H.R. 1628 chaos raises odds for ACA survival

House Republican leaders' inability to get an Affordable Care Act change bill to the House floor today could increase the likelihood that the ACA will survive in its current form, or that Democrats and Republicans will have to work together to develop a bipartisan replacement.

House leaders had planned to get some version of H.R. 1628, the American Health Care Act bill, up on the floor for a vote today.

Instead, lengthy negotiations between House leaders and members of the Freedom Caucus, a House Republican group, pushed Republican leaders to put the House in recess. At press time, House members who wanted to vote had stay close to the House, because resumption of proceedings was "subject to the call of the chair," and could happen at any time from press time until Monday.

President Donald Trump said he wants the House to vote on the bill Friday. Politico is reporting that he is open to leaving the ACA in place, at least for now.

Before the House recessed, members debated House Resolution 221, a measure that would let House leaders suspend the normal bill consideration rules using a provision that critics jokingly describe as "martial law." The martial law rule, which has nothing to do with military rule of the country, lets House leaders unveil a bill between now and Monday and have members vote on the bill the same day, rather than giving members a few days to review the bill.

Members of the House Rules Committee voted 9 to 3 to approve the martial law resolution late Wednesday.

Rep. Alcee Hastings, D-Fla., said at the House Rules meeting on Wednesday, which was streamed live on the web, that Republican leaders had asked for the resolution to get time to "buy more votes."

Rep. Pete Sessions, R-Texas, the House Rules chairman, looked frustrated. He told Democratic members he wished he could give them more information about what was going on, but that he had been too busy to do more than monitor "the Republican conference maneuvers happening via press."

House Rules has posted video recordings of the proceedings here.

Sessions defend the martial law rule on the House floor this morning. He said the process will produce a good bill.

"We will own it, and we will be proud of it," Sessions said.

Rep. Jim McGovern, D-Mass., blasted the rushed process.

"Are Republicans seriously contemplating making a change of this massive without hearing?" McGovern asked. "With no chance to read the bill?"

The House chair ruled that members had approved the martial law rule by voice vote, but the chair then approved a motion for a recorded vote. The House went into recess before it could hold a recorded vote on the martial law resolution.

[UPDATE: As of 8:15 p.m., House members were back in business and voting on the martial law resolution.]

Later in the day, the Congressional Budget Office posted an analysis of a version of H.R. 1628 that would include key proposed amendments. The CBO analysts ruled that the revised bill would narrow the federal deficit by just $150 billion over 10 years, rather than by $337 billion, under the original public version of H.R. 1628.

Many lawmakers, including Republicans, have said that they are unhappy with the CBO prediction that the original public version of H.R. 1628 could increase the number of uninsured people by 24 million by 2026, mainly by decreasing Medicaid enrollment.

In the new analysis, which is available here, the CBO says the proposed H.R. 1628 revision and the earlier version would leave roughly the same number of people without health coverage.

Rep. Jared Polis, D-Colo., said Wednesday during House Rules meeting that he'd like to work on bipartisan ACA changes. (Photo: House Rules)

Rep. Jared Polis, D-Colo., said Wednesday during House Rules meeting that he'd like to work on bipartisan ACA changes. (Photo: Polis)

Process

The Republicans hold just 237 seats in the House and expect to need 216 votes to pass H.R. 1628 there.

Republicans hold 52 seats in the Senate. Under traditional Senate rules, they need 51 votes there to pass a "budget reconciliation" measure, and 60 votes to pass an ordinary bill. The Senate parliamentarian, an obscure advisor hired by the Senate majority leader, decides which provisions are "germane" to the budget and can be included in budget reconciliation.

To comply with the traditional Senate rules, Republican leaders crafted H.R. 1628 as a budget measure. Because of those rules, H.R. 1628 would eliminate or change many ACA taxes, such as the tanning salon tax. The bill also would change the current income-based premium tax credit subsidy to an age-based subsidy available to more people. The bill would not affect ACA provisions that clearly have no direct effect on federal spending, such as the essential health benefits package.

The EHB package is supposed to ensure that individual and small-group major medical coverage is solid coverage, and help consumers compare individual and small-group coverage on an apples-to-apples basis. The provision requires issuers, in most cases, to cover at least about 60 percent of the actuarial value of 10 types of care, such as hospital care and physician services. The U.S. Department of Health and Human Services has ruled that the EHB package must include coverage for mental health and substance abuse services.

Members of the Freedom Caucus, a House Republican group, have been pushing for a full ACA repeal bill, or, at least, a bill that would eliminate ACA provisions such as the EHB provision.

The EHB package requirement did not exist before 2010, but the idea of eliminating it has drawn harsh criticism. Margot Sanger-Katz, a New York Times reporter, quoted a health care management professor who said the change could produce a plan that would "cover aromatherapy but not chemotherapy."

Some Republicans, including Sen. Ted Cruz, R-Texas, that Vice President Mike Pence has the authority to shape the budget reconciliation process, and that Republicans should be able to use that authority to get a full ACA repeal-and-replace bill through the Senate with 51 votes.

But another problem is that an ACA bill that appeals to Freedom Caucus might not be able to win support from Senate Republicans such as Susan Collins of Maine and Dean Heller of Nevada.

A bill that's too liberal to appeal to the Freedom Caucus might lose the votes of some Senate Republicans, such as Cruz and Rand Paul.

In theory, more moderate Republicans and Democrats, such as Collins, Heller and Sen. Chuck Schumer, D-N.Y., could team up to come up with a bipartisan ACA change bill.

Rep. Jared Polis, D-Colo., said he's still hoping for a bipartisan ACA change effort Wednesday, during the House Rules meeting. He said and many colleagues had been eager to push for ACA changes for years and would like to work with Republicans on a bill.

One challenge is that health insurers are preparing filings for the 2018 market now and need to know what the rules will be last month.

Another challenge is that the calendar affects budget measures and ordinary bills differently, according to James Slotnick, a government relations executive at Wellesley Hills, Massachusetts-based U.S. arm of Sun Life Financial Inc.

Lawmakers could introduce a bipartisan ACA change bill at any time during the session.

If, however, Republican lawmakers want to use one budget measure for changing the ACA, and one for tax reform, then they must complete work on the ACA-changing measure by April 28, before the end of the 2016 budget window, Slotnick writes in an analysis of the process.

"Once the 2017 budget window opens, Republicans will try to use budget reconciliation to move individual tax reform though the Senate," Slotnick writes.

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