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Senate Parliamentarian Zaps Some Better Care Bill Provisions

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Elizabeth MacDonough, the Senate parliamentarian, has blessed two major Better Care Reconciliation Act commercial health insurance provisions, bounced two, and put off making decisions on two.

MacDonough’s review could determine what parts of the Affordable Care Act change bill have a hope of passing in the Senate, or it might not matter at all, if Senate leaders decide to use the “nuclear option,” and change traditional Senate rules to make it easier to pass an Affordable Care Act change bill.

(Related: ACA Repealers Face Byrd Rule Constraints)

Democrats on the Senate Budget Committee made at least some of MacDonough’s thinking public by posting a summary of her conclusions on their section of the committee’s website. A copy of the summary is available here.

Here’s how MacDonough’s Better Care bill ruling would affect six individual health insurance provisions in the bill:

  • Replacing some current Affordable Care Act subsidy programs with state innovation grants: That provision could reach the floor with the support of just 50 senators and Vice President Mike Pence.

  • Permanently repealing the Affordable Care Act cost-sharing reduction program beginning in 2020: That provision could reach the Senate floor with support from just 50 senators and Pence.

  • Temporarily continuing the current Affordable Care Act cost-sharing reduction subsidy program through 2019: This provision would need the support of 60 senators to reach the Senate floor. McDonough ruled the provision is unnecessary because it replicates the Affordable Care Act, which already requires the subsidy payments to continue.

  • Requiring uninsured people who get health coverage to go through a six-month waiting period before their benefits begins: This provision would need the support of 60 senators to reach the Senate floor.

  • Offering a multi-state, small business association health plan program: This provision, which is been supported by business groups and many brokers for years, and opposed by many health insurers and state insurance regulators for just as long, is still under review.

  • Letting states use the existing Affordable Care Act Section 1332 waiver program to change Affordable Care Act age rating, essential health benefits and pre-existing condition coverage requirements: This provision is still under review.

Other MacDonough rulings affect Better Care bill Medicaid and abortion funding provisions. MacDonough has decided, for example, that some proposed abortion funding provisions in the bill are not germane to the budget.

It’s not clear from the Democratic summary of MacDonough’s ruling whether the summary lists every decision MacDonough has made.

The bill drafters can find ways to rewrite provisions to make them more germane to the budget.

Better Care Reconciliation Act Bill

Most Republicans now in Congress have said they want to repeal or change the Affordable Care Act.

The House passed an Affordable Care Act change bill, the American Health Care Act bill, by a 217-213 vote May 4.

The Senate has considered at least three different version of its bill, the Better Care Reconciliation Act.

Senate Majority Leader Mitch McConnell said Wednesday that the Senate will vote on an Affordable Care Act change bill next week. Sen. Susan Collins, R-Maine, a former Maine insurance commissioner, said today she’s still not sure which bill will the Senate will vote on.

No bill now under serious consideration in the Senate would actually repeal the Affordable Care Act.

All of the bills receiving attention would repeal, block or postpone most or all of the taxes and penalties included in the Affordable Care Act.

The House bill and most of the Senate bills would replace the current income-based Affordable Care Act exchange plan premium tax credit subsidy with a new age-based subsidy.

The House bill, and many of the Senate bills, would eliminate the expired Affordable Care Act reinsurance and risk corridors programs, and the existing Affordable Care Act cost-sharing reduction subsidy program. In place programs that send streams of cash from the federal government to insurers, the Better Care act would create state grant programs. States would be in charge of distributing federal money to health insurers.

Byrd Rule

The bill looks the way it does partly because of the Byrd Rule. The Byrd Rule sets the rules the Senate uses when it’s considering budget bills.

Puzzle (Image: Thinkstock)

(Image: Thinkstock)

Republicans have just 52 seats in the Senate. Vice President Mike Pence can cast a vote to break a tie.

The Byrd Rule, a traditional Senate rule, requires supporters of a bill to have at least 60 votes to get a measure to the floor without facing the threat of a filibuster, or endless round of debate organized by opponents.

A budget bill needs the support of just 50 senators and the vice president to reach the Senate floor.

The Senate parliamentarian, an unelected employee hired by the Senate majority leader, is in charge of deciding which provisions in a bill are relevant enough to the federal budget to get to the Senate floor with just 50 votes.

In recent years, Senate leaders have faced pressure to weaken the filibuster system and the budget reconciliation process rules, to help overcome gridlock and get legislation through Congress. Sen. Ted Cruz, R-Texas, has argued that McConnell and other Senate leaders could use existing Senate procedures to get any Affordable Care Act legislation Republicans want to consider to the floor with the support of just 50 senators.

Uncertainty about the future of the Byrd rule makes the importance of McDonough’s Better Care bill review unclear.

In the past, the Senate parliamentarian might have had clear influence over which bill provisions could reach the Senate floor with the support of just 50 senators and the vice president.

This year, it’s possible that the Senate will stick to the old traditions, but it’s also possible that Senate Republican leaders will find some way to brush the old traditions aside.

— Read Icahn Said to Ease Off Demand for AIG Breakup Under New CEO on ThinkAdvisor.


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