What Lawmakers try to Do to Your Healthcare While You're sleeping

The gears of American government are supposed to grind s l o w l y. Like molasses flowing uphill slowly. In winter. This is to protect us from emotional, knee-jerk policy, and to allow reasoned, public discussion and debate. Under our system, we the people know what a bill says before it passes, and we are given time to consider how it will impact us, our families, our neighbors, and our communities. It's also a good way to tell whether the people we elect are representing our priorities. No matter what they say, nothing shows a politician's agenda better than their voting record.

Our current Congress (the 115th), should know better, but, spurred on by an administration that doesn't understand how government works, it has repeatedly diverged from "regular order." Instead, lawmakers are attempting to rush things through state and Federal legislatures without giving us the opportunity to catch up. In fact, I suspect that it was Senator John McCain's (R-AZ) disgust with this lack of regular order that spared us from the outright repeal of the Affordable Care Act (ACA) last year, not necessarily any major objection to the bill's purpose.

After the failed ACA repeal, it was a relief to hold on to our rights as patients. Or did we?

A lot has been going on in Washington since then. Amidst news on Russia probes, Olympics, and horrific school shootings, our political leadership has been busy hoping you wouldn't notice a few little bills that slowly chip away at ACA protections as well as parts of the Americans with Disabilities Act, which has been around much longer.

Trump's tax bill already gutted the primary funding mechanism for the ACA. Here are some of the government’s 2018 efforts to both undermine and protect the ACA. For better or worse, each will have a profound effect on large sections of the chronic and autoimmune community:

• HR 3976: The Access to Marketplace Insurance Act – Probably the most common way to change things is through Federal legislation. The majority passes bills with hidden clauses or new laws and the states have to follow that rule. In this case, the House has introduced a bill to correct a bad loophole in the ACA. It bars charities from helping patients pay for their insurance premiums. For some reason, in at least 42 states, they are interpreting a line in the ACA to mean that only the one specific charity named – the Ryan White Foundation – is allowed to help instead of using that as a precedent to say all charities can help. If you would like to help see this bill passed, contact (write, call, email, Tweet) your Representative in the House. Let them know that you feel strongly that this is a wrong that needs to be righted. It’s nice to write in support of a bill for once.
• Step Therapy Bills – Another prime example of why we shouldn’t just let the states do what they want (see above). Though the states do good work in a lot of areas, most don’t in healthcare. Many states (14 with existing legislation and another 12 with legislation pending in 2017) allow insurance companies -- which often don’t employ doctors with expertise in your specific condition, and certainly don’t know the intricacies of your case -- to decide that they know better than a patient’s doctor. These states already allow or are trying to allow insurance companies to force patients to try less expensive treatments and fail before allowing access to the prescribed treatment. Some also allow extended prior authorization times. These practices can worsen a patient’s condition and, in extreme cases, cause irreparable harm. With these bills, we have to write our representatives on the state level. The bright side: state level legislators require fewer voter contacts to make an issue a priority and things happen a lot faster in statehouses. Oh, and both Florida and Oregon are doing the right thing, and have introduced state legislation to protect patients against these types of actions.
• HR 620: The ADA Education and Reform Act – This one’s a doozy. And it has already passed the House. Basically, the bill makes it a lot harder for disabled people to get equal access to buildings. It introduces a process that would allow businesses to potentially wait years to make legally mandated Americans with Disabilities Act accommodations. It also seeks to promote mediation and other “alternative dispute resolution mechanisms” over lawsuits. This is not intended to help the disabled person. The best way to stop this bill is to make sure it doesn’t pass the Senate. So far the House bill has been received in the Senate, but hasn’t been assigned a number yet. Watch this space for updates, and in the meantime send your letters, emails, Tweets, or calls in the direction of both of the Senators for your state. You could even get your friends in other states to do the same.
• Department of Health and Human Services (HHS) expands short-term insurance plans – Another way for the administration to take away patient rights is to alter the interpretation of some rules and regulations. In this case, they have expanded the period of allowed coverage for short-term insurance plans from three months to 364 days. These are meant to be stopgap measures if you decide to take time off between jobs or after 26-year-olds have to leave their parents’ plans. They often pay out less than half of what consumers pay in, and they are allowed to kick people off their coverage after major diagnoses, like cancer. There’s not a lot to do about policies enacted through the legislative branch except voting the President out of office (he and his appointees set agency agendas). You can always lodge a complaint with the agency, but executive branch employees have less at stake than legislative branch employees.

Want to take action, but not sure who to contact? Find your Congressional and state representatives here or use this letter writing tool here. 

Is this the Zombie (Bill) Apocalypse?

Whiplash much? I don’t know how you feel, but the latest in healthcare policy news makes me feel like I’ve just been hit by a boomerang someone threw in July – lulled into relief when the “skinny repeal” died, then slapped upside the head with the current last ditch effort at passing an Obamacare repeal while they still have a chance to squeeze it by with 50 votes.

Cassidy-Graham

Meet the zombie. This back from the dead bill is a last ditch attempt to repeal Obamacare, or the Affordable Care Act, before the Senate loses its ability to pass it with only 50 votes. It is not bipartisan, and it goes even farther than the one that Senators Lisa Murkowski, Susan Collins, and John McCain killed this summer. 

It’s a punt. Federal lawmakers would cede their responsibilities to the states by transforming funding into limited block grants. The block grants would be distributed evenly to the states (those that expanded Medicaid under Obamacare would lose millions of dollars). Basically, that means that the Federal government gives each state a limited amount of money every year to use for healthcare, but with few, if any, guidelines on how it should be spent.

There would be no individual or employer mandate to support coverage. There would be no subsidies, and while insurance would not be able to charge people with pre-existing conditions more, there are easy outs on the type of comprehensive coverage necessary for chronic patients to survive. 

Funding would be cut by a third by 2026. In less than 10 years, the individual markets would virtually disappear due tounaffordable plans and potentially tens of millions of people would lose coverage through that and capped Medicare spending. Each state would determine its own Essential Health Benefits, so required coverage would narrow, if there was any at all.

What makes this round even worse than the summer is that stalwarts Collins and Murkowski have been unexpectedly quiet. Without last time’s bribe of a vote on full, immediate repeal, Senator Rand Paul has been tweeting his objections, but he has not said outright that he will vote against. John McCain, who hammered home the nail in the last bill’s coffin with a dramatically gladiatorial thumbs down? Though nothing he objected to has changed – lack of proper Congressional procedure through Committee hearings, public debate, etc. – he is close to co-sponsor Lindsay Graham, and has not come out against the bill, either.

But Cassidy-Graham isn’t the only bill on the block right now, though the others don’t have the same amount of backing.

Medicare for All

Sounds great, right? The idea of universal coverage is growing in popularity. But, while all single payer is universal healthcare, not all universal healthcare is single payer. Universal health insurance generally means broad coverage for everyone, no matter income, medical condition(s), or ability to pay. Single payer is a form of universal coverage paid by one party, in this case, the Federal government.

It would be so easy to let just one source take care of everything. And in just four years! However, the universal coverage offered by most developed nations is not single payer, but a hybrid of public and private coverage. Canada, whose system is closest to what Senator Sanders proposes, uses a private insurance market for services not covered by the government. And the Canadian government does not cover nearly what the Sanders bill proposes. (Medicare for all includes vision and dental care, which Medicare does not cover.)

Add to that the lack of a score from the nonpartisan Congressional Budget Office, which determines cost and loss of coverage impacts, lack of anything resembling a plan to pay for the coverage, and what would happen to our economy if the health insurance industry collapsed (which it would without a phase-out period longer than four years) and this bill is going nowhere.

It’s a good thought and an important introduction, but it also looks to be the next litmus test for what defines a “true” Democrat. I sure hope not. As the President’s approval numbers increase for the third week in a row, the last thing Democrats need is to shrink the tent. I hope we reach a  universal healthcare solution, and soon, but this bill is not the way.

Alexander-Murray

This one makes me sad. This was a good faith, bipartisan effort to stabilize the 2018 markets. Details of the plan are sparse – negotiations of a bipartisan healthcare bill are bound to be sensitive – but the intent was very basic. Republicans would get more flexibility for the states to offer other options under the 1332 waiver. Democrats would get guaranteed funding for subsidies that help low income individuals pay for their coverage (the President keeps threatening to not release it).

Senator Alexander announced Tuesday that negotiations had stopped because they just couldn’t find the support to bring it to the Senate floor. I believe this is because of the Cassidy-Graham bill in part, so there is a chance it could be resurrected after September 30th, but I don’t know how likely that is. 

What can you do about the zombie?

The clock runs out at midnight on September 30th. As Jon Favreau said in his latest podcast, “It’s scary again and everyone’s gotta get to the phones.” Again. Sorry, guys.

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Indivisible Guide

A Dirty Game Is Still A Game: Behind the New Senate Healthcare Bill

I’m speaking of the power game, of course: politics.

There’s a lot going on right now on Capitol Hill. The House has passed a terrible bill that, if enacted, will leave a whole lot of us out in the cold, unable to pay for the care we need to survive, going back to emergency room treatment for everything, making hard choices between food and our meds. The Senate – supposed to be the more reasonable chamber – has presented a version that is even worse. Medicaid would be cut more slowly, but cuts would be deeper. It would be easier for states to get waivers to opt out of the essential health benefits. And the governors would be able to apply for waivers without the consent of their legislatures. It’s scary and stressful.

But there is a difference between government and politics. Government is that set of terrible bills, which have support from no state. Politics is what might save us. I truly believe that the majority of politicians pursue office because they think they can make their constituents’ lives better. In order to do that, they need to stay in office. Therein lies the rub.

Keep in mind that the man behind the bill, Senate Majority Leader Mitch McConnell, is a master strategist. He shrouded the bill in secrecy and kept its substance even from the panel he appointed to write it until the last minute. By keeping the text under wraps, he stunted discussion in favor of rife rumor, and kept us from a deeper understanding of the bill by disallowing public debate. He wants to adhere to a very short timeframe – eight days from unveiling to vote -- barely enough time to digest the independent analysis produced by the nonpartisan Congressional Budget Office. McConnell can only afford to lose three votes. Two to make it a 50-50 split, and one to put it past intervention by tie breaker Vice President Mike Pence. (No Democrat will cross the aisle to vote for this bill.) If people don’t understand what’s in the bill, they are less likely to lodge complaints with their Senators.  

On one side of the Republican opposition, you have the ultra conservatives. Four have publicly opposed the bill on the grounds that the it is not conservative enough: Ted Cruz of Texas, Rand Paul of Kentucky, Mike Lee of Utah, and Ron Johnson of Wisconsin. Don’t count on these folks to stand on this. Political posturing is important to shore up your base, but these are safe states, and in the end, the bill is a big step toward their ultimate goal of killing government funding for basically everything.

On the other end of the opposition, there are the Senators for whom it would not be politically expedient to vote for this bill. Dean Heller of Nevada has already said he won’t vote for the bill as it is because he knows how many of his constituents would be negatively affected. There are others. Shelley Moore Capito of West Virginia, Lisa Murkowski of Alaska, Susan Collins of Maine, Jeff Flake of Arizona, Rob Portman of Ohio, Ben Sasse of Nebraska, Andy Gardner of Colorado, and Bill Cassidy of Louisiana. Some of these states would lose too much if Medicaid was cut as deeply as the bill proposes. Some of them are facing such severe conditions in the opioid crisis that their constituents literally won’t survive without the federal funding provided by existing law. Whatever the reason, these are the Senators most open to persuasion by their constituents. That’s not to say that there won’t be certain concessions made for those specific states during negotiations, but we are not there yet, and there is little time for that on McConnell’s timeframe.

Possible not-worst-case-scenarios:

• Certain states will pick up the funding slack if the Federal government drops the ball. The ones with the budgets to will keep as many of the exchanges open as possible, especially the states that built their own, as opposed to relying on the Federal marketplace. Budgets may be limited, but a lot can be accomplished through state regulation. Regulations are only limited by the chambers who write them. And state government usually moves much faster than Federal.
• And the big one: all of this might be political posturing. McConnell knows very well how difficult this bill will be to pass. But at least if he puts it up for a vote by Friday, most Republicans can go home and say that, after seven years of talking about little else, they voted to repeal Obamacare. The Senators who opposed will be cast as the villains (“We tried – it’s their fault the bill didn’t pass.”), or more likely heroes to the majority of constituents who are against the bill. 

The bottom line is, hope for the best, but prepare for the worst. Our community is good at that, as we have all had to sit in doctors’ offices waiting on test results. Now is the time to call. Crash their switchboards (Washington, DC and state offices). Overload staff with civil protests and requests to oppose the bill. And if you don’t live in one of the states listed above, call/text/email a friend who does and ask them to call. This is the power that you have, and exercising it can help relieve that knot that seems to rest permanently in the pit of your stomach.

NOTE: The Senate has already added provisions to their bill to encourage healthy people to sign up for insurance by instituting a penalty for allowing coverage to lapse. The original bill didn’t have that. And the Congressional Budget Office has released its report, which says that 22 million fewer people will be insured (15 million from loss of Medicaid coverage). The deficit will also decrease by $321 billion over 10 years (mainly by not insuring 22 million people).

Senator Contact Pages                                 

Shelley Moore Capito (WV)                                                                                                            

Lisa Murkowski (AK)              

Susan Collins (ME)

Jeff Flake (AZ)                                         

Rob Portman (OH)                                

Ben Sasse (NE)

Cory Gardner (CO)                                               

Bill Cassidy (LA)

Keeping Your Head Above Water in a High-Risk Pool

NOTE: The Affordable Care Act is often referred to as Obamacare. They are the same Act.

More often than not, when a bill dies in Congress (or is withdrawn due to lack of support), it is not revived until the next Congress. (There is a new Congress every two years.) However, healthcare reform is a big enough priority for the White House and Congressional Republicans that it appears lawmakers will continue to negotiate with various caucuses to find a passable solution as soon as possible.

Recently, after negotiations between moderate and conservative Republicans in the House, an amendment to Paul Ryan’s American Health Care Act was offered. The amendment would keep all of the Essential Health Benefits and several other provisions of the Affordable Care Act, but allow states to opt out of coverage if they could prove that opting out would keep consumer costs down, cover more people, or if it would be in “the public interest of the state.” There is no specific definition of what is considered “the public interest of the state.” Secretary of Health and Human Services Tom Price would be responsible for approving or denying state waiver requests.

How could the amendment affect you?

With a waiver in hand, a state could get rid of the protections for people with preexisting conditions by establishing high-risk pools. A high-risk pool is exactly what it sounds like: everyone considered a high-risk/high-cost patient is grouped together under less-than-favorable insurance policies. According to a 2015 analysis by the Commonwealth Fund, high-risk pools would do exactly what Obamacare was trying to prevent: increase costs to the population with the highest medical bills and/or severely limit the coverage offered to those in the high-risk pool.

High-risk pools are not new to health insurance markets. The Affordable Care Act banned high-risk pools, but before that, they were used in 35 states and as a stop-gap measure between the passage of the Act and when it went into effect. Evidence from previous high-risk pools supports findings that state-based programs, while charging high-risk patients up to 250% more than healthy patients, came with insanely high premiums and out-of-pocket maximums.

The government knows it would have to fund states’ high-risk pools. Currently, they plan to offer subsidies totaling $25 billion over 10 years. However, independent estimates place the figure needed to fully fund the pools at $178 billion. In order to control consumer costs at all, coverage offered to high-risk patients might be whittled down to nearly nothing at all.

There are documented cases of patients in high-risk pools paying $18,000 and $25,000 premiums, even with limited coverage. According to the Center for American Progress, I could pay an additional $5,600/year. Even people with mild asthma could pay over $4,000 more than they do now. Patients with certain kinds of cancer could end up paying over $142,000 more, and pregnancy could cost up to $17,320 more.

What does this mean in practical terms?

The numbers are good to know, but they're cold. I started this blog hoping that eventually, I would be able to support myself with it. If the above reforms pass, that will become much more difficult. Finding an individual health insurance plan that will cover a diabetic woman who already has complications would be next to impossible for states with waivers, and if I do find one, it will be prohibitively expensive.

Will we have to choose which meds we can afford? Will we have to forego the best treatment because insurance policies are no longer required to cover it? 

The good news is, we can do more than just keep our heads above water. We can swim. Only 17% of Americans approve this plan (poll was taken before the amendment, which doesn't actually change anything in the bill), which is a number so low, the remaining 83% surely includes a majority of healthy people. A smart Senator or Congressman won't vote for a bill that is so unpopular in their district. However, to be on the safe side, we might want to make sure our lawmakers know how we feel about it.

Find the people who represent you in Congress and make a phone call. It's a right guaranteed by the First Amendment (petitioning the government for the redress of grievances), and you may be surprised how effective it can be.

Ten EHBs and A Provision

There's a lot at stake for us as our elected officials try to reform healthcare. We should all understand what it means when the newspapers say they are removing this or that requirement from a proposed bill, and since it appears that Congress will continue its efforts toward healthcare reform, I wanted to discuss some of the things that will make or break their efforts, things that will affect you, no matter what condition(s) you have, or even if you have no condition at all. (Read about the first effort to reform Obamacare here.)

It’s hard to believe that it’s only been seven years since Obamacare, or the Affordable Care Act, was passed. Before that, insurance looked very different than it does today. The main reason for that is that Obamacare mandated that certain things be covered in every plan. One of the things on the table is the removal of all the Essential Health Benefits (EHBs) in an effort to control costs.

This would control costs by severely reducing the number of people covered by insurance. Those people would not see a doctor as often, potentially losing control of their conditions, and would end up going to the more expensive emergency room as a result. (Emergency rooms can’t legally turn patients away, regardless of their ability to pay, and unpaid hospital bills default to the taxpayer.)

How many EHBs have you used over the course of your condition? (I will mark all the ones I’ve used.)

1. Outpatient care – all your doctor visits where you don’t have to stay overnight.
2. Emergency room visits
3. Hospital treatment for inpatient care
4. Prenatal and postnatal care -- maternity care preceding and after birth of baby. This is an important one because in the bad old days, pregnancy wasn’t covered at all. Since the majority of insurance policies cover ‘accidents and illness,’ and pregnancy is neither accident nor illness, it didn't qualify. Pre-natal wellness visits, blood tests, recovery, and more were paid for out of pocket. Not to mention that the baby sometimes wasn’t covered for the first 10 days, so that if there was something wrong, it would be classified as a pre-existing condition, which is also not covered.
5. Mental health and substance abuse services, drug and alcohol rehab. This is the rule that helps people with opioid addiction and veterans with Post Traumatic Stress Disorder.
6. Prescription drugs – no explanation necessary.
7. Rehab and rehabilitation services and devices -- to aid in recovery in case of injury, disability or chronic condition, including physical and occupational therapy, speech-language pathology, psychiatric rehabilitation, and more.
8. Lab tests
9. Preventive services, including counseling, screenings, and vaccinations and care for managing chronic disease – annual physicals, Pap tests, mammograms, colonoscopies, etc.
10. Pediatric services, including dental and vision for children.

That's nine out of 10 for me.

Now the provision that pulls it all together, because even if you have access to all of the EHBs, if they're too expensive, access doesn't matter. The 'community rating' provision of Obamacare says that people with pre-existing conditions don't pay more for coverage than their healthier peers. It says that no one in a set geographical area (community) can be charged more than anyone else in that area for the same amount of healthcare coverage, regardless of circumstances like gender, occupation, industry, weight, claims history, or most important to us, health status (pre-existing conditions). Right now, the only factors an insurance company is allowed to consider are family size, age, geographic location, and tobacco use.

In a relatively short time, these regulations have become important to us. They allow us a higher quality of life. How much more would you have to pay for your condition if the EHBs and community rating provision were eliminated? If you feel strongly about keeping the above provisions, tell the people in charge of the reform effort, and not just on Capitol Hill. Rumor has it, some states are moving forward without Washington.

(Here is a link to Project Vote Smart, which will tell you who works for you, from the president right down to local judges.)

Obamacare repair, not replacement: more than a change in messaging

Please note: This blogpost is by Mark Weller and originally appeared February 13, 2017 on Soapbox: A Politics and Policy blog here. 

Mark is a Partner in the Public Policy & Regulation practice and Health Care practice at Dentons, a multinational law firm. Having worked on and around Capitol Hill for over 30 years, he is an expert in the politics around healthcare and knows the environment from every angle.

Note #2: Obamacare is a common reference to the Affordable Care Act (ACA). They are the same thing.

Last week Republicans on the House Energy and Commerce Health Subcommittee held a hearing on four Obamacare replacement bills. The move is consistent with recent Republican leadership comments that they plan to replace the Affordable Care Act with a series of small measures instead of one major replacement bill.

But at the same time, President Donald Trump in a Fox interview said that an Obamacare replacement may take until 2018. And now House Speaker Paul Ryan and leading committee chairs are saying they want to “repair” the ACA, not “repeal and replace” the law.

Legislating is hard

What’s going on here? The President is acknowledging what many policymakers already knew. Despite the campaign rhetoric that Obamacare would immediately be repealed and replaced, the process could have serious political repercussions if not done right.

There appears to be general agreement about moving away from the ACA’s insurance benefit mandates. Also, the aforementioned House subcommittee explored popular issues like how to deal with people with pre-existing health conditions, how to spur people to keep continuous coverage throughout their lives, and loosening age-rating bands. Alongside Democratic taunts that Republicans don’t know what to do after the “dog has caught the car,” or in some versions is actually trying to drive the car, the simple fact is finding a consensus on how to replace the ACA will take longer than expected.

 Individual mandate is instructive

The repeal of the individual insurance mandate provides a perfect example of the dilemma Republicans face. The mandate that individuals purchase health insurance or face a penalty is a core feature of Obamacare. Republicans hate mandates and see the provision as symbolic of Obamacare's overreach in attempting to correct deficiencies in the individual insurance market.

There is broad agreement that the law should bar insurers from discriminating against people with medical problems as long as they remained enrolled in an insurance plan. But if you eliminate the mandate that that people buy insurance, you’re left with a worsening and dysfunctional market that attracts high-risk enrollees and leaves insurers with a pool of customers who are older and less well.

To cover those with existing health conditions, Republicans have floated the idea of continuous coverage–requiring everyone to maintain health coverage throughout their lives–although that sounds like a mandate to many and the GOP is still figuring out how to do it. Other ideas, like levying a surcharge on those who fail to sign up for insurance or to automatically enroll individuals eligible for subsidized coverage who don’t sign up, don’t sit well with the more conservative wing of the GOP.

Crowded Congressional Calendar

The Congressional calendar looms large in the analysis of how to repair or replace Obamacare. During the Republican retreat in Philadelphia, Speaker Ryan said he planned to bring a budget reconciliation package–that requires only 50 votes to pass rather than the usual 60–to the House floor by the end of March. This measure is expected to contain repeal and some replacement elements.  But a leaked recording from the same GOP retreat last month shows a party that remains divided and uncertain about how to move forward.

The delay on ACA “repair” pushes back legislative activity on almost every other priority. In addition to action on Obamacare, Republicans want to address an overhaul of the tax code and a massive infrastructure bill. On top of that, Republicans hope to pass all 12 fiscal year 2018 appropriation bills before Oct. 1, including funding for a wall on the Mexican border. Congress hasn’t passed its appropriations bills in two decades. In addition, there are several must-pass deadlines. Congress needs to fund the government before money runs out on April 28 and raise the debt ceiling by this summer. There is widespread concern that Trump and GOP leadership have simply identified too many big-ticket, politically thorny items to tackle in year one.

On Obamacare, expect a drawn out fight, not just between Republicans and Democrats, but within the GOP. The Obamacare alternatives being considered may not prove any more popular.

Updates by Claire Sachs: March 13, 2017

House Speaker Paul Ryan introduced the American Health Care Act (AHCA) on March 6, 2017. It was referred to the Ways and Means Committee and the Energy and Commerce Committee on March 8, 2017, both of which approved it on March 9, 2017. The main differences between this law and the Affordable Care Act (Obamacare) are that:

• The Medicaid expansion would be phased out by 2020
• The individual mandate (tax penalties for not being insured) would be replaced by age-based refundable tax credits.
• Insurance companies could charge older patients up to 5x more than they charge younger patients instead of 3x.
• Insurance companies could charge a 30% penalty to people who let their coverage lapse.
• Taxes on health insurers, pharmaceutical and medical device manufacturers, and high-cost employer health plans (aka Cadillac plans) would be repealed.
• Medicaid would be barred from reimbursing Planed Parenthood.

Also on March 13, 2017, the Congressional Budget Office released its report on the AHCA. It would cut $337 billion from the deficit over 10 years, but it would also cut coverage to 14 million people by 2018, increasing to 24 million by 2026. Under the AHCA, insurance premiums would be 15-20% higher in the first year compared Obamacare, and 10 percent lower on average after 2026.

March 23, 2017

The House of Representatives was due to vote on the AHCA this evening. Earlier today, members of the House Freedom Caucus, the conservative wing of the Republican party, met with leadership and the President to negotiate last minute amendments to sway caucus members. They discussed rolling back maternity coverage and other possibilities, but negotiations were unsuccessful. Ultimately, the vote was postponed because there were not enough votes to pass the bill.

March 24, 2017

Late yesterday, President Trump issued an ultimatum to Congress: vote on the AHCA or he moves on to the next item on his agenda.

Congressional Republicans agreed and scrambled to negotiate with the Freedom Caucus. In order to make the bill more appealing, they removed the 10 essential health benefits Obamacare required in every plan. These benefits cover: outpatient services, emergency room care, hospitalization, maternity costs, mental health/substance abuse services, prescription drugs, rehabilitative and habilitative services, lab tests, preventive care such as vaccines and annual physicals, and pediatric vision and dental care.

In the end, it wasn't enough. Speaker Ryan pulled the bill off the floor after over three hours of debate because he could only afford to lose 22 Republican votes, and 36 Representatives had declared their opposition, with an additional 15 leaning toward a "no" vote.

Republicans can modify the bill and reintroduce it, but without significant changes, it is unlikely to win enough support to pass this congress.

How a (Healthcare) Bill Becomes a Law

This is complicated. I have two degrees in government and politics plus 18 years in Washington, and I still need to reach out and ask sometimes. But it is important to understand what our government plans for us. It’s not just about those who will be covered under new healthcare legislation; private plans will adjust to accommodate new laws as well. So, please bear with me as I lay it out. And if you need clarification, please feel free to contact me here.

Background

A healthcare bill isn’t always just a healthcare bill. Because there has to be a way to pay for additional coverage and administration of the new laws, healthcare legislation includes sections that raise taxes. If legislation “raises revenue” for the government, it falls under Article I, Section 7, Clause 1 of the Constitution, the Origination Clause, which says, “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

So, even though the Executive Branch (President and Cabinet Agencies) may develop healthcare legislation, it must be introduced in the House of Representatives of the Legislative Branch (Congress). It’s official when the bill’s title is read on the House floor.

Setting the Stage

In January 2017, Congress went through a process called budget reconciliation. Budget resolutions do not usually become law. They do not go to the Senate and do not need presidential approval. Budget reconciliation is a way to get parts of a budget enacted as law.

Because Congress failed to pass a budget in 2016, Congressional Republicans knew that they were coming into session with majorities in both chambers. They passed a new budget resolution that included reconciliation shortly after the new Congress was sworn in. Under that resolution, Republican House and Senate leadership gave instructions to the committees with jurisdiction over healthcare to submit legislation changing taxation provisions in the Affordable Care Act (ACA – also referred to as Obamacare) so they comply with the new budget. This allows that particular legislation to pass the House and Senate with a simple majority instead of the 60 votes it would require to stop a Democratic filibuster. Since Obamacare includes tax provisions as a way to fund itself, a budget reconciliation could effectively strip those provisions and leave the ACA unfunded (the "repeal" part of the GOP plan to "repeal and replace").

However, there are some limitations. The provisions of the budget the committees would propose under reconciliation have to relate to taxes or government spending. This means that Republicans can’t repeal the entire ACA at once, just the parts dealing with how it funds itself. They cannot repeal the policies relating to who and what is covered. Additional actions can be taken, but the above process is what Speaker Ryan means when he says reconciliation is the first step.

Behind the Scenes

House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell are very influential in persuading their members to vote as they recommend. With the White House behind them, they have been working hard to assure the votes they need to pass Speaker Ryan’s plan, known as the American Health Care Act (AHCA). So why are so many Republicans expressing doubt? As Ezra Klein said in an interview with the Pod Save America podcast, Republican goals differ:

• Conservatives want to offer coverage while still controlling cost through the free market (private industry competition). Many in this group are members of the House Freedom Caucus.
• Libertarians want no Federal role in healthcare.
• Moderates want to improve coverage and lower costs.

For Speaker Ryan’s plan to succeed, he, Majority Leader McConnell, and the President will have to find a way to address the concerns of enough of the doubters to secure majorities in Congress. This is no small task.

Process

1. The House of Representatives

After being introduced and assigned a number, the bill is referred to the Ways and Means Committee, which is responsible for writing new tax legislation, the Energy and Commerce Committee, which regulates the insurance industry, the Budget Committee, which says what the government can tax and spend, and any other committee that has jurisdiction a particular function of the bill.

While the committees review the bill, they hold hearings, kind of like interviews of people whose expertise they need to understand the bill and what will happen and what will not happen if it is passed. Sometimes they also ask about the impact of not passing the bill. After the hearings, committee members mark up the bill. This is when they debate and propose amendments. The last step for the committees is voting on whether to accept all the changes they made during mark-ups.

Each Committee has three options: send the bill to a subcommittee for further debate, send it to the whole House for a vote, or “table” the bill, which means it never leaves the Committee. Tabled bills usually are not reintroduced until the next Congress.

When the bill reaches the floor of the House, it is accompanied by reports about why the committees recommended passage. Then the full body of the House debates and proposes amendments. The House Rules Committee sets the terms of the debate, time limits, and which amendments are offered. Each amendment is considered separately and subject to its own vote.

When the debate is over, there is a roll call vote. If the bill passes, the House sends the final version to the Senate.

2. Senate

Senate processes are very similar to those in the House. When the Senate receives the House bill, Senators decide whether to send the House bill to committee or offer their own version.

On the Senate side of the rotunda, healthcare bills go to the Finance Committee, which regulates taxes (among other things), and the Health, Education, Labor, and Pensions (HELP) Committee. The bill goes through hearings, debates, mark-ups, and committee votes as it did in the House. The reports that accompany the bill to the Senate explains any amendments accepted by the committee. The bill is then reported for floor action, where Senators can debate and offer amendments. Lastly, Senate votes. If the bill passes, the Senate sends it back to the House.

3. Conference Committee

Conference Committee works on a compromise between the two chambers. The House rarely accepts the Senate’s version of its bill, so the House adopts a motion to officially object to the Senate’s changes.

Conference Committee members are appointed by the Speaker of the House and the President of the Senate. Each side votes as a unit, and the majority party in each chamber controls the vote. The Committee debates and tries to reach a compromise, then sends the compromise bill to each Chamber for floor votes. If defeated in either chamber, the bill dies. If passed, Congress sends the compromise bill to the President for signature.

4. Executive Branch

When he receives the bill, typically the President asks for advice from Cabinet Agencies that (a) have expertise on the issue, and (b) would be responsible for enforcing the provisions of the bill should it become law. If the President decides to sign the bill, it becomes law immediately, and the relevant agencies begin writing and adopting regulations and policies necessary to enforce the new law. If the President vetoes (doesn’t sign) the bill, he sends it back to Congress with the reasons why he didn’t sign.

Once back at the Capitol, Congress has two options. It can accept the President’s recommendations and send the bill back to the White House for signature. The bill becomes a law. Or Congress can override a veto with a 2/3 supermajority vote in both the House (290 votes) and the Senate (67 votes). The bill becomes a law. However, if Congress doesn’t accept the President’s recommendations or can’t get the necessary 2/3 votes, the bill dies.

Simultaneous 

5. Congressional Budget Office

The Congressional Budget Office is a nonpartisan agency in the Legislative Branch of the government. It evaluates the economic impact of proposed legislation.

These are the guys and gals who figure out how many people will gain or lose health insurance coverage, how much increased or decreased coverage will impact the economy, and other things Members of Congress want to consider when debating new healthcare policy.

6. Lobbyists

Lobbyists and special interest groups are essentially the same thing. Lobbyists are usually hired to represent special interests. And before you bristle at the idea power and influence trading, consider that you are represented by special interest groups whether you are a member or not. There are special interest groups who lobby for women’s issues, specific industries (including yours), and people with chronic and autoimmune conditions, both individual conditions and the collective community.

Yes, there is a lot of money involved – lobbyists are highly paid advocates and expert fundraisers – but they are also an integral part of the process. Lawmakers need expertise from people who know the issues inside and out. There may be a few on Capitol Hill, but there are many more with diverse viewpoints outside of the government. For example, if my premiums are going up, a lawmaker will hear it and know it’s bad for some of his or her constituents, but not know the details of why the premium is going up or what to consider when constructing a viable solution.

Lobbyists can meet with anytime lawmakers before final floor votes. Often, they will meet several times with lawmakers to keep trying to persuade them to see their client’s point of view.

After

7. Judicial Branch

The courts only come into play if a situation arises where what should happen under the new law isn’t clear or contradicts existing law. A plaintiff makes a legal challenge in court to clarify the law, and the case makes its way from the lower courts to the higher courts. In these cases, it is up to the courts to decide if a particular action is legal and constitutional (The Supreme Court.)

If a case reaches the Supreme Court (they decide what cases they hear), all other state and federal courts have to decide their cases using the Supreme Court’s guidance. If the Supreme Court decides not to hear a case, the decision of the last court to rule stands.