Democrats are reporting that on July 21, 2017, the Senate Parliamentarian ruled that a number of provisions of the Republican Better Care Reconciliation Act (BCRA) violate the Byrd Rule, and thus cannot be passed by the Senate using the reconciliation act procedure through which Congress has been trying to repeal the Affordable Care Act (ACA). The Byrd Rule requires, among other things, that a provision adopted through a reconciliation act affect the revenues or outlays of the United States in a manner than it not merely incidental to another purpose. A provision that the Parliamentarian rules to be impermissible under the Byrd rule is subject to a point of order, which can only be overruled, according to tradition, by a 60-vote majority.

The provisions that the Parliamentarian ruled may be stricken if raised by a point of order include:

  • The provision defunding Planned Parenthood;
  • The provisions prohibiting the use of small business tax credits and individual market premium tax credits to pay for health plans that cover abortions;
  • The sunset of an essential health benefit coverage requirement for Medicaid plans;
  • The section funding cost-sharing reductions (CSRs), which the Parliamentarian ruled was redundant of current law, which already funds them (this ruling seems contrary to the lower court’s ruling in House v. Price that money had not been appropriated for the CSRs, but is consistent with the belief that the CSRs are already built into the budget baseline, thus an appropriation does not affect the deficit. A bill to clarify the appropriation situation could, of course, be passed separately from the reconciliation act;
  • The six-month waiting period for individuals who have not maintained continuous coverage;
  • The provision sunsetting the federal medical loss ratio requirement and allowing states to set the medical loss ratio;
  • A provision, that has been removed from the most recent version of the BCRA, that might have allowed states to rollover unused Medicaid block grant funds and possibly use them for other purposes;
  • The “Buffalo Bailout” which would have limited the ability of New York State to require counties other than those in New York City to contribute funding to the state’s Medicaid program (the ruling on this provision should caution against including further state-specific provisions in future versions of the legislation);
  • A provision grandfathering certain Medicaid waivers and prioritizing Medicaid Home and Communit-Based Services Waivers;
  • A provision requiring a report by the Department of Health and Human Services (HHS) to Congress regarding the preferability of adopting a different system for reporting Medicaid data; and,
  • A section requiring HHS to consult with the states before finalizing Medicaid rules.

The Parliamentarian upheld against a Byrd rule challenge,

  • A provision allowing state the option of imposing work requirement on Medicaid enrollees who are not disabled, elderly, pregnant, or within 60 days of giving birth;
  • A provision granting $10 billion to Medicaid non-expansion states;
  • The state stability and innovation fund, which imposes abortion restrictions by funding the program through the Children’s Health Insurance Program, which already prohibits abortion funding;
  • A provision adjusting per capita cap targets for low-spending and high-spending states to promote equity;
  • The permanent repeal of the cost-sharing reduction program beginning in 2020; and,
  • A provision requiring states to include information on per capita enrollment and expenditures, psychiatric hospital expenditures, and children with complex conditions in their Medicaid expenditure reports.

The Parliamentarian is still reviewing:

  • The provision expanding section 1332 to remove the current guardrails on state innovation waivers;
  • The provisions allowing small business association health plans that would be regulated as large group health plans, largely free from state regulation;
  • The provision allowing age rating at a 1 to 5 rather than the current 1 to 3 ratio, increasing premiums for older people and decreasing them for younger; and,
  • A provision allowing states to obtain Medicaid block grants in lieu of the BCRA’s per capita caps.

If a point of order is raised, which is almost certain to happen, a 60-vote margin to overrule the Parliamentarian is very unlikely. The striking of the overruled provisions, which are very important to some senators and their constituents, is obviously going to make the Republican leadership’s job, which was already very difficult, that much harder.

The BCRA can, of course, be amended to try to fix the problems the Parliamentarian has identified. In 2015 the Senate revised the ACA repeal reconciliation bill passed by the House after the Parliamentarian ruled that it could not repeal the individual and employer mandates under the Byrd rule, amending the bill to repeal only the penalties imposed by the mandates. Amending the BCRA to avoid some of the July 21 rulings, however, is not going to be easy.