WASHINGTON – The historic midterm election victory by Republicans does not signal the end of the Affordable Care Act. But now the law will probably 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. Republican members of the Senate are still in the minority, but the current 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 if they regained the majority. A Republican-led House will not be able to make that happen alone, and the Democratic-led Senate is unlikely to pass repeal legislation.
Meanwhile, President Obama would likely veto any bill sent to him.
But Rep. John Boehner (R-Ohio), elected by Republicans as House speaker when the 112th Congress convenes in January, has indicated that the health reform law will be challenged in his chamber.
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 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 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, but they're going to have to do that probably to satisfy political demand,” said Mr. Slattery, now a lobbyist with Wiley Rein.
Mr. Slattery said 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 Affordable Care Act.
At the same forum, Nancy Johnson, a former Republican House member from Connecticut, said she expected to see many oversight and investigative hearings on the Affordable Care Act.
“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.”
Rep. Boehner and other 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 involved in a lawsuit against the federal government in the U.S. District Court in Florida. Virginia also has 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 might revolt against the mandate, Ms. Johnson said. “If you look at the basis on which states are challenging the mandate, it's in part that it abrogates the federal-state partnership, because it imposes burdens they can't fulfill.”
Back on Capitol Hill, the GOP-led House also will likely take a close look at the Affordable Care Act-created Independent Payment Advisory Board, Ms. Johnson said.
The IPAB, which is charged with looking at how the federal government pays physicians, hospitals, pharmaceutical companies, and other health providers, would have broad powers that make many Republicans uncomfortable, she said.