Senate Rejects Proposals to Repeal and Replace Affordable Care Act

by McDermott Will & Emery

McDermott Will & Emery

In Depth

Senate Republicans failed to pass legislation to repeal and replace the Affordable Care Act (ACA) last week. After voting to proceed with debate on the American Health Care Act (AHCA) (passed by the House in May), the Senate introduced and voted against several replacement amendments and bills, including a new version of the Better Care Reconciliation Act (BCRA), with amendments by Senators Ted Cruz (R-TX) and Rob Portman (R-OH) (repeal and replace), and the Obamacare Repeal Reconciliation Act (ORRA) (repeal only).

The Senate then decided to consider a “skinny repeal bill,” officially named the Health Care Freedom Act, which would have eliminated the ACA’s individual mandate, delayed the employer mandate until 2025, allowed states greater flexibility in implementing market reforms such as essential health benefits and out-of-pocket spending limits, and increased Health Savings Account limits for three years, among other changes. This so-called skinny repeal failed on a vote of 49 to 51, with three Republican senators joining the entire Democratic caucus against the bill. According to the Congressional Budget Office, the skinny repeal bill would have increased the number of uninsured by 16 million over the next nine years and increased health care exchange premiums by 20 percent.

Passage of the skinny repeal bill was touted as a way to further the core ideals of ACA repeal, while allowing negotiations with House Republicans on final repeal and replace legislation. The GOP is now at a crossroads with some members advocating for strategies that will fast track collapse of the ACA and others urging for actions to strengthen the individual insurance marketplace. President Trump has been quick to criticize the failure to pass repeal and replace legislation and has threatened to end the cost-sharing payments provided by the government to insurers to help cover costs for the approximately 58 percent of marketplace customers who earn up to 200 percent of the federal poverty limit. Some insurers are already reacting to the uncertainty regarding cost-sharing payments by proposing increased premiums for 2018 or withdrawing from the market in certain areas or altogether. States may also begin to increase requests for five year “innovation waivers” of certain ACA requirements pursuant to Section 1332 of the ACA. These waivers are intended to give states more flexibility to pursue innovative strategies to provide their respective populations with access to health insurance that is high quality and affordable.   

Next Steps

While we may still see executive action from President Trump, ACA remains in effect and employers must continue to comply with its requirements, such as the employer shared responsibility requirements and the IRS Forms 1094 and 1095 reporting requirements. In addition, until further notice otherwise, the 40 percent “Cadillac Tax” on high-cost employer-sponsored health plans will become effective in 2020. Employers should continue to monitor health care reform developments as they implement 2018 health plan design decisions. Plan documents and employee communications should be reviewed for ACA compliance and updated to reflect 2018 plan design changes.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McDermott Will & Emery | Attorney Advertising

Written by:

McDermott Will & Emery

McDermott Will & Emery on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.