Buck Bond Group

The ACA (Repeal and) Replace Obstacle Course

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The GOP began this year with an agenda, mandate and conviction to wipe the Affordable Care Act (ACA) off the books. And, given the Republican stronghold — with President Trump in the White House and the majority in both the House and Senate — there was good reason to believe that they would succeed without any significant challenge or controversy. But, months later, we can’t help but wonder — will they?

Allison Klausner, Conduent HR Services Government Relations Leader, Knowledge Resource Center.

At first blush, it may have seemed that the road to ACA repeal and replace was paved with ice cream – the kind that is smooth and slick and without any mix-ins that create bumps and lumps. After all, the GOP lawmakers simply needed to band together, coalesce around and present a bill to the president who made clear his willingness to sign one. But, as the first six months of the current Congress came to a close and with the 2017 fiscal year end around the corner on September 30, it has become clear that the road to reform health care is replete of obstacles threatening to derail the Republican Party’s efforts.

So what’s the problem? There are two key obstacles — one a hurdle and the other a hoop — both of which are interfering with the GOP’s grand plan that’s been in the works since the ACA was enacted over seven years ago.

The primary hurdle is getting all (or virtually all) the Republican lawmakers to agree on a path forward and what provisions to include on that path. Certain Republican lawmakers have made clear their absolute unfettered reluctance to vote in favor of a bill that lacks a replacement plan. Others are unwilling to support legislation that would shift too much burden (e.g., Medicaid cost) to the states. And yet others have forcefully voiced opposition to any efforts that may jeopardize the ability to access certain services that currently fall within the domain of the ACA’s essential health benefits, such as mental health and maternity services. The list of items dividing the GOP is seemingly endless, creating innumerable obstacles to advancing a bill that, at best, pleases them all and, at worst, strikes an acceptable compromise.

Assuming a bill is drafted that all or most Republican lawmakers in both chambers are willing to support, there remains (most likely anyway) a significant hoop to jump through. The content of the bill must be narrow enough in scope not to violate any of the budget reconciliation rules. In a nutshell, these rules — that allow for certain bills to advance quickly without being subject to a Senate filibuster and with a simple majority vote —apply only to legislation that changes spending, revenues, the federal debt limit or mandatory spending (such as for Medicare and Medicaid programs), but not discretionary spending subject to the congressional appropriations process.

As the GOP strives to pass a health care reform bill, the budget reconciliation rules are posing a challenge (hoop) as some of the provisions in the GOP drafted bills — both the Better Care Reconciliation Act (BCRA) and the Obamacare Repeal Reconciliation Act of 2017 (ORRA) — are not in compliance with the content rules. By way of example, the provisions in the BCRA and ORRA that provide funding for cost-sharing reduction (CSR) payments fall outside the permitted scope, and, if challenged by lawmakers, (as the content rules are not self-executing) would need to be eliminated or approved by 60 senators. And, both those options (eliminating offending provisions or garnering 60 votes) may be too high a jump. Indeed, certain GOP lawmakers might vote for a health care reform bill only if it includes the “offending” provisions (such as the one in the BCRA that would effectively defund Planned Parenthood). And a bipartisan group of lawmakers (albeit primarily Democrats) may support a bill only if it includes funding CSR payments to ensure the individual health insurance market doesn’t collapse.

So, now what? Congressional leaders will work diligently to reach the finish line, starting with Sen. Mitch McConnell who will lead the Senate through debate and a vote-a-rama. However, should the Senate or the House trip and fall along the health care reform obstacle course, Congress may temporarily abandon their pursuit and move on to other items on their legislative agenda, such as comprehensive tax reform. (P.S. That would affect health care and other employer-sponsored benefits!)