WASHINGTON -- The window of time for passing the Graham-Cassidy-Heller-Johnson bill to repeal and replace the Affordable Care Act (ACA) is getting smaller, but it still might be possible, experts say.
The Senate parliamentarian has given a Sept. 30th deadline for bills dealing with federal spending and revenue to pass the Senate under the rules of reconciliation, which require 50 votes -- rather than 60 -- for bill passage. The Senate only has 52 Republicans -- one, Sen. Rand Paul, MD (R-Ky.) -- and no Democrats support it, making the 50-vote threshold with its Sept. 30 deadline the one that Republican leaders are aiming for (the rule's "simple majority" actually requires 51 votes, but Vice-President Mike Pence, a Republican, is able to cast a tie-breaking vote if needed).
That means that, under the Senate's regular rules of order, the bill would have to be passed out of committee, garner a score from the Congressional Budget Office (CBO), and then be voted on by the Senate, all within 12 days -- a pretty tall order. And, since the Senate is out of session on Thursday and Friday of this week, and tomorrow and Wednesday are pretty much scheduled already, the chamber really has another 5 legislative days next week to get the bill passed.
No Floor Debate Required
But it can be done, Timothy Jost, JD, professor of law emeritus at Washington and Lee University, in Lexington, Va., said in a phone interview. "At this point, my understanding is that all the time allotted for debate under reconciliation rules has been used, and all it would take is for [Senate Majority Leader Mitch] McConnell (R-Ky.) to bring the bill to the floor and move for a substitute amendment, and then go into 'votearama' -- and if it had the votes, they would be able to get it passed and send it on to the House and onto the president's desk," he said.
The measure, introduced last Wednesday by senators Bill Cassidy, MD (R-La.), Lindsey Graham (R-S.C.), Dean Heller (R-Nev.), and Ron Johnson (R-Wis.), would give money annually to states in the form of a block grant, which could be used "to help individuals pay for healthcare," Cassidy's office said in a press release posted on the senator's website.
"This proposal removes the decisions from Washington and gives states significant latitude over how the dollars are used to best take care of the unique health care needs of the patients in each state," the press release stated. "The grant dollars would replace the federal money currently being spent on Medicaid expansion, Obamacare tax credits, cost-sharing reduction (CSR) subsidies and the basic health plan dollars."
The amount of money each state would receive is based on a complicated formula that starts with the amount of money each state receives from Medicaid expansion, ACA tax credits, CSR subsidies, and basic health plan funds. "By 2026, at base rate, every state will be receiving the same amount of money for each beneficiary in the 50-138% federal poverty level range," according to an . "This ensures that high-spending states and low-spending states come to parity at the end of the time frame."
The measure would also repeal the ACA's individual and employer mandates as well as its medical device tax, and would "strengthen the ability for states to waive Obamacare regulations," the release continued. It also would "protect patients with pre-existing medical conditions."
A Lot from States in a Short Time
The possibility of passage is "a real threat," said Jost, who opposes the bill. "It's the most radical bill they've considered yet; it would effectively get the federal government out of providing health coverage for low- and moderate-income people -- other than those covered by traditional Medicaid -- and turn the whole thing over to the states ... and I cannot imagine most of them would be prepared to do anything with it."
The bill asks states to do an awful lot in a short time, Jost said. With the ACA, "states had 3 years to set up exchanges, and most of them punted to the federal government, and several that tried couldn't do it. And this is just as complicated -- possibly more complicated -- than setting up exchanges. States would somehow in 2 years have to get legislation adopted to allow them to somehow manage these funds and probably to amend laws to undermine protections put into effect through the ACA."
He also expressed concern about the amount of money some states would lose under the measure. "It radically changes the allocation and punishes states that have been effective in expanding coverage, and sends a lot of money to states that have basically not done anything to try to expand coverage." For example, California would receive $27.9 billion in the "baseline" year 2020, but that would drop to $25.5 billion in 2026.
Gail Wilensky, PhD, who served as administrator of what is now the Centers for Medicare & Medicaid Services under President George H.W. Bush, also expressed reservations about that. "It tries to get too much money out by 2026," said Wilensky, who is now a senior fellow at Project HOPE, in Bethesda, Md.
Although its backers say the bill would protect patients with pre-existing conditions, it also could allow for health insurers to go back to medically underwriting patients, which is a concern, Wilensky added. She noted that states applying for waivers under the bill would have to explain how they would protect such patients. "In the case of the [so-called] 1332 waivers, they have to have actuarial analysis to show what they claim is actually credible ... That's a pretty serious requirement."
Unintended Consequences
Getting the bill passed quickly is a key strategy for Senate Republicans, according to Edwin Park, JD, vice-president for health policy at the Center on Budget and Policy Priorities, a left-leaning think tank here. "The path for this to pass is following the House playbook; try to pass this before people understand the actual impact of the bill ... and that includes trying to get it through without a full CBO score." On Monday, that it would not be able to include the bill's impact on insurance coverage in the preliminary score it plans to release next week.
Another effect of the bill's possible quick passage is that the House likely wouldn't have an opportunity to change anything, but would instead have to vote on the entire bill in a "take-it-or-leave-it" fashion. That's because once Sept. 30th has passed, any changes to the bill would require another Senate vote, and Senate Republicans would then need 60 votes -- which they are widely acknowledged not to have -- to pass the new version.
The bill also could have another unintended side effect: crowding out other legislation, such as the reauthorization of the Children's Health Insurance Program (CHIP), which runs out of money on Sept. 30. "With no new money, states would have whatever is left over from this year and could spend it," but that would be it, said Park. before the end of the year unless the program is reauthorized.