With the Republicans about to take control of the Senate in January (as well as several key gubernatorial offices), soon-to-be majority leader Mitch McConnell has already indicated that while a full repeal of the Affordable Care Act isn't on his agenda, he does intend to parse it down via the appropriations process. The party lacks the necessary 60 seats required to beat a Democratic filibuster, preventing McConnell from forcing a repeal vote—but individual measures could be passed through budget reconciliation.
So what issues are likely to be taken up, and what can the healthcare industry expect going forward?
Expect some precarious states to either backtrack on existent expansions or fail to move forward with one as a result of a few key gubernatorial races. In Arkansas, the newly elected Asa Hutchinson has already said he intends to curtail the state's private option Medicaid expansion. In Wisconsin, reelected Gov. Scott Walker has already refused to accept federal funds for expansion.
GOP candidates have also taken the governor's mansion in the traditionally-Democratic states of Illinois, Maryland and Massachusetts. All three have already expanded their Medicaid programs, but there is a chance these programs could be chucked in favor of a waiver option.
Illinois governor-elect Bruce Rauner has already said that while he won't repeal the state’s expansion if elected, he would not have signed the legislation in the first place—and that he advocates for significant "restructuring" of the program. Massachusetts governor-elect Charlie Baker has also danced around the topic of acquiring a waiver, although it is unclear exactly from which items in the ACA he would seek exemption.
Maine, Georgia, Florida and Arizona all went with candidates—some incumbents, some not—who have not supported expansion in the past.
In the other direction, Democratic candidate Tom Wolf won the post from incumbent Tom Corbett, who was recently granted a waiver. Wolf could conceivably replace the waiver option with traditional expansion efforts. In Rhode Island and Kentucky, expansion will stay in place.
The individual mandate
This is the biggie. All Americans are required under the Affordable Care Act to either obtain health coverage or cop a tax penalty. Republicans broadly oppose this—it's the issue that went all the way to the Supreme Court (and was narrowly upheld) in 2012. But doing away with the individual mandate, some argue, would hamstring the law by removing the incentive for healthy people to buy insurance, thereby driving up prices for everybody else.
McConnell has already said dismantling this section of the ACA is a priority for him. President Obama will almost certainly have to veto a repeal of this measure at some stage, but that doesn’t mean the effort will be purely symbolic on the part of the GOP; just political. It puts a generally-unpopular part of the law in the media limelight on the downhill slide to the 2016 presidential election.
The long and short: The law isn't likely to lose the individual mandate anytime before 2016, but that doesn’t mean it's safe forever.
The employer mandate
This is a piece of the act that could realistically get the boot under a Republican-held Senate. The law requires companies with 50 or more employees to offer coverage to any employee who works at least 30 hours a week. The mandate has gotten a lot of kickback from businesses and pundits on both sides of the aisle, and in February, Obama put in place a second delay giving employees until 2016 to comply. That's two years after the deadline originally drafted in the legislation.
This is a complex piece of the law that has its fair share of problems, not least that counting hours is an ineffective measuring stick for employment for many companies. It also imposes a heavy administrative cost burden on both federal agencies and the companies themselves. And there’s some debate about whether it actually protects the employees in the intended fashion. Although recent guidance from HHS prevents employer plans from excluding inpatient services, companies can still offer "skinny" plans as long as they account for at least 60% of potential healthcare costs. Worse, offering these kinds of plans knocks employees and their families out of eligibility for subsidized exchange coverage.
The impact of reversing the employer mandate would likely be slight on both the law itself and Americans. According to nonpartisan congressional analysts, 500,000 Americans would lose out on coverage they would otherwise have gained in the absence of the mandate. An Urban Institute study projected an even lower figure—200,000. And although repeal could encourage employers to dump sick and low-income employees onto the exchanges, it's still realistic that a Republican-lead Senate could push through, if not a repeal, a restructuring of this particular measure.
If you want to read more, Timothy Jost has an excellent (if lengthy) read that breaks down a couple of potential alternatives to the employer mandate in Health Affairs.
A few other things a Republican-led Senate is likely to tackle:
- The three R's (risk corridors, reinsurance and risk adjustment, known in the GOP camp as "insurer bail-out).
- The Independent Payment Advisory Board (which at this point, despite being decried as a "death panel," is pretty irrelevant since the president has never even named anyone to the board).
- The 2.3% medical device tax (which almost went away already in a 2013 vote that garnered 32 Democratic Senate votes in addition to all of the Republicans).