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Update: The American Health Care Act passed the House on Thursday, May 4, with a slim 217-213 majority. The bill now moves to the Senate.

Original story continues:

The effort to repeal and replace the Affordable Care Act (ACA) has been fraught with problems since Republicans took control of both Congress and the presidency in January. In late March, House Speaker Paul Ryan (R-WI1) pulled the first version of a replacement bill before a vote due to lack of support. Since that defeat, the GOP has been attempting to revise, revive and relaunch a new repeal.

The vote tally for the latest iteration of the bill is still too tight to call. Republicans feel they are close, but key congressional leaders continue to abandon the plan. At the core of the current struggle is coverage for pre-existing conditions. President Trump has both claimed pre-existing conditions will be covered and said the legislation is “changing.” This may be the ultimate sticking point for Republicans looking to make good on a seven-year-old promise to repeal and replace Obamacare.

On Tuesday, House Republicans approved a procedural change known as martial law, which waives a rule requiring members wait at least one day before a full vote on a bill after it leaves the House Rules Committee. Martial law allows a vote on the bill at any time once Republican leadership believes it has enough support, and it is a procedure typically reserved for emergency situations, like avoiding a government shutdown.

The many iterations of the American Health Care Act

Immediately after the non-vote on the first version of American Health Care Act (ACHA), President Trump indicated that his administration would shift priorities away from health care and on to tax reform. The president indicated he might try for a replacement again in two years, but in the meantime he would let Obamacare "implode" on its own.

“I mean, it’s a disaster," he told attendees at a Conservative Political Action Conference. "But two years don’t do anything. The Democrats will come to us and beg for help. They’ll beg, and it’s their problem."

Despite the posturing, however, congressional Republicans and the White House continued negotiations on a new version of the bill, offering concessions to their more conservative members.

President Trump, looking for a legislative win within his first 100 days, pushed for a vote on the revised bill during last week of April. However, Republicans again failed to gather enough support, and the ACHA 2.0 has not seen a vote.

Figures from the Congressional Budget Office (CBO) and the Joint Committee on Taxation (JCT) indicated that if the first version of the proposal became law, 14 million Americans would immediately lose coverage and close to 10 million more would stand to lose coverage over the next 10 years. The Medicaid program would also face cuts of around $880 billion. That translates into limited coverage and reduced affordability for those who need coverage the most – America’s vulnerable, seniors, the socially disadvantaged and those with disabilities.

The latest versions of the legislation have not yet been scored, and Speaker Ryan has stated he is not interested in waiting on the CBO before pushing for a vote.

What has changed?

One of the largest concessions to members of the conservative Freedom Caucus is in the form of an amendment, known as the MacArthur amendment, that would permit states to apply for a waiver and opt out of some ACA provisions. These include the ban on insurers charging premiums based on an applicant’s health and on charging people higher premiums for pre-existing health conditions. States could also opt out of the requirement that insurers’ basic health plans cover certain services like mental health, maternity care and prescription drugs.

If states can opt out of community-rating provisions, which require insurers to charge people the same price regardless of their health status, coverage for pre-existing conditions is essentially eliminated. Plans may be offered that cover high-risk individuals, but with no cost controls, meaning that purchasing these plans could be difficult if not impossible for many Americans.

The result would be that millions of Americans could lose their existing health coverage or face even higher premium costs. It is unlikely Medicaid or tax credits would be able to fill the gaps. Furthermore, the bill is likely to hike insurance costs for seniors while doing nothing to tackle high prescription drug costs. The Catholic Health Association (CHA) has pointed out that the current ACA replacement would drastically undermine access to healthcare for those desperately needing it.

President Trump, in a statement that indicates he may be unaware of the contents of the bill, claimed, “Pre-existing conditions are in the bill. And I mandate it. I said, ‘Has to be.’”

Timothy Jost, Washington and Lee University School of Law emeritus professor, says that President Trump is technically correct. The amendment does not remove the pre-existing condition mandate. However, says Jost, "Under the MacArthur amendment, [people] could not be refused coverage, but insurers could impose high enough premiums that coverage would be unaffordable."

Playing by different rules

The Affordable Care Act requires that members of Congress purchase plans through the health care law’s marketplaces. An amendment to the most recent version of the ACHA suggested members of Congress and their staff should be allowed to keep these plans with all of their regulatory protections. In other words, Republicans in Congress would eliminate Obamacare for the public, but would keep themselves and their staff covered under ACA provisions.

This would mean that a representative from a state that opted out of the ACA requirements could keep the waived provisions in his or her healthcare plan. Democrats immediately jumped on the proposal, calling it hypocritical and suggesting it is not fair to take away protections for the general public, but not themselves.

The hint of entitlement contained in that provision was not well received by groups fighting the repeal, with most suggesting that if the new replacement was so bad for American’s health care needs that the GOP exempted themselves, then it must be a disaster. The scene was set for a political fight, which may yet derail this latest attempt at replacing the ACA.

Republicans scrambled, some claiming that the provision was not even in the amendment, others claiming it would be fixed. Representative Mark Meadows (R-NC), chair of the House Freedom Caucus, claimed the provision was immaterial because lawmakers purchase plans through the Washington D.C. exchange, and since the district is not a state, it could not apply for a waiver.

The ACA specifically designates the District of Columbia as a state for the purpose of the law.

Still other House Republicans claimed that they had to add the provision to comply with the Byrd rule in the Senate, which requires that any legislation being passed through reconciliation must affect the budget and not significantly increase the federal deficit.

An aide to Representative MacArthur told Vox the language was inserted at the request of the Senate Budget Committee (SBC). However, an aide with the Senate Budget Committee denied that statement. “We did not write it, did not draft it, and did not add it,” the aide said and added that the SBC was making no policy recommendations.

Nicholas Bagley, a health law expert at the University of Michigan, says that the exemption is no accident. It is “explicit and purposeful if you follow the cross-references,” says Bagley “It’s not hidden, it just doesn’t leap off the page unless you do some cross-referencing with the Affordable Care Act.”

After the uproar, Representative MacArthur (R-NJ), who authored the amendment, said he was working with colleagues to change the language to reflect that congresspeople and their staff are subject to the same provisions and rules as other Americans.

What is troubling with this situation is that the wording of the proposed legislation may not, as it stands, be changed. Republicans must introduce a separate piece of legislation to alter the language.

Clarification was issued by MacArthur who stated, "That'll be fixed.That was written in to comply with some Senate rules to make sure it's just a budget vote.”

Those familiar with the legislative process know there is a chance that promises of new amendments may be forgotten, overlooked or die in committee.

An even more troubling state of affairs has been noted in this attempt to repeal Obamacare: House Republicans and the President are allegedly ignoring external requests from concerned healthcare officials to work as a team. Calls from patient advocates, physicians and hospitals to work collaboratively with GOP leaders to form new legislation have been rejected. Those composing the legislation are also walling out Democrats and Senate Republicans, both forces that need to be on board for any replacement bill to ultimately pass.

Whether or not this latest version of the ACHA will make it to the floor of the House for a vote is still questionable. Speaker Ryan can only lose 22 Republican votes. The initial voting numbers indicate that 21 Republicans already plan to vote “no.” Many of GOP members are also worried about their chances for re-election next year. A “yes” vote may make them vulnerable to a challenge in 2018.

While the conservative House Freedom Caucus has endorsed the bill, many members of the more moderate Tuesday Group have indicated they will vote no. There is even less support for the legislation in its current iteration among Senate Republicans. Even moderate Republicans have issues with the exemption. According to Representative Leonard Lance (R-NJ), the amendment is “outrageous and the height of hypocrisy.”

The language of the new proposal has wooed conservatives, but a number of red flags still exist. No one knows the cost of implementing the new bill or what its effect will be on the number of Americans who are uninsured. Given the score for the first iteration of the bill, the coverage numbers will not likely help the GOP.

If the ACHA dies again, the Trump administration still faces choices about what to do with Obamacare. Based on discussions with the White House it appears many congresspeople are not really interested in learning how health policy really works, but they still want changes.

To attempt to make changes without understanding the ramifications or even consulting with those who deliver health care services seems to run contrary to commonly understood methods for solving problems. However, according to numerous groups of health care professionals, the White House is not asking for or considering input from those on the front lines.

At the end of April, six major physician groups, consisting of over 560,000 pediatricians, family doctors and obstetricians, urged congressional leaders to put a hold on their legislation and work together toward an alternative that would not cause millions of Americans to lose health insurance coverage.

Groups representing patients, doctors and hospitals did not support the first version of the ACHA, which would case 24 million Americans to lose health insurance over the next 10 years. This attempt at repealing the ACA is not faring much better, with the American Medical Association (AMA) and the American Hospital Association (AHA) still standing firmly behind their rejection of the proposed legislation.

About Author

Kerrie Spencer is a staff contributor to Bigger Law Firm Magazine.

  • distantsmoke

    Thanks to Democrats health care is now the same type of political football social security is. Everyone gird your loins for the constant bickering over health care for the rest of our lives.

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