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Tax Repeal Could Figure in GOP Response to Obamacare Ruling

By Melissa Attias, CQ Roll Call

May 6, 2015 -- Efforts to repeal parts of the health care law that have bipartisan support– including scrapping a tax on medical devices or the so-called Cadillac tax on the most generous insurance plans—could move as part of a legislative response to the Supreme Court's ruling on the availability of the law's insurance subsidies, according to a leading House Republican.

Joe Pitts of Pennsylvania, chairman of the Energy and Commerce Health Subcommittee, also said that work is continuing on a proposal that would take the money spent on subsidies for people in states that did not set up their own health insurance exchanges and redirect it toward refundable tax credits for the 8 million estimated to lose coverage if the justices rule against the Obama administration.

The Supreme Court is expected to rule by the end of June in a legal challenge that seeks to invalidate the health law's subsidies in the 34 states that defaulted to the federal exchange.

GOP leaders in both chambers have said little about a legislative response since outlining their options in a series of op-eds timed with March oral arguments in the case, King v. Burwell. Unresolved questions, from how budget reconciliation will factor into a response to what kind of timeline is envisioned for the release of a proposal, still appear to be under discussion.

"I don't want to just get off by saying this is complicated, but it is," said John Kline of Minnesota, chairman of the Education and the Workforce Committee, who together with Energy and Commerce Chairman Fred Upton of Michigan and Ways and Means Chairman Paul D. Ryan of Wisconsin is leading the House working group on this issue. "It depends upon what the court does, what kind of timeframe they put on it. We don't know that yet."

In addition to refundable tax credits, Pitts said the House plans to scrap the law's requirement that employers provide workers with coverage or pay a penalty, allow more choice so people don't have to purchase options such as pregnancy coverage if they don't need it and promote competition and portability across state lines and a medical malpractice overhaul.

He identified the 2.3 percent excise tax on medical devices that began in 2013 and the excise tax on high-cost employer "Cadillac" policies set to take effect in 2018 as targets that could get wrapped into a response.

Kline noted that Republicans have dedicated staff in each of the three House committees with jurisdiction over the health overhaul working on the effort. Among other things, they're connecting with the Congressional Budget Office for preliminary scores and discussing what should happen when the tallies are returned, he added.

While Kline said he's gone back and forth over whether lawmakers should release legislation before the court ruling, GOP Doctors Caucus members Charles Boustany Jr. of Louisiana and Phil Roe of Tennessee both said they prefer that text be prepared ahead of the ruling. And Pitts said he would like to see a markup before the decision.

"I think that we should go ahead even though we don't know yet, tee up our vehicle so that tweaks can be made," Pitts said. "So people know what's out there."

"We need to push our leadership a little harder," Roe said, noting the tight legislative calendar.

But Kevin Brady of Texas, chairman of the Ways and Means Health Subcommittee, said he doesn't expect text to be released ahead of the ruling because it would need to reflect the court's action.

The decision about how to use budget reconciliation—the process for advancing legislation that requires only a simple majority in the Senate—may also wait until the court acts, Brady said. Pitts noted that leadership would have to make the decision based on how negotiations are going with the White House.

Although report language to a fiscal 2016 budget agreement (S Con Res 11) the Senate recently endorsed states the compromise "affirms the use of reconciliation for the sole purpose of repealing the President's job-killing health care law," the reconciliation instructions also provide flexibility for responding to the court decision.

Under the agreement, the House Budget chairman is specifically allowed to adjust the baseline for reconciliation legislation. While the same language isn't included for the Senate, a GOP budget aide said the Senate Budget chairman already has the authority to choose his baseline.

The House working group is also working on a broader replacement bill, though Kline said they're currently focused on the King v. Burwell response. Roe said the Republican Study Committee will finish up its own replacement measure in a couple of weeks.

Across the Capitol, a group of senators led by Republican Policy Committee Chairman John Barrasso of Wyoming, Health, Education, Labor, and Pensions (HELP) Chairman Lamar Alexander of Tennessee and Finance Chairman Orrin G. Hatch of Utah are also crafting a response to the high court. Alexander said they usually get together about once a week and Hatch said things are progressing pretty well.

Barrasso noted that any member can attend the meetings and estimated that about half of all GOP senators have attended at least one. He said the group is in the process of making recommendations to the HELP and Finance committees, which will draft the actual legislative language, and indicated that he sees reconciliation as an opportunity.

"If the Supreme Court rules that the president acted illegally, the way to get something to the president's desk with 51 votes is to use reconciliation," Barrasso said.

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