By Joanne Kenen
The Affordable Care Act just hit the one-year mark, but that’s not likely to change the political dynamic in D.C. and many state capitals. Indeed, it may intensify as the 2012 campaign approaches. Following the complex legislative and budgetary procedures in Congress from a distance can be daunting. Here’s a brief guide to some of what’s unfolding and likely to unfold in the next year or two.
Keep in mind – Republicans have a big majority in the House of Representatives and they can and will try to dismantle Health Policy in many ways. It’s good politics for them – and many of them truly dislike “Obamacare.” But the Senate is still firmly in Democratic hands and President Obama wields the veto pen. So when the House votes to “repeal” health care, remind your readers that it is not really repealed.
Repeal
The House voted in January to repeal the entire Affordable Care Act. The Senate did not. The House may vote again and again, but the outcome won’t change in the Senate.
Repeal segments of the law
Numerous bills have been introduced to repeal specific provisions of the Health Policy law – such as the individual mandate, or the Community Living Assistance Services and Supports (CLASS) act for long-term care. Again, these may breeze through the House, but the most controversial ones won’t survive the Senate.
Some less controversial changes to the law, however, are likely to go through. One example is repealing the 1099 provision (a requirement widely seen as excessively burdensome that businesses document more purchases from vendors, which would raise tax revenue to help finance Health Policy).
It’s hard to predict what other provisions centrist Democrats – or Democrats who see themselves as vulnerable in 2012 elections – may join forces with Republicans to alter. But it’s unlikely that the central building blocks of reform could be torn down by this Congress.
One fight that could come up soon would involve brokers’ fees-and it’s easy to imagine how legislators may worry about the wrath of brokers back home who don’t want Medical Loss Ratio rules and computerized health exchanges do to them what Travelocity did to travel agents. (Kaiser Health had a good story on the branch-by-branch attack strategy.)
Defund
House Republicans have voted to eliminate funding for Health Policy implementation. The Senate disagreed. This is likely to come up over and over in funding for the current fiscal year and the coming one. Other bills (spending bills and other legislation) will probably include moves to strip funding for various aspects of the law.
Why is Congress dealing with two fiscal years at the same time? Good question.
The federal fiscal year begins on Oct 1. So at this writing (March 2011) we’re about mid-way through fiscal 2011. But Congress didn’t get its spending bills done on time last year. Being late is not that unusual. Being six months late is quite unusual. The government is running on a series of stop-gap bills called Continuing Resolutions (or CRs). The two sides are still far apart on how to finalize spending for the rest of the year. A breakdown of negotiations could lead to a government shutdown, like the one in 1995-96. (For background on CRs and shut downs, see this government report, thanks to Eric Pianin of Fiscal Times for chasing it down for us.)
At the same time, Congress is in the early stages of working on the budget and spending process for fiscal 2012. So Republicans and Democrats can spar about two spending cycles at once.
Deregulate
Congress passed the law, President Obama signed the law, but the federal agencies have to fill in an awful lot of extremely complicated details of the law through the rulemaking process. The rules are made public, there is a period of public comment, and ultimately they go into effect. You can follow a lot of this at Regulations.gov, should you ever want to read 884 pages of comment on the Medical Loss Ratio rule; although reading a sampling of the comments can be quite instructive.
Congress can try to block the regulations through the little-known Congressional Review Act. It requires both House and Senate to approve a joint resolution within 60 days of the regulation being sent to Congress. The president must sign it. If he vetoes it, Congress would have to have to override it with a two-thirds vote in both chambers. (If you happen to want to know a great deal about the veto process, here’s Congressional Research Service report.) House Republicans have already filed at least one bill to strike a Health Policy rule, more are likely. But they aren’t likely to succeed. Indeed, the CRA has been used successfully only once, when soon after President George W. Bush took office, Congressional Republicans used the CRA to knock out ergonomics rules enacted late in President Clinton’s administration.
Hold Hearings
Hearings can either be designed to get serious about legislation – or they can be designed for political theater and point-scoring (and both parties do this; in the House and the Senate, it’s all part of the process). So this year and next, expect a lot of House hearings showing how awful Obamacare is, and expect a lot of Senate hearings showing how great it is. Hearings sometimes make news; sometimes they just make noise. The written testimony is usually online on the committee website. There are often webcasts too, although they can be very long.
Just about every committee can legitimately claim some piece of health policy, but the biggies are House Ways and Means, House Energy and Commerce (yes, health care is considered commerce, although that doesn’t constitute precedent for the coming legal battles over the individual mandate and the commerce clause), and the Senate Finance Committee (Medicare and Medicaid) and the Senate Health, Education, Labor and Pensions Committee (HELP). The House and Senate Appropriations Committees also play a key role, as do each Subcommittee on Labor, Health and Human Services, Education, and Related Agencies – usually called “Labor H” for short. All these committees can be found via www.house.gov and www.senate.gov. If you hear people talking about a committee “markup” it’s Washington-ese for actually working on a bill, often going through it section by section, amending it and voting on it.
Of course, the fights are also unfolding in state capitals from Florida to Alaska, and in the courts.
When will it end? Don’t worry. We will all have plenty or work for quite some time.
Joanne Kenen is AHCJ’s Health Policy topic leader. She is writing blog posts, tip sheets, articles and gathering resources to help our members cover the complex implementation of Health Policy. If you have questions or suggestions for future resources on the topic, please send them to joanne@healthjournalism.org.
