The Republican drive to deliver a death blow to President Barack Obama’s health care law has overshadowed a quieter assault using annual government funding bills that’s gone on for years.
It’s not as glamorous or high-decibel as the news conferences and floor debates surrounding the repeal of the law, but it certainly has proved controversial. What’s more, the law’s supporters see this GOP tactic as partly responsible for many of the failures in the law that Republicans now say they must fix.
Lawmakers have, with little fanfare, rolled back provisions and chopped funding levels in the health care law each year since its enactment in 2010. And while top Republicans contend that the law’s “death spiral” is due to the legislation’s inherent flaws, they do admit their own actions have had an impact.
“This was always a limited aim, but we’ve been able to hold the line and keep them from setting up slush funds and overdrawing accounts to sustain what’s clearly a failing and very flawed program,” said Rep. Tom Cole, chairman of the House Labor-HHS-Education Appropriations Subcommittee. The Oklahoma Republican led one of the most vigorous efforts to attack the law using the appropriations process.
The Congressional Research Service has noted that since House control flipped to the Republicans in 2011, annual spending bills have been a prime target for the GOP as a way to chip away at the law. Provisions were added each year as a result. But many of the House’s efforts to limit funds fell flat in the Senate, where Democrats had the leverage to block procedural advancement of spending bills.
Cole disputes the notion that the Republican tinkering harmed the law’s implementation, which he and other Republicans consider a major policy failure. But a top Department of Health and Human Services official told CQ Roll Call in an interview before President Donald Trump took office that congressional unwillingness to adequately fund implementation made it more difficult to reach Americans struggling to navigate an already complicated insurance market with new requirements.
“We see that there still isn’t as much awareness of some of the affordability provisions of the ACA as we would like,” said Aviva Aron-Dine, a senior counselor in the HHS secretary’s office, referring to the law’s title, the Affordable Care Act. “About half of uninsured people are unaware they could get financial assistance for coverage, even though about 85 percent of marketplace-eligible uninsured people could get financial assistance.”
She added: “Those are all challenges that it would be easier to make more progress on, with more of a partner in Congress, in states and elsewhere.”
From fiscal 2011 to 2017, Senate and House appropriators enacted more than 60 provisions specifically related to the law in appropriations bills, according to information compiled by CQ Roll Call from CRS reports. But an even greater number were considered. CRS found that from fiscal 2011 to 2017, lawmakers folded more than 100 items related to the law into spending legislation before final action. These include amendments to limit spending on the law adopted in the Appropriations committees as well as spending measures passed by the House that never made it into law.
These techniques could preview spending activity for the 2018 season, though some Republicans see fewer riders in the offing with new legislative options available under Trump. Conversely, Democrats who have indicated their initial strategy against the GOP on health care will be one of obstruction could use the Republicans’ example as a playbook for how to weaken a Republican replacement if they so choose.
In 2013, one of the biggest congressional controversies in recent history centered on funding for the health care law. Disagreement over a provision that would have blocked any federal funding to implement the law in a fiscal 2014 continuing resolution ultimately led to a 16-day government shutdown. Following the shutdown, lawmakers agreed to a relatively clean stopgap that only tacked on reporting requirements.
But that didn’t mean Republicans gave up on their attempts to rein in the law. Each fiscal year since has seen either cuts, new prohibitions on how the administration could spend agency funds, or increased reporting requirements.
There have also been lawsuits and extended quarrels over documents that Republicans were trying to force the Obama administration to produce.
One major legal battle pitted House Republicans against the Obama administration on the question of subsidies to low-income consumers. A separation-of-powers suit filed by Republicans in 2014 resulted in a decision favorable to the GOP by a federal district court judge, who ordered that the administration stop reimbursing insurers for the subsidies received by about 9.5 million Americans. That judicial order was on hold as the Obama Justice Department appealed the case, but the Trump administration is expected to stop defending the payments to insurers.
Edwin Park, vice president for health policy at the Center on Budget and Policy Priorities, a left-leaning think tank, said “it’s a little unclear” what will happen to this and other legal fights in a unified Republican government. Republicans could change their tune to cushion the blow of repeal if market disruption is projected to increase consumer costs, Park said.
“So sort of an interesting wrinkle here is, are congressional Republicans going to try to shore up the market because of their own repeal approach? So where before there were attempts to block risk corridors, block reinsurance payments, is that going to continue?” Park asked. “Because that would nearly accelerate the rapid deterioration of the individual market under a repeal-but-delay approach. So it’s completely unclear how that’s all going to play out.”
While it’s a fairly passive tactic, one of the biggest impacts appropriators had on the law was simply through denying funding increases or refusing to appropriate money authorized by the law. Appropriators denied billions requested for implementation by the Centers for Medicare and Medicaid Services and the Internal Revenue Service.
While the health care law provided $1 billion to an implementation fund to help set things up, by 2013, both the IRS and CMS were looking for additional money to continue putting the law in place as their administrative burdens increased, according to agency budget justifications and the CRS.
Without the additional funds, the agencies began shuffling funds from elsewhere, which led to further appropriator unhappiness. CMS, for example, to help pay the bills for implementation drew upon the Prevention and Public Health Fund that was created in the law.
Limited resources likely limited public reach, HHS believes. “We probably could have made more progress on some issues with a partner in Congress,” Aron-Dine said, including, she added, “funding challenges” at IRS and CMS.
But Cole countered that the lack of agency budget increases didn’t “fundamentally change the trajectory” of the law.
“I think it’s kept the deficit down,” he said of the GOP efforts. “And look, they’ve been pretty good at siphoning off funds. So, I think we’ve won some victories, we’ve held the costs down, but it’s going to take a president to fundamentally change the trajectory.”
A thousand cuts
The Congressional Budget Office has estimated that the law would result in approximately $100 billion in discretionary spending from fiscal 2012 to 2021 if fully funded by appropriators. But CRS has found that few, if any, of the new grant programs authorized under the health care law were funded. And most of the existing programs reauthorized under the law have received less than what authorizers envisioned, CRS reported.
Some new grant programs that never materialized include a public health service student loan repayment program, training for pharmacists on medication therapy management and the establishment of an advisory board on elder abuse.
The law also authorized demonstration programs that never launched, including: implementing and evaluating alternatives to tort litigation; developing comprehensive health care access for the uninsured; and establishing alternative dental care programs. Appropriators blocked funding for a dental care demonstration program from fiscal years 2011 to 2015.
The effort to use spending bills to hit the health care law was something of an additive process. In the first few fiscal years after the law was passed — 2011, 2012, 2013 — spending bills contained few related provisions that became law. But lawmakers tacked on more and more provisions as implementation came closer and Republicans regained control of both chambers of Congress.
For example, appropriators cut funding for certain programs over multiple years. That included the Consumer Operated and Oriented Plan, or Co-Op, program, which lost $2.2 billion in a fiscal 2011 spending bill and another $400 million in fiscal 2012.
Lawmakers also cut $55 million from fiscal years 2012 to 2016 from an independent patient advisory board which was established to reduce Medicare costs without affecting quality or coverage. Certain reporting requirements also rolled over from fiscal year to fiscal year.
Republican appropriators’ efforts to attack the health care law using spending bills was a product of deep division and an unwillingness to address problems after the law was enacted, said Rep. C.A. Dutch Ruppersberger, a Maryland Democrat who served on the Appropriations Committee from 2007 to 2010 and then returned in 2015. Ruppersberger confirmed that policy riders related to the health care law became a major part of year-end negotiations on spending.
When asked about the denial of billions in agency funds for implementation, Ruppersberger said, “It was wrong, because we couldn’t get it implemented.”
More broadly, he said, the law needed improvements that couldn’t be made as a result of partisanship.
“I think the law keeps evolving and a lot of mistakes were made,” Ruppersberger said. “I think the unfortunate part is it became such a political issue, and it had traction, that no one really sat down to work through how to improve the bill. There were things that could have been improved and we needed to improve … and we could never do that because it strictly became a political football.”
Now, with unified GOP government control, Cole told CQ Roll Call he thinks appropriators won’t spend so much energy trying to dismantle the law.
“The main arena isn’t going to be appropriations,” he said. “I think there will just be a lot fewer riders, period.”
But Democrats would have the votes to block spending bills with unappealing riders in the Senate.
“It’s clear congressional Democrats would have more leverage to institute priorities because … an appropriations bill can be filibustered,” Park said.
That could be particularly likely if Republicans have to resort yet again to stopgap spending bills to fund the government and avert a shutdown — in which case the tables may be turned and the GOP would become the party on defense when it comes to the health care law.