What Will It Take for Republicans to Be Able to Revise the ACA

The first section of issues McConnell and Republicans must overcome requires 60 votes due to the Parliamentarian ruling the provisions of the BCHA violate the Byrd Rule; consequently, the Reconciliation procedure requiring only 51 votes can not be used to repeal the Affordable Care Act (ACA) or waive the Byrd rule. The second set of provisions ruled upon by the Parliamentarian only require 51 or a majority vote to pass these changes.

There is little McConnell and Republicans can do to get past a supermajority vote. McConnell appears to be confident and it may also be possible to kill the supermajority vote. It will be interesting to see what he is thinking. The vote will take place this week unless canceled or rescheduled.

The provisions that the Parliamentarian ruled may be stricken if raised by a point of order include (requires 60 votes to waive the Byrd rule)

• The provision defunding Planned Parenthood;
• The provisions prohibiting the use of small business tax credits and individual market premium tax credits to pay for health plans that cover abortions;
• The sunset of an essential health benefit coverage requirement for Medicaid plans;
• The section funding cost-sharing reductions (CSRs), which the Parliamentarian ruled was redundant of current law, which already funds them (this ruling seems contrary to the lower court’s ruling in House v. Price that money had not been appropriated for the CSRs, but is consistent with the belief that the CSRs are already built into the budget baseline, thus an appropriation does not affect the deficit. A bill to clarify the appropriation situation could, of course, be passed separately from the reconciliation act;
• The six-month waiting period for individuals who have not maintained continuous coverage;
• The provision sunsetting the federal medical loss ratio requirement and allowing states to set the medical loss ratio;
• A provision, that has been removed from the most recent version of the BCRA, that might have allowed states to rollover unused Medicaid block grant funds and possibly use them for other purposes;
• The “Buffalo Bailout” which would have limited the ability of New York State to require counties other than those in New York City to contribute funding to the state’s Medicaid program (the ruling on this provision should caution against including further state-specific provisions in future versions of the legislation);
• A provision grandfathering certain Medicaid waivers and prioritizing Medicaid Home and Community-Based Services Waivers;
• A provision requiring a report by the Department of Health and Human Services (HHS) to Congress regarding the preferability of adopting a different system for reporting Medicaid data; and,
• A section requiring HHS to consult with the states before finalizing Medicaid rules,
• The provision allowing age rating at a 1 to 5 rather than the current 1 to 3 ratio, increasing premiums for older people and decreasing them for younger; and
• The provisions allowing small business association health plans that would be regulated as large group health plans, largely free from state regulation.

The Parliamentarian upheld against a Byrd rule challenge (requires majority vote to pass):

• A provision allowing state the option of imposing work requirement on Medicaid enrollees who are not disabled, elderly, pregnant, or within 60 days of giving birth;
• A provision granting $10 billion to Medicaid non-expansion states;
• The state stability and innovation fund, which imposes abortion restrictions by funding the program through the Children’s Health Insurance Program, which already prohibits abortion funding;
• A provision adjusting per capita cap targets for low-spending and high-spending states to promote equity;
• The permanent repeal of the cost-sharing reduction program beginning in 2020; and,
• A provision requiring states to include information on per capita enrollment and expenditures, psychiatric hospital expenditures, and children with complex conditions in their Medicaid expenditure reports.

There are a few more issues the Parliamentarian still has to rule upon which I have not included; but, you can find them on the link I have provided. Senate Parliamentarian Rules on BCRA July 25, 2017

Senate GOP Wins Vote To Debate Health Care, Then Loses Vote On ACA Replacement Bill July 26, 2017, Tim Jost, Health Affairs Blog

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