ACA Repeal and Replacement Update – July 27, 2017


Top takeaways from the week: 1) After voting to proceed with debate, the Senate rejected both the Better Care Reconciliation Act and the Obamacare Repeal Reconciliation Act; 2) the Senate is still in the midst of their 20-hour debate period, after which they will proceed to a vote-a-rama; 3) Senate Majority Leader McConnell (R-KY) is expected to introduce a so-called ‘skinny’ repeal bill, however several Senators are opposed to the proposal; and 4) House Majority Leader McCarthy warned House members to keep their schedules light over recess in case they need to return for a vote on ACA repeal and replace.

This week, the Senate finally moved forward with its effort to repeal and replace the ACA by voting to proceed to debate. However, Senators have since voted to reject both the Senate’s Better Care Reconciliation Act, which included provisions to replace the ACA and broadly reform the Medicaid program, as well as the ObamaCare Repeal Reconciliation Act, which would have repealed the ACA without a replacement. Senate Leadership is now proposing a scaled-back bill with the intention of finalizing the scope of a repeal and replacement plan in Conference with the House.

In describing this new so-called ‘skinny’ bill, Senate Majority Whip Cornyn (R-TX) reflected that “The only thing that unifies our conference is the repeal of the individual mandate and the employer mandate. Those are two of Obamacare’s biggest overreaches and are essential to Obamacare’s functioning.”

In remarks on the floor today, Senate Majority Leader McConnell (R-KY) noted “We all know this is likely to be a long night. It’s part of a long process that has taken a lot of hard work from a lot of dedicated colleagues already. One phase of that process will end when the Senate concludes voting this week, but it will not signal the end of our work – not yet. Ultimately, the goal is to send legislation from Congress to the President – legislation that can finally move us beyond Obamacare’s years of failure.”

Senate Action –

On Tuesday, the Senate voted to proceed with debate on ACA repeal; the vote was 51-50, with Sen. Collins (R-ME) and Murkowski (R-AK) both voting against and Vice President Pence casting the tie vote. Despite previous hesitation, Sens. Heller (R-NV), Capito (R-WV) and Portman (R-OH) ultimately voted for the motion. Press release from Majority Leader McConnell (R-KY): http://bit.ly/2uXrNZv Press releases from Sens. Murkowski (R-AK) and Collins (R-ME): http://bit.ly/2uX9yn6 and http://bit.ly/2uE26wM Press releases from Sens. Heller (R-NV), Capito (R-WV) and Portman (R-OH): http://bit.ly/2uXr9Lt and http://bit.ly/2uXl81t and http://bit.ly/2uXmbyh

The motion to proceed initiated a period of 20 hours for debate, equally split among the parties. As part of the process, the Senate has considered – and has failed to pass – several amendments and amendments in the nature of a substitute to the House-passed American Health Care Act (H.R. 1628):

  • Better Care Reconciliation Act (BCRA) with Sen. Cruz’s (R-TX) ‘Consumer Freedom’ Amendment and a proposal from Sen. Portman (R-OH) adding $100 billion to help Medicaid expansion enrollees purchase private coverage, which failed by a vote of 43-57 on Tuesday.
  • 2015 Repeal bill, now called the Obamacare Repeal Reconciliation Act (ORRA), failed by a vote of 45-55 yesterday.
  • Heller Amendment, which expressed support for maintaining funding for the Medicaid program while repealing the ACA failed by a vote of 10-90.
  • Donnelly Amendment, which would have send the repeal bill back to the Finance Committee and would have struck provisions that reduce or eliminate Medicaid benefits, failed by a vote of 48-52 yesterday.
  • Daines Amendment, an amendment for single-payer healthcare, which failed by a vote of 0-57 (43 Democratic Senators responded ‘present’) today.
  • Strange Amendment, which would have provided insurance premium aid for low-income people, failed by a vote of 50-48 today.

The 20 hours are expected to expire sometime this evening, after which the Senate will begin a so-called “vote-a-rama,” during which Senators may make unlimited amendments to the substitute bill or may substitute in different bills until consensus is reached on a final bill.

Majority Leader McConnell (R-KY) is expected to introduce another amendment in the nature of a substitute. The ‘skinny’ bill is expected to keep in the bare minimum of key provisions while stripping out the most controversial aspects of the repeal bills, with the intent to work out the final scope and details in Conference with the House.

Although bill text has not yet been released, the proposal as it currently stands will reportedly repeal the individual mandate, delay the employer mandate, provide more flexibility for states under 1332 waivers, significantly reduce funding for the Public Health and Prevention Fund, and defund Planned Parenthood for one year. Yesterday, CBO released an analysis of the projected impact of the ‘skinny’ bill, as requested by Senate Democrats. Because bill text had not yet been released, CBO based their estimates on certain expected provisions, and found that it would result in 16 million more uninsured by 2026 and $142 billion in savings from $2017-2026. Analysis: http://bit.ly/2uFug89

If a ‘skinny’ bill were to pass, it would then move to a Conference between the House and the Senate, where relevant Committees of jurisdiction would be responsible for crafting a compromise bill that would be sent back to both the House and the Senate for final votes. Sen. Corker (R-TN) described the idea as a “forcing mechanism to cause the two sides of the building to try and solve [ACA repeal] together.”

However, this afternoon several Senators raised concern that the House will simply take up and pass the ‘skinny’ bill, rather than going through a full Conference process. Sens. Graham (R-SC), Johnson (R-WI), McCain (R-AZ) and Cassidy (R-LA) noted this evening that they will not vote for the measure unless they are guaranteed that the bill will go through Conference. Sen. Graham commented that “I’m not going to vote for a bill that is terrible policy and horrible politics just because we have to get something done.”

Additionally, although yesterday Sen. Heller (R-NV) he would support the ‘skinny’ bill because it wouldn’t directly impact Medicaid, he was more circumspect today after Nevada Governor Sandoval spoke against it. Sens. Capito (R-WV) and Murkowski (R-AK) have also remained noncommittal, and Sen. Lee (R-UT) called for a “fatter repeal” than what is being proposed.

Meanwhile, the Senate Parliamentarian has determined that several crucial pieces of the Senate’s BCRA violate reconciliation rules. Notably, any final bill passing out of the Senate or Conference will also be subject to such restrictions.  On Friday, Democrats from the Senate Budget Committee released a summary of a briefing provided by the Senate Parliamentarian flagging provisions that would defund Planned Parenthood, eliminate funding for cost-sharing reductions, and the 6-month lock out continuous coverage provision. On Tuesday, the Parliamentarian further determined that amendments to the ACA’s age-rating rules and a proposal to allow small businesses to establish association health plans violate the rules. Finally, today the Parliamentarian also flagged a provision that would provide states with more flexibility under 1332 waivers.  Summaries: http://bit.ly/2tseOLw and http://bit.ly/2uGnvTL

Finally, yesterday a bipartisan group of 10 Governors sent a letter to Senate Majority Leader McConnell (R-KY) and Minority Leader Schumer (D-NY) urging them to “work with governors of every party to develop solutions that will make health care coverage more available and affordable for all Americans.” Press release: http://bit.ly/2uFu21a Letter: http://bit.ly/2uFodk1

Administrative Action –

On Monday, the Internal Revenue Service finalized proposed and temporary regulations governing ACA premium tax credits that had been issued in July of 2014. The proposed and temporary rules were adopted unchanged. The rule includes one technical change that self-employed individuals who receive tax credits may deduct the premiums they pay beyond amounts covered by premium tax credits, limited to the amount that an individual earns from self-employment. Final rules: http://bit.ly/2uGK9eO and http://bit.ly/2uGZgVD

Also on Monday, Massachusetts released for public comment a proposed section 1332 waiver to support commercial insurance market stability through a premium stabilization fund, a small business health care tax credit, and to revive the state’s employer shared responsibility program. Proposal: http://bit.ly/2uXsdz2

Today, CMS released a proposed rule on methodology for Medicaid Disproportionate Share Hospital (DSH) allotments for reductions set to begin in fiscal year 2018. Comments are due by August 28. Guidance: http://bit.ly/2uGp30a

House Action –

In anticipation of heading into Conference with the Senate, today House Majority Leader McCarthy (R-CA) warned members that the departure date for August recess may be delayed. Senate passage of a bill would leave the door open for the House to either pass the same bill or go into conference with the Senate.

Meanwhile, on Monday Reps. Griffith (R-VA), Jordan (R-OH), Meadows (R-NC), and Perry (R-PA) submitted an amendment to the Make America Secure Appropriations Act of 2018 (H.R. 3219) to abolish the Budget Analysis Division of the Congressional Budget Office (CBO) and transfer its duties to the Office of the Director, arguing that the CBO uses faulty methodology leading in misleading projections. On July 26, the House voted against the amendment by a vote of 116-309. Press release: http://bit.ly/2uXhEvL Amendment: http://bit.ly/2uCPd3Q

 

On Tuesday, Reps. Welch (D-VT), Schrader (D-OR) and 87 Democratic Representatives sent a letter to House Speaker Ryan (R-WI) outlining a bipartisan path to improving the ACA aimed at changes to the individual insurance market. Press release with text of letter: http://bit.ly/2uX3ieU

 

Also on Tuesday, House Energy & Commerce Committee Ranking Member Pallone (D-NJ) and Ways & Means Committee Ranking Member Neal (D-MA) sent a letter to HHS Secretary Price and to McKinsey requesting additional information regarding HHS’ analysis of the ‘Consumer Freedom’ amendment and expressing concern regarding HHS’ “lack of transparency about how this study was conducted.” Press release: http://bit.ly/2uXwIcZ Letter: http://bit.ly/2uX5CCE

 

Yesterday, House Energy & Commerce Committee Ranking Member Pallone (D-NJ) sent a letter to the U.S. Government Accountability Office requesting an investigation into Department of Energy Secretary Perry’s “potential misuse of appropriated taxpayer fund when he wrote an opinion piece for an Ohio newspaper critical of the Affordable Care Act.” Press release: http://bit.ly/2uG4HUO Letter: http://bit.ly/2uFLOkE