Senate Republicans suffered a big setback in passing their bill to repeal and replace the Affordable Care Act when the Senate parliamentarian issued rulings Friday that make it more difficult to pass key provisions on a party-line majority vote.
The provisions of the Better Care Reconciliation Act determined by parliamentarian Elizabeth McDonough to require a 60-vote supermajority include two abortion-related measures key to winning conservative support. Those are prohibitions on Medicaid funding for Planned Parenthood for one-year and on abortion coverage under health plans purchased with premium tax credits.
A leading House GOP ultraconservative, Rep. Mark Meadows of North Carolina, told the Huffington Post that McDonough's ruling “as it relates to the life issue will make passage almost impossible” if the Senate passes the bill and it returns to the House for approval.
Senate Majority Leader Mitch McConnell is expected to try to bring the BCRA up for a Senate vote next week. Without those abortion measures, he's likely to face strong resistance from many anti-abortion GOP senators. He needs the votes of 50 of the 52 Senate Republicans to pass the bill through the budget reconciliation procedure.
Senate GOP leaders could overrule the parliamentarian's decisions, a summary of which were posted on Democratic Sen. Bernie Sanders' website. But political observers say McConnell will be reluctant to do so because that would jeopardize the future of the minority party's power to filibuster Senate legislation by denying it 60 votes. Some believe he would be more likely to overrule the parliamentarian if he is within one or two votes of passing the bill with those provisions intact.
Other key provisions the parliamentarian said could not be passed the Senate's budget reconciliation rules and that would require 60 votes include:
--elimination of the ACA's minimum essential benefits requirements for Medicaid managed care plans starting in 2020.
--funding for payments to insurers to pay for the ACA's cost-sharing reductions for lower-income exchange enrollees.
-- barring people with a lapse in insurance coverage from buying individual-market insurance for six months.
--eliminating the ACA rule requiring insurers to pay out at least 80% in premium revenue for medical costs.
Funding for the cost-sharing subsidies and providing an incentive for people to maintain continuous coverage are seen as critical to maintaining a stable individual-insurance market.
Senate Democrats likely would move to strike the provisions determined by McDonough as out of compliance with Senate rules. McConnell then would need 60 votes to keep them in the bill, which he almost certainly wouldn't get.
Other key provisions of the Senate bill are still under review by the parliamentarian, who decides whether each part of a budget reconciliation bill meet Senate rules requiring all provisions to primarily have a budget rather than a policy impact.
The still-to-be-reviewed measures include:
-- Waivers for states to opt out of ACA requirements that all plans offer essential health benefits and charge everyone the same premiums regardless of pre-existing medical conditions.
-- Permission for small businesses to band together to establish association health plans that could be sold across state lines and that would be exempt from many ACA requirements.
-- Allowing insurers to charge older customers premiums five times higher than they charge younger customers, up from the ACA limit of three times higher.
These three insurance provisions are important for garnering the support of Republican ultraconservatives in the Senate and House, who see them as critical for offering plans with lower premiums.
Provisions of the BCRA the parliamentarian decided could be passed with a bare Republican majority include:
-- Letting states impose work requirements on certain categories of Medicaid beneficiaries, particularly low-income adults receiving coverage through the ACA's Medicaid expansion.
-- Providing $10 billion in funding for states that did not expand Medicaid to pay safety-net providers to deliver care for the uninsured.
--Adjusting the bill's caps on federal Medicaid payments to states to promote equity between lower-spending and higher-spending states.
McDonough has not yet considered a new amendment offered by Texas Sen. Ted Cruz that would allow insurers to offer plans that do not comply with ACA rules requiring all plans to offer essential benefits and barring plans from discriminating against people with pre-existing conditions.
Many experts doubt the Cruz amendment meets Senate rules for budget reconciliation bills because it's not primarily about the federal budget. But ultraconservatives including Cruz and Sen. Mike Lee of Utah have said that inclusion of that amendment is pivotal to winning their support for the bill.
Sen. Sanders said in a written statement that the parliamentarian's decision “proves once again that the process Republicans have undertaken to repeal the Affordable Care Act and throw 22 million Americans off of health insurance is a disaster.”