Following a week in which Senate Republican healthcare reform plans shifted from Affordable Care Act (ACA) repeal and replace, to repeal only, to uncertain, the Senate is expected to vote tomorrow, July 25, 2017, on a motion to proceed to debate H.R. 1628, the Better Care Reconciliation Act (BCRA). If 50 Senators, plus Vice President Pence as the tiebreaker, vote in favor of this procedural step, it is unclear exactly what legislative amendments the Senate will consider. As Senator Susan Collins (R-ME) reported yesterday, “It appears we'll have a vote on Tuesday but we don't know whether we'll be voting on the House bill, the first version of the Senate bill, the second version of the Senate bill.”
To appreciate the context for tomorrow’s expected vote, it is helpful to review the developments of the past week. The Senate BCRA vote had already been postponed from last week, following Senator John McCain’s (R-AZ) July 14 surgery. The Senator’s office later announced that he had been diagnosed with brain cancer and that he and his family were evaluating treatment options.
Last Monday night, Senators Mike Lee (R-UT) and Jerry Moran (R-KS) announced they would join Senators Rand Paul (R-KY) and Susan Collins (R-ME) in opposing the motion to proceed to debate the July 13 version of the BCRA. The public positions of these four Republican Senators led Senator McConnell to announce: “Regretfully, it is now apparent that the effort to repeal and immediately replace the failure of Obamacare will not be successful.”
President Trump and a number of Republicans then suggested that the Senate move instead to vote to repeal the ACA first, followed by the development of a replacement health care plan. On July 18, Senators Susan Collins (R-ME), Lisa Murkowski (R-AK) and Shelley Moore Capito (R-WV) announced that they would not vote in favor of proceeding to floor debate on a bill to repeal the ACA without a replacement. On July 19, the Congressional Budget Office (CBO) released its report on the Obamacare Repeal Reconciliation Act of 2017, an amendment to H.R. 1628, to repeal many provisions of the ACA. According to the CBO, enacting this amendment would decrease federal deficits by $473 billion from 2017-2026 and would increase the number of uninsured by 17 million in 2018 and by 32 million in 2026.
On July 19, President Trump invited Republican Senators to lunch at the White House to discuss a path forward on ACA repeal. President Trump urged Senators not to leave town “unless we can give our people great health care.” Later that night, Republican Senators met to negotiate an agreement on a legislative package that could garner 50 votes.
On July 20, the Senate Budget Committee posted a revised version of BCRA, The CBO analysis of the July 20 revision estimates the legislation, if enacted, would decrease federal deficits by $420 billion from 2017-2026 and would increase the number of uninsured by 22 million by 2026. This CBO report did not include an analysis of the amendment expected to be offered by Senator Ted Cruz (R-TX), to allow insurers to sell plans that would not be required to comply with a number of ACA requirements alongside ACA compliant plans. An analysis of the Cruz amendment, provided by HHS, was released by Senators Mike Lee (R-UT) and Ron Johnson (R-WI) in a Dear Colleague letter.
On July 21, Senate Democrats reported that Senate Parliamentarian Elizabeth MacDonough had ruled that a number of provisions of BCRA violated the “Byrd rule.” Named for its author, the late Senator Robert Byrd (D-WV), the “Byrd rule” requires that only provisions relating to the deficit reduction goals of the budget reconciliation process may be included in reconciliation legislation. A provision not in compliance with these rules may be struck on a point of order which can only be overruled by a 60 vote majority. According to the Senate Budget Committee Minority staff summary of the parliamentarian’s findings, provisions in violation of the “Byrd rule” include: the one year defunding of Planned Parenthood; allowing states to waive Essential Health Benefits in Medicaid plans; establishing a six month waiting period if individuals have not maintained continuous coverage; and the provision relating to how New York State funds its Medicaid program, referred to by some as the “Buffalo Bailout.”
