. "Employer plans are part of the health care coverage system that has been working so to the extent that the law created some unintended consequences, I would imagine that there would be a lot more flexibility for employer plans to continue and not be hindered," he adds.
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