Medical device industry lobbies IRS, Congress to dodge health law tax

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Sen. Orrin Hatch, R-Utah, right, accompanied by Senate Finance Committee Chairman Sen. Max Baucus, D-Mont., center, and Sen. Jay Rockefeller, D-W.Va., left. Hatch says a tax on medical devices will increase insurance premiums and the cost of care.

Lawrence Jackson/The Associated Press

Like many other interest groups, the medical device industry met with White House officials in the run-up to the health care battle in Congress. But while insurers, pharmaceutical firms and even the American Medical Association made agreements trading their support for specific concessions, the device makers were not able to close a similar deal.

As a result, the final health care reform bill included a 2.3 percent excise tax on device makers that’s expected to produce $20 billion over a decade to help pay for expanded health coverage.

That’s the law, or so it would seem.

But in Washington, it’s never over until it’s over. And like other medical interests who are scrambling to influence the implementation of health care reform, medical device makers are showering cash on friends in Congress and working the halls, hoping that one of five bills that would overturn the excise tax might actually make it into law.

Veteran Hill watchers say that may be a long shot, so to hedge its bets, the industry is also lobbying the Internal Revenue Service to write rules exempting hundreds of devices from the excise tax — even though the health law says the exemption should be limited to items widely purchased by the public from retailers. The outcome of that under-the-radar battle is far from certain.

The medical device business and its lobbyists have a strong record of winning concessions and at least partially deflecting the costs of health insurance coverage expansion. An early Senate “framework” version of the health bill pushed by Democrat Max Baucus of Montana, for example, would have nailed the industry with a $40 billion excise tax bill over ten years beginning in 2010. Shocked at the price tag, the device manufacturers’ trade group, the Advanced Medical Technology Association (AdvaMed), pushed back, aided by industry giants Medtronic Inc., Johnson & Johnson, 3M Co., and others.

With the help of a bipartisan group of lawmakers, the device makers succeeded in cutting the tax in half in the final health care law, which also delayed the start date for the tax until 2013, three years later than in the Baucus proposal.

Manufacturers, however, maintain that even the smaller tax in the health care law is catastrophic for them. So the industry is targeting Capitol Hill anew and working the regulatory process, searching for concessions.

"The excise tax would have a significant impact," said Brian Henry, a spokesman for Medtronic, the world's largest medical device maker. "That's money that would go toward innovation, research and development, and jobs."

Five industry-supported bills currently before Congress would completely overturn the excise tax on medical devices, the most widely supported of which are bills introduced by Sen. Orrin Hatch, R-Utah, and Rep. Erik Paulsen, R-Minn. Hatch’s bill has 14 Republican co-sponsors. Paulsen’s House bill has 119 co-sponsors, including three Democrats.

Hatch, who has been one of the health care law’s fiercest opponents, says the tax on medical devices will increase insurance premiums and the cost of care. Relying on an excise tax “to fund Obamacare will cripple an important engine of opportunity, job growth and innovation,” Hatch said in a January news release.

Campaign contributions from industry

In 2009 and 2010, both Hatch and Paulsen were major beneficiaries of medical device industry money.

Hatch was not up for re-election that cycle but received more than $90,000 in campaign donations from the medical supply industry, which made him the trade group’s third largest political beneficiary, according to the Center for Responsive Politics. The political action committee of the AdvaMed association alone contributed $10,584 to Hatch’s campaign, and $3,150 to Paulsen’s.

The political action committees of individual companies also chipped in. The PAC of Boston Scientific, a major manufacturer of heart and other medical devices, contributed $7,000 to Paulsen’s campaign and $5,000 to Hatch’s. Medtronic, which is based in Paulsen’s home state, donated $3,000 to Paulsen and $5,000 to Hatch.

Paulsen spokesman Tom Erickson said the bill is a response to job loss fears, not industry campaign donations, and that more than 400 medical device companies are based in Minnesota. A Hatch spokesman said the senator’s bill reflects his political philosophy: “It’s something he has felt strongly about for a long time, that taxes are counterproductive,” spokesman Mark Eddington said.

Hatch and Paulsen are only two of the friends the device industry is counting on for help.

In late March, Democrat Amy Klobuchar of Minnesota and Republican Scott Brown of Massachusetts, launched a new Senate medical technology caucus to increase awareness about issues facing the industry. Both represent states with significant medical device manufacturers and have been major beneficiaries of industry money.

Boston Scientific, which in 2010 had $7.8 billion in sales, is based in Brown’s state. In 2010, Brown received more than $30,000 in campaign donations from the medical supply industry, which is dominated by the device makers. Klobuchar received more than $40,000 in contributions.

“These businesses not only spark medical breakthroughs, they save lives,” Klobuchar said in comments released on the day the new caucus was launched. “Every day in every state small medical technology companies are driving the innovation agenda we need to compete in a global economy. I will continue to work to make sure that Minnesota remains a leader in health care innovation by developing innovative products while maintaining patient safety.”

The House medical technology caucus was revamped in February. According to the industry newsletter MedCity, its new website was launched on the same day that Paulsen, who chairs the group together with Anna Eschoo, D-Calif., addressed the Minnesota life sciences trade group LifeScience Alley.

In the halls of Congress, the medical device manufacturers have long pushed the jobs refrain, first to deflect taxes, and second to fend off scrutiny from the U.S. Food and Drug Administration, which regulates devices. Dr. Josh Makower, the founder of Exploramed, a medical device incubator — who frequently testifies before Congress — said the excise tax will particularly hurt small firms, many of which rely solely on investment capital for years before turning a profit.

“The saddest thing is that these small companies are exactly the ones that are delivering new innovations,” Makower told iWatch News in an e-mail response to questions.

Revolving door

In pushing its interests, the device industry benefits from the revolving door connecting K Street with Capitol Hill.

In December, former AdvaMed executive Brett Loper, who lobbied against the excise tax, was named House Speaker John Boehner’s chief policy officer. Elizabeth Kegler, the association’s vice president of government affairs, is a former health policy advisor to Sen. Chuck Grassley, R-Iowa.

Advamed association spent almost $1.5 million lobbying Congress on behalf of its members in 2010. First quarter lobby disclosure records for 2011 will not be available until late April, but medical device industry activity suggests the industry has likely not slowed its spending.

Despite device industry campaign donations, powerful allies, and support for the Paulsen bill in the House, George Schutzer, a tax lobbyist and attorney at the Washington firm Patton Boggs, said he doubts Congress is ready to overturn the device tax. A win for the medical device industry would “open the flood gates” for challenges to the health reform bill by other parts of the medical industry, Schutzer said, and would most likely result in an Obama veto.

Next stop: IRS

As a result, the medical device industry has taken the fight beyond Congress to the Internal Revenue Service, which will administer the tax.

That part of the struggle appears to be splitting the industry as manufacturers try to protect their market niches. Although the medical device category includes big-ticket items generally sold to hospitals, including artificial hearts, pacemakers, coronary stents and artificial joints, it also includes a wide range of less expensive items ranging from tongue depressors to examination gloves.

The health law exempts from the excise tax eyeglasses, contact lenses, and any device the Treasury Department determines is generally purchased by the general public at retail for individual use. Certain sectors of the device industry, however, contend that devices from wheelchairs and scooters to home oxygen systems fit the exemption criteria.

In written comments to the IRS, which is expected to publish tax guidance for device manufacturers, DJO Global, the largest U.S. supplier of orthopedic devices, asked for an exemption on all items classified by Medicare as durable medical equipment, prosthetics and orthotics, including bone-growth stimulators and electrotherapy devices. The American Association for Home Care, which represents the home medical care industry, wrote that it believes all durable medical equipment, including complex power wheel chairs, should be exempt.

“Durable medical equipment and home medical equipment fit that exemption language to a tee,” said Jay Witter, senior director of government affairs at the American Association for Home Care, in an interview. Witter quoted a 2009 fact sheet released by former Speaker Nancy Pelosi that said wheelchairs would be exempt, and that the excise tax would apply only to sales of medical devices to hospitals and other institutions. The comment period on the exemption ended in late March; the IRS did not respond to questions on when it might decide who gets the exemption and who doesn’t.

Witter said it is unclear whether or not wheelchairs and other durable medical equipment were included in revenue calculations that projected $20 billion in revenue from the tax over a decade’s time. But since the majority of home health customers are covered by Medicare, which pays set rates, Witter said the cost of the excise tax cannot be passed on to consumers.

Diana Zuckerman, president of the National Research Center for Women & Families, a think tank that focuses on health issues, said the idea that all durable medical equipment should be exempt from the excise tax is absurd and could impair funding for the health care law.

“If they get what they want, the whole health care bill collapses,” said Zuckerman. “There is too much money involved to get rid of the excise tax or to substantially lower it.”

Tax deduction windfall?

As device manufactures plead for exemptions, hospitals and group purchasing organizations worry that those who remain on the hook for the tax may simply pass it on in higher prices to hospitals and other purchasers. Curtis Rooney, president of the Health Industry Group Purchasing Association, said the excise tax could even wind up being a windfall for medical device manufacturers.

In a letter to the IRS, Rooney’s organization, along with the American Hospital Association, the Federation of American Hospitals, and the Catholic Health Association of the United States, wrote that device manufacturers should be prohibited from passing on the excise tax to consumers, especially if they are allowed to deduct the excise tax when calculating their federal income tax.

Allowing device manufacturers to write off the tax and pass along the cost, the letter says, would “permit a financial ‘double-dip’ that could leave device companies in a better financial position than before the [health law] was enacted.”

Henry, the Medtronic spokesman, dismissed the notion that the tax could lead to increased device industry profits, adding that even if a portion of the cost is passed on, a portion will stay on the company’s books.  

Asked if device manufacturers planned to increase the prices charged to hospitals and other consumers to make up for excise tax, an AdvaMed spokeswoman declined to answer. She instead referred to a comment by David Nexon, the association’s senior executive vice president: “Each AdvaMed member company will have to individually decide how to best deal with the damaging effects of the tax. For some, that might mean cutting R&D, reducing staff or other measures. Those are tough business decisions that will have to be made if this tax goes forward and go to the heart of why we opposed the tax in the first place.”