ACA Amendments More Likely Than Repeal, Former Senators Predict
This article was originally published in The Tan Sheet
Executive Summary
Republican efforts to repeal the Affordable Care Act will fail, former Sen. Dorgan maintains, saying “this law will remain a part of our future for some long while.” Former Sen. Bennett expects amendments to focus on “the relentlessly increasing cost of health care.”
Congress will pay serious attention to “improvements” to the Affordable Care Act following the Supreme Court’s clarification of the law’s near-term future, according to former Sens. Robert Bennett and Byron Dorgan.
The Supreme Court, in a 5-4 ruling, upheld the constitutionality of most of the ACA in a June 28 opinion that found the individual mandate, requiring everyone to purchase insurance or else pay a penalty, is an appropriate exercise of Congress’ taxing authority (Also see "Supreme Court Routes OTC Health Savings Battle Back To Congress" - Pink Sheet, 2 Jul, 2012.).
However, the court also narrowed the federal government’s ability to induce states to comply with the Medicaid eligibility expansion provisions in the law. The court determined the federal government could not withhold all federal funding for Medicaid from states that do not expand eligibility – as the law says – but that only federal funds that would help pay for the expansion can be withheld.
Bennett, a Utah Republican, and Dorgan, a North Dakota Democrat, commented during a same-day roundtable discussion of the court’s decision hosted by the law firm Arent Fox. Both are senior policy advisors in the firm’s government relations practice.
“Everyone now will have to acknowledge that this law will remain a part of our future for some long while.”
– Byron Dorgan
Dorgan, who did not seek re-election in 2010 following three terms in the Senate after serving in the House starting in 1980, commented that Republican members of Congress will follow through on announced plans to try and repeal the law, but to no avail.
He said the Supreme Court decision “removes a major uncertainty about the Affordable Care Act, and whether one supports or opposes this new law, I think everyone now will have to acknowledge that this law will remain a part of our future for some long while.”
“This Congress will not repeal this legislation, nor will future votes, at least for some while, because it will take 60 votes in the Senate to repeal the legislation and the 60 votes will not exist in the Senate.” However, he added, “there will be adjustments and modifications,” Dorgan added.
Bennett, ousted by the Tea Party movement in Utah’s 2010 GOP primary after three terms, made a similar prediction.
“There are substantive problems with” the law, but “the political situation weighing on the court has prevented anyone from raising any amendments on it, because if the whole thing were going to be stricken down anyway, why worry about amendments?” he said.
Wide Interest In Revisions
Even the White House indicated willingness to consider revising the law, Bennett said, pointing out that President Obama alluded to changes in his statement following the Supreme Court decision.
“With today’s announcement, it’s time for us to move forward – to implement and, where necessary, improve on this law,” the president said.
Dorgan predicted the ACA will be amended to focus more on controlling health care costs. “The unresolved question [in the law] is the increased cost of health care, and I think the ACA has to be adjusted and improved to begin to try to address the relentlessly increasing cost of health care. … That’s going to continue to be a major problem,” he said.
A lesser known provision than the individual mandate and states’ Medicaid responsibilities – requiring consumers to have prescriptions for OTC purchases with flexible spending, health savings and health reimbursement accounts – could be among the ACA issues Congress considers.
“The political situation weighing on the court has prevented anyone from raising any amendments.”
– Robert Bennett
Bills to change the provision have been introduced in both chambers. The 2011 Restoring Access to Medication Act, H.R. 2529 and S. 1368, would eliminate the requirement, but neither bill has widespread backing or moved out of committee (Also see "Bills Would Overturn Rx Requirement For OTC Purchases From FSAs" - Pink Sheet, 7 Feb, 2011.).
The Family and Retirement Health Investment Act of 2011, S. 1098, which would include “herbs, vitamins, minerals, homeopathic remedies, meal replacement products and other dietary and nutritional supplements” among products that consumers may purchase using pre-tax savings accounts, also has not moved since being introduced (Also see "Hatch Bill Seeks To Restore Supplements, OTCs To Health Accounts" - Pink Sheet, 11 Jul, 2011.).
The House in June passed H.R. 436, which would repeal the ACA’s excise tax on medical devices and eliminate the prescription requirement and the requirement that FSA holders forfeit any unused FSA balances at the end of the year. The Senate has not scheduled the bill for consideration.
Bennett noted the Congressional Budget Office announced it will develop a new “score” for the cost of ACA that reflects the changes to the Medicaid provisions dictated by the Supreme Court. He suggested that re-evaluation of the law’s costs could be the basis for amendments. CBO has not said when the score would be completed.