Opponents of the healthcare-reform law are expending huge amounts of rhetorical energy bad-mouthing the legislation, and various means of repealing it are pushing forward—even as the rolling-out of the bill continues apace.

But despite the rhetoric, the obstacles standing in the way of repeal or major changes in its structure appear to be growing, not receding.

For example, the momentum for exempting agent commissions from the medical-loss ratio through legislation was significantly slowed through a recent National Association of Insurance Commissioners (NAIC) task force decision to delay action on a resolution supporting such legislation.

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

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

The debate over federal legislation establishing uniform standards and limits on medical-liability lawsuits is a shining example 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 House floor Feb. 17 by the House Judiciary Committee.

The legislation imposes a $250,000 cap on subjective, noneconomic damages; a collateral-source rule reform allowing evidence of outside payments to be made in court; a ban on subrogation by collateral sources; a fee schedule for attorney contingency fees; and periodic payments of future damages.

Final action on the bill was delayed for several weeks in February because both Democrats and conservative Republicans voiced objections to the legislation based on concerns it would infringe on states' rights.

The committee ultimately decided to report the bill to the House floor as written and let the battle over the states'-rights issue be waged there.

But it didn't happen.

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

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

That debate may become even more contentious now that a respected group of state legislators are weighing in on the issue.

In a letter sent to the Health Subcommittee of the Energy and Commerce Committee last week, National Conference of State Legislatures (NCSL) officials beseeched the panel to drop efforts to impose a “one-size-fits-all” standard on medical liability through federal legislation.

The letter notes that the NCSL studied the issue at length in 2005, when the Republican-controlled House proposed legislation establishing federal tort rules on medical-liability cases.

In the letter, NCSL officials say, “The resounding bipartisan conclusion was that federal medical-malpractice legislation is unnecessary.”

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

It also states, “Many states have caps on noneconomic damages and limitations on attorney's fees in medical-malpractice cases.”

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

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

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

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

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Recent Healthcare Skirmishes Show Difficulty Of &lsquo;Repeal And Replace&rsquo;

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Recent Healthcare Skirmishes Show Difficulty Of ‘Repeal And Replace’