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House GOP Will Face Obstacles in Repealing Health Overhaul

By Emily Ethridge, CQ Staff

November 3, 2010 -- For months, the man presumed to be the next speaker of the House, John A. Boehner of Ohio, has said that repealing the health care overhaul, President Obama's signature achievement, would be one of his top priorities.

But even with the GOP gaining control of the House and picking up seats in the Senate, any repeal effort is sure to fail as long as Obama wields veto power. So GOP lawmakers have begun looking for other ways they can undermine the law (PL 111-148, PL 111-152) and hamstring its complicated implementation process.

"They can't repeal the bill, but there are many roadblocks of things that could make it harder to implement what is in that law," said Robert Blendon, an expert on health policy and public opinion at Harvard University. But with the prospects for support from Senate Democrats unlikely, Republicans will either have to temper their ambitions or stack up a pile of bills that go nowhere.

Health policy observers agree the GOP's best chances for disrupting the overhaul lie not in repeal efforts, but in blocking funding for the departments responsible for its implementation.

"There's going to be a giant steamroller behind repeal in the House," said Thomas A. Scully, former administrator of the Centers for Medicare and Medicaid Services under George W. Bush. He predicted House Republicans would quickly introduce and pass a bill to make good on their pledge—a tactic confirmed Tuesday night by Republican Whip Eric Cantor, R-Va., who is poised to become House Majority Leader—but the measure would go nowhere in the Democratic-controlled Senate.

Both President Obama and Senate Majority Leader Harry Reid signaled Wednesday that they are open to tweaking the health care law—but not to substantially dismantling it.

"If the Republicans have ideas for how to improve our health care system—if they want to suggest modifications that would deliver faster and more effective reform to a health care system that . . . has been wildly expensive for too many families and businesses, and certainly for our federal government—I'm happy to consider some of those ideas," Obama said.

He cited the 1099 tax-reporting provision for small businesses, which he said "appears to be burdensome."

But he said that governing, as opposed to campaigning, requires finding common ground and talking about specific programs, not generalities.

"Repeal is just not going to see the light of day," said Julie Barnes, director of health policy at the Bipartisan Policy Center, a nonprofit group that works to build political support to address issues such as health care. "More threatening to health care law implementation in the short term is the defunding, or starving of funding through the appropriations process."

The tactic of "starving the beast" could interfere with parts of the law already in progress and allow lawmakers to strike out the provisions they most dislike. Republicans may try to restrict funding for the Department of Health and Human Services so it is handicapped in terms of staffing and abilities to carry out implementation.

They may also target the Internal Revenue Service as they try to attack the "individual mandate"—the requirement that most people buy health insurance beginning in 2014, or else pay a penalty.

Barnes predicted that Republicans could try to deny IRS funding to prevent it from enforcing the requirement and collecting the penalties. But the requirement does not go into effect for another three years, so any attempts to hinder the agency's efforts may be premature, she said.

But Senate Democrats and Obama are extremely unlikely to sign off on any spending bills that drastically defund those agencies. House appropriators will have to compromise on spending bills, or else be willing to risk a government shutdown as they parry with the administration.

Scully considers GOP pursuit of the shutdown option unlikely. "A lot of this implementation is done in [the Department of Health and Human Services], and I'm sure there will be a big effort to cut its staff and funding—but the government has to run at some point," he said.

A less risky GOP approach might be targeting funding for the most unpopular provisions, such as comparative effectiveness research, which is aimed at finding the best treatment approaches but which some Republicans say could lead to rationing.

Also marked for potential obliteration is the Independent Payment Advisory Board (IPAB), created in the law to limit Medicare spending growth. The American Hospital Association recently endorsed a bill introduced by Sen. John Cornyn, R-Texas, that would strike out the board.

"There's not too many folks in the industry who are too excited about the possibility of a commission reducing their payouts in the Medicare program. And that's what the IPAB is supposed to be looking at," Barnes said.

In addition, Republicans have a chance to win bipartisan support for eliminating certain pieces of the legislation. Members of both parties have introduced bills to eliminate the tax-reporting requirement for small businesses, for example. And the individual mandate could be tweaked to allow more people to claim exemptions based on income.

"Everybody has made this discussion that you repeal it or you put it in as it is, but that's not true," Blendon said. "You can keep the structure as it is and perfect the pieces that you think don't work as well."

Andrew Croshow, managing director of the health care practice at Leavitt Partners, said such a piece-by-piece approach would allow GOP lawmakers to tell voters they are eliminating the worst parts of the law, while buying time until political conditions are more favorable for a full repeal.

"They would help stall the implementation until Republicans feel they have a better opportunity to construct a comprehensive plan," said Croshow, whose group has identified six areas of the law ripe for disruption, including the individual mandate, Medicaid expansion and Medicare funding cuts.

"Implementing the bill will be an election issue in 2012 again. It won't be over," especially if government spending and the deficit remain major concerns, said Blendon.

GOP lawmakers could also disrupt the implementation process by following through on their pledge to call numerous hearings to grill top administration officials such as Health and Human Services Secretary Kathleen Sebelius and CMS Administrator Donald M. Berwick.

"I assure you, Secretary Sebelius will be one of the most recognized faces in Rayburn next year," said Rep. Fred Upton of Michigan, who is vying to become chairman of the Energy and Commerce Committee.

"That kind of distraction is damaging to the administration [by preventing it from] focusing on implementation," said Croshow, adding that industry experts have told his group that Sebelius should plan on spending the first six months of 2011 on Capitol Hill.

But political observers added that Upton and Rep. Dave Camp, R-Mich., the presumed House Ways and Means Committee chairman, could be key to drafting legislation both parties can support. Both members have served in the House for more than two decades and are seen as level-headed legislators who can work across the aisle, as well as with the Senate to get things accomplished.

Boehner himself was circumspect Wednesday about the shape or timing of GOP efforts.

"Listen, the American people are concerned about the government takeover of health care," he said. "I think it's important for us to lay the groundwork before we begin to repeal this monstrosity and replace it with common-sense reforms that will bring down the cost of health insurance in America."

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