Status of Health Care Reform Debate

With the passage of the Senate Finance Committee bill on October 13, 2009, five different Congressional committees, three in the House of Representatives and two in the Senate, have passed health care reform bills. No other significant health reform legislation has made it this far in the political process since the creation of Medicare and Medicaid in the mid‑1960s.

In an effort to craft a bill to take to their respective chambers for a vote, Senate and House leadership are meeting separately with key parties, including White House representatives, to blend the various committee bills. While the timing remains fluid, Democratic leadership has expressed the desire to bring bills to the House and Senate floors in early to mid‑November. Some Senators have asked that no bill be brought to the Senate floor until the bill is in final legislative form with final Congressional Budget Office (CBO) estimates and all parties have had an opportunity to review the bill for at least 72 hours. It is unclear whether Senate leadership will comply with this request.

Democratic leaders in the House and Senate have to consider whether the bills they craft will receive support from a sufficient number of Democrats. House leaders have apparently accepted that they are unlikely to receive support from Republicans in the House, but they must still address issues and concerns expressed by "Blue Dog" Democrats. Senate leaders remain hopeful that they can attract some Republican support, such as Senator Snowe of Maine, who voted for the Finance Committee bill in Committee, and Senator Collins of Maine, who has indicated she may vote for health care reform legislation. They also want to convince moderate Democrats, including Senator Bayh of Indiana, to vote for the legislation. These efforts are focused, in part, on building enough support to defeat a likely filibuster on the floor of the Senate.

Several important issues remain subject to considerable debate, even among Democrats, perhaps none more than the public plan option. A public plan option is included in each of the three bills passed by the House committees, and Speaker Pelosi has made it clear that the merged House bill will include a public plan option. The Senate Health, Education, Labor and Pensions Committee bill included a public option, but the Senate Finance Committee bill did not. Chairman Baucus actually voted against an amendment which would have included a public plan option because he did not feel that a bill with a public option could pass the Senate. Other Senators have stated that they will push for a public option in the conference committee and, if necessary, on the Senate floor. The White House has indicated that President Obama would prefer the final bill to include a public option but, to the chagrin of some Democrats, it is not an essential piece of a health care reform bill.

Another complicating factor is that some parties who expressed early support for the health care reform effort, such as certain insurer and provider organizations, did so, in part, on the basis that the legislation would mandate near universal coverage, and are now criticizing the Finance Committee bill because it would not meet this mandate. Based on CBO estimates, the Finance bill would only cover about 94% of Americans. The bill also weakens the enforcement of the individual mandate as it ramps the penalty up over a five‑year period and increases the number of individuals exempt from the mandate. This, along with the public option, will be a hotly debated issue over the next several weeks.

Many astute observers believe that it remains more likely than not that health care reform legislation will pass this year. We will continue to monitor the debate and advise you of significant developments. If you have any questions or would like Ice Miller to provide you with more specific information on certain provisions or to make presentations on the health care reform effort to your organizations, please do not hesitate to contact Greg Pemberton, Kevin Woodhouse or Sarah Cotterill.

If you have more questions about the health care reform, you can contact Kevin Woodhouse, or any other partner in Ice Miller's Health Law Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.