Jump to a sectionAHCA
The Byrd Rule
Points of order
Editor's note: This story was updated on July 27 at 2:15 p.m. ET.
There's a lot of jargon in the health care debate. We've got you covered with our new explainer on 11 key terms, including reconciliation, the Byrd Rule, points of order, substitute amendments, and "skinny repeal."
The American Health Care Act (AHCA): Where this week's Senate debate began
The AHCA is the bill to overhaul Medicaid financing and repeal major parts of the Affordable Care Act (ACA) that passed the House in early May.
Tuesday's initial procedural vote in the Senate was technically a motion to proceed to debate on the AHCA. However, the AHCA won't become law. Senate GOP leaders plan to adopt an amendment or several amendments that would either significantly modify the AHCA or replace it completely with an alternative plan.
The Senate was able to proceed to debate on health care legislation with just 51 votes because it is using a process—known as reconciliation—that allows certain budgetary legislation to avoid a filibuster that would take 60 votes to overcome.
The GOP can use reconciliation for its health reform effort because Congress passed a budget resolution earlier this year that provided for the legislation to receive that privileged status.
The Byrd Rule
The reconciliation process sets strict rules about the contours of any amendments and the final bill.
Specifically, amendments must be "germane" to the AHCA. In addition, amendments and a final Senate bill will have to comply with the so-called "Byrd Rule" that prohibits "extraneous matter" from being included in reconciliation measures.
In practice in this reconciliation health care debate, the Byrd Rule will require 60 votes for any amendment or provisions that would:
- Have nonexistent or "merely incidental" effects on revenue and spending;
- Not fall under the jurisdiction of the Senate Health, Education, Labor, and Pensions (HELP) Committee or Finance Committee, which were the Senate committees specified in this year's reconciliation instructions; or
- Increase the deficit in 2028 and beyond, unless other savings in the bill offset the increase.
Points of order
So how is the Byrd Rule policed? Senators can raise "points of order" in an attempt to strike down provisions they believe violate the Byrd Rule (known as a "Byrd bath"), or to prevent the consideration of at least portions of amendments that they believe are non-complaint.
The Senate parliamentarian
The Senate parliamentarian, Elizabeth MacDonough, will weigh in on those points of order.
Technically, MacDonough doesn't make the final call: The presiding officer of the Senate does. "But historically, the presiding officer has deferred to the parliamentarian's judgment," and Senate GOP leaders have said they don't want to change that practice given the precedent it would set, Dylan Scott writes for Vox. GOP senators can also ask to waive the Byrd Rule, but doing so would require 60 votes that don't appear obtainable given Democratic opposition to ACA repeal.
Right now, the Senate is in the middle of 20 hours of debate prescribed under the reconciliation process, which began following the passage of the motion to proceed to the bill. The Senate can vote on amendments during this time without it counting toward those 20 hours.
Once that debate time is up, senators from both parties will be able to offer an unlimited number of amendments, a process known as the vote-a-rama. Each party will get one to two minutes to discuss each amendment, and any proposed provisions will be subject to the Byrd Rule and points of order. Amendments that don't violate the Byrd Rule will require 51 votes to pass, while those that violate the rule will essentially require 60 votes. The GOP has 52 of the Senate's 100 seats, and Vice President Pence can break any ties.
Julie Rovner reports for Kaiser Health News that vote-a-ramas have historically rarely lasted longer than 24 hours. McConnell reportedly wants to pass a Senate bill this week. However, "No one knows how long the process will take or how it's likely to end," David Nather and Sam Baker write for Axios.
One additional wrinkle is that under reconciliation rules:
- The final Senate bill must generate on-budget savings of at least $133 billion over 10 years, since that's how much the Congressional Budget Office said the House bill would save; and
- The sections of the bill that would be under the jurisdiction of the Senate Finance Committee and Senate Health, Education, Labor, and Pensions (HELP) Committee must independently reduce the deficit by at least $1 billion over 10 years.
The parliamentarian will advise the Senate on whether those conditions have been met, but compliance technically is decided based on estimates from the Senate Budget Committee chair, according to the Committee for a Responsible Federal Budget. Last month, Joe Williams reported for Roll Call that GOP leaders were considering asking Senate Budget Committee Chair Mike Enzi (R-Wyo.) to go against the parliamentarian's advice if she did not rule in their favor.
Some amendments will essentially just tweak the underlying bill, making additions or deletions or changes to its text. Other amendments are called "amendments in the nature of a substitute," or substitute amendments. Because such amendments completely overwrite the underlying bill, any amendments that are initially approved during the vote-a-rama might be replaced later on with a substitute amendment.
Nather and Baker report for Axios that "if and when everyone has worn themselves out, at the end of the process, they'd vote on whether to adopt [a] substitute amendment ... and then to pass the underlying bill."
The Better Care Reconciliation Act (BCRA)
The BCRA is the Senate legislation that would fundamentally reform Medicaid financing and repeal major portions of the ACA. (See our side-by-side on how the BCRA compares with the House-passed AHCA).
The parliamentarian in the past week issued preliminary rulings that more than a dozen provisions of the June 26 version of the BCRA would violate the Byrd Rule and therefore essentially require 60 votes to pass—including those that would:
- Delay the effective start for new enrollees' coverage by six months if they went without coverage for at least 63 days the year prior, the so-called "lock-out" provision;
- Prohibit federal subsidies to be used to purchase health plans that cover abortion care;
- Bar Planned Parenthood from receiving Medicaid payments for one year;
- Fund the ACA's cost-sharing reduction payments to insurers through 2019;
- Increase the age-band ratio to allow insurers to charge older enrollees five times more for coverage than younger enrollees, up from three times more under the ACA; and
- Allow states to waive the ACA's age rating, essential health benefits, and pre-existing condition coverage requirements for private health plans.
On Tuesday night, the Senate voted 43-57 against bringing up an updated version of the BCRA, which included many of the above provisions and therefore required 60 votes. (The updated BCRA also includes some provisions on which the parliamentarian had not yet ruled).
Nather and Baker report for Axios that another version of the BCRA that does not include Byrd Rule violations could be brought up vote a vote later on in the amendment process.
Obamacare Repeal Reconciliation Act, or 'repeal-and-delay'
The Senate on Wednesday afternoon voted against bringing up the Obamacare Repeal Reconciliation Act (ORRA), an updated version of the GOP's 2015 "repeal-and-delay" bill.
The bill would immediately repeal the ACA's coverage mandates and taxes but would delay repeal of its coverage expansions by two years, with the hopes of passing a replacement plan sometime in the interim. The 2015 version of this bill passed via reconciliation before being vetoed by former President Barack Obama.
If GOP leaders cannot garner 50 votes for a broad substitute amendment such as those described above, they are reportedly considering advancing a narrower plan that would repeal the ACA's individual mandate and employer mandate, with a few other smaller changes to the law. Senate Republicans are referring to that measure as "skinny repeal."
Axios' Caitlin Owens reported Thursday at about 11 a.m. ET that the details of "skinny repeal" have yet to be finalized, but that the current draft would:
- Repeal the ACA's individual mandate;
- Partially repeal the law's employer mandate;
- Eliminate funding for Planned Parenthood for one year;
- Add more funding for community health centers; and
- Modify a provision that allows states to waive certain ACA requirements.
Peter Sullivan reports for The Hill that the current draft would also cut the ACA's Prevention and Public Health Fund, which helps CDC supplement public health funding and respond to emergencies.
Sam Baker reports for Axios that is not yet clear whether the provisions modifying ACA waivers or defunding Planned Parenthood would be allowed under reconciliation rules.
Because no official "skinny repeal" bill has been released, the Congressional Budget Office (CBO) has not yet formally analyzed the proposal. However, on Wednesday the agency released an estimate requested by Senate Democrats of the effects of a "skinny"-like proposal that would repeal the ACA's coverage mandates and medical device tax.
The agency projected that under such a bill, compared with current law 15 million more Americans would be uninsured between 2018 and 2020, and 16 million more Americans would be uninsured between 2021 and 2026.
CBO has also previously estimated that repealing the individual mandate alone would increase individual market premiums by about 20 percent relative to current law. That's because the ACA's individual mandate is designed to encourage young and currently healthy people to sign up for coverage. Without such a penalty provision, people who are old and sick would make up a greater share of exchanges enrollees, leading insurers to raise premiums—a phenomenon known as adverse selection.
If the Senate does pass a bill, the House would have two options: It could try to pass the Senate bill as written, or it could engage in negotiations with the Senate as part of a conference committee.
Conference committees are typically used to iron out differences between similar bills. However, if the Senate passes a "skinny repeal," a conference "would function more like another opportunity to write another bill," Nather and Baker write, given how different the Senate legislation would be from the House-passed AHCA.
A measure agreed to in a conference committee would not be subject to amendments on the House and Senate floors, although it would still have to adhere to reconciliation rules, including the Byrd rule.
Why investing in consumer loyalty is a no-regrets strategy
Join us on Friday, August 4 at 1 p.m. ET to learn how to generate consumer loyalty and why investing in loyalty is a no-regrets strategy regardless of business model—and no matter what happens with ACA repeal.