WASHINGTON – The historic midterm election victory by Republicans does not signal the end of the Affordable Care Act, but now the law will very likely undergo the scrutiny that many in the GOP say it did not get as it made its way through Congress.
The GOP now holds a majority in the House, with 239 seats, compared with 187 for the Democrats. Republican members of the Senate are still in the minority, but the current 52-46 Democratic margin is much slimmer than before the election.
Earlier this year, House Republican leaders and Senate Minority Leader Mitch McConnell (R-Ky.) vowed to “repeal and replace” the Affordable Care Act (ACA) if they regained the majority. A Republican-led House cannot make that happen alone; the Democratic-led Senate is unlikely to pass repeal legislation, and President Obama would likely veto any bill sent to him.
At a postelection press briefing, President Obama said he welcomed GOP input. “If the Republicans have ideas for how to improve our health care system, if they want to suggest modifications that would deliver faster and more effective reform to a health care system that has been widely expensive for too many families, businesses, and certainly our federal government, I'm happy to consider some of those ideas,” he said.
But he said that the White House would not entertain a repeal debate.
Speaking at a postelection forum, Jim Slattery, a former six-term Democratic congressman from Kansas, said that he expected to see a repeal proposal. “The new Tea Party congresspeople and the leadership in the House will probably have to introduce some kind of resolution that would call for the repeal of ACA, and I think they know it's going nowhere and it's not going to happen,” said Mr. Slattery, now a lobbyist with Wiley Rein.
Mr. Slattery said that President Obama mainly has himself to blame for the Democrats' poor showing in the election and for polling data indicating that half of Americans want to repeal the ACA. The president “failed to connect the dots” with Americans on how the law would benefit them, he added.
At the same forum, Nancy Johnson, a former Republican House member from Connecticut, said that she expected to see a number of oversight and investigative hearings on the ACA.
“The one thing that has to be done [in the next Congress] is, people have to regain their confidence in government and that's not about policy, that's about process,” said Ms. Johnson, a senior public policy adviser at Baker Donelson. “Half the bill is terrific. But the other half wasn't seen, and that created suspicion.”
Congressional Republicans have said they will keep some of the insurance market reforms – such as the prohibition on denying coverage for preexisting conditions – but will seek to throw out the mandate that individuals have health insurance coverage. That is a formula for disaster for the law – and for insurance companies, wrote Henry Aaron, a senior fellow at the Brookings Institution, in a perspective article published in the New England Journal of Medicine (2010;18:1685-7). Unless most Americans are covered, insurers might be bankrupted by the reforms, he said.
“In brief, the pledge to keep insurance-market reforms without both mandated coverage and subsidies is untenable,” Mr. Aaron wrote.
Mr. Slattery agreed. “If you're going to really reform the insurance industry with the preexisting-condition reforms, we have to have a mandate of some kind,” he said.
The requirement that individuals carry insurance or pay a penalty, however, is the central issue being challenged by 20 states that are involved in a lawsuit against the federal government in the U.S. District Court in Florida. Virginia has also filed its own suit, a case that Mr. Slattery said he expected to rise to the Supreme Court.
And governors and attorneys general elected in five states also campaigned on the promise that they, too, would support overturning the mandate.
With money tight and millions of potential new Medicaid enrollees, governors from all parties may revolt against the mandate, said Ms. Johnson. States are challenging the mandate, because it imposes burdens on them that they can't fulfill, she noted.
Back on Capitol Hill, the GOP-led House will also likely look closely at the ACA-created Independent Payment Advisory Board, said Ms. Johnson. The IPAB, charged with looking at how the federal government pays physicians, hospitals, pharmaceutical companies, and other providers, would have broad powers that make many Republicans uncomfortable, she said.
In his perspective piece, Mr. Aaron wrote that that Republicans could also tinker with the ACA by cutting off funding for implementation via the appropriations process, or even try to prohibit the Health and Human Services department from writing regulations. Some of those regulations are due to come out in the next 2 months – before the start of the 112th Congress.