House leaders completed one major round of work on changing the Affordable Care Act on Thursday, when they pushed H.R. 1628, the American Health Care Act, through on a 217-213 vote.
Now Senate Majority Leader Mitch McConnell is the showrunner for the new version of the ACA change show, with Susan Collins of Maine, Dean Heller of Nevada and Lamar Alexander of Tennessee playing leading roles in coming up with a change measure that can actually get through the Senate and then the House.
Senators could simply pass H.R. 1628 as is, tweak the measure and pass it, or come up with their own alternative. In January, for example, Collins and Sen. Bill Cassidy, R-La., released their own ACA change proposal.
Bloomberg is reporting that Alexander, chairman of the Senate Health, Education, Labor and Pensions Committee, has already announced plans to develop a new bill.
The negotiations are so tricky because Republicans have only a modest majority in the House and hold just 52 of the 100 seats in the Senate.
President Donald Trump has shown little interest in following traditional government procedural rules. He might be able to make sweeping changes in how federal health laws, regulations and programs work on his own, by issuing executive orders and simply telling officials to change the way they do things.
For now, however, his administration appears to be trying to playing the game according to the traditional rules. That means the traditional rules could shape how the Senate version of the ACA change show looks for the next few weeks.
Here are ideas for agents, brokers and financial advisors about what might be coming next:
1. Budget reconciliation measures are unlikely to actually repeal the ACA.
Under traditional Senate rules, an ordinary bill needs support from 60 senators to reach the floor without facing the threat of a filibuster, or endless round of debate.
A budget bill needs just 51 votes. Vice President Mike Pence, a Republican who is almost certain to vote for any Affordable Care Act change bill that Republican Senate leaders support, could cast a vote to break a tie.
To qualify for special budget measure treatment, a budget measure must not do much to increase the federal budget deficit. The provisions in the measure must be “germane to the budget.”
Opponents of the ACA do not believe that they could get a true ACA repeal bill classified as a budget measure, because many ACA provisions, such as the ACA essential health benefits package provision and the ACA summary of benefits and coverage notice requirement, have little to do with federal spending or efforts to raise federal revenue.
One effect of this is that H.R. 1628 and the most commonly discussed Senate ACA change proposals are not actually ACA repeal bills. They would not repeal the laws in the ACA package, the Patient Protection and Affordable Care Act of 2010 and the health care provisions in the Health Care and Education Reconciliation Act of 2010.
H.R. 1628 would not eliminate the ACA public exchange system or the SBC notice requirement, and it would not directly affect the existence of the essential health benefits package.
The SBC program is the one that makes insurers and health plans provide standardized “milk carton labels” for health plans.
The EHB package is supposed to require all individual and small-group insurance policies to cover what Congress classified as 10 key types of care, including hospital care, physician care, and care to help people born with disabilities maximize what they can do.
That means any Republican senators who are ambivalent about attacking the ACA may be able to justify voting against a Senate ACA change bill by declaring that the bill is a sham, because the bill does not actually repeal the ACA.
2. Impact analysis of risk pool proposals could get hairy.
Before the Affordable Care Act came along, uninsured people with serious health problems in many states had no practical way to get covered.
In theory, some sick people who had been members of employer-sponsored health plans were supposed to be able to get health coverage.
The Health Insurance Portability and Accountability Act of 1996, the law that created the health insurance access requirement, did not set any affordability standards for the coverage for sick people.
Some states set up risk pools, or subsidized government health plans, for people classified as uninsurable, but many of those risk pools were underfunded. Some, including the risk pool in California, had low benefits limits, and some, including the risk pool in Illinois, had long waiting lists.
That meant ordinary uninsured people who needed expensive care had to depend on charity care, impoverish themselves enough that they could qualify for Medicaid, or go without the care.
H.R. 1628 would let states with risk pools apply for waivers from some ACA rules. It would also provide $8 billion in subsidies over five years specifically to help consumers in states with ACA rule waivers, and another $100 billion market stabilization fund that could be used to help people with health problems.
If states used all of the H.R. 1628 subsidy money to help people with health problems, that might be only enough cash to provide risk pool coverage for about 600,000 of the 2.2 million current individual health coverage users who have health problems, according to analysts at Avalere Health.
The money specifically provided for helping individual coverage policyholders with health problems would only be enough to provide coverage for about 110,000 of the 2.2 million individual health coverage users with health problems, according to the Avalere analysts.
3. Efforts to eliminate the ACA essential health benefits package standards could touch all people with fully insured commercial health coverage.
One amendment added to H.R. 1628 would let a state that applied for an ACA rule waiver establish its own EHB package, rather than using the benchmark set by the U.S. Department of Health and Human Services.
A state could, for example, eliminate the need for a state-regulated insurance policy to offer maternity benefits, mental health benefits, coverage for name-brand drugs, or expensive types of therapy aimed at people with autism.
Changes in a state’s EHB package could affect benefits for people with fully insured group coverage as well as people with individual major medical coverage.
Elizabeth MacDonough (Photo: Congressional Pictorial Directory)
4. The Senate parliamentarian has a budget of $1,999,000.
Senate customs give the Senate parliamentarian, a Senate staffer who works for the Senate majority leader, the authority to decide which provisions in a budget measure are germane to the federal budget.
Senate parliamentarians tend to be obscure officials who rarely attract much notice, except during heated budget fights. They are said to be hard to replace, because they have rare knowledge built up over years of working for the Senate.
Elizabeth MacDonough, the current parliamentarian, has been serving in that position since 2012. She has a bachelor’s degree from George Washington University and a law degree from Vermont Law School.
The House revealed, when it was considering H.R. 244 — the vehicle for getting the Consolidated Appropriations Act, 2017, bill through the House — that MacDonough’s office is big enough to have a significant budget.
The House appropriations bill included $1,999,000 in funding for MacDonough’s office for the rest of the federal government’s current fiscal year, which ends Sept. 30.
5. Republican governors have their own dog in this fight.
One source of drama could be Republican governors.
In the past, many Republican governors have agreed to take Affordable Care Act Medicaid expansion money. They may be leery of efforts to reduce Medicaid funding. Some analysts suggest that H.R. 1628 could cut Medicaid funding by a total of about $880 billion over 10 years.
Even governors who would be willing to accept a new Medicaid funding formula might not be eager to be in charge of new fights over matters such as whether a state’s essential health benefits package ought to require a health plan to cover mental health care, or maternity care.
— Read GOP Bill’s Medicaid Cuts Draw Fire From Insurers, Governors on ThinkAdvisor.