On June 22, Majority Leader Mitch McConnell (R-KY) released the first version of a comprehensive Senate Republican plan for repealing and replacing the Patient Protection and Affordable Care Act (PPACA), specifically the Better Care Reconciliation Act (ACR Summary of BCRA). Although similar in many areas, BCRA was a unique legislative proposal that was separate from the American Health Care Act, which passed the House of Representatives in early May 2017. Senate Republicans and outside stakeholders provided substantial feedback on the initial proposal prompting Senate Majority Leader McConnell to release a revised BCRA “discussion draft” on July 13. Read a detailed summary of Titles I and II of BCRA.
The American College of Radiology (ACR) closely monitored attempts by Senator Ted Cruz (R-TX) to add a new title Title III to the July 13 version of BCRA. In particular, the College monitored the impact of the Cruz amendment on subjecting patients to any cost sharing associated with receiving life-saving cancer screening services such as mammograms, low-dose CT screens for lung cancer, and CT Colonographies for Colon Cancer. Read a detailed summary of the newly added Title III of BCRA.
The politics surrounding BCRA remained so fluid that on July 17 Senate Majority Leader McConnell also released legislation, specifically the Obamacare Repeal and Reconciliation Act (ORRA) of 2017, which would simply eliminate the vast majority of PPACA effective in 2019. Unlike BCRA, the ORRA would not include any provisions to immediately replace the repealed portions of Obamacare with any Republican policy proposals. In addition to BCRA and ORRA, Senate Republicans also prepared what was colloquially referred to as a "skinny" Obamacare repeal bill, specifically the Health Care Freedom Act. The Health Care Freedom Act sought to, among other things, zero out penalties associated with the individual mandates, delay enforcement of the employer mandate through 2024, suspend the medical device tax through 2020, eliminate funding for Planned Parenthood for one year, and provide states with greater flexibility to pursue waivers from existing PPACA insurance regulations.
Ultimately, Senate Republicans were unable to corral the 51 votes needed to pass anylegislation to repeal and replace Obamacare under reconciliation, an arcane parliamentary procedure that prohibits a Senate filibuster and allows select bills to be passed with a simple majority. Majority Leader McConnell first aimed to pass the June 22nd BCRA discussion draft before the week long Independence Day District Work Period, however, the vote was delayed due to insufficient support for the bill.
On July 25, the Senate Republicans finally passed a “motion to proceed,” or an agreement for the Senate to begin debate on the Housed passed AHCA, by a bare 51-50 vote. In fact, Vice President Mike Pence was forced to cast the tie-breaking vote on the motion to proceed. In accordance with the rules governing reconciliation bills, the Senate immediately began 20 hours of debate and was expected to then move to a “vote-a-rama” on unlimited amendments to the AHCA so long as they met the aforementioned Byrd rules. The Senate, however, voted late on July 25th against the July 13 BCRA version that included Senator Cruz’s Title III provisions, as well as a late amendment proposed by Senator Rob Portman (R-OH). On July 26, the GOP pivoted to a vote on ORRA but this bill also failed by a wide margin.
Consideration of a “skinny” Obamacare repeal bill was designed to be a compromise to appease both conservative and moderate Republicans. Despite its unpopularity, Majority Leader McConnell pleaded with Senate Republicans to pass the Health Care Freedom Act in hopes of forging a conference committee with the House of Representatives. Republicans hoped final consensus around a more comprehensive package to repeal and replace Obamacare would be forged through a bicameral conference committee. Yet, in a dramatic vote cast in the early morning hours of July 28th, Senator John McCain (R-AZ) joined fellow Republican Senators Lisa Murkowski (R-AK) and Susan Collins (R-ME) in opposing the Health Care Freedom Act.
The failure of Health Care Freedom Act seems to have marked the end of this latest attempt to repeal and replace Obamacare. It is unclear whether Republicans and Democrats will begin working on a bipartisan solution to stabilize the individual market and improve other aspects of Obamacare. ACR’s Government Relations Office will continue to closely monitor the effort to repeal and replace PPACA.
After numerous delays and back room negotiations, on May 4 the U.S. House of Representatives finally passed H.R. 1628, the American Health Care Act (AHCA), legislation that repeals major elements of the Patient Protection and Affordable Care Act (PPACA), commonly referred to as “Obamacare,” and implements numerous new conservative health care policies.
The measure was adopted by a vote of 217-213, with no House Democrats voting in favor of the legislation that will now be considered in the U.S. Senate under budget reconciliation, an arcane parliamentary procedure that prohibits a Senate filibuster and allows select bills to be passed with a simple majority vote.
A series of last minute amendments proposed by various House Republicans enabled the passage of H.R. 1628. The first amendment was negotiated primarily by Reps. Tom MacArthur (R-NJ), one of three co-chairs of the Tuesday Group, a 50-member bloc of moderate GOP House members, and Mark Meadows (R-NC), chair of the Freedom Caucus, a collection of approximately 30 ultra-conservatives. According to legislative text, the amendment would give states the option of waiving existing requirements pertaining to community rating and essential health benefits (EHBs) as long as certain conditions are met.
Despite the addition of the MacArthur-Meadows amendment, numerous moderate Republicans, especially Representative Fred Upton (R-MI) and Billy Long (R-MO), continued to withhold their support for the legislation due to concerns that the changes to the bill still did not provide enough protection to individuals with pre-existing conditions. Both Reps. are prominent members of the Energy and Commerce Committee with Upton serving as the immediate past chair of the Committee.
According to the MacArthur-Meadows amendment, individuals who live in states that received a waiver and successfully established a high-risk pool, either through the federal government of the AHCA created “Patient and State Stability Fund,” may be charged higher premiums for pre-existing conditions. In addition, individuals subjected to higher premiums because of pre-existing conditions must show that they are seeking replacement health insurance following a 63-day or longer break in their previous coverage. Reps. Upton and Long felt that the MacArthur-Meadows amendment provided insufficient funding solely dedicated to helping individuals with pre-existing conditions that are placed in high-risk pools offset the cost of potentially rising premiums stemming from their health status. As a result, the two members of Congress negotiated directly with the Trump Administration on an amendment that would add an addition $8 billion over 5 years to the state high risk pools which presumably will be devoted to lowering premiums for beneficiaries with pre-existing conditions. Addition of this amendment finally placated enough moderates to enable the GOP House to pass the legislation.
A lack of consensus among House Republicans forced Speaker Paul Ryan (R-WI) to indefinitely delay a March 24th vote on passage of H.R. 1628. This legislation would repeal major elements of PPACA, commonly referred to as “Obamacare,” and replaces them with new wide-reaching conservative health care policies.
The AHCA lacked the votes needed for passage. No House Democrats were expected to vote for H.R. 1628. A series of changes negotiated by President Donald Trump and House GOP leaders to placate moderate and hardline conservatives, most notably the House Freedom Caucus, failed to garner enough Republican votes.
House Republican leadership preferred to pass the bill in March so it could then be considered in the U.S. Senate under budget reconciliation, an arcane parliamentary procedure that prohibits a Senate filibuster and allows select bills to be passed with a simple majority vote. Prior to the cancellation of the vote, Speaker Ryan and Senate Majority Leader Mitch McConnell (R-KY) were committed to passing H.R. 1628 no later than April 7, 2017. In order to accommodate the Easter and Passover religious holidays, the House of Representatives held the April 2016 District Work Period between Monday, April 10th and Monday, April 24th.
As currently constructed, H.R. 1628 consists of five major policy components, specifically the elimination of many existing PPACA taxes, the creation of new health care tax credits to help individuals purchase health insurance, expanded access to health savings accounts (HSAs) and state innovation grants to help cover beneficiaries with pre-existing conditions and Medicaid reform.
The canceled vote comes on the heels of the U.S. House of Representatives releasing a managers' amendment to H.R. 1628 on March 20th. More specifically, the House Rules Committee released section-by-section analyses of the "Technical" and "Policy" changes to H.R. 1628, as well as the corresponding legislative text of the "Technical" and "Policy" sections of the Managers' amendment.
The release of the Managers' Amendment followed both the Ways and Means and Energy and Commerce Committees holding legislative "mark-ups," or the process of individuals serving on these particular committees reviewing bills and formally proposing potential amendments, related to H.R. 1628 on March 8th. The House Ways and Means and Energy and Commerce Committees separately released legislative language dealing with policy concepts that pertain to their specific legislative jurisdiction. In addition to formal bill language, both committees prepared section-by-section summaries of the legislation. Please find the initial Ways and Means section-by-section summary here, while the initial Energy and Commerce section-by-section summary can be found here.
The GOP is expected to utilize a parliamentary maneuver entitled “budget reconciliation (Senate Budget Reconciliation Background and Committee for a Responsible Budget Reconciliation) to accomplish the massive goal of repealing the current health care reform law. Budget reconciliation is a Congressional procedure allowing for expedited consideration of certain tax, spending, and debt limit legislation. Since Senate Republicans do not have a filibuster proof majority, the key Senate procedural benefits of utilizing reconciliation are as follows: 1) reconciliation bills cannot be filibustered; 2) floor debate is limited to 20 hours 3) there is no limit on the total number of amendments that can be proposed, however, only germane amendments that affect spending (ultimately determined by the Senate parliamentarian) can be considered; and 4) final passage only requires a simple majority. Before reconciliation can even be deployed, the House and Senate must first pass a federal budget.
Below is a tentative outline and timeline for how Congressional Republicans would like to proceed with the overarching effort to repeal and replace PPACA via budget reconciliation:
Please note that the PPACA repeal timeline is subject to change due to a number of factors, including alternative preferred changes or internal disagreement amongst Congressional Republicans, opposition from Congressional Democrats, or objections from the Trump Administration.