ACA Repeal and Replace: Now what?

As you know, the Senate has been going through the Budget Reconciliation process with the objective of adopting legislation that would effectively repeal and replace the Affordable Care Act (ACA). After rejecting a proposal to effectively repeal the ACA with no replacement and another proposal to repeal the ACA with alternatives for maintaining coverage, last week the Senate turned its attention to considering a so-called “skinny option.” 

Under the “skinny option” the Senate would repeal the individual and employer mandates, repeal the medical device tax, prohibit federal funds for Planned Parenthood, give broader authority to governors to make changes to how Medicaid works, expand HSA contribution limits and make a handful of other changes. The intent was that by passing a bill – albeit one that was significantly different from the House-passed American Health Care Act – the Senate could go to a Conference with the House and seek to write a more comprehensive repeal and replace plan. 

However, by a vote of 49 – 51, with three GOP Senators joining all 48 Democratic Senators, the “skinny option” was defeated. The three GOP Senators who opposed the “skinny option” were Senators Lisa Murkowski (R-AK), Senator Susan Collins (R-ME) and Senator John McCain (R-AZ). While the opposition of Senators Murkowski and Collins was expected, the opposition of Senator McCain came as a surprise to the GOP leadership. 

While the objections of Senators Murkowski and Collins to the “skinny option” are rooted in policy, Senator McCain’s no vote seems directed at his opposition to the process used to get to this point. Even when he returned to the Senate on Tuesday to cast the deciding vote on the motion to proceed, Senator McCain expressed strong reservations about the use of the budget reconciliation process to consider such consequential legislation. 

Now What?

The failure of the Senate to secure enough votes for any ACA repeal/replace proposal means that for now, the ACA repeal and replace effort by the GOP-controlled Congress is stalled. 

It is likely that over the next few days, Senate and House leaders will confer with the President’s staff and determine the next steps. For now, we expect that the public part of the ACA repeal and replace efforts will take a back seat to other matters such as tax reform, appropriations, budget, debt ceiling and possibly infrastructure. 

However, it would be a mistake to conclude that the efforts to repeal and replace the Affordable Care Act are “dead.” It is likely that both the Senate Finance Committee and the Senate Health, Education, Labor and Pensions Committees will hold hearings on the ACA, bringing both critics and supporters before the Committee to discuss the good and the bad of the ACA. Although it is highly unlikely that these hearings will result in any bipartisan legislation to repeal and replace the ACA, the holding of hearings could set the stage for a future repeal and replace initiative by the GOP-controlled Senate.

We also cannot ignore the ability of the Trump administration to make significant changes to the ACA through the regulatory process. As you will recall, much of the detail of the ACA was left to HHS to write, through the regulatory process. This means that the Trump administration can make significant changes to the regulations that govern how the ACA functions. 

We expect that HHS Secretary Tom Price will take a more aggressive approach on ACA-related regulations in the months ahead.

As always, do not hesitate to contact the Advocacy Council if you have any questions or would like any additional information.

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