Noise, not action, likely as Congress gets back to business

With Congress returning from its summer recess this week, Republicans intent on demonstrating their opposition to the Affordable Care Act should have plenty of opportunities.

Before the end of the month, lawmakers will have to resolve their annual budget impasse. Whether they pass a budget (unlikely) or another continuing resolution, the budget debate offers a perfect vehicle for chipping away at several health law taxes whose repeal has gained bipartisan support. There is also growing sentiment for changing the ACA's unpopular small-business mandate.

As presidential candidates from the congressional ranks look to make news, those hot-button health policy issues could see vociferous debate.

But the red-meat issue animating the social conservative wing of the GOP—defunding Planned Parenthood—stands in the way of making even minor changes in the law, which otherwise might be achievable. Party hard-liners intent on grabbing the spotlight will get their chance starting Wednesday with congressional hearings.

Planned Parenthood has come under withering assault since an anti-abortion group's undercover videos showed staffers discussing fetal tissue donation. “I think this is going to be an ugly, ugly period,” said Brookings Institution senior fellow Henry Aaron. He called the hearings a political instrument, not a legislative vehicle.

So success in making minor changes to the Affordable Care Act—anything major will face a presidential veto—will depend on whether Republican leadership can keep its conservative wing in check. GOP leaders say they don't want a government shutdown. Lawmakers like Sen. Orrin Hatch (R-Utah) have said they would like to target the health law tax measures specifically rather than insist exclusively on a full repeal of the ACA.

Tim Jost, emeritus law professor at Washington and Lee University, said ACA changes, especially nixing a mandate to expand the small-group insurance market to include businesses with up to 100 employees, are certainly possible if untenable riders aren't added.

It's a change President Barack Obama and other Democrats are more likely to go along with so long as it doesn't include other unacceptable provisions. “The question is whether leadership can pressure the members to do a clean bill,” Jost said.

Those who want to get rid of the mandate argue that while it might lower costs for the current small-group market that covers businesses with 50 or fewer employees, it would raise costs for those with 51 to 100 employees. Those businesses would also have to find new insurers that offer small-market plans, which have different requirements than large-group plans.

The “Cadillac” tax on high-end insurance plans is also under bipartisan political fire. Recent studies show that about a quarter of employers who offer health plans would be subject to the tax, which goes into effect in 2018.

Opponents include insurance companies and labor unions, which contend the tax will force employers to reduce benefits, narrow provider networks or drop flexible spending accounts. Democratic presidential front-runner Hillary Clinton has said she wants to “re-examine” the tax.

The major difficulty is the $87 billion budget hole that would be created by repealing the tax. Robert Laszewski, a healthcare industry consultant, predicts some sort of limitation on high-cost plans must stay in place to keep the budget impact low. Any legislation that passes would be more of a political statement than a policy change, he said.

The ACA's medical-device tax, whose repeal also has bipartisan support, could also gain traction. Hatch, who chairs the Senate's health committee, has promised to consider its repeal as part of a budget reconciliation bill.

But, again, repealing that tax would leave a budget shortfall of $30 million over 10 years. The White House has pledged to veto any measure without replacement revenue.

Bill Galston, senior fellow at the Brookings Institution, said the device tax repeal is more likely to pass than the Cadillac tax repeal, but neither is a sure thing. “I can't rule it out but I don't know what kind of odds to attach to it,” he said.

But the issue that could swamp any bipartisan efforts is the threat to shut down the government over funding for Planned Parenthood. The Congressional Research Service reported that the not-for-profit agency, which receives a majority of funding from nongovernment sources, would still receive money from Medicaid and state and federal multiyear grants, even if the conservatives in Congress force a shutdown.

Galston predicted Senate Majority Leader Mitch McConnell (R-Ky.) will minimize the time spent discussing Planned Parenthood since he doesn't have the votes to override a presidential veto. But he may bring a bill to the floor as a gesture to the party base. Analysts say the 2016 presidential campaign will soon overshadow congressional acts, if it hasn't already. “We're in the election kabuki dance,” Laszewski said.