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Health Law Changes Could Become Reality in Republican Senate

By Melissa Attias, CQ Roll Call

November 5, 2014 -- Republican control of the Senate means the health care overhaul is more vulnerable to GOP attacks and modifications than ever before. But precisely what Republicans can accomplish will depend on the legislative strategy they adopt—and whether President Barack Obama agrees to give any ground around the edges.

The power shift will put Obama in a more defensive position without Majority Leader Harry Reid, D-Nev., able to block bills reopening the law (PL 111-148, PL 111-152). Republican leaders, meanwhile, will have to decide how much they want to accommodate demands from conservative members eager to use the House and Senate majorities to take a stand against the law.

"It's much easier being in the minority," said George Washington University political science professor Sarah A. Binder, who also serves as a senior fellow in governance studies at the Brookings Institution.

Republicans are likely to hold symbolic votes in both chambers on legislation fully repealing the law, though any measure that receives the 60 votes needed to overcome a filibuster will be destined for a date with Obama's veto pen.

Joseph Antos, a health care scholar at the American Enterprise Institute, said newly elected members who campaigned on repealing the law will want to get their positions on the record. He sees the vote coming fairly early in the new Congress, to get the exercise out of the way.

But Dan Holler, communications director for Heritage Action for America, said his group will be pushing for Republicans to use reconciliation to repeal the law, which would have to come later in the session after both chambers agree on a budget blueprint. The procedure allows the Senate to advance budget-related legislation with a simple majority vote, potentially allowing a narrow GOP majority to get policies to the president's desk without help from Democrats.

"There is something incredibly powerful about forcing President Obama to veto repeal," Holler said. It reaffirms Republicans are in favor of full repeal and makes it an issue for the 2016 presidential race, he noted.

Although there are limits on what the reconciliation process can be used for, Holler insists Republicans can find a way to a full repeal if they're committed. Still, Antos questioned what the GOP would gain from using the complicated process for repeal.

Once the issue of full repeal is settled, Republicans are expected to pass narrower bills targeting specific aspects of the law that could attract some Democratic crossover votes.

One potential target for repeal is the 2.3 percent excise tax on medical devices that some Democrats oppose but may require an offset. Utah Republican Orrin G. Hatch, the top Republican on the Senate Finance Committee, has identified the tax as a top priority for the 114th Congress.

Another effort could involve changing the law's definition of full time from a 30-hour workweek to 40 hours, part of the broader debate over the law's mandate that most employers provide workers coverage or face fines. The overhaul generally requires employers with at least 50 full-time workers to offer health plans or pay a penalty, and critics say the 30-hour threshold creates an incentive for employers to cut their workers' hours to avoid the requirement.

John Barrasso of Wyoming, chairman of the Senate Republican Policy Committee, wrote on that Republicans also would vote to repeal the broader employer mandate, as well as the requirement that most individuals maintain coverage or pay a penalty. Antos said he personally would suggest legislation exempting people from the individual mandate for several years and making Obama's policy allowing the continuation of plans not compliant with the law's coverage requirements permanent.

Other potential targets include repealing the "risk corridor" program – one of three provisions included in the law designed to limit insurers' financial losses that critics call an insurer bailout – and an as-yet-unappointed Medicare cost-cutting board.

Which provisions Republicans ultimately pursue will depend on whether they find it more advantageous to focus on messaging or enacting changes.

Adjusting the 30-hour threshold, for example, is something Antos thinks an average person could understand because they consider the traditional workweek to be 40 hours. The device tax may resonate less with everyday voters, he said, while the risk corridor program is complicated to understand and may be hard to get through Congress because it matters to insurance companies.

Holler, on the other hand, sees the risk corridor as a worthy target, saying it highlights who benefits from the law and who does not.

Whichever changes Obama decides to swallow – if any – will likely depend on how many Democrats support the move and how integral the provision is to the goals of the overhaul. While the device tax is largely a funding mechanism, other provisions could have more wide-reaching effects.

Antos said he could easily see two phases of legislative efforts. Early on, he thinks Republicans might vote on stand-alone measures which would allow them to test support with their own caucuses. That way, he said, they'll know what lawmakers are ready to line up behind when they want a bargaining chip in broader legislation later on.

The bigger threat, according to Drexel University's Robert I. Field, is for Republicans to incorporate repeal provisions in must-pass bills that are more difficult for Obama to veto. That could include appropriations bills, where many expect Republicans to try to cut funding for the law or attach policy riders.

"There is no excuse with a Republican-controlled Senate not to use the appropriations process," Holler said.

Antos said he could see Republicans inserting a ban or restriction on the IRS using money to penalize people who didn't have health insurance, particularly given the technical problems with the federal exchange website that have hindered the insurance enrollment process. He doubts the administration will be ready to enforce the penalties next year and said Democrats could support the move so they're not blamed for taking money out of low-income people's refund checks.

Binder said there are challenges to using the appropriations process because of the limited amount of discretionary funding used to implement the law. As with other legislation, she said the 60-vote threshold in the Senate factors in as well, particularly because some red state Democrats who could have provided votes will have lost their re-election races.

As for advancing a replacement to the law, Barrasso said Republicans will offer step-by-step bills. But many are skeptical that the GOP will move legislation next Congress and instead think the party will allow its 2016 presidential nominee to shape a replacement plan.

Control of the Senate also gives Republicans an additional weapon: oversight authority. Republicans will set the hearing agenda in both the House and Senate, which they will use to put administration officials in the hot seat and hone in on any implementation problems.

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