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Congress has another go at repealing medical device tax

The U.S. Senate has started to make good on its promise to repeal elements of the Affordable Care Act (ACA), aka Obamacare, notably the 2.3% excise tax that is reviled by the medical device industry. The vote on Dec. 3 was almost strictly partisan, with only two Republican senators, Susan Collins of Maine and Mark Kirk of Illinois, voting against the bill. All of the Democrats opposed it. In addition to repealing the excise tax, the bill would eliminate the ACA's individual and employer mandates and the so-called Cadillac tax as well as defund Planned Parenthood.

The U.S. Senate has started to make good on its promise to repeal elements of the Affordable Care Act (ACA), aka Obamacare, notably the 2.3% excise tax that is reviled by the medical device industry. The vote on Dec. 3 was almost strictly partisan, with only two Republican senators, Susan Collins of Maine and Mark Kirk of Illinois, voting against the bill. All of the Democrats opposed it. In addition to repealing the excise tax, the bill would eliminate the ACA's individual and employer mandates and the so-called Cadillac tax as well as defund Planned Parenthood. The bill will now go to the House, which passed a similar version of the bill in October. If it reaches the president's desk, Obama has vowed to veto it.

The device tax has been pilloried by many in the medical manufacturing community as a job killer. In a recent op-ed piece in The Hill, John Eckberg, Director, Media Relations at the Cook Group, a medical device company headquartered in Bloomington, IN, writes that it is "the dumbest tax in the history of public policy." Citing the EvaluateMedTech 2015 report, Eckberg notes that the "precipitous drop in the growth rate of R&D spending started in 2012, from 9.6% in 2011 to 2.5% in 2012 and hit a trough at 0.6% in 2014. Assume a total of $1.8 billion collected from U.S. firms between January 2013 and January 2015. That's the equivalent of 30,000 jobs that might have paid $60,000 each—a starting medtech job."

SPI: The Plastics Industry Trade Association also has come out in support of a repeal of the device tax. In a statement posted on Nov. 11, 2015, SPI wrote: "Repealing the medical device tax is essential to promoting economic growth, jobs, research and development and manufacturing. More importantly, repealing is critical to ensuring patient access to life-saving care and treatment."

House Republicans have voted more than 50 times to repeal or delay the ACA, but this is the first time the Republican-controlled House and Senate have used a procedure aimed at bypassing a filibuster by Senate Democrats to get a bill on the president's desk, notes BloombergPolitics. Nevertheless, Harry Reid (D-Nev) called the vote a "gesture of futility," since the Democrats have sufficient votes in Congress to block an override of President Obama's veto.

Plus ça change . . . ? Not necessarily. "Republicans are carefully constructing a legislative strategy, based on Senate rules and precedents, to make it easier to unravel the health law in 2017 if a Republican wins the White House," notes Politico. "[The] contents [of the bill] could provide a road map showing which pieces of the Affordable Care Act could be repealed under a Republican administration. Here's how that works: Under the special rules of reconciliation, the Senate's parliamentarian has to determine whether each provision complies with the Senate's rules. Those rulings are based in part on precedent. So once the parliamentarian determines that this legislation complies, it makes it hard to argue that a similar repeal bid doesn't in January 2017—when a new president might sign it into law," writes Politico.

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