Tuesday, February 15, 2011

Will the Congress Change the Health Care Law During the Next Two Years?

No. But I expect the Patient Protection and Affordability Act to be “relitigated” in 2013, to one degree or another.

I recently posted on the controversy over the individual mandate. I suggested a number of alternatives to the mandate—including my own ideas.

I was asked if I really thought the Congress would change the individual mandate in the short term.

As I have posted before, it will be the Democrats who will be calling for repealing the individual mandate and replacing it with an alternative—particularly the vulnerable Senators up for reelection in 2012.

Ironically, it will be the Republican opponents to the new health law and the individual mandate who will block them. The Republicans are not about to take the Democrats off the political hook the very unpopular individual mandate represents for them. Republicans are also not about to remove the potential ticking Constitutional time bomb the mandate presents—it could take the whole law down.

Until we hear from the Supreme Court and get the results of the 2012 elections we are going to hear a lot of rhetoric from both sides but I don't see any changes to core pieces of the legislation. Yes, the Congress will likely repeal the peripheral revenue raising 1099 provision and there could be some current budget cuts HHS is going to have to work around.

But the early provisions of the bill—things like keeping your kids on your policy until age-26—will continue until we at least here from the Supremes.

But in 2013, I see the potential to revisit the law:
  • If the Supreme Court throws it all out—not likely but not impossible—we will have to start over.
  • If the Supreme Court overturns only the individual mandate—not likely but very possible—the imperative to fix that will open the entire bill up to changes as part of the bigger deal that will be required for both sides to come to agreement. The conservatives would want more in exchange for their votes than to just fix this one piece.
  • Even if the Republicans sweep the elections—the White House and both houses of Congress—I can’t see how they will have 60 Senate seats and compromise will be needed for some critical non-budget changes with or without a Supreme Court ruling.
  • If the Republicans only make modest gains or even lose seats (this election shouldn’t be taken for granted by either side), Democrats will still be facing an unpopular individual mandate and at least have some political incentive to do some fixing—most of those polled believe the law at least needs some improvement. Although, a big Democratic victory would likely mean no incentive for them to open the law up again in 2013 to any fundamental change.
So, yes, I don't see any changes to the individual mandate or any other core element of the new health care law before 2013.

But it looks to me like we are only two years away from some critical Congressional votes on the new health care law. In that context, the debate has begun and it isn't just a theoretical exercise.

In an earlier post, I outlined a number of areas where I thought Democrats and Republicans could eventually come to an agreement:

Improving The Health Law In 2011: Realistic Ways To Reach Bipartisan Compromise

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