RIGHT TURN ON RED
Healthcare reform backers brace to defend the law while critics drool at second chance
Now, the real fight begins.
After reclaiming the U.S. House of Representatives last week, Republicans reiterated their promise to repeal this year’s Patient Protection and Affordable Care Act, a fight that promises to make the yearlong battle leading up to the landmark legislation look like a preliminary bout. Meanwhile, healthcare providers and purchasers continue to push their own agendas as they prepare for additional stages of the law’s implementation, which Democrats are determined to continue.
For the healthcare community, this power shift and political posturing brings more uncer- tainty about the future at a time when providers’ legislative agendas are full. Hospitals are awaiting an expected year-end rule on accountable care organizations and would like to see changes in health information technology rules; physicians are urging congressional leaders in this now lame-duck Congress to stop an expected 25% Medicare payment cut; and insurers are emphasizing that seniors will see reduced benefits and higher premiums because of the law’s cuts to Medicare Advantage plans.
In a news conference Nov. 3, President Barack Obama cautioned it would be a mistake to misread the midterm election results—in which Republicans picked up 60 seats in the House and six seats in the Senate—as a sign that voters want to “relitigate” the last two years of work that resulted in the healthcare bill becoming law last March. Perhaps, but that doesn’t mean Republicans are any less determined to unravel it.
Rep. Eric Cantor (R-Va.), likely the next House majority leader, said he hopes “we’re able to put a repeal bill on the floor right away.” Senate Minority Leader Mitch McConnell (R-Ky.) said in a speech at the conservative Heritage Foundation last week that Republicans should repeal the legislation while working in the House to “deny funds for implementation” and in the Senate to vote against what he called the “most egregious provisions” of the bill, even though they can’t expect the president to sign it.
In addition, the big wins posted by Republicans in gubernatorial races could slow implementation of reform provisions tied to Medicaid. Florida Gov.-elect Rick Scott, an opponent of the reform law, now faces the option of slowing enactment of its Medicaid provisions by refusing federal money for that purpose (See story, p. 12). Also, a number of state ballot initiatives affect healthcare (See story, p. 10).
Judy Feder, professor of public policy at Georgetown University and a senior fellow at the liberal Center for American Progress, said there is no question that Republicans will continue their fight against the legislation at the federal level. “At the state level—I think there will be political issues as they design their exchanges and implement what’s in the federal law.”
Meanwhile, hospital and physician groups seemed convinced that the midterm election results will not result in drastic changes to the Affordable Care Act. “They’re going to move ahead with this law,” said Chip Kahn, president and CEO of the Federation of American Hospitals. “Can the Republicans get the votes to repeal or obstruct? On the repeal side, I think the House will pass the repeal and replace bill, but I think it will be very difficult to get 60 votes in the Senate.”
Eric Zimmerman, a partner with law firm McDermott Will & Emery in Washington
agreed, saying that even though he thinks House leaders will make repeal a priority, it will be difficult to achieve. “With that said, there are a variety of tools and parliamentary maneuvers available to try to create mischief. Some of those include withholding funds,” Zimmerman said. The Congressional Research Service “came out with a report that detailed over 100 initiatives that require funding, so Republicans in charge of appropriations could withhold funds.”
Other tactics the new House leaders could employ include use of the Congressional Review Act, a law enacted in 1996 that requires federal agencies to submit regulations for review and creates an expedited process for Congress to overturn a regulation, or the Corrections Calendar, which resulted from a 1995 House resolution and creates an expedited procedure for the House to repeal or correct laws or rules that are considered duplicative, burdensome or costly.
But Zimmerman said these methods—similar to a repeal of the bill—are unlikely to have much success, given that they require both houses of Congress to weigh in.
One area of the bill that was broadly opposed by both Republicans and Democrats, and one the GOP would like to repeal, is the Independent Payment Advisory Board, Zimmerman said. But there are two reasons he said this provision likely won’t change. First, the measure was estimated to save $28 billion between 2010 and 2019, so it would have to be offset by something else; and second, when Republicans campaign, IPAB is not the sort of issue that would get people excited.
But repealing IPAB would appeal to groups such as the American Hospital Association and the Medical Group Management Association, which represents physician group practices. “Everyone in the provider community, not just physicians, wants the IPAB repealed,” said Patrick Smith, senior vice president of government affairs for the MGMA in Washington. The fact that the IPAB provision made it into the Senate legislation is one of the reasons the MGMA did not support the final bill, Smith said.
A more pressing issue for the MGMA now is to encourage the current, lame-duck Congress to halt severe Medicare payment cuts for physicians scheduled to take effect next month.
Like the MGMA, the American Medical Association said it would like to see changes to the IPAB provision and the Medicare physician payment system. A representative for the AMA was unavailable last week for an interview.
In a statement last week, the AHA said now that the campaign season is over, the focus should turn to governance, and the association is poised to work with the new legislators on Capitol Hill. In addition to the physician payment issue, the AHA also said it would like to see changes to health IT rules. In an interview, AHA President and CEO Richard Umbdenstock said that means fixing the multiple-campus provision in the meaningful-use rule, which allows for one payment for health IT to hospitals, even if those facilities have multiple locations. “We feel that is not the intent of the stimulus bill,” Umbdenstock said, “so we need to see that change.”
Meanwhile, America’s Health Insurance Plans last week reiterated its concerns about high costs in healthcare. AHIP President and CEO Karen Ignagni said healthcare costs continue to rise and there need to be strategies to address that. “I think they are hearing a message on the campaign trail that folks are concerned about affordability,” Ignagni said on Election Day after a briefing about value-based insurance design, which aims to lower copayments for services relative to their costs. After the elections, AHIP spokesman Robert Zirkelbach expanded on the organization’s concerns about certain provisions of the health reform bill. “The small business tax in 2014 will increase costs for employers at a time when they are already struggling with healthcare costs,” Zirkelbach said. As healthcare groups push their agendas for the current Congress, and as they wait to see how they might be affected by either a repeal or underfunding of the Affordable Care Act, some said most Americans do not want to see the law dissolve.
“Frankly, I don’t think working Americans will stand for a Republican crusade to take away the benefits and protections in the new health reform law,” Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor & Pensions Committee, said in a statement on Nov. 4.
For executives at the Sioux Falls, S.D.-based Avera system, the priority is to move forward and focus on upcoming rules related to the bill, according to Deb Fischer-Clemens, vice president of the Avera Center for Public Policy.
“I think a lot of lip service will be given to why healthcare reform is not moving in the right direction,” Fischer-Clemens said, “but I don’t think we will see major changes.”