Federal Legislative Report
By Dani Kehoe, DBK Consulting, Washington, D.C.
The
112th Congress is off to a fairly quick start, although no significant
legislation has been enacted into law—or even made substantial progress
towards enactment. In fact, initial Congressional activity suggests that
the partisan divide—as viewed through the prism of a GOP-led House and a
Democratic-controlled Senate—is deeper than ever, and that enactment of
legislation will be difficult and time-consuming.
Health Reform
PPACA
repeal: On January 19, the House voted (245 to 189) to repeal the
Patient Protection and Affordable Care Act (PPACA) in its entirety. The
repeal bill, H.R.2, now awaits action in the Senate. There is also
Senate legislation pending that would repeal the PPACA. This is S.192,
introduced by Sen. Jim DeMint (R-SC), with 39 cosponsors (all
Republicans).
GOP
Senators say they will continue to offer PPACA repeal, on its own or as
an amendment to other pending legislation. The first such effort—which
was not on H.R.2, but rather an identically-worded alternative offered
by Sen. Mitch McConnell (R-KY) as an amendment to the Federal Aviation
Authority (FAA) bill, was defeated. On February 2, 53 Senators voted
against a procedural motion that resulted in killing the McConnell PPACA
repeal amendment (47 GOP Senators voted for the proposal).
Piece-by-piece
repeal: Concurrent with overall PPACA repeal attempts are efforts to
repeal pieces of the health reform law. The first such effort was
introduction in the House of H.R.4, a bill to repeal the PPACA’s rule
that requires businesses to report, via form 1099, aggregate
expenditures of $600 or more, annually, per vendor. That measure is
still pending in the House, where leadership says it will be among the
first “piece-by-piece” repeal measures on which the House will
vote.
The
Senate did vote on—and pass—a 1099 reporting repeal proposal. On
February 2, 81 Senators voted in favor of an amendment to the FAA bill.
The repeal amendment was offered by Sen. Debbie Stabenow (D-MI).
Seventeen Senators voted against the amendment.
Other efforts aimed at repealing the PPACA, piece-by-piece if not in its entirety, are also underway. These include:
• Repeal of the PPACA’s employer responsibility rules—S.20, introduced by Sen. Orrin Hatch (R-UT), with 23 cosponsors.
• Repeal of the PPACA’s individual mandate—S.19, introduced by Sen. Orrin Hatch (R-UT), with 23 cosponsors
• Numerous
hearings on various aspects of the PPACA—including one at the House
Ways & Means Committee on January 26 to which NPDA submitted a
statement for the record. The Ways & Means hearing focused on the
PPACA’s impact on jobs, employers and the economy. NPDA wrote in its
statement that labor-intensive, low-margin businesses like the private
duty industry are particularly hard-hit by the new and substantial costs
imposed by the PPACA. NPDA asked Congress to repeal or change the
employer responsibility rules to avoid the potential for jobs loss,
higher costs to those who use companion care services, and/or diminution
of private duty jobs from full-time to part-time.
• Amendments
to “defund” the PPACA to the continuing resolution (CR) that is
required, by March 4, to keep the government funded. (Current funding
authority expires at midnight on March 3.) House GOP leadership promises
multiple floor amendments to the new CR. These amendments are
structured to prevent the federal government from using any funds to
implement the PPACA. The “defunding” amendments may well
succeed in the House version of the CR. That will set up an intense
debate with the Senate, where Democrats probably have the votes to block
those defunding amendments from a final version of the CR.
Worker Classification
Worker
classification (independent contractor) issues have fallen down
considerably on the 112th Congress’ priority issues list. Because worker
classification is widely viewed, in Washington, as a labor (unions)
issue, it is not a high priority for the GOP. However, it is also widely
acknowledged that how an employer classifies its workforce is a revenue
issue—the federal government would collect significantly more in taxes
were more workers to be characterized as employees rather than as
independent contractors. Thus, the issue is not dead, despite its
characterization (by the GOP) as a union issue. Rather, it awaits a
tax-focused effort to reduce the deficit. Because Congress is starting
on this year’s deficit reduction efforts with spending cuts rather than
with tax proposals, this effort is unlikely prior to the summer, or even
the fall.
However,
Washington insiders do anticipate a worker classification proposal in
President Obama’s fiscal year 2012 budget—that is due to go to Congress
on or around February 14. If such a proposal is in fact in the budget,
it is likely to mirror last year’s proposal—a repeal of the “safe
harbor” (industry practice to classify workers as independent
contractors), a repeal of the current law moratorium on IRS regulations
to clarify independent contractor rules, and instructions to the IRS to
issue clarifying regulations and to conduct more audits to determine
whether workers are properly classified.
Also
possible later this year is reintroduction of legislation that would
require companies to keep more and better records on their workers’
classification status, and to inform workers of their status. There is
also an ongoing joint state-federal initiative aimed at helping States
to identify companies with workforces that may be improperly classified.
