Washington perspectives

Your Advocacy Council constantly monitors developments in Washington which may impact the practicing allergist. In anticipation of rapid changes during the first several months of the new administration, we will be periodically giving you updates of actions by either Congress or the President that may eventually effect the practice of medicine. We intend these to be objective, without editorial opinions, which we will leave to you, our readers.

- James L. Sublett, MD, FACAAI, executive director of advocacy and governmental affairs

On Jan. 13, by a vote of 227-198, the House of Representatives approved a Budget Resolution - S. Con. Res. 3 (Senate Concurrent Resolution 3) that will serve as the foundation for the Congress to consider a “reconciliation” bill that could repeal and/or replace key provisions of the Affordable Care Act (ACA). This followed the United States Senate which passed an identical Resolution the day before by a vote of 51 – 48.

The votes were largely along party lines.

If you read the Budget Resolution, you won’t see the words “Affordable Care Act” nor any reference to health care or repeal or replace. But what it does provide are broad “instructions” to key Congressional Committees that oversee the laws governing the Affordable Care Act. The Resolution directs these Committees to recommend spending/tax changes in any program or law within the Committee’s jurisdiction that will, in the aggregate, reduce the federal deficit by $1 billion over the next 10 years. Pretty innocuous – but very powerful.

What is it that makes the Budget Resolution critical to the GOP strategy for repealing and replacing the ACA?

Passage of the Budget Resolution moves the ACA repeal/replace process along because it opens the door for the GOP-controlled Congress to use a process called “Budget Reconciliation” to reconcile federal spending with the assumptions made in the Budget Resolution.

Unlike most other bills that come before the Senate for debate and vote, a Budget Reconciliation bill cannot be filibustered. Also, the number of hours of debate available for consideration of a reconciliation bill is set by statute. Debate time (20 hours) is equally divided 10 hours for the majority and 10 hours for the minority. Senators can file an unlimited number of amendments (expect dozens of amendments to be filed) but again, debate time is limited.

There are limits on what can be included in a Budget Reconciliation bill mandated by the Budget Resolution. Specifically, the Senate operates under what is called the “Byrd Rule” which is a Senate Rule that stipulates that in order for a provision to be “in order” for consideration on a Reconciliation bill, it must be germane to the purpose of the bill – raising or spending of money.

Any provision in a reconciliation bill is subject to a “Byrd Rule” challenge. If the Parliamentarian rules that the provision in question violates the “Byrd Rule” it is deleted. The authors of the bill can try to get the provision reinstated but it requires 60 votes to reinstate the provision in the Budget Reconciliation bill.

The Byrd Rule defines a provision to be "extraneous" (and therefore ineligible for reconciliation) in six cases:

  1. if it does not produce a change in outlays or revenues;
  2. if it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions;
  3. if it is outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
  4. if it produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision;
  5. if it would increase the deficit for a fiscal year beyond those covered by the reconciliation measure, though the provisions in question may receive an exception if they in total in a Title of the measure net to a reduction in the deficit; and
  6. if it recommends changes in Social Security.

Because of the Byrd Rule, there are things that were adopted as part of the ACA that cannot be included in a Budget Reconciliation bill (or if they were, you can be sure the Democrats would raise a Byrd Rule challenge).

For example, it is generally believed that repealing the prohibition on pre-existing provision clauses in insurance contracts would not be germane to a Budget Reconciliation bill. Similarly, the ACA provision authorizing companies to allow dependents up to age 26 to remain on their parent’s insurance policy would not be germane to a budget reconciliation bill.

But the individual mandate (a tax), the employer mandate (a tax), the tax subsidies, Medicaid expansion, Medicare changes, or federal money to operate the Exchanges would all be germane to the purpose of a reconciliation bill. The same reconciliation bill could be used to pass laws replacing these same provisions of the ACA.

The general rule of thumb in politics is that it is easier to put together (and keep together) a coalition in opposition to something than it is to put together (and keep together a coalition in favor of something. That notion will be put to the test as Congress begins the process of repealing and replacing the Affordable Care Act.