As you have read here, the Senate’s finest hours were not those spent in July 26, 2017 health care policy debate, which resumed July 27 at 10:00 am EDT.  The bipartisan demagoguery did not diminish, but some Senators on each side rose above that fray and, in the end, Democrats won the narrowest possible victory in a fashion reminiscent of Auburn’s “kick six” win over Alabama.

The presiding officer noted the scheduled 2:15 pm EDT vote on the “Medicare for all” amendment offered by Senator Daines (R-Montana).  Senator McConnell (D-Kentucky) portrayed the Daines amendment as offering Democrats an opportunity to vote for a single payer system.  It didn’t sound like a peace offer; it sounded like a double-dog dare.  Silence fell for a half hour.  As our mothers told us all, “if you don’t have anything nice to say to someone, don’t say anything at all.”

Senator Carper (D-Delaware) broke the ice with a polite presentation noting broad agreement on goals of better insurance coverage of more people for less money, so that this has been, since 1993, an argument about means and methods. He then repeated and expanded on his history lesson from the prior day’s debate, which was one of that day’s few edifying performances.  In 2008, when Japan spent 8% of GDP on healthcare, we spent 18%, he said.  Acknowledging that every American can get emergency health care regardless of insurance or income, he critiqued the associated public costs and noted the cost savings achieved by widely available preventive care.  This wound up being a plea to recommit H.R. 1628 to committee for “regular order” proceedings, despite the lack of a pending motion of that nature.

Senator Schumer (D-New York) took the floor moments before 11:00 am, daring Republicans to offer a bill for final passage, even if that should be the “skinny repeal” bill rumored in the press.  However, he said, should “skinny repeal” be offered, Democrats will offer so many amendments that the extended debate on H.R. 1628 will significantly delay consideration of the National Defense Authorization Act, H.R. 2810.  Senator Schumer signaled that Democrats would not support the “Medicare for all” Daines amendment, because they regarded it as campaign bait.  Again, silence fell for a quarter hour.

Senator McCain (R-Arizona) and Senator Schumer then debated the wisdom of holding the National Defense Authorization Act hostage to the health care debate.  Senator McCain warned of the precedent of blocking a non-partisan defense bill due to dispute over a partisan bill, asking for a two hour interruption of health care debate to pass the NDAA.  Senator Schumer was unyielding in demanding that H.R. 1628 be recommitted as the price of floor action on H.R. 2810 in the foreseeable future.  After Senator McConnell declined that offer, Senators resumed health care discussion.

Senator Lamar Alexander (R-Tennessee), H.E.L.P Committee chair, explained why “repeal” and “replace” should be done in one bill. He forecast a “skinny bill” vote late in the day, conceding that any such bill will just be a vehicle to get to a House-Senate conference committee, where something more complex will be prepared for an up-or-down vote in each chamber.

Beginning around 11:35 am, Senator Peters (D-Michigan) described how insurance made available by the ACA gave a named constituent access to life-saving health care, briefly making a case for health care as a government-guaranteed right.

Senator Sanders (D-Vermont) rose at 11:45, reviving the prior day’s apocalyptic, sarcastic tone of debate, shouting that Republican proposals would cause thousands to be “thrown out of their nursing homes.” He predicted that defunding Planned Parenthood would lead to deaths of “thousands and thousands of Americans every year.”  Only the “top 1%” getting tax cuts would benefit from “throwing disabled children off of health insurance” under “this absurd Republican proposal.”  And the beat went on.  At length, Senator Sanders facetiously congratulated Senator Daines for offering a Medicare-for-all proposal and dared him to vote in favor.  Senator Sanders committed only to vote for his own Medicare-for-all proposal and thanked President Trump for admitting that Australia’s single-payer health care system is superior to ours.  Nearing the end of his time, Senator Sanders advocated federal prescription drug price controls, shamed health insurers for “outlandish” profits and CEO compensation and blamed our “bureaucratic, complicated system” of insurance on the multiplicity of insurers and policy terms.  Senator Sanders asked rhetorically whether Wall Street or drug company executives are “greedier” and personally attacked the Koch brothers for their wealth, showing enlarged photos of a $90,000,000 yacht and a billionaire’s mansion.

At 12:30 pm, Senator Moran (R-Kansas) turned the discussion to the “VA Choice” program that he said will fail within days unless new funding is authorized.  This, according to Senator Moran, is in the stack of legislation waiting for floor action after the health care debate.

Senator Flake (R-Arizona) took the floor at 12:44 pm to ask for immediate passage of H.R. 3298, to facilitate the receipt of public contributions to fund the medical expenses of officers wounded in the recent attempted assassination of Congressional Republicans.  Without objection, it was approved.

Senator Murray (D-Washington) then came to the well to decry a purported Republican plan to pass a “secret bill,” “in the dark of night,” to reach their goal “to kick tens of millions of people off their coverage,” in order to “give a massive tax break to the wealthy.”  Strong letter to follow, we supposed.

Shortly before 1:00 pm, Senator Sasse (R-Nebraska) remarked the unfortunate tendency of every dispute to become a “blood feud” and predicted that demographic and cost trends soon will force a binary choice between government rationing of entitlement medicine and a “disruptive, innovative,” “portable, affordable,” market-driven system.  Senator Sasse lamented that his choice will not be on the floor this week.  This was the Republican version of Senator Carper’s assessment – polite and perceptive.

There followed a “regular order” appeal by Senator Udall (D-New Mexico), who yielded to Senator Heinrich (D-New Mexico), who accused Republicans of a “shockingly rushed and secretive effort” to produce a “secret Trumpcare bill,” in order “to give a massive tax break to the wealthiest among us.”  Mentally ill people will lose their stabilizing medications, grandmothers will be thrown out of closing nursing homes, etc., due to “this appalling legislation.”  In closing, he referred to “real bipartisan solutions,” but identified none.

Senator Bennet (D-Colorado) picked-up on and expounded a point made by Senator Sasse: most uninsured people are uninsured only during short times between jobs, so insurance portability is key to minimizing the number of uninsured, but that is not a subject currently under discussion.  Further, he complained, the health care squabble is preventing agreement on even more pressing problems like infrastructure.  His solution: recommit H.R. 1628 to committee for regular order proceedings.

About 30 minutes before the scheduled vote on the Daines amendment, Senator Sullivan (R-Alaska) addressed the importance of “repealing, replacing and repairing” (emphasis ours) the current healthcare system, predicting that “we will probably be debating all night.”  He then denounced the National Defense Authorization Act hostage situation, noting that the NDAA won unanimous committee approval.

Well before 2:00 pm, the Senate entered a periodic hush, with few Senators on the floor, provoking a quorum call.  In four hours of debate, only Senator Sanders and Senator Sasse seemed to have taken seriously the single payer topic of the Daines amendment.  Finally, Senator Daines took the floor to explain his purpose – i.e., to focus attention on where the current system is heading without basic revision.  To do this, he copied and pasted Rep. Conyers’ (D-Michigan) entire House bill, H.R. 676, to create his H.R. 1628 amendment.  The Conyers bill, Daines said, has 115 House Democrat co-sponsors, and forbids private insurers to sell insurance policies in competition with its “Medicare for all” insurance.  Senator Daines invited Democrats to vote for his amendment or to acknowledge that they do not want to go where the current system is heading.

Another quorum call commenced at 2:18 pm, but was suspended when Senator Sanders rose again to congratulate Senator Daines again, offering to vote for the amendment if “five or six” Republicans also would vote in favor.  Otherwise, said Senator Sanders, Democrats would vote “present.”  As chuckles spread around the chamber, the Clerk began to call the roll.  No Senator voted for the Daines amendment.  All 52 Republicans plus Senators Heitkamp (D-North Dakota), King (I-Maine), Manchin (D-West Virginia), Nelson (D-Florida) and Tester (D-Montana) cast the 57  “no” votes.  The other 43 voted “present.”

At about 3:00 pm, the chair called-up the Strange (R-Alabama) amendment to block tax-funded abortion under the ACA.  However, most Senators had left the floor, none rose to speak, and so mics were muted again.  After about ten minutes, Senator Cornyn (R-Texas) resumed the debate.  Medicaid spending would rise by $71 billion over ten years under H.R. 1628, but that growth rate would be sustainable, unlike the current growth rate, he claimed.  After reciting Republican ACA talking points, Senator Cornyn yielded the floor to Senator Kennedy (R-Louisiana), who began by crediting Democrats with only good intentions when they passed the ACA.  However, he noted, doctors once bled their patients, with solely good intentions. When they learned it didn’t help, they stopped doing it.  ACA supporters are in the same situation, Senator Kennedy claimed.  He called the basic Healthcare.gov policy, “a bus ticket without a bus” and predicted days of remaining debate before a majority solution could be found.

Senator Wyden (D-Oregon) took the floor to claim that the majority’s unseen, rumored “skinny repeal” amendment was written during a just-concluded Republican lunch.  Nevertheless, he predicted severe Medicaid cuts based on a CBO score of a Democrat guess of what might be in a “skinny repeal” bill.  And, he announced a just-released Senate Parliamentarian decision that reconciliation may not be used to pass a “Trumpcare” provision permitting the states to redefine ACA “essential health benefits” and “affordability.”  Senator Wyden invited such states to seek ACA § 1332 waivers from HHS and offered Republicans “bipartisan cooperation” if reconciliation proceedings are abandoned.  Unlike prior speakers, Senator Wyden proposed a specific object of such cooperation: increasing payments to insurers to stabilize individual insurance markets.

Starting at 4:00 pm EDT, Senator Toomey (R-Pennsylvania) gave the Republican response to Senator Wyden, focusing on Medicaid’s need for reform, as part of the fiscal imperative of entitlement reform.  Medicare, Medicaid and Social Security comprise almost all of entitlement spending.  Only Medicaid has no associated, dedicated revenue stream and Medicaid is the fastest growing expenditure, growing much faster than the economy.  Senator Toomey recalled President Clinton’s proposal to cap Medicaid spending and read from Senator Murray’s 1995 letter pledging the support of all Senate Democrats.  The main difference between the 1995 proposal and today’s Republican proposal, said Senator Toomey, is that Republicans propose to impose the caps more gradually than did Senate Democrats in 1995.  Using a series of charts, Senator Toomey then critiqued the CBO scores of the BCRA and of H.R. 1628.

Senator Wyden offered, in rebuttal, to explore Medicaid cost restraint cooperation if the pending bill should be recommitted to the Finance Committee.

Up next, Senator Grassley (R-Iowa) complained of Democrat “hyperbole and fear-mongering,” designed to produce insurance market failure and adoption of single payer healthcare, he said.  Senator Grassley quoted at length from what Senator Daniel Patrick Moynihan said about the need for welfare reform in the mid-1990s, and read the dire, incorrect, predictions of those who opposed reform.  Unusually for Republican speakers thus far, Senator Grassley was as vociferous as any Democrat.

At 4:40 pm EDT, Senator Enzi (R-Wyoming) requested and received approval to hold the Strange amendment vote at 5:00 pm, with a brief interlude then to vote on unrelated H.R. 3364, before resuming debate on H.R. 1628.  Speaking to the ACA generally, Senator Enzi likened it to a 1970’s novelty gift, the Pet Rock, which had great marketing and packaging that did nothing to improve the quality of the rock but greatly increased its cost.

Beginning just minutes before the vote, Senator Strange quickly explained his proposal to extend the Hyde Amendment to ACA Exchange insurance purchase subsidies, so that, starting in 2019, 90% of such subsidies would be covered by the Hyde Amendment.  Senator Schatz (D-Hawaii) then made the expected process objection, Senator Strange requested the needed waiver, and Senators repeated the sort of supermajority vote taken on the Cruz and Heller amendments, with the same result – no waiver.

A round 6:30 pm EDT, Senator Enzi called-up Senator Heller’s amendment to repeal the excise tax on so-called “Cadillac” health insurance plans.  As usual, speakers seemed to ignore the change of tune and kept dancing their preferred dances.  Senator Blount (R-Missouri) explained his view that the individual and employer mandates are unconstitutional.  Senator Lankford (R-Oklahoma) read from constituent letters about the pain inflicted by the individual mandate and rising health care premiums and deductibles, calling the individual mandate a “poverty tax.”  He predicted no bipartisan solution because Democrats will not change or eliminate either mandate.  The “skinny repeal” idea, he said, is necessary because the CBO takes weeks to score each new proposal and can’t keep up with a wider floor amendment process.  He reminded Senators that the skinny plan does not alter pre-existing conditions protections or rules about annual limits, lifetime limits or kids on parents’ plans to age 26.

The big news of the 8:00 hour was the defeat (57-43) of Senator Schumer’s motion to recommit H.R. 1628 to the Senate H.E.L.P Committee with instructions to do something about the Cadillac plan tax.  Senator Heller (D-Nevada) then explained his amendment to kill that tax permanently, with the support of many groups normally aligned with Democrats and the ACA.  The roll call vote on his amendment consumed most of the 9:00 hour, and resulted in passage (52-48).

At 9:52 pm EDT, Senator McConnell offered a strike-all amendment dubbed the “Healthcare Freedom Act of 2017,” which had been released to the public about an hour earlier.  This was the long-awaited “skinny repeal plan.” It zeroed the individual and employer mandate taxes accrued after 2015, repealed the Medical Device Tax for three years, shifted one year of Planned Parenthood funding to community health centers, raised HSA limits and offered states $2B of funding for ACA § 1332 waiver requests and programs.  As soon as Senator McConnell finished speaking, Senator Murray (D-Washington) moved to recommit the “skinny repeal” plan to the H.E.L.P. committee, calling it “Trumpcare.”  Following that lead, Senator Murphy (D-Connecticut) called skinny repeal, “nuclear bonkers” and “health care arson,” designed to protect, “the freedom to go bankrupt” and the “freedom to die early.”

Senator Tester (D-Montana) took a more measured tone, expressing his worry about the consequences of skinny repeal for small rural hospitals.  Senator Brown (D-Ohio) then picked up where Senator Murphy had left off, accusing Senator McConnell of letting drug company and insurance company lobbyists write the amendment in his office.

Senator Manchin (D-West Virginia) renewed his plea that Senate leaders turn this policy debate over to members who had been state governors.

Senator Whitehouse (D-Rhode Island) then accused Republicans of being “beholden to a small handful of creepy billionaires,” and Senator Sanders again reviled the “absurd” process.

Senator Durbin (D-Illinois), using a copy of the amendment as a prop, cited a comment by Senator Graham (R-South Carolina) to the effect that skinny repeal is a fraud.  About 20 minutes later, Senator Kaine (D-Virginia) spoke to the same effect, with the Graham comment printed on a foam core enlargement.

Senator Booker (D-New Jersey) said that the debate had made him physically ill and warned that, “When health insurance rates go down, mortality rates go up.”

Senator Hirono (D-Hawaii) asked Republicans to show for ACA beneficiaries the same compassion that they had shown for her after her cancer diagnosis.  That exhausted the Democrats’ share of the debate time.

Senator Enzi took the floor at 11:09 pm EDT and ran out the clock on the Republicans’ allotted time, rebuffing eight attempts by Democrats to interject comments and questions.  Mostly, Senator Enzi read from and commented on the book, “Demystifying ObamaCare: How to Achieve Healthcare Reform,” by David G. Brown.  At one point of particular frustration with the interruptions, Senator Enzi reflected on former Senator Phil Graham’s warning that Democrats on healthcare “don’t care who drives the train, as long as it wrecks.”

By 12:07 am EDT, July 28, leaders had made a deal to give Democrats ten more minutes and Republicans five more minutes of rebuttal.  Senator Wyden (D-Oregon) predicted that “skinny repeal would be the gateway to full Trumpcare” and Senator Schumer promised that Democrats had “learned our lesson” and wanted to start over.  Senator Cornyn then reminisced about the partisan, secretive process Democrats used to pass the ACA and noted that the only specific cooperation offered by Democrats was to markedly raise payments to health insurers to subsidize their unsustainable losses.

The vote on Senator Murray’s motion to recommit began at 12:20 am and failed, 52-48, but there was obvious tension rising between Senator McConnell and Senator McCain.  The roll call on adoption of the “skinny repeal” amendment to H.R. 1628 began at 1:24 am EDT, with Senator McCain off the floor.  During the vote, Senator McCain re-entered and, standing near (but not facing) Senator McConnell, Senator McCain signaled his “no” vote, to a standing ovation from Democrats.  Senators Collins (R-Maine) and Murkowski (R-Alaska) also voted against the amendment, so that it failed, 51-49.

At 1:39 am EDT, Senator McConnell pulled H.R. 1628 from the floor and spoke words that communicated surrender, in a tone suggesting anything but.

In short, the ACA remains federal law to the same extent as before the November 2016 elections, except that we’re now months closer to IRS enforcement actions.

 

 

Senate floor activity has made this the ACA’s biggest news week not involving Justice Roberts, but whatever news you have read, rest assured that it wasn’t really that simple.  Let us preach on it.

Shortly after noon EDT on July 25, Senator McConnell announced a vote on a motion to proceed to debate the National Defense Authorization Act (H.R. 2810), which actually proved to be a vote on a motion to proceed to debate the House-passed American Health Care Act, H.R. 1628.  With the Vice President providing the tie-breaking vote, that motion passed and debate commenced.

Shortly thereafter, Senator Cruz (R-Texas) offered what’s been called a “skinny plan” amendment that would allow sellers of ACA-compliant plans to sell cheaper alternatives lacking some of the coverages mandated by the ACA.  However, since that amendment, standing alone, would not be filibuster-proof, Senator Cruz needed a waiver of the related budget reconciliation rules.  The motion to waive those rules needed 67 votes, but got just 43.  The roll call showed nine Republicans voting with all Democrats to deny the waiver.

Senator Donnelly (D-Indiana) then moved to send H.R. 1628 back to the Senate Finance Committee (not the Budget Committee) with Medicaid-protective instructions.  The Senate recessed until 9:30 am EDT July 26, then to resume debate, with a vote on the Donnelly motion set for 11:30 am July 26.

This would be the most edgy health care vote taken since March 2010.  Should Senator Donnelly succeed, Democrats would keep the bill alive, at the risk that committee Republicans might get their act together and come up with something that could attract 60 votes later.  Don’t laugh.  It could happen.  Old dogs can and do learn new tricks.  By defeating the motion, Republicans would tee-up a reconciliation rules vote on something yet unseen that might fall short of even 50 votes, thus wasting a one-shot, filibuster-proof process that could have been used to pass tax reform or infrastructure spending, or both.  Indeed, that specter might have motivated some of the nine votes against the Cruz amendment rules waiver.

We watched every minute of hours of persistent, partisan hyperbole that commenced as scheduled on Wednesday morning.  For clarity, consistency and calm reason, the remarks of Senator Rand Paul (R-Kentucky) stood out, except that he was lauding the bill as he would amend it, stripping all the “replace” and leaving only the “repeal.”  At 12:13 pm, Senator Mike Enzi (R-Wyoming) successfully sought to waive a quorum call and to delay the scheduled 11:30 vote until 3:30 EDT, then debate resumed.  The future of healthcare was earnestly guaranteed to be Utopian or Hellish, depending on how fellow Senators voted. Would that Mark Twain, H.L. Mencken, and P.J. O’Rourke had live-tweeted it.

At 12:50 pm, Senator Thune (R-South Dakota) hopefully forecast that keeping the bill on the floor for amendment would lead to final passage … days later.  In a lucid interval from 1:07 until 1:20 pm, Senator Donnelly tried to redirect the debate to the motion actually before the chamber but he, too, succumbed to the tragedian temptation and the next speaker (Senator Chris Van Hollen, D-Maryland) reviled the “nasty DNA” of all Republican “wealth care” proposals, urging Senators to “kill the bill, don’t kill us.”  Nothing is more common than regression to the mean.

Beginning about 2:00 pm, Senator Cornyn (R-Texas) first turned the discussion to the specifics of H.R. 1628 but then returned to the ACA’s evils, Democrat “single payer” desires and associated, asserted motives for obstruction.  Senator Shaheen (D-New Hampshire) responded with an offer of bipartisanship, in the future, with regard to some unspecified but “common sense” solution, if Republicans would first surrender their “harsh, unsustainable” ideas.  Senator Durbin (D-Illinois) made an eloquent appeal for a return to “regular order,” reading from the recent floor speech given by Sen. McCain (R-Arizona).  But, starting at the bottom of the hour, Senator Wyden (D-Oregon) raced back to the bottom, targeting President Trump and “Trumpcare.”  Not to be outdone, Senator Blumenthal (D-Connecticut) then called H.R. 1628 a “shameful, deceitful mockery of democracy,” before closing with a call for mutual respect and civility.  That took us to 2:42 pm, when your humble correspondent mumbled, semi-consciously, “Sharknado, take me now.”

Senator Johnson (R-Wisconsin) rose to offer amendments, one of which would require members of Congress to obtain ACA-compliant health insurance through ACA exchanges.  Each amendment related to the text of H.R. 1628, not to the motion being debated.  Senator Enzi took the floor again at 3:05.  He reviewed how the same partisan reconciliation process was used to pass the ACA in 2010, how many material changes were made by the prior Administration’s “executive actions,” and how premiums soon will “surge” if Congress fails to make other needed changes now. Again, nothing about Senator  Donnelly’s pending motion.  After a quarter hour of muted-mic floor silence, Senator Strange (R-Alabama) made a short plea for consensus opposition to tax-funded abortions.

Fortunately, all things must come to an end, as this seemed to do, starting with a quorum call at 3:32, followed by a roll call vote … on Senator Paul’s amendment, which was defeated, 55 – 45.  Starting at 4:14 pm, the Clerk finally called the roll for the vote on Senator Donnelly’s motion to recommit H.R. 1628 to the Finance Committee.  On that one, Republicans stuck together and prevailed, 52 – 48.  Game on.

You thought we were done for the day?  Rookie.  Seconds after the Donnelly motion’s defeat, Senator Casey (D-Pennsylvania) moved to send H.R. 1628 back to the Finance Committee with instructions to protect in the bill all those protected by the Americans with Disabilities Act, using in his speech an enlarged photo of a disabled constituent and accusing “obscene,” “repeal and decimate” Republicans of seeking to institutionalize people with disabilities.  Because, apparently, when “they” take the low road, “we” tunnel.

Senator Cassidy (R-Louisiana), like Rand Paul a physician,  ignored that bait and added a new Republican talking point: 37% of all ACA Medicaid expansion funds have been spent in just three states – California, Massachusetts and New York.  He then announced a forthcoming “Graham – Cassidy Amendment” to spread that wealth around.  In the best WWF tradition, Senator Cassidy then tagged Senator Graham (R-South Carolina), who used foam-core charts and an easel to explain that “we’re leaving the taxes on wealthier Americans in place,” in order to have the funds to convert Medicaid to state block grants boosting underfunded states without excessive cuts to overfunded states.  West Virginia, he said, would get a 43% Medicaid raise.  Montana Medicaid funding would double.   There was no ad hominem argument, no name calling – just observations and proposed solutions.  Apparently filling time, Senator Inhofe (R-Oklahoma) took the floor for a few minutes to praise President Trump and “my hero Jeff Sessions.”  Senator Enzi then announced that the next votes would be on the Heller Amendment (not yet described) and the Casey motion.

Senator Carper (D-Delaware) spoke at length on the recent history of federally-funded health care, noting that the Heritage Foundation originally conceived several solutions adopted by the ACA, including health insurance exchanges, as an alternative to the single-payer system proposed by Hillary Clinton in 1992-93.  “Romneycare” was prominently mentioned. If Republicans winced, they weren’t on camera.

After two more Democrats denounced “Trumpcare” and the vote-a-rama process, Senator Heller (R-Nevada) was recognized to tout the Heller Amendment.  However, he discussed only the desirability of Medicaid expansion protection, offering no details of his proposal.

Senator Duckworth (D-Illinois) then related a sympathetic story about a quadriplegic constituent and accused Republicans and President Trump of “threatening her life.”

Senator Casey rose again to try again to explain why ACA Medicaid expansion is needed to protect the rights created by the ADA, calling the Heller Amendment mere “sentimentality,” without any binding effect.

At 6:10 pm EDT, the Clerk began to call the roll on Senator Casey’s motion to recommit H.R. 1628 to the Finance Committee.  Republicans prevailed, 51-48, whereupon Senator Heller summarized his amendment, expressing the sense of the Senate that the bill is not intended to reduce Medicaid eligibility, benefits or coverage.  Senator Sanders (D-Vermont) interposed a procedural objection and Senator Heller sought a waiver, just as Senator Cruz had done, but won only 10 votes.

At 7:10 pm, Senator McConnell called-up an amendment proposed by Senator Daines (R-Montana).  Senator Schumer (D-New York) then announced that Democrats would offer no further amendment unless and until Republicans put on the floor a final bill offered for passage.

On the heels of that ultimatum, Senator Reed (D-Rhode Island) renewed the bipartisan cooperation offer made earlier by Senator Shaheen, then yielded the floor to Senator Franken (D-Minnesota), who decried the Republicans’ “reckless, irresponsible” plan to “gut Medicaid,” so as to deprive a named, autistic child of the “therapy he needs to thrive.”  Other examples followed.  Republican health care philosophy, he said, is “survival of the fittest.”  In closing, he urged his colleagues to “stand up to the lies.”

Following Senator Franken, we were treated to a speech by Senator Whitehouse (D-Rhode Island) on the merits of a carbon tax.

Finally, just before 8:00 pm, Senator Enzi announced that debate on H.R. 1628 would resume at 10:00 am EDT July 27, with a vote on the Daines amendment set for 2:15 pm.  Who knew health care could be so complicated?

We didn’t take ten weeks off because there was nothing to talk about.  Rather, we concluded around Labor Day that anything useful to be said about ACA compliance, pre-election, would be interpreted as political advocacy, so we decided to watch and wait.  The anti-ACA candidate won, and his party carried Congress, too.  That settles that, right?  Probably not, at least for 2017.  Here’s why.

Have you ever heard of federal legislation that repealed and waived payment of tax debts already accrued?  Neither have we.  Employer mandate taxes have accrued monthly since January 2015.  Now that the election is over, we expect IRS to begin mailing proposed assessments, followed by assessment notices, based on data collected from Exchange subsidy certifications and insurer and employer information reports.  To our knowledge, neither the President elect, nor anyone on his team promised otherwise.  And if they had, that promise would be exceedingly hard to keep.

The ACA actually is two laws, once of which (Pub. L. 111-152) was passed by a bare Senate majority in a process called “budget reconciliation” that is filibuster-proof.   Go ahead, click the link.  What’s in there can be repealed by budget reconciliation.  Here’s a hit list of headings:

Sec. 1001. Tax credits.

Sec. 1002. Individual responsibility.

Sec. 1003. Employer responsibility.

Sec. 1004. Income definitions.

Sec. 1005. Implementation funding.

Subtitle B—Medicare

Sec. 1101. Closing the medicare prescription drug ‘‘donut hole’’.

Sec. 1102. Medicare Advantage payments.

Sec. 1103. Savings from limits on MA plan administrative costs.

Sec. 1104. Disproportionate share hospital (DSH) payments.

Sec. 1105. Market basket updates.

Sec. 1106. Physician ownership-referral.

Sec. 1107. Payment for imaging services.

Sec. 1108. PE GPCI adjustment for 2010.

Sec. 1109. Payment for qualifying hospitals.

Subtitle C—Medicaid

Sec. 1201. Federal funding for States.

Sec. 1202. Payments to primary care physicians.

Sec. 1203. Disproportionate share hospital payments.

Sec. 1204. Funding for the territories.

Sec. 1205. Delay in Community First Choice option.

Sec. 1206. Drug rebates for new formulations of existing drugs.

Subtitle D—Reducing Fraud, Waste, and Abuse

Sec. 1301. Community mental health centers.

Sec. 1302. Medicare prepayment medical review limitations.

Sec. 1303. Funding to fight fraud, waste, and abuse.

Sec. 1304. 90-day period of enhanced oversight for initial claims of DME suppliers.

Subtitle E—Provisions Relating to Revenue

Sec. 1401. High-cost plan excise tax.

Sec. 1402. Unearned income Medicare contribution.

Sec. 1403. Delay of limitation on health flexible spending arrangements under cafeteria

plans.

Sec. 1404. Brand name pharmaceuticals.

Sec. 1405. Excise tax on medical device manufacturers.

Sec. 1406. Health insurance providers.

Sec. 1407. Delay of elimination of deduction for expenses allocable to medicare part

D subsidy.

Sec. 1408. Elimination of unintended application of cellulosic biofuel producer credit.

Sec. 1409. Codification of economic substance doctrine and penalties.

Sec. 1410. Time for payment of corporate estimated taxes.

If it was not passed by budget reconciliation, it probably can’t be repealed by budget reconciliation.  But in any event, there must first be a budget to which taxes and spending may be reconciled.  That normally takes months, and in recent years, budget passage has been the exception, rather than the rule.  It would be highly ironic, it seems to us, if the new President were to take Obama-like “executive action” simply to decline to enforce the employer mandate.   So, we expect employer mandate tax assessment and collection in 2017, regardless of the success or failure of ACA repeal or reform legislation.

Similarly, once employers learn the identities of employees who bought Exchange coverage with subsidies, those employees will be protected from employer retaliation under ACA § 1558 (29 U.S.C. § 218C).  In June, HHS began mailing 2016 subsidy certification notices, naming those employees.  Open enrollment for 2017, now underway, will produce many more notices, protecting many more employees.  This anti-retaliation law (see Pub. L. 111-148) cannot be repealed by budget reconciliation; 60 Senate votes will be needed.  We can’t count that high, and we don’t expect OSHA to simply ignore retaliation charges filed under the statute.

The same goes for the ACA’s big coverage cost drivers passed as amendments to ERISA, the PHS Act and the tax Code as part of Pub. L. 111-148 – e.g., limited age banding, prohibition of annual and lifetime limits, health status discrimination prohibitions, preventive health services mandates, guaranteed issue and renewal, etc.  If a reform or repeal bill can’t carry those loads, they may be thrown overboard.

There may be a Senate majority for repeal of the Cadillac Plan Tax (delayed until 2020 already), and perhaps the individual and employer mandate taxes – we can’t imagine one going down to defeat without the other. But the Medicare surtax?  Does the party in power want to be blamed for penury of the Medicare hospital insurance trust fund?

Congress may agree to repeal the Independent Payment Advisory Board – what some have called a “Death Panel.”  It’s in § 3403 of Pub. L. 111-148 (42 U.S.C. § 1395kkk).  It is widely unpopular, even though the Medicare growth rate has not yet triggered IPAB action and the agency has not been staffed.

How about reneging on the feds’ promise to pay almost all of the cost of Medicaid expansion?  Or the premium and cost sharing subsidies that have driven almost all of the business being done on the Exchanges?  It’s far easier to pass a new entitlement program than to repeal it.  As President Reagan famously said, the closest thing to eternal life on this Earth is a federal program, and the ACA is a huge federal program.

Probably, the path to 60 Senate repeal votes leads through an array of replacement compromises that will be worked out over more than one session.  The next real inflection point is the mid-term election of 2018.

We are not discounting efforts to change the content of the ACA or the course of ACA enforcement.  We are predicting that our readers won’t know what will be done for many months.  In the interim, you may have to confront ACA compliance issues from which the new Administration cannot provide relief, despite its best intentions and efforts on your behalf.  We’re keeping a sharp watch out.

Recently, we have received requests to re-post prior articles on the 90-day waiting period, the employer mandate final rules (supplemented here, here, here and here), and our pop quiz for ACA consultants.  As we approach our 100th article, some readers apparently find the scroll-down browsing process tedious.  So do we.  Here are two other ways to find the articles that most interest you.

You may search by “Tags” or by search terms.  We have attached all our present “Tags” to this article, appearing just under the author’s name, so that you may see your options.  Click any Tag and the server will show you a list of all articles similarly tagged.  Or, enter your search term(s) in the “Search” box, in the green bar above and to the right of the article, just above “ABOUT THIS BLOG.”  The server then will show you a list of articles that contain your search term(s).

We genuinely seek to help employers, providers, insurers and brokers understand ACA compliance issues, but please remember that the articles posted on this site are not legal advice and should not be substituted for legal advice.  They are offered as educational introductions to the subjects addressed.  ACA legal advice should be obtained confidentially from a lawyer who knows the ACA and who knows all your relevant facts.