The Medical Device Tax and Cynical Assumptions

When the U.S. Senate, in the course of adopting a budget resolution, overwhelmingly passed an amendment to repeal the Affordable Care Act’s medical device tax, Washington did what it does so well.  It reacted with cynicism.

As David Weigel wrote in his Slate post, “Why Did Liberals Kill the Medical Device Tax?” the repeal vote could be considered a freebie.  It was attached to a non-binding budget resolution and will not actually repeal the tax.  That would have to be done in separate legislation.  As Weigel and other skeptics portray it, this was a way for lawmakers to toss a bone to the medical device industry without actually doing anything of real consequence.

I think, though, that there’s another way to look at this vote.  Let’s recall how the Affordable Care Act was created in the first place.  It didn’t go through normal legislative channels.  The Senate passed its version of the bill, and many Senators admitted it contained provisions they didn’t like, but they assumed it would be fixed in a Senate-House conference committee.  That conference committee didn’t happen, though.  Rather than risk another Senate vote, which would have been problematic after Senator Ted Kennedy’s seat was taken by Republican Scott Brown, the House simply passed the flawed Senate bill and sent it to the President, warts and all.

With full implementation growing closer, let’s give Congress the benefit of the doubt and say it is now trying to fix some of the law’s more egregious problems, the medical device tax being one of them.  The Senate budget amendment may not have been binding, but it could also be the precursor to an actual measure getting rid of a provision that is already killing jobs in a medical innovation sector that has heretofore been creating them.