JACKIE JUDD: Good day, this is Health on the Hill. I’m Jackie Judd. It is a new political day in Washington, with Republicans making sweeping gains in Congress and in the statehouses. The health care reform law is under attack. Congressman John Boehner, in line to be the next House Speaker, made that clear in a post-election news conference.

Video, Rep. John Boehner, R-Ohio: I believe that the health care bill that was enacted by the current Congress will kill jobs in America, ruin the best health care system in the world and bankrupt our country. That means we have to do everything we can to try to repeal this bill and replace it with common sense reforms that will bring down the cost of health insurance.

JACKIE JUDD: At his news conference, President Obama signaled some willingness to work with Republicans in tinkering with the law, but warned them not to go too far.

Video, President Barack Obama: we’d be misreading the election if we thought that the American people want to see us for the next two years relitigate arguments that we had over the last two years.

JACKIE JUDD: What does this shift in power mean for health care reform? Here to join me in the discussion, as always, Mary Agnes Carey, senior correspondent for Kaiser Health News, and Marilyn Serafini, [the Kaiser Family Foundation’s Robin Toner Distinguished Fellow at KHN.] Welcome to you both.

Marilyn, I want to ask you both but I will start with you, you spent some time out on the campaign trail. What was the message that voters were delivering about health care specifically? Do we know yet?

MARILYN WERBER SERAFINI: Well, a lot of Republicans are coming out of this election saying the message was: ‘America hates health care reform,’ and really when you look at the polls of the last few weeks, the last even couple of months, America is split. About half of respondents have said consistently in polls that they are okay with the bill, they even like the bill, and about the same number say they do not like it. So, the message is not very clear at this point, but it certainly doesn’t mean that America overwhelmingly supports repealing the legislation.

JACKIE JUDD: Mary Agnes?

MARY AGNES CAREY: Well, I think that Marilyn has a good point. I think this election was a lot more about the economy than about health care, but obviously with John Boehner standing up and saying these things, Republicans look at this as a very clear mandate to go after the health care law, either repeal the entire law or repeal it and replace parts of it, and the ultimate decision about whether or not this is what voters want probably won’t come until 2012. But I think this is where Republicans are, this is how they are interpreting it, because as Marilyn said, the polls are very mixed.

Another complication in the polling is when you start asking people about what they don’t like about the health law, sometimes they say they want to keep some provisions they do like but get rid of others, so when they say repeal they may not mean repeal the entire bill, they mean maybe repeal something like the mandate.

JACKIE JUDD: And repeal in a practical world, I think it is fair to say it is almost not possible. The Democrats still control the Senate. President Obama almost certainly would veto it. But, being in control of the House does give Republicans some tools to make Democrats’ lives miserable. What are some of those tools?

MARILYN WERBER SERAFINI: Absolutely. They are just itching to get into those oversight committees and the oversight subcommittees of the House Ways and Means Committee and the House Energy and Commerce Committee. They are eager to get Secretary of Health and Human Services, Kathleen Sebelius, and the administrator of Medicare and Medicaid, Don Berwick, up to the Hill so that they can start grilling them on these various provisions on regulations. They want to open up investigations anywhere they can. They are just ready to start making life miserable for Democrats.

JACKIE JUDD: And there could be defunding possibilities. They could delay. There are all kinds of ways.

MARY AGNES CAREY: Right, they could certainly work through the appropriations process to slow funding on discretionary spending, money that would go to the Department of Health and Human Services or to the Internal Revenue Service to implement the bill.
Now, a lot of the funding for the health care law is mandatory spending, so they would have to be able to successfully change the law. And, as you know, while Republicans may be able to move some of these things through the House, they are going to be stopped in the Senate and if for any reason they survive, the president would veto it and the Republicans don’t have enough votes to override a veto. So, they will likely be unsuccessful.

JACKIE JUDD: I mentioned at the top that at his news conference today, President Obama suggested some willingness to work with the Republicans, I think he said if they come up with some good ideas. But he said that there are always ways to improve a law, and he made specific mention of one point in the law that he seemed open to changing already.

MARY AGNES CAREY: He talked about this provision in the law that requires if you purchase over $600 of goods or services from a vendor, you’ve got to file a 1099 form with the Internal Revenue Service. Small business hates this provision. Democrats want to get rid of it. Republicans want to get rid of it. They actually tried to do this before the election, but it failed in part because they’ve had some problems with funding offsets. But the president said today it makes sense. Let’s change that.

We have also seen with the Department of Health and Human Services, they have given waivers to some of these limited-benefit plans, a waiver against lifting their lifetime caps. Again, these lifetime caps on coverage were supposed to be gone, for plan years after the 23rd of September, but HHS has shown some flexibility.

I think he is signaling that flexibility could continue on, we have talked about on annual limits, lifetime limits rather, maybe on annual limits, whether or not a plan has to meet the medical loss ratio, that percentage of which the premium dollar you have to spend on health care. I think he is trying to signal that again if Republicans and Democrats can agree, they can make some changes.

JACKIE JUDD: The election results that we saw last night did not stop on Capitol Hill. It extended to many statehouses across the country. There are now Republican governors, or will be early next year, where there are now Democrats. What impact might that have on implementation of the health care reform law as we now have it?

MARILYN WERBER SERAFINI: It could be very significant. I was on the phone yesterday with a state senator from Wyoming who told me they will do everything they can. They had a Democratic governor. Now they will have a Republican governor, and one of the first orders of business is going to be to join the list of states that have lawsuits challenging the individual mandate of the health reform law. 

But in addition to that, he assured me that he was going to do everything he could to get the legislature to set aside a pot of money to challenge regulations, to implement the law that come out of Washington, wherever they can do it.

JACKIE JUDD: Mary Agnes?

MARY AGNES CAREY: That’s exactly right. That is something a Republican governor, if he or she had a like-minded state legislature could work together to put pressure on their Washington delegation to get some exemptions from some of the regulations or implement them later. If you were in a state where the governor had the power to appoint an insurance commissioner or an Attorney General, you could certainly do that, get somebody of the same like-minded that you are to slow the bill down.

And I think that Republican governors as a group will look at the gains that Republicans made not only in the House but in the Senate, and they may work in concert to say’ look, what is our game plan leading us up to 2012? If we can delay, if we can slow down implementation, will that put us collectively as Republicans in a better spot to boost our gains on the state level and at the federal level and possibly in the White House?’

And let’s not also forget that the Republican governors will play a big part as will Republican led state legislatures as well as Democratic legislatures in redistricting. That is a really key thing to look at down the road where parties’ try to boost their numbers through that device.

JACKIE JUDD: 2014 now seems an awfully long way away, which is the year of course when many aspects of the law are supposed to be implemented. So much could happen.

MARY AGNES CAREY: So much could happen, you are absolutely right.

MARILYN WERBER SERAFINI: Including an election in 2012.

JACKIE JUDD: Exactly. Well, thank you both very much, Marilyn Serafini and Mary Agnes Carey, I appreciate it.