One of the primary targets of criticism from candidates during this election season was the recently enacted healthcare legislation. Republican leaders, candidates, and pundits have all called for substantial changes to the legislation, and many have called for an outright repeal of the bill. In fact, even many Democrats have joined in criticisms of specific aspects of the legislation and have claimed that they would support efforts to revise the legislation.

This tone has not changed in the immediate aftermath of the elections. The likely new Speaker of the House, Rep. John Boehner (R-OH), has declared that repeal of significant aspects of the healthcare bill will be a high priority for the new House, and even the President has expressed openness to addressing aspects of the legislation.

Here are the issues most likely to arise in the next Congress:

Repeal or Reform?

The threshold issue, especially for Republicans, will be whether they want to fight to repeal the entire healthcare bill, or instead pick and choose issues to try to revise piece-by-piece. Wholesale repeal will be a very difficult task, as it will face strong opposition from the Democratic leadership in the Senate (which will only need to be able to sustain, rather than break, a filibuster) and have to overcome a Presidential veto. That said, recent comments from Boehner and other Republicans in leadership in the House have made it clear that some variety of repeal effort will be undertaken by Republicans in the House, and all that remains to be seen is how broad that effort will be and what legislative provisions will targeted for overhaul or removal from law.

Defunding?

If outright repeal cannot be accomplished, Republicans in Congress, along with some Democrats who opposed the healthcare legislation, may seek to defund the legislation through denial of appropriations to the agencies responsible for implementing the bill's mandates. In fact, some candidates and current members of Congress have threatened to condition all appropriations on the defunding, a prospect that threatens the type of government shutdown last seen in the early 1990s. While it will be difficult to collect the votes necessary to accomplish the goal of defunding the legislation, the battle over these appropriations threatens to complicate a wide variety of appropriations bills and the projects that depend on appropriations for funding.

Targets for Reform

There is a virtually unlimited universe of issues connected to the healthcare legislation that Congress may target for reform. The issues most likely to be addressed by Congress include:

  • Changes to the individual mandate to purchase health insurance. This provision has been the target of intense criticism from politicians at the federal and state levels. In addition to the litigation winding its way through the courts, many legislators appear to be willing to support a discussion about significant revisions to the mandate. These changes could include a focus on incentives, such as vouchers, that Republicans have long supported as a tool to encourage consumers to purchase health insurance.
  • There is significant momentum in the direction of reducing the burdens on small businesses in connection with the healthcare bill. One popular example is the requirement that all businesses report a wide range of new transactions to the IRS. This mandate may be an early target for reform, as even the President, speaking after the elections, has expressed a willingness to consider changes to the IRS mandates.
  • Medical malpractice reform. Medical malpractice reform was discussed during the lead-up and drafting of the healthcare bill, but very little language ultimately survived in the final text of the legislation. With a larger Republican presence on Capitol Hill, the time may be ripe to reopen the bill to include more comprehensive malpractice reform language.