When the 114th Congress convened for the first time in January, it ushered in a new era of Republican control of both chambers that will create new challenges for the Affordable Care Act (ACA, or “Obamacare” as the GOP prefers to call it). With a bigger House majority, 246 Republicans to 188 Democrats, and with an 8-vote Senate majority, Republicans would seem to be well positioned to roll back taxes on medical devices and “Cadillac” insurance plans and to repeal Medicare's Independent Payment Advisory Board.
The GOP may also make a run at repealing the individual insurance mandate, replacing the ACA's Medicaid expansion with block grants, stripping the law's benefit mandates, and eliminating the penalty on large employers who do not offer an ACA-qualified health plan (or at least redefining the weekly hours used to determine who is a full-time equivalent (FTE) for the purposes of defining a “large” employer). The Republicans will also pass symbolic votes to repeal the ACA lock, stock, and barrel. Except for (possibly) redefining who counts as an FTE, none of these changes will likely become law. Senate Democrats would almost certainly filibuster them (and the GOP doesn't have the votes to overcome a filibuster), and if they somehow reached President Obama's desk, he would veto them.
The GOP may try to force the president's hand by making some of these changes through a process called budget reconciliation, which under Senate rules can't be filibustered, but even so, the president can veto a reconciliation bill, and the GOP lacks the two-thirds supermajorities in both chambers that would be needed to override. The GOP could try to attach some of these changes to other “must pass” bills like the debt ceiling reauthorization or funding to keep the government open past September 2015 but doing so would risk a default on the U.S. debt or a government shutdown; GOP leaders have said they will not allow either, although some of their Tea Party wing will push such brinkmanship.
It is almost impossible to imagine, then, a plausible scenario where any of the parts of the ACA that are critical to ensuring coverage—premium subsidies, funding for Medicaid expansion, the individual insurance mandate, and required benefits—will be repealed or rolled back by the 114th Congress. The only wild card is if the Supreme Court rules later this year that the premium subsidies, which are essential to make ACA coverage affordable, are illegal in the (majority of) states that have not set up their own exchanges. Such a ruling would introduce chaos in the affected states, causing millions across the country to lose their subsidies. All bets would be off on what Congress, the Obama administration, and the states that lose the subsidies would then do.
ACP, for its part, will oppose any effort by Congress to make changes in the ACA that will increase the number of uninsured or roll back required benefits. But there are many other issues on the College's advocacy agenda that could receive bipartisan support in the 114th Congress:
Preserving the Medicare primary care bonus program. This program, which has been in effect since 2011, gives eligible primary care physicians—internists, family physicians, and geriatricians—a 10% bonus for office visits and other designated services. It expires at the end of 2015 unless Congress reauthorizes it. We anticipate reluctance by the GOP to continue the program because it was created by the ACA and would cost billions to continue, yet we hope to make the case that ensuring that seniors have access to a primary care physician should not be a partisan issue. Our message is simple: People need a primary care doctor, no matter whom they voted for in November, and the Medicare bonus program is needed to help them keep their doctor. Using the same rationale, ACP will also seek to get the Medicaid-Medicare primary care pay parity program, which expired at the end of December, reauthorized.
Repealing the Medicare SGR and supporting new payment and delivery models. Although the 113th Congress had reached agreement on a bipartisan, bicameral bill to repeal the Medicare sustainable growth rate (SGR) formula for reimbursement and create payment incentives for new delivery models like patient-centered medical homes, it failed to get it over the finish line, mainly over disagreement on how to pay for it. ACP will be urging the new Congress to take up the legislation as quickly as possible, before the next SGR “patch” expires on March 31. There are several potential barriers, though. Any major changes from what both parties had agreed to last year could unravel the bipartisan support in Congress, as well the near unanimous support from the medical community, needed to advance it. And if SGR repeal was put in a budget reconciliation package that also included changes in the ACA opposed by most Democrats and the administration, it would almost certainly lead to a veto by President Obama.
Regulatory relief. The Republican leadership likely will be receptive to recommendations from ACP and other physician organizations to ease unnecessary Medicare rules and penalties, many of which could also get Democratic support. Easing meaningful use rules and penalties for electronic health records and streamlining and simplifying Medicare quality reporting programs are potential areas for progress.
Medical liability reform. Although this Congress won't have the votes to pass “big ticket” reforms like caps on noneconomic damages, there are other ideas that could attract bipartisan support, such as safe harbors for physicians who follow evidence-based clinical guidelines and pilot tests of no-fault health courts.
As has often been said, elections have consequences, and this will certainly be true as a stronger and emboldened GOP sees how far it can get in trying to roll back the ACA, although it will not be able to repeal it or its most important coverage requirements. There is an opportunity, however, to move many of ACP priorities forward on a bipartisan basis, if both parties can be persuaded that their deep divide on the ACA need not carry over to other needed health care reforms.