On June 22, the Senate Budget Committee posted the discussion draft, available here, of its Affordable Care Act (ACA) repeal and replace legislation, the Better Care Reconciliation Act of 2017 (BCRA). Similar in structure to the House-passed American Health Care Act (AHCA), BCRA would eliminate the ACA individual and employer mandates, repeal or delay many of the ACA taxes, phase out Medicaid expansion and convert Medicaid to a per capita allotment, continue cost sharing reductions, establish a short term stabilization fund, and provide premium tax credits for individuals to purchase insurance. The Senate bill retains the prohibition on pre-existing conditions and the requirement to extend coverage to dependents up to age 26, although the bill would allow states to apply for waivers from health insurance requirements.
As early as June 22, 2017, the Congressional Budget Office (CBO) is expected to release its “score,” outlining the bill’s costs, savings, and impact on health care coverage. Senate Republican leaders hoped to bring the bill to the Senate floor on Thursday or Friday of this week, before a week long July 4 recess, but the debate and final vote on the bill may slip into July, in order to amend the bill. Under the rules of budget reconciliation, Senate Majority Leader Mitch McConnell (R-KY) can only lose the support of two Republican Senators and still have the 50 votes necessary—with Vice President Pence casting the tie-breaking vote—for BCRA to pass the Senate. Five Republican Senators have announced their opposition to the current discussion draft.
Within hours of the discussion draft’s release, Senators Rand Paul (R-KY), Ted Cruz (R-TX), Mike Lee (R-UT), and Ron Johnson (R-WI) charged that that the bill did not deliver on the promises of repealing Obamacare and lowering health care costs, announcing “we are not ready to vote for this bill, but we are open to negotiation and obtaining more information.” Senator Ron Johnson outlined his specific concerns in a New York Times op-ed, charging that the bill retains too much of the ACA structure and does not go far enough in pursuing private sector solutions. Senator Dean Heller (R-NV) commented last Friday that Medicaid expansion states have to be protected and noted: “It’s going to be very difficult to get me to a yes.”
Under the budget reconciliation process, there will be 20 hours of debate, equally divided between Democrats and Republicans. Democrats are expected to raise points of order that provisions of the Senate bill violate the Byrd rule, so named for the former Senator Robert Byrd (D-WV). The Senate Parliamentarian will rule on such questions.
The Senate bill specifies $2 billion for opioid treatment in 2018, as compared with the $15 billion over 10 years set aside for mental health, substance abuse, and maternity care. Like the House-passed bill, the Senate proposal would eliminate Medicaid funding for Planned Parenthood for one year. The Senate bill also eliminates the $1 billion Prevention and Public Health Fund, but the Senate bill does so in 2018, one year earlier than the House-passed bill.
Unlike the House bill, the Senate bill would add a new provision to Employee Retirement Income Security Act of 1974 (ERISA), to establish Small Business Health Plans (SBHPs), under which multi-state plans could sell health insurance to small businesses across state lines. Under these plans, requirements for community rating and essential benefits would not apply.
King & Spalding will post a detailed summary of BCRA provisions following Senate passage.
