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Senate parliamentarian says some major BCRA elements subject to 60-vote threshold

Health care bill debate

The Senate parliamentarian has determined that certain provisions of the Senate Republicans' original plan to repeal and replace Obamacare violate the "Byrd Rule," meaning that they don't qualify for passage under reconciliation's 51-vote majority. Instead, they would be subject to a 60-vote point of order during a floor vote.

The list of violations was released Friday evening by the Senate Budget Committee, which a Republican aide said are guidance on the earlier draft of the Better Care Reconciliation Act (BCRA). The aide said it will "help inform action on the legislation going forward."

Senate Republicans released an amended version of their original plan last week. It's similar to the original bill, and many of the provisions from the first bill exist in the revised version.

The following provisions from the original plan would be subject to a 60-vote point of order:

  • Defunding Planned Parenthood;
  • Abortion Restrictions for Tax Credits;
  • Sunset of Essential Health Benefits Requirement for Medicaid;
  • Funding for Cost-Sharing Subsidies;
  • Stabilizing the Individual Insurance Markets;
  • Medical Loss Ratio;
  • Availability of Rollover Funds;
  • Decrease in Target Expenditures for Required Expenditures by Certain Political Subdivisions;
  • Grandfathering Certain Medicaid Waivers; Prioritization of HCBS Waivers; and
  • Reporting of CMS-64 Data

The parliamentarian said some provisions, on the other hand, would not be subject to the 60-vote point of order, that is, they do not violate the Byrd Rule. These items, which need just 51 votes, include Medicaid work requirements, a state stability and innovation fund, an equity adjustment, a repeal of cost-sharing subsidy program, reporting of CMS-64 data and providing safety net funding for non-expansion states.

The list notes that several provisions are still under review by the parliamentarian, which are:

  • Waivers for state innovation, also known as Essential Health Benefits;
  • Small Business health plans;
  • Change in permissible age variation in health insurance premium rates, also known as the "age tax;" and
  • Flexible block grant option for states

As of Thursday, Senate GOP leaders were eyeing next Tuesday for a health care vote, but no one knows yet which proposal will be voted on. The first vote will be on the House-passed health care bill and the substitute amendment will be either the amended repeal and replace plan, BCRA, or a straight repeal plan resembling a Senate-passed bill from 2015.

With the violations identified in the initial bill, it's unclear how Republicans can move forward as they've struggled to garner even 50 votes to advance any of their proposals.

The original plan would end Obamacare's penalties for people who don't buy insurance, replacing them with a penalty for lapsed coverage; and it would cut back an expansion of Medicaid, but would keep more protections for people with pre-existing conditions, compared to the House-passed bill. It would provide tax credits, based on income, age and geography, which would make more money available to lower-income recipients to help them buy insurance. The Senate bill would provide for expanded tax-free Health Savings Accounts, and it would also eliminate federal funding for Planned Parenthood for one year.

The amended version of the plan is not much different: it would still end Obamacare's penalties for people who don't buy insurance, cut back an expansion of Medicaid and include further cuts to the entitlement program. Compared to the original version, the new measure includes several tax increases from Obamacare that were eliminated in the original bill: a 3.8 percent tax on net investment income, a 0.9 percent Medicare tax and a remuneration tax. It also includes $70 billion more than the first draft to help cover state-based health care reforms and an additional $45 billion to help states combat the opioid epidemic.

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