Republicans across the country are clamoring to “repeal and replace” one of President Barack Obama’s signature legislative accomplishments: the Patient Protection and Affordable Care Act. Besides the nifty alliteration, is there any substance to this promise? Can Republicans, even if they were to take control of both chambers of Congress fulfill this pledge? No.
Any bill seeking to repeal health care reform would be vetoed by President Obama. Overriding his veto would take a two-thirds majority in both the House and the Senate. Given that it’s hard to get a majority of either chamber to agree that the sun rises in the east (let alone that it sets in the west), this isn’t very likely. And as more provisions of the legislation are implemented, repealing the law becomes increasingly awkward. How many elected officials would vote to repeal the requirement that children up to age 26 may remain on their parent’s health insurance policy now that so many families have taken advantage of this part of reform? Repealing the PPACA would result in kids being subjected to pre-existing conditions again, tax credits vaporizing, coverage for those rejected by private carriers ending, and on and on. That’s a high political price for politicians to contemplate.
But there are other tactics available to a Congress (or even one chamber of Congress) opposed to President Obama’s health care reform plan. Henry Aaron, a Senior Fellow at the Brookings Institute, in an article published in the New England Journal of Medicine describes how Republicans could use Congress’ power over the federal government’s purse strings to eviscerate the health care reform legislation. The result would be what Mr. Aaron calls “zombie legislation, a program that lives on but works badly … lead(ing) to needless resentment and confusion, and mandates that are capriciously enforced.”
Mr. Aaron notes that the PPACA contains “64 specific authorizations to spend up to $105.6 billion and 51 general authorizations to spend ‘such sums as are necessary’ over the period between 2010 and 2019.” However, Congress must specifically appropriate these funds before they can be spent. A Republicans majority in either the House or the Senate (or even a Republican minority working in concert with like-minded Democrats) could withhold much of this funding. But they can do more. “They could bar the use of staff time for designing rules for implementation or for paying subsidies to support the purchase of insurance. They could even bar the DHHS from writing or issuing regulations or engaging in any other federal activity related to the creation of health insurance exchanges ….” Mr. Aaron writes.
Imagine the impact of such prohibitions on what is already a difficult law to implement (and to be fair, even the far less extensive proposals put forward by Republicans in the past couple of years would be harrowingly difficult to implement – we’re dealing with one-sixth of the nation’s economy here). The impact of zombie legislation would be in addition to the absurdity that already surrounds implementation of the PPACA, such as that involving enforcement of the health care reform law’s medical loss ratio provisions, scheduled to take effect January 1, 2011.
- Health and Human Services Secretary Kathleen Sebelius is seeking a waiver from the medical loss ratio requirements for so called “mini-med plans – policies with coverage that is a mere shadow of traditional coverage (these products are often defended, correctly, as being “better than no coverage at all.”)
- Yet HHS is offering no help to carriers scrambling to deal with the impact of the MLR requirements on their richer, more substantive policies, forcing insurers to make draconian decisions concerning their policies and operations in time to meet the January 2011 deadline
- Meanwhile, guidance concerning the MLR regulations won’t arrive before December, far too late for insurers and employers to use to guide decisions that must take effect the following month.
So we have Secretary Sebelius, one of health care reform’s staunchest advocates, coming to the aid of limited benefit plans that she would be expected to condemn as “phantom coverage” while forcing carriers offering more substantive plans to grope through fog of uncertainty – resulting in great inconvenience and possible expense to employers, insureds, brokers and the industry at large. There’s a certain Alice in Wonderland feel about the whole thing. Throw in the havoc Republicans are likely to cause as they strive to use health care reform as a stepping stone to the White House and Tim Burton will be feeling right at home.
Mr. Aaron, in his New England Journal of Medicine article sums up the situation. Concerning the zombie legislation that health care reform could become, he writes “Such an outcome would trouble ACA opponents: their goal is repeal. It would trouble ACA supporters: they want the law to work. But it should terrify everyone. The strategy of consciously undermining a law that has been enacted by Congress and signed by the president might conceivably be politically fruitful in the short term, but as a style of government it is a recipe for a dysfunctional and failed republic.”
What’s terrifying about this zombie tale is that serious problems still need to be addressed concerning America’s health care system. Although “Affordable Care” is part of the new health care reform’s official title, as I’ve noted frequently in the past, the health care reform legislation fails to address the underlying driver of skyrocketing health insurance premiums – the skyrocketing cost of medical care.
And some of the health care reforms Republicans are likely to push in the new Congress would only drive up insurance premiums without addressing medical spending (most dramatically, the GOP’s desire to require carriers to accept all applicants without imposing pre-existing condition exclusions, but eliminating the mandate that all Americans obtain health insurance coverage).
Given this situation, pessimism is a natural response. This results from the tendency to see current trends as continuing in a straight line. Fortunately, nature abhors straight lines nearly as much as it hates a vacuum. America has a history of overcoming the foolishness we, through our duly elected leaders, seem to bring down upon our ourselves. We’ll see a lot more absurdity in the months ahead concerning health care reform. We’ll see political battles that will be stunning in their demagoguery and mauling of the truth. We’ll see generally bad ideas emerge with awesome and frightening frequency. But we’ll also see the equal-and-opposite reaction these dynamics generate. And, I predict, we’ll see some meaningful and sensible changes made to the PPACA. As I’ve written before, in the end things will likely be worse than we hoped, but not as bad as we feared they would be.