Health Care Legislation
As reported in last week's Update, the House approved the American Health Care Act (AHCA, H.R. 1628) on May 4 with only Republican votes. The bill is now under consideration in the Senate. Senate leaders have appointed a working group of 13 Republican (male) Senators composed of Majority Leader Mitch McConnell (R-KY), Majority Whip John Cornyn (R-TX), Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-TN), Finance Committee Chairman Orrin Hatch (R-UT), and Senators John Thune (R-SD), John Barrasso (R-WY), Mike Enzi (R-WY), Ted Cruz (R-TX), Mike Lee (R-UT), Tom Cotton (R-AR), Cory Gardner (R-CO), Rob Portman (R-OH), and Pat Toomey (R-PA). Some of these Members are quite conservative (e.g., Senators Cruz and Lee), while others are more moderate (e.g., Portman). Several are from states that adopted the Affordable Care Act's (ACA's) Medicaid expansion to cover low-income childless adults. That expansion would be phased out under the House bill, which would also fundamentally alter the Medicaid program by establishing per capita caps on federal payments to states. See Summary of the American Health Care Act as passed by the House May 4, 2015 (Kaiser Family Foundation) and this tool from the Kaiser Family Foundation, which provides a side-by-side comparison of current law (ACA) and the AHCA (and other bills).
Leader McConnell has charged Senators Pat Toomey (R-PA) and Rob Portman (R-OH) with figuring out how quickly to phase out the ACA's Medicaid expansion and working out a formula for periodically updating the proposed cap on Medicaid payments. According to an article in The Hill, Senators are assuming that the AHCA's per capita caps on Medicaid payments will be approved by the Senate in some form.
Meanwhile, Senators Susan Collins (R-ME) and Bill Cassidy, MD (R-LA) are reaching out to other Senators, including moderate Democrats, to try to get support for a bill like one they introduced in January. That bill - the Patient Freedom Act (S. 191) - would allow states to retain the ACA's mandates, protections and funding, or choose other options for insuring their residents. A recent article in Politico describes bipartisan "backchannel" communications among Senators who would like to see a bipartisan bill emerge from the Senate, either on principle or because they think a Republican-only bill is not feasible. For the bill to pass without any Democratic support, Republicans can afford to lose only two votes from their ranks. (There are 52 Republican Senators and Vice-President Pence would vote to break a 50-50 tie.)
Timing and procedure. Under its rules, the Senate cannot act on the legislation until the Congressional Budget Office (CBO) has provided a cost estimate ("score"), which is expected next week. Reportedly, the leadership will bring the bill to the Senate Floor as soon as it is assured there will be 51 votes to pass it. They would like to have that happen no later than the beginning of August recess. Since the bill is considered a "reconciliation bill," it can pass the Senate with only a simple majority of 51 votes. (Most Senate bills must get 60 votes to advance.) On the other hand, the bill can include only provisions that have an impact on the federal budget that is not "merely incidental," pursuant to the "Byrd rule." If the Senate parliamentarian determines that a provision is not appropriate for a reconciliation bill, then it must be removed from the bill unless 60 Senators vote to waive the rule. Some provisions of the ACHA that might be vulnerable to Byrd-Rule challenges are those allowing states to waive Essential Health Benefits and waive protections for people with preexisting conditions.
The Senate bill will surely be different than the House bill, which will mean that a House-Senate conference committee will have to craft a compromise between the two bills. The House and Senate would each have to approve the compromise legislation before the bill could be sent to the president.
For more summaries and analyses of the AHCA and related materials, see the May 10 Washington Update.
While the Children's Health Insurance Program (CHIP) is authorized through FY 2019, it is funded only through FY 2015. Although states will run out of funds at different times, all are expected to exhaust their federal CHIP funds during FY 2018. See this issue brief from the Medicaid and CHIP Payment and Access Commission (MACPAC). On May 11, the National Governors Association wrote to Congress urging swift passage of five-year funding extension for CHIP. A five-year extension has also been recommended by children's health organizations and MACPAC.
Despite bipartisan support in both houses of Congress, it is possible that the CHIP funding extension may get complicated by the health care debate. The Senate Finance Committee was scheduled to hold a hearing on CHIP on May 9, but due to the turmoil surrounding House passage of the American Health Care Act on May 4, the hearing was indefinitely postponed. See Crucial Health Bills Have a Fraught Path Amid Partisan Blowups (Roll Call, May 11, 2017); Will Congress Save the Children's Health Insurance Program? (The Atlantic, May 10, 2017).