What Now? Health Care Reform after the Midterms

November 8, 2010

During the campaign, there was a great deal of talk about “repeal and replace” the Affordable Care Act if the Republicans won in Congress. Well, the Republicans won the House and made significant gains in the Senate. So, what now? Is a repeal of health care reform a likely outcome in the near future?

There is very little that is certain about the course of health reform over the next several years. But one thing is: the law won’t be repealed or replaced in the next two years.

Why? Well, the most obvious answer is that even though their numbers are fewer, the Democrats still control the Senate and President Obama is still in the White House and neither has any incentive to revisit the entirety of health care reform. Rather, it is pretty clear that the primary message of this election and the focus of the Democrats over the immediate future will be on the economy and jobs not on taking up anything significant about health care.

And truly, the message from the public about health care is more nuanced than it might appear from the results of the election. Kaiser did an analysis of the polls that asked Americans about their desire to repeal the Affordable Care Act and found that in actuality a relatively small percentage of the population wants a full repeal of health reform. A bigger percentage (but, still not an overwhelming majority) seems to want repeal of certain elements of the law, specifically, the tax on “Cadillac health plans” and the mandate to purchase health insurance coverage. Other elements of the law are things people say they want to keep. The requirement that children up to 26 can be on their parents’ policies, the rebates to close the prescription drug donut hole, the high risk pools and the insurance exchanges all get high marks in polls. And, when the question is asked about whether people feel that the law should be given more time, most people say yes – they want to see what it will be and are willing to wait before advocating for an outright repeal.

And, of course, the longer the law stays in effect and the more provisions that go into effect, the harder it will be to undo it in its entirety.

So, if it is unlikely that the law will be repealed in the next two years (and probably, no matter what the rhetoric is now, not even after the next presidential election, regardless of who is elected), what is likely to happen instead? Certainly those who ran on platforms opposing the law need to make good on the promise to do something in opposition to the current health reform law. While some will introduce what will essentially be “symbolic” bills to repeal the law, many of those who oppose the law will want to do something concrete to change it and not settle for a symbolic protest against the law. In this regard and even assuming the law survives the current court challenges it faces, the course of implementation of health care reform is fraught with challenges.

The most worrisome strategy that could be taken was outlined by Henry Aaron in a recent commentary in the New England Journal of Medicine. In a possible scenario that Henry Aaron outlines, repeal can become de facto based on how the budget and implementation issues are handled by Congress. That is, Congress could make it virtually impossible to implement health reform by withholding funding or making it difficult to get regulations enforced. In effect, the implementation would be shut down, which would mean we would have the worst possible world: a complex and comprehensive law on the books that cannot be realistically put into effect. In this scenario, everyone is a loser: the opponents of the law would not get a clean repeal and supporters (or even those who are agnostic about the law) wouldn’t be able to see if it worked as intended.

Clearly, this is not what the voters were asking for in the November 2, 2010 election. Indeed, what they said in every poll done to date is that they actually want government to work – and work better than it does now. But whether the newly elected (or re-elected) politicians will hear that message or not when it comes to health care reform is something that only time will tell.

Let’s hope they do. To face the kind of stalemate on health care that could occur from a “starve the beast” strategy on the Affordable Care Act is simply too depressing an outcome to contemplate given all the challenges we face in health care in this country right now.