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September 5, 2017

GOP sens. face Sept. 30 deadline to pass filibuster-proof ACA repeal, parliamentarian rules

Daily Briefing

    The Senate parliamentarian on Friday ruled that congressional authorization to pass a health reform bill under the budget reconciliation process expires Sept. 30, the end of fiscal year (FY) 2017.

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    The reconciliation instructions from the FY 2017 budget resolution (S Con Res 3) allows a bill that would repeal and replace the Affordable Care Act (ACA) to pass the Senate with a simple majority vote, without being subject to a filibuster that would require a 60-vote supermajority to overcome.

    Senate Parliamentarian Elizabeth MacDonough's ruling clarified when the FY 2017 reconciliation instructions, which were passed in January, will expire. Because the parliamentarian had not previously ruled on the question, experts had speculated that several different expiration dates might apply:

    • The end of the fiscal year;
    • The end of the current session or two-year Congress; or
    • The date on which Congress passed a FY 2018 budget resolution.

    According to Modern Healthcare, House and Senate Republicans could include new reconciliation instructions in the FY 2018 budget resolution enabling them to pass a health reform bill with a simple majority vote. However, Politico reports no such language currently is included in the House GOP's FY 2018 budget resolution. According to Modern Healthcare, lawmakers are planning to use the 2018 budget resolution to enable passage of a different filibuster-proof bill focused on tax reform.

    According to CQ HealthBeat, a senior GOP Senate aide said Republicans would discuss the parliamentarian's ruling this week when they return to Congress.

    Where health reform stands

    Lawmakers face a packed legislative agenda in September that could make it difficult for Republicans to turn around a new health reform bill by the Sept. 30 deadline, Politico reports.

    Legislators will need to pass a stopgap funding bill to keep the government funded beyond Sept. 30, reauthorize CHIP, and are expected to consider disaster relief funds for Hurricane Harvey, among other time-sensitive priorities.

    Further, Senate GOP lawmakers have not reached a consensus on health reform since Senate GOP leaders in July failed to garner 50 votes for any of three bills to repeal and replace the ACA. While Republican Sens. Bill Cassidy (La.), Lindsey Graham (S.C.), and Dean Heller (Nev.) are pushing for an ACA replacement plan that would maintain most of the ACA's taxes and direct that money to states, others have shifted their focus to a short-term bill intended to strengthen the individual health insurance market.

    Govs. release bipartisan health reform proposals

    In related news, a bipartisan group of governors last week shared several proposals they said Congress and the Trump administration should consider to improve the individual health insurance market while lawmakers work on a long-term replacement for the ACA.

    The proposal was released Thursday by Colorado Gov. John Hickenlooper (D) and Ohio Gov. John Kasich (R). According to the Associated Press, the recommendations, outlined in a letter sent to congressional leaders, are intended to provide short-term solutions to improve the individual health insurance market while lawmakers work on a long-term replacement for the ACA. The recommendations are broken down into three broad categories:

    • Improving the individual insurance market;
    • Preserving coverage gains while controlling consumers' costs; and
    • Removing regulatory barriers to state innovations.  

    The letter also was signed by:

    • Louisiana Gov. John Bel Edwards (D);
    • Montana Gov. Steve Bullock (D);
    • Virginia Gov. Terry McAuliffe (D);
    • Nevada Gov. Brian Sandoval (R);
    • Alaska Gov. Bill Walker (I); and
    • Pennsylvania Gov. Tom Wolf (D).

    Hickenlooper is expected to discuss the proposal in testimony before the Senate Health, Education, Labor, and Pensions Committee. Committee Chair Lamar Alexander (R-Tenn.) is scheduled to hold hearings next week to craft by mid-September a "small, bipartisan, and balanced" stabilization package for the 2018 exchange market.

    Individual market recommendations

    The governors in the letter wrote, "The current state of our individual market is unsustainable," adding, "Congress and the administration need to send a strong signal now that the individual market will remain viable this year, next year, and into the future."

    To do so, they recommended:

    • Continuing the ACA's cost-sharing reduction payments for at least two years;
    • Creating a two-year stability fund, such as a reinsurance program, to help insurers cover sicker enrollees with high medical bills;
    • Exempting insurers that enter single-insurer markets from the federal health insurance tax to foster competition and give residents in counties with a single insurer the option of purchasing a plan on the Federal Employee Benefit Program; and
    • Holding off on plans to repeal the ACA's individual mandate, which they wrote is "necessary to keep markets stable in the short term."

    Recommendations to improve access to coverage and control consumer costs

    The governors also outlined actions Congress and individual states could take to preserve coverage gains and control consumers' costs. For instance, they recommended:

    • Congress and individual states shorten grace periods for not meeting premium payment deadlines and verify individuals' eligibility for special enrollment periods;
    • Congress fix the ACA's "family glitch," under which some low-income families from qualifying for premium subsidies;
    • Give states more flexibility to modify essential health benefits under the ACA's so-called "state innovation" waivers;
    • Improve risk-sharing programs created under the ACA; and

    The federal government and states continue to invest in ACA enrollment and outreach efforts

    Recommendations to increase state flexibility

    The governors in the letter also urged "Congress and federal agencies to work with states to overcome" legislative and regulatory constraints to innovation. For instance, they recommended:

    • Allowing states to "combine waivers into a comprehensive plan and measure deficit neutrality across the life of the waiver and across federal programs"; and
    • Streamlining the ACA's state innovation waiver submission and approval process.

    The governors also called on Congress and the administration to "make a clear commitment to value-based health care purchasing" and align priorities for value-based purchasing across federal agencies.

    They concluded, "Governors have extensive expertise implementing changes to our health insurance system, and we stand ready to work with you and your colleagues to develop solutions that are fiscally sound and provide quality, affordable coverage for our most vulnerable citizens" (Krawzak, CQ HealthBeat, 9/1 [subscription required]; Meyer, Modern Healthcare, 9/1; Pradhan/Bresnahan, Politico, 9/1; Sullivan, The Hill, 9/1; Weixel, The Hill, 8/31; Goldstein, Washington Post, 8/31; Soffen et al., Washington Post, 8/31; Howell, Washington Times, 8/31; Carr Smyth/Anderson, AP/Sacramento Bee, 8/31; Kasich et al. letter, 8/30).

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