How the Impeachment Frenzy Could Block Bad Health Care Policies

House Democrats’ headlong rush to impeach President Trump will have many implications for American politics and the presidential election. On policy, it could have a salutary effect for conservatives, by precluding the enactment of harmful policies that would push our health care system in the wrong direction.

Congress should of course do something about our health care system, particularly the millions of individuals priced out of insurance by Obamacare, also known as the Unaffordable Care Act. But in recent weeks, it appears that Republicans have fallen into the typical definition of bipartisanship—when conservatives agree to do liberal things. As a result, if the controversy over impeachment leads to a legislative stalemate over health care, it will at least prevent Congress from making our current flawed system any worse.

Renewed Impeachment Push

The emerging controversy over Trump’s interactions with Ukraine, and whether those actions constituted an impeachable offense, resulted in analyses of whether and how the impeachment push will affect the legislative agenda on multiple issues, including health care.

Multiple Republicans suggested impeachment could bring Congress’ other work to a halt, whether by consuming the time and energy of members of Congress and staff, poisoning the proverbial well for negotiations and compromise, or a combination of the two. Consider the following quotes from Republicans in a Wednesday story:

  • House Ways and Means Committee Ranking Member Kevin Brady (R-Texas): “Impeachment makes a toxic environment more toxic.”
  • Former House Freedom Caucus Chairman Mark Meadows (R-N.C.): “There is more oxygen on impeachment than there is on legislation….My Democratic colleagues have put everything on hold to try to make sure that this President is not the one that signs any proposed bills.”
  • President Trump: Nancy Pelosi has “been taken over by the radical left. Unfortunately, she’s no longer the Speaker of the House.”
  • The White House: Democrats have “destroyed any chances of legislative progress” with their focus on impeachment.

Ultimately, whether any major legislation passes in this environment, whether on health care or other issues, will depend on two factors. First, will President Trump want to strike legislative bargains with House Democrats at the same time the latter are working to impeach and remove him from office? On that front, color me skeptical, at best.

Second, at a time when Trump will need Republicans to support him in an impeachment fight, will he aggressively push policies that many of them oppose?

Controversial Agenda in Congress

In July, the Senate Finance Committee approved drug pricing legislation over the concerns of many Republicans. A majority of Republicans voted against the Finance Committee bill, believing (correctly) that its provisions limiting price increases for pharmaceuticals amounted to price controls, which would have a harmful impact on innovation.

Since that time, House Speaker Nancy Pelosi (D-Calif.) has taken ideas from Senate Finance Committee Chairman Chuck Grassley (R-Iowa), and the Trump administration, and put them on steroids. The drug pricing legislation she recently introduced as H.R. 3 would force drug companies into a “negotiation” with defined price limits, confiscating virtually all their revenues if they do not submit to these government-imposed price controls.

Likewise, Congress’ action on “surprise” billing appears ominous. While Washington should allow states to come up with their own solutions to this issue, some Republicans want Congress to intervene.

Save Us from ‘Socialism-Lite’

If Congress’ legislative agenda grinds to a halt over a combination of the impeachment food fight and the impending 2020 presidential campaign, it would mean that lawmakers at least did not make the health care system worse via a series of socialist-style price controls.

The American people do deserve better than the failed status quo. They need the enactment of a conservative health care agenda that will help lower the skyrocketing cost of health care.

But if Republicans have failed to embrace such an agenda, as by and large they have, at least they can stop doing any more damage through new policies that will push us further in the direction of government-run health care. Thankfully, Pelosi’s newfound embrace of a march towards impeachment may slow the march towards socialized medicine—at least for the time being.

This post was originally published at The Federalist.

Biden Precedent Provides Roadmap for Repealing Obamacare with 51 Votes

With Congress having effectively repealed its individual mandate in the tax relief bill, what should Republicans do about Obamacare now?

While eliminating a penalty for Americans who cannot afford government-approved health insurance removes a financial burden on low-income families, it does not give people the freedom to purchase the coverage they do want to buy. Doubtless the president’s October executive order, when implemented, will provide more affordable options through regulatory relief. But ensuring that relief remains intact through future administrations will require legislative action.

How Joe Biden Used His Senate Presidency

While Democrats did not use budget reconciliation—a Senate procedure allowing bills to pass with a simple 51-vote majority, instead of the 60 votes needed to overcome a filibuster—to pass Obamacare, they did use a reconciliation bill to “fix” the law they passed. In March 2010, the Senate considered, and President Obama eventually signed, a reconciliation bill that removed the odious “Cornhusker Kickback” for Nebraska, and made other amendments to the health law.

That reconciliation bill also changed Obamacare’s regulatory regime. Specifically, Section 2301(a) of the reconciliation measure applied four insurance requirements—limiting waiting periods to join employer plans, banning lifetime limits, ending rescissions by insurers, and extending coverage to “dependents” under age 26—to “grandfathered” health plans established before the law’s enactment. In addition, Section 2301(b) of the bill amended Obamacare itself, removing language that limited under-26 “dependent” coverage to unmarried individuals.

During consideration of the reconciliation bill on the Senate floor, Iowa Republican Chuck Grassley objected to including these provisions. He argued that Section 2301 of the bill violated the Senate’s “Byrd rule,” designed to prevent the inclusion of matters with a merely incidental fiscal component on a budget reconciliation bill. In a colloquy memorialized in the Congressional Record, Vice President Biden, acting in his capacity as president of the Senate, overruled Grassley, and said the provisions in question did in fact comply with the “Byrd rule.”

“Grandfathered” plans do not qualify for Obamacare subsidies, and many do not qualify for any tax preference. Yet Biden held that the new requirements on “grandfathered” plans held enough of a fiscal nexus to comply with the “Byrd rule” for budget reconciliation. As a result, the “Biden precedent” allows the Senate to enact—or to repeal outright—health insurance rules through the reconciliation process.

Democrats Paved the Way for Obamacare Repeal

Moreover, the particular insurance requirements included in Section 2301(a)—especially the restrictions on employer waiting periods and the ban on rescissions—carry a relatively small fiscal impact. Because Vice President Biden ruled that Democrats could enact these comparatively small requirements in a reconciliation bill, Senate Republicans should have every right to repeal more costly restrictions, such as those on essential health benefits and actuarial value, outright through budget reconciliation, rather than relying upon the cumbersome state waiver processes included in last year’s bills.

Senate sources indicate that, recognizing the “Biden precedent” would allow for a robust Obamacare repeal, Democratic staffers tried to limit its impact last year. They argued to Elizabeth MacDonough, the Senate parliamentarian, that changes covered by that precedent were targeted in scope, technical in nature, and limited only to plans that qualify for subsidies.

But a textual analysis of the 2010 reconciliation bill shows that it changed requirements for all types of health insurance, not just “grandfathered” plans, and not just those that qualified for subsidies. And because Biden overruled Republican objections that these changes to insurance rules exceeded the scope of budget reconciliation in 2010, Republicans can and should use that precedent to undo Obamacare’s regulatory regime.

Obamacare’s insurance rules represent the beating heart of the law, necessitating a massive system of subsidies and tax increases to make this newly expensive coverage “affordable.” Because Democrats used the “Biden precedent” to impose some of those rules through budget reconciliation, Republicans have every opportunity to repeal these requirements outright through a reconciliation bill. They should take that opportunity, for removing the regulatory regime would effectively repeal Obamacare—and permanently restore health care freedom to the American people.

This post was originally published at The Federalist.

Weekly Newsletter: June 30, 2008

Senate Blocks Deep Cuts to Medicare Advantage…

Before recessing for the Independence Day recess, the House passed—and the Senate declined to limit debate on—legislation (H.R. 6331) addressing physician reimbursement levels under Medicare. The bill would prevent for 18 months a reduction in fee schedule levels scheduled to take effect on July 1, and would expand access to certain subsidy programs for low-income beneficiaries. These provisions would be offset largely by cuts to private Medicare Advantage plans, particularly private fee-for-service plans.

Some conservatives may be concerned that the House-passed bill’s significant cuts to Medicare Advantage would have the effect of driving beneficiaries away from a privately-run model of health insurance that has provided enhanced benefits and choice for millions of seniors, especially the 2.2 million beneficiaries in private fee-for-service plans. Some conservatives also may be concerned that the bill fails to address the long-term integrity of the Medicare program, relying on funding gimmicks and government-controlled price-fixing rather than undertaking comprehensive reform that would inject market forces into the program as a means to slow the growth of health care costs.

Following the House vote, nearly six dozen House Members—including RSC Chairman Hensarling— weighed in asking the Senate to revive bipartisan compromise legislation, crafted by Finance Committee Chairman Baucus and Ranking Member Grassley, that would address physician reimbursements without damaging beneficiary access to Medicare Advantage plans.

The Legislative Bulletin on H.R. 6331 can be found here.

…While Democrat Political Gamesmanship Prevents Physician Fix

After the Senate vote to limit debate on physician payment legislation that included significant cuts to Medicare Advantage failed on Thursday, Senate Republican Leader Mitch McConnell attempted to pass by unanimous consent a 30-day extension of current reimbursement provisions. However, Majority Leader Reid objected, and in so doing referred to several House special election results while commenting that “I don’t know how many people are up here for re-election, but I am watching a few of them pretty closely.” Because Senate Democrats objected to Republicans’ unanimous consent requests to pass a “clean” physician payment bill, physicians will take a 10% cut in their reimbursement levels beginning today unless and until Congress passes a retroactive fix. However, today’s Politico reports that the Administration is considering ways to delay the impact of the reimbursement adjustment, pending efforts by Congress after the recess to address the matter.

Some conservatives may be concerned by the Senate Majority Leader’s actions blocking a “clean” extension of current-law policies on physician reimbursement. Some conservatives may also believe that the short-term nature of current physician reimbursement extensions, coupled with their potential to become entwined in unrelated disputes and/or “held hostage” due to various political considerations, makes a powerful argument for more comprehensive reforms to Medicare, including a long-term solution to physician reimbursement policy.

While it is currently unclear whether Democrats will continue to block Republican attempts to pass noncontroversial physician payment legislation, or what precise form a more bipartisan bill designed to address the reimbursement provisions will take, the RSC will weigh in with conservative concerns and updates on H.R. 6331 and any other physician payment legislation which may be introduced or considered following the recess.

There are additional RSC Policy Briefs on issues related to the Medicare bill: Physician Payments; Medicare Advantage; Bidding for Durable Medical Equipment; and the Medicare Trustees Report.

Report Could Presage Democrat Efforts at Insurer Price Controls

In a related development, Ways and Means Health Subcommittee Chairman Pete Stark released a Government Accountability Office (GAO) study on Tuesday, which noted that in 2005 Medicare Advantage plans had lower medical costs and higher profits than first projected when submitting their bids for that contract year. Although the Centers for Medicare and Medicaid Services (CMS) noted that the profit projections were made under a now-defunct bidding process that may have explained much of the disparity, Democrats may attempt to use the GAO study to revive provisions in legislation (H.R. 3162) the House passed last year imposing a minimum “medical loss ratio” that would require Medicare Advantage plans to spend at least 85% of their total revenues on health care expenses.

To the extent that the higher-than-expected profits highlighted in the report are derived from improved care models and administrative and related efficiencies, some conservatives may view these proceeds as consistent with the free-market principles that reward companies who take measures to streamline operations while improving quality of care. Conversely, some conservatives may also believe that efforts to restrict medical loss ratios constitute de facto price controls on the insurance industry that will prove ineffective at controlling the growth of health care costs and could lead to unintended and potentially adverse consequences for enrollees.

The RSC has prepared a Policy Brief on this issue, available here.

Article of Note: Public vs. Private Debate Revolves Around Taxes

A study released last week by researchers affiliated with the liberal Center for Budget and Policy Priorities, and published online by Health Affairs, studied the relative efficiencies of private and public health insurance models. The authors conclude that public coverage through government programs like Medicaid is more efficient than private insurance, largely because public programs feature less cost-sharing than private coverage.

Given that a similar study released in 2003 found that lower reimbursement rates to providers were the primary reason that public programs had lower medical costs than private insurance, some conservatives may take issue with the study’s findings. The authors admit that providers are paid less under Medicaid than most private payers, and advocate an increase in reimbursement rates that would “improve patients’ access to and quality of care.” Yet the study methodology fails to take into account that medical spending for Medicaid patients is lower than private insurance precisely because beneficiaries in public programs have poorer access to provider care—in other words, that costs for Medicaid patients could be lower because they have coverage they cannot as readily use.

Some conservatives may believe that the authors’ admission that public programs reimburse providers at lower levels highlights the double taxation associated with expansions of Medicaid or the State Children’s Health Insurance Program (SCHIP). In addition to the amounts government spends to cover individuals in a public program, the cost-shifting that results from unrealistically low government reimbursement rates represents secondary taxes throughout the economy—on individuals with private insurance who pay more to subsidize health care costs the government will not pay; on Medicaid beneficiaries with reduced access to care; and on providers who are forced to work longer hours, or shorten the amount of time spent with each patient, in order to compensate for costs the government will not pay. For these reasons, many conservatives may believe that market-based reforms to the health care sector represent a far more preferable way to improve the quality of care while controlling the growth of health care costs.

Durable Medical Equipment

Background:  In addition to providing coverage for outpatient physician services, Medicare Part B also helps pay for durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) needed by beneficiaries.  Currently, Medicare reimburses beneficiaries for supplies using a series of fee schedules, which are generally based on historical prices subject to annual updates or other adjustments.  Medicare finances 80% of the actual costs or the fee schedule amount, whichever less, with the beneficiary paying the difference.  The Centers for Medicare and Medicaid Services (CMS) estimates that about 10 million individuals—or about one-quarter of all beneficiaries—receive medical supplies under Part B in a given year, at a cost to Medicare of approximately $10 billion annually.[1]

In recent years, some conservatives have raised concerns that the prices on the Medicare fee schedule for DMEPOS were in excess of market prices.  In 2002, testimony by the Department of Health and Human Services Inspector General revealed that the prices paid by Medicare for 16 selected items of durable medical equipment were higher than prices paid by Medicaid, the Federal Employee Health Benefits (FEHB) plans, and consumers purchasing directly from retailers.  The Inspector General projected that using the lower prices by other payers for these 16 common items alone would have saved Medicare more than $100 million annually.[2]

In response to the above findings, Congress in the Medicare Modernization Act (MMA) of 2003 (P.L. 108-173) enacted cuts in the fee schedule levels for the 16 specific items studied by the Inspector General’s testimony, while creating a new competitive bidding process for DMEPOS suppliers in Section 302 of the law.  This nationwide program followed on the heels of three demonstration projects, authorized under the Balanced Budget Act of 1997, established during the period 1999-2002 in Florida and Texas.  The pilot programs demonstrated the ability of competitive bidding to reduce the costs of DMEPOS by an average 19.1%—saving the federal government $7.5 million, and $1.9 million in reduced beneficiary co-payments—while maintaining beneficiary access to required items.[3]

In addition to a program of competitive bidding for DMEPOS, the MMA also established a new accreditation process for suppliers designed to review suppliers’ financial records and other related documentation to establish their status as bona fide health equipment suppliers.  A November 2007 CMS estimate indicated that 10.3% of payments to medical equipment suppliers were improper—a rate of questionable payments more than double those of other Medicare providers.[4]  Coupled with the new competitive bidding program, the accreditation mechanism was intended to eliminate “fly-by-night” DMEPOS suppliers from operating within the Medicare program, and thus was included in the anti-fraud title of MMA.

Implementation:  CMS previously announced that, pursuant to the Section 302 requirements, Round 1 of the DMEPOS competitive bidding process would begin on July 1, 2008 in ten Metropolitan Statistical Areas (MSAs): Charlotte, Cincinnati, Cleveland, Dallas, Kansas City, Miami, Orlando, Pittsburgh, Riverside, and San Juan.  A further 70 MSAs will be included in the program in 2009, with more expected to be included in subsequent years.

The three-year bids for the first round of MSA sites were submitted in September 2007; CMS notified winning bidders, and accepted contracts from winning bidders, earlier this spring.  Based on the Round 1 bids, CMS has indicated that the Medicare program and beneficiaries will save an average of 26% in the 10 categories of DMEPOS open to competitive bidding—ranging from a 14% savings on negative pressure wound therapy pumps and supplies to 43% savings on mail-order diabetic supplies.  When fully implemented, CMS estimates that competitive bidding will save the Medicare program approximately $1 billion per year.

Concerns Raised:  The introduction of DMEPOS competitive bidding has not been without controversy, and concerns raised by suppliers and other interested parties have generally fallen into two categories.  Some suppliers have raised specific concerns about the way in which CMS’ contractor conducted the Round 1 bidding process.  Many of these concerns have focused on a lack of communication from the contractor to the suppliers, resulting in some suppliers’ bids being rejected for lack of proper financial documentation without the suppliers having an opportunity to provide further information or clarification.  CMS has indicated that approximately 16% of all bids submitted were rejected solely due to a failure to meet proper qualification criteria; by contrast, 61% of all bids submitted were priced outside the winning range.

In response to the concerns raised regarding qualification criteria, CMS has utilized a twin-stage process of review for Round 1 suppliers who raised protests about the way the contractor conducted the bid process.  Both the contractor and CMS have taken steps to re-examine the documentation submitted during the review process, and in some cases, CMS has allowed those suppliers with winning bids who failed to meet accreditation or related requirements due to a lack of communication from the contractor to participate in the Round 1 location areas.  In addition, CMS has extended the accreditation deadline for suppliers participating in Round 2 bidding, and will also seek input from the Program Oversight and Advisory Committee established under the MMA for ways to refine and improve the DMEPOS competitive bidding process for subsequent bidding rounds.

The second group of concerns are broader in scope, and go to the heart of the competitive bidding program itself.  Concerns in this line include the potential impact on suppliers, particularly small businesses, who were not successful on pricing grounds.  Some policy-makers have also questioned the lack of scrutiny given to subcontractors not subject to the same accreditation requirements as DMEPOS contractors.  Lastly, other groups have questioned whether competitive bidding will lead to the sale of lower quality supplies and equipment to beneficiaries, as well as whether beneficiaries will be able to obtain access to DMEPOS equipment in instances where the winning bidders in an MSA had not previously serviced the area in question.

Some conservatives may question the need to delay the competitive bidding process on these grounds.  CMS provided specific opportunities for small businesses to participate in the DMEPOS competitive bidding process, resulting in approximately half of firms who accepted winning bids having revenues of less than $3.5 million.  These small business opportunities occurred in the context of a market-oriented bidding mechanism that, when fully implemented, will save taxpayers approximately $1 billion annually—and will provide additional savings to Medicare beneficiaries in the form of reduced co-payments.  In addition, the accreditation mechanism established by Section 302 of MMA provides a quality check previously lacking for DMEPOS purchases and suppliers.

While transitioning to a new system can create logistical difficulties, the staged implementation process will ensure that beneficiaries in a limited number of areas—only one-quarter of whom receive DMEPOS supplies in a given year—will experience the transition to a competitively bid environment this year.  This phased-in approach stands in contrast to the January 1, 2006 implementation of the Medicare Part D prescription drug benefit, where tens of millions of beneficiaries received new coverage at a single point in time—with logistical obstacles, though significant, relatively minor on a percentage basis.

Legislative Status:  On June 12, 2008, House Ways and Means Health Subcommittee Chairman Pete Stark (D-CA) and Ranking Member Dave Camp (R-MI) introduced H.R. 6252, the Medicare DMEPOS Competitive Acquisition Reform Act.  The legislation would terminate all Round 1 contracts made pursuant to the round of competitive bidding completed this spring, and would direct CMS to re-bid Round 1 at some point during 2009.  Future rounds of competitive bidding would also be delayed, with Round 2 (featuring an additional 70 MSAs) taking place during 2011, and competitive bidding in rural areas and smaller MSAs being delayed until 2015.  The estimated $3 billion cost of the delay would be paid for by an across-the-board reduction of 9.5% for all DMEPOS scheduled to be subjected to competitive bidding.  In addition, the bill would require the CMS contractor to notify suppliers missing financial documentation related to their bids, extend disclosure and accreditation requirements to DMEPOS sub-contractors, and establish an ombudsman within CMS to respond to complaints from suppliers and individuals about the DMEPOS competitive bidding process.

While competitive bidding language was not included in the Medicare legislative package (S. 3101) on which the Senate failed to achieve cloture last week, Finance Committee Chairman Baucus and Ranking Member Grassley have discussed incorporating language delaying the competitive bidding process into their competing packages covering an adjustment to Medicare physician reimbursement levels.

Implications of Delay:  Despite the contracting problems that have led some contractors to raise legitimate process concerns about the implementation of the first bidding round, some conservatives may still be concerned about the implications of the proposed legislative delay, particularly if coupled with a mandate that CMS re-bid the first round of DMEPOS bidding.  Re-opening the bidding process could prejudice entities who won their bids earlier this year, while potentially reducing savings to the federal government by allowing suppliers to bid more strategically, having had experience with the winning range of bids during the initial round.

In addition, some conservatives may be concerned that a delay of more than a few months would result in a new Administration being charged with implementation of competitive bidding, which could allow for further opportunities to undermine the program through the regulatory process.  Chairman Stark has indicated his desire to abolish the competitive bidding program altogether, paid for by the across-the-board cut in DMEPOS reimbursement levels currently being contemplated—so it is entirely possible that a new Administration and a future Congress could decide to make the “temporary” delay permanent and abolish competitive bidding outright.

Conclusion:  The debate surrounding DMEPOS competitive bidding finds many medical suppliers—some with understandable concerns about a lack of communication from the bidding contractor, others merely disappointed in not achieving a winning price for their bid—seeking redress from Congress for a bidding mechanism Congress established with the intent of creating arm’s-length transactions between the agency purchasing goods (i.e. CMS) and private suppliers.  Yet the alternative to a competitive bidding system where markets set prices for DMEPOS involves arbitrary reductions to inherently arbitrary fee schedules enacted by policy-makers with little proficiency in the minutiae of the myriad health care services for which the federal government acts as a payer.  As Senate Finance Committee Chairman Baucus conceded at a health care summit: “How in the world am I supposed to know what the proper reimbursement should be for a particular procedure?”[5]

For this reason, some conservatives may object to Congress’ frequent attempts to litigate these types of disputes, and may view the controversy surrounding DMEPOS competitive bidding as emblematic of larger problems with the current entitlement system.  In the myriad debates which it is perpetually pressured to referee—from the sustainable growth mechanism (SGR) to reimbursement levels for hospitals and nursing homes to the levels of epogen provided to kidney dialysis patients—Congress’ firsthand expertise is as limited as its jurisdiction is absolute.  The end result has frequently been an imbalance of attention paid to various reimbursement “crises,” with only secondary consideration given to the longer-term health and solvency of the underlying entitlement programs (i.e. Medicare and Medicaid) in question.

Some conservatives may believe that the lesson from these past and current controversies is that Congress has a poor track record in adjudicating provider-related disputes.  Many may find a better solution in a premium support mechanism that would convert Medicare into a system similar to the Federal Employees Benefit Health Plan (FEHBP), in which beneficiaries would receive a defined contribution from Medicare to purchase a health plan of their choosing.  In addition to ensuring long-term fiscal stability by confining the growth of Medicare spending to the annual statutory raise in the defined contribution limit, a premium support mechanism would result in reimbursement decisions being made by private insurance carriers, obviating the need for Congress to micro-manage provider payment levels.  Such a solution would provide a meaningful reform to the underlying problems that have erupted most recently in the DMEPOS competitive bidding controversy, by saving providers from the whims of Congress—and saving Congress from itself.


[1] Cited in Government Accountability Office, “Medicare: Competitive Bidding for Medical Equipment and Supplies Could Reduce Program Payments, but Adequate Oversight Is Critical,” (Washington, Report GAO-08-767T), available online at (accessed June 9, 2008), p. 3.

[2] Testimony of Janet Rehnquist, Inspector General of the Department of Health and Human Services, before Senate Appropriations Subcommittee on Labor, HHS, and Education, June 12, 2002 hearing, available online at (accessed June 16, 2008).

[3] Testimony of Thomas Hoerger, Senior Fellow, Research Triangle Institute International, before House Ways and Means Subcommittee on Health, May 6, 2008 hearing on Durable Medical Equipment Competitive Bidding, available online at (accessed June 9, 2008).

[4] Cited in Government Accountability Office, “Medicare Competitive Bidding,” pp. 10-11.

[5] Quoted in Anna Edney, “Bernanke: Health Care Reform Will Require Higher Spending,” CongressDailyPM June 16, 2008, available online at (accessed June 16, 2008).

Weekly Newsletter: April 28, 2008

  • Genetic Non-Discrimination Act Returns for House Vote

    This week, the House is expected to vote on Senate amendments made to the Genetic Information Nondiscrimination Act (H.R. 493), in order to send the bill to the President’s desk. The compromise language negotiated between Senate sponsors and Sen. Tom Coburn (R-OK) allowed the bill to pass the Senate on a 95-0 vote last Thursday.

    The compromise language corrects several issues of concern to conservatives. Insurers and employers will be prohibited from discriminating against individuals on the basis of fetal genetic information, ensuring that individuals will not feel pressured into aborting their unborn children. In addition, existing policies on insurance underwriting for diseases already manifest in individuals will be maintained, and entities subject to existing privacy regulations under the Health Insurance Portability and Accountability Act (HIPAA) will not be subject to a new regulatory regime. Lastly, the compromise language improved a conservative concern that employers will not be subject to Equal Employment Opportunity Commission (EEOC) tribunals or lawsuits for decisions they make in their capacity as an insurer for their employees.

    Full House Votes to Override Medicaid Fiscal Integrity Regulations

    This past week, the full House by a 349-62 vote approved legislation (H.R. 5613) that would impose moratoria on several proposed regulations issued by the Centers for Medicare and Medicaid Services (CMS) to restore fiscal integrity to the Medicaid program. Although the bill was approved by the Energy and Commerce Committee 46-0, seven Energy and Commerce Committee Republicans opposed House passage— because of either substantive concerns about the legislation or as a protest against the expedited procedures under which the multi-billion dollar bill was considered.

    Despite the wide margin of passage, some conservatives may remain concerned by congressional actions to block regulations that respond to more than a dozen Government Accountability Office (GAO) reports released since 1994 highlighting the various ways states have attempted to “game” the Medicaid program and increase the amount of federal matching funds received. The history of these abuses has prompted the Administration to threaten a veto of any measure attempting to block CMS’ attempts to restore the fiscal integrity of the Medicaid program.

    Action now moves to the Senate, where Minority Leader Mitch McConnell (R-KY), Minority Whip Jon Kyl (R-AZ), and Finance Committee Ranking Member Chuck Grassley (R-IA) all support allowing CMS’ regulatory actions to continue without further intrusion from Congress. In addition, the American Medical Association (AMA)—which supports legislative action to block the regulations—on Friday expressed concern that HR 5613 would utilize funds from a physician quality improvement fund to help pay for the moratoria. Some conservatives may view the AMA letter as confirming the belief that, by using a physician quality fund “in a manner inconsistent with its intended purpose,” HR 5613 relies on budgetary gimmicks not consistent with the spirit of House pay-as-you-go budgetary scoring rules.

    RSC Briefs on the federal-state Medicaid relationship can be found here, here, here, and here.

    Article of Note: Broken Promises Ahead

    This week, The Hill reported that Congressional Democrats do not believe the fundamental health care overhauls advanced by Sens. Hillary Clinton (D-NY) and Barack Obama (D-IL) have a realistic chance of enactment in the near future. The story quoted several Democratic leaders:

  • Democratic Senate Campaign Committee Chairman Chuck Schumer (D-NY): “I am not sure that we’re ready for a major national health care plan;”
  • Senate Finance Committee Member Jay Rockefeller (D-WV): “We all know there is not enough money to do all this stuff;”
  • House Ways and Means Committee Member Kendrick Meek (D-FL): “The money is not necessarily there right now” to enact comprehensive reform;
  • Senate Finance Committee Chairman Max Baucus (D-MT): “If they try to solve all the problems, it’s going to be difficult;”
  • Former Senator John Breaux (D-LA): “You don’t want to rush and do something and do it incorrectly.”

    Some conservatives may not be surprised by the skepticism from within the Democratic Party, particularly as Sen. Clinton has recently admitted her willingness to raise tobacco taxes to pay for her reform plan, while also garnishing individuals’ wages who do not comply with an individual mandate to purchase health insurance. Rep. Meek’s comments that “there is…a Congress here with feelings and experience on this issue…this is not a kingdom, this is a democracy” speak to the reluctance of Congressional Democrats to accept their Presidential candidates’ desire to raise taxes and grow government-run health care. Some conservatives would argue that, by reforming health care to create new markets, the sector could slow its soaring growth, obviating the need for additional taxes and spending to finance new public health care programs.

    Read the article here: “Dems Hedge on Health Care