July 26 Update 3: Yet More Amendments

At around 6 pm on July 26, 2017, the Senate voted on two motions. The first was on a motion by Senator Casey that would have committed the pending legislation (whatever it might be) to the Senate Finance committee to amend it to ensure that Medicaid coverage for the disabled would not be cut. It failed by a 52 to 48 party line vote.

The Senate also voted overwhelmingly not to waive a Byrd Rule objection raised by Senator Sanders against a “sense of the Senate” amendment offered by Senator Heller from Nevada. The amendment stated that the Senate should review Medicaid coverage and the ACA’s Medicaid expansion and prioritize Medicaid coverage for individuals with the greatest medical need, including individuals with disabilities, but that the body should not reduce or eliminate benefits or coverage for individuals currently eligible for Medicaid or discourage states from expanding Medicaid. Senator Heller made a floor speech in support of his amendment praising the Medicaid expansion and describing what it had done for Nevada.

The amendment, however, also recited a familiar litany of charges against the ACA. It called for the repeal of the ACA and its replacement with patient-centered legislation that would “provide access to quality, affordable private health care coverage for Americans and their families by increasing competition, State flexibility, and individual choice” that would also strengthen Medicaid and increase flexibility for states to best meet the needs of their population.

Republicans did not want to vote to lock in the Medicaid expansion and Democrats did not want to vote for the repeal of the rest of the ACA, so they joined forces in blocking a vote on the amendment. But a handful of Republican senators got to go on record as supporting Medicaid. The motion to waive the Byrd rule objection failed 90 to 10.

Dozens of motions to commit have been filed by Democrats as the means of raising objections to the Republicans attempt to repeal the ACA. After the 6 pm votes, however, Senator Schumer, the minority leader, stated that the Democrats would no offer further amendments until the Republicans offered a bill for them to amend. Senator Schumer also reported that the Congressional Budget Office had determined that the “skinny” repeal being discussed would cause 16 million people to become uninsured and raise premiums by 20 percent, although the CBO has not scored actual legislation but rather specifications given them by Democrats as to what they expect skinny repeal might include. Tables released by the CBO later in the evening largely supported the loss of coverage claim, though they did not address premium increases.

The next vote will apparently will be on a “Medicare-for-all” proposal submitted as an amendment by Senator Daines to put the Democrats on the record voting either for or against a single payer system. It is hard for me to imagine the amendment will survive a point of order.

July 26 Update 2: Amendments Galore

Shortly before 4 pm on July 26, 2017, the Senate rejected by a vote of 55 to 45 a motion by Senator Paul to adopt the Obamacare Repeal Reconciliation Act. The ORRA would have repealed key provisions of the ACA, including the individual and employer mandates, the Medicaid expansions and the premium tax credits and cost-sharing reduction payments, and all of the Affordable Care Act taxes.  It would have delayed the repeal of the Medicaid expansion and premium tax credits and cost sharing reductions for two years.

Seven Republicans (Alexander, Collins, Heller, McCain, Moore Capito, Murkowski, and Portman) joined all Democrats in voting against the amendment.  The only Republican now in the Senate who voted against a similar bill in 2015 is Senator Collins, but six more joined her today. In 2015, however, the senators knew President Obama would veto the bill so the vote was symbolic. Moreover, the Republicans now know that having a replacement up for the ACA’s financial assistance provisions in two years is probably a pipe dream.

The Senate Parliamentarian reportedly upheld an objection to provisions in the ORRA that would have banned individual and small business tax credits for health plans that covered abortions. Democrats, however, did not raise a point of order to strike these provisions; thus, the Senate went directly to voting on the Paul amendment itself.

The Senate then proceeded directly to vote on a motion by Senator Donnelly to commit the bill to the Senate Finance Committee to remove provisions that would have cut Medicaid and the Medicaid expansions and shifted costs to the states. The vote failed 48 to 52 on a straight party line vote.

The vote was immediately followed by a motion by Senator Casey to commit to the Finance Committee to remove provisions that would threaten Medicaid for persons with disability.

With both the most recent version of the BCRA and the ORRA defeated, the debate is apparently about the original amendment (267) offered by Senator McConnell to the  House’s American Health Care Act and unspecified amendments to it. Since this amendment was essentially the ORRA, which has now been voted down, the debate is apparently not in fact addressing any specific proposed language. The Senate may end up with a “skinny” bill, repealing only the individual and employer mandate and one or more ACA taxes, but we have many hours of debates, and dozens and dozens of amendments before we get there.

Senator McCain has proposed three amendments—264, 265, and 266—intended to extend the phase-out of Medicaid expansion funding and meliorate the effect of the per capita caps. Senator Whitehouse has proposed amendment 268, dealing with medical bankruptcy protection. Senator Johnson has proposed amendment 272, which would prohibit federal government payments for insurance coverage provided to members of Congress through the exchange, and amendment 273, which would repeal the entire ACA effective January 1, 2020.

Senator Barrasso has proposed amendments 274, which would increase maximum permitted contributions to HSAs, and 275, which would allow separate risk pools for Cruz skinny plans. Senator Kaine and a number of other Democratic Senators have introduced Amendment 276, which would provide federal funding for reinsurance for high-cost cases and for individual market outreach and enrollment. Senator Merkley has introduced at least 100 amendments, and more are on their way.

July 26 Update: Voting Plans

Senate leadership has announced  votes on Amendment 271—essentially the Obamacare Repeal Reconciliation Act—will take place at 3:30 instead of 11:30. The Senate will first vote on whether the amendment is permissible under budget reconciliation rules (presumably because of its abortion and Planned Parenthood restrictions) and then on the amendment itself. The Senate will also at 3:30 vote on Senator Donnelly’s (D IN) motion to commit the legislation to the Senate Finance Committee to amend it to ensure that it imposes no Medicaid cuts and does not shift costs to the states.

Original Post

On July 25, 2017, the United States Senate began its long-awaited debate on repealing the Affordable Care Act. At around 2 in the afternoon, Senate Majority Leader McConnell called up a motion to proceed on consideration of the American Health Care Act, which the House of Representatives had passed on May 4, with a 217 to 213 vote. A motion to proceed on a budget reconciliation bill needs only to pass by a bare majority, but the Republicans hold only 52 of the chamber’s 100 votes, and Republican Senators Collins (ME) and Murkowski (AK) voted against proceeding.

What’s Happened So Far

There was high drama as Senator McCain (R-AZ), who had surgery for a blood clot and was diagnosed with brain cancer the week before, arrived to vote yes. Senator Johnson (R-WI) huddled with Senate leadership for some time before casting a yes vote to bring the tally to 50 to 50, with protesters in the gallery shouting “Kill the bill, don’t kill us” and “Shame” until they were taken away. With the vote evenly divided at 50 to 50, Vice President Pence, the President of the Senate, cast the deciding vote and the motion to proceed succeeded.

After an emotional speech by Senator McCain calling on the Senate to regain its stature as a deliberative body, Speaker McConnell moved to amend the House bill to substitute amendment 267. This was basically the Senate’s Obamacare Repeal Reconciliation Act, which was in turn the repeal and delay bill that was passed by the Senate in 2015 with a few added features, such as the funding of the cost-sharing reduction payments and the ban on tax credits for plans covering most abortions. The abortion coverage ban was crossed out in the version submitted; in addition, in the section defunding Planned Parenthood, the amount of federal and state funds that the organization would have had to receive in fiscal year 2014 to be covered by the funding prohibition was reduced from $350 million to $1 million, apparently to satisfy the Senate Parliamentarian’s concern that the section was written too specifically to cover only one organization.

The Democrats forced the reading of the entire 18-page bill and then made a couple of speeches against it, but at that point Speaker McConnell moved amendment 270 to amendment 267. This was a third version of the Better Care Reconciliation Act (BCRA), incorporating the Cruz (R-TX) amendment to allow the sale of skinny plans. At the prompting of Senator Portman (R-OH), the new BCRA version also included language providing an additional $100 billion over seven years for states to help reduce cost-sharing obligations of low-income consumers, and further permitting states to use Medicaid funds to help low-income individuals with cost-sharing payments.

The Democrats demanded that the 178-page bill be read, a not unreasonable request given the fact that none of them had seen it before, but were willing to end the reading at the request of Senator Enzi (R-WY) after the clerk had read well over 100 pages. At that point debate resumed and several Senators spoke on both sides, including Senators Cruz and Portman.

Senator Murray (D-WA) then raised a point of order, asking that Amendment 270 be stricken for failure to comply with budget reconciliation rules. It is reported that her objection was that the newest BCRA version with the Cruz and Portman amendments had not been scored by the Congressional Budget Office and thus could not be adopted through reconciliation. A number of the provisions of the BCRA, however, had reportedly also been questioned by the Senate Parliamentarian, who suggested they could not be included in reconciliation legislation. It was further reported on July 25, that the Parliamentarian had held two other provisions of the BCRA to be objectionable, including the change in the age rating ratio from one-to-three to one-to-five and the small business association health plan provisions. The budget challenge presumably did not include these provisions, but it was not wholly clear.

Senator Enzi moved to overrule the point of order, a motion that would have needed 60 votes to succeed. In fact, nine Republicans, Senators Collins, Corker, Cotton, Graham, Heller, Lee, Moran, Murkowski, and Paul, joined all 48 Democrats to uphold the point of order 57 to 43.

At that point, Senator Enzi moved to bring Senate Amendment 271 to the floor. This is the ORRA, including language prohibiting tax credits for plans that cover abortions but replacing the $350 million with $1 million for the amount of FY 2014 federal funding an organization meeting certain conditions (read Planned Parenthood) would have had to receive to be barred from funding. A motion to waive budget rule objections to this bill will receive a vote on the morning of July 26. July 26 will also bring a vote on a motion by Senator Donnelly (D-IN) to recommit the bill to the Senate Finance Committee to remove all provisions that would cut Medicaid, end the Medicaid expansion, or shift costs to the states.

What Comes Next?

The repeal and delay ORRA will very likely be voted down — the CBO scored it as causing 32 million people to lose coverage if no replacement were adopted before the repeal went into effect in two years, and no one should reasonably assume that this Congress could adopt and implement a replacement plan in two years.

It is unclear what will come then — perhaps another vote on a stripped down BCRA, or perhaps another bill. There is talk of the Senate ending up with a skinny bill that would simply repeal the individual and employer mandates and the medical device tax. The CBO has already scored pieces of this and it is possible that it would score such legislation as meeting mandatory deficit reduction goals. The bill would then go to conference with the House in secret and be brought back to the Senate floor for a final vote. Who knows what the final bill would do.

As July 26 begins, there are many hours of debate and many votes ahead of us, including votes on points of order to strike provisions that may come before the Senate in various bills for failure to comply with budget reconciliation rules. At the end will come a vote-a-rama, when both parties can offer unlimited amendments with only a minute to debate each amendment. These could include a substitute amendment by Republican leadership completely changing the legislation. The whole show should end by Friday, July 28, and we will see what remains then. Just about the only certainty is that any children who have learned the legislative process through Schoolhouse Rock will be very confused.