Opponents of the healthcare-reform law are expending hugeamounts of rhetorical energy bad-mouthing the legislation, andvarious means of repealing it are pushing forward—even as therolling-out of the bill continues apace.

But despite the rhetoric, the obstacles standing in the way ofrepeal or major changes in its structure appear to be growing, notreceding.

For example, the momentum forexempting agent commissions from the medical-loss ratio throughlegislation was significantly slowed through a recent NationalAssociation of Insurance Commissioners (NAIC) task force decisionto delay action on a resolution supporting such legislation.

Clearly, there is a way to go before the Supreme Court rules onthe provision of the bill mandating that most Americans buyhealthcare insurance starting in 2014.

Moreover, as one Washington, D.C. lawyer with a varied appellatepractice notes, if all appeals courts essentially uphold themandate provision, the Supreme Court is unlikely to even take upthe case.

The debate over federal legislation establishing uniformstandards and limits on medical-liability lawsuits is a shiningexample of the potholes faced by repeal advocates.

The bill—H.R. 5, the “Help Efficient, Accessible, Low-Cost,Timely Healthcare (HEALTH) Act of 2011”—was reported to the Housefloor Feb. 17 by the House Judiciary Committee.

The legislation imposes a $250,000 cap on subjective,noneconomic damages; a collateral-source rule reform allowingevidence of outside payments to be made in court; a ban onsubrogation by collateral sources; a fee schedule for attorneycontingency fees;   and periodic payments offuture damages.

Final action on the bill was delayed for several weeks inFebruary because both Democrats and conservative Republicans voicedobjections to the legislation based on concerns it would infringeon states' rights.

The committee ultimately decided to report the bill to the Housefloor as written and let the battle over the states'-rights issuebe waged there.

But it didn't happen.

Last week, the Health Subcommittee of the Energy and CommerceCommittee, one of three committees with oversight over healthcarein the House, held a hearing on the bill under what is called a“sequential referral.”

Ihe sequential hearing on legislation may imply concerns by theHouse Republican leadership over whether to risk a debate on theHouse floor that would expose divisions within the Republicancaucus.

That debate may become even more contentious now that arespected group of state legislators are weighing in on theissue.

In a letter sent to the Health Subcommittee of the Energy andCommerce Committee last week, National Conference of StateLegislatures (NCSL) officials beseeched the panel to drop effortsto impose a “one-size-fits-all” standard on medical liabilitythrough federal legislation.

The letter notes that the NCSL studied the issue at length in2005, when the Republican-controlled House proposed legislationestablishing federal tort rules on medical-liability cases.

In the letter, NCSL officials say, “The resounding bipartisanconclusion was that federal medical-malpractice legislation isunnecessary.”

The letter also says that all 50 states have statutes oflimitations for medical-malpractice suits.

It also states, “Many states have caps on noneconomic damagesand limitations on attorney's fees in medical-malpracticecases.”

And there are growing musings by Republicans that the passage oflegislation repealing the so-called “1099 provision” may representthe high-water mark for recall efforts.

The provision, designed to raise more than $19 billion inrevenue over 10 years, would have required business owners startingin 2012 to file a tax-reporting document for all vendors from whichthey buy $600 worth of goods or services within a year.

Its main Senate supporter, Sen. Mike Johanns (R-Neb.), notedafter the bill passed the Senate on April 5 that the legislation isa cautionary tale on repeal initiatives.

Johanns said in an interview with Politico, “This was aprovision in the healthcare law that pretty quickly everybodyagreed was foolish. And yet we had over a dozen votes to get tothis point…Can you imagine what kind of battle you would have on akey part of the healthcare bill? Once something becomes law in thefederal government, it is very hard to amend it or tweak it unlessthere is unanimous agreement.”