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Senate Vote on Repeal and Replace of the Affordable Care Act

by Bill Finerfrock on July 26, 2017 at 10:52 AM

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Yesterday, on a 51-50 vote, with Vice President Mike Pence breaking the tie, the Senate voted to proceed to consideration of the American Health Care Act (AHCA).  This begins the so-called reconciliation process to consider this legislation.

There will be numerous amendments over the next few days and it is not clear whether it can obtain the 51 votes that will be necessary to move the process along.

This vote allows the Senate to formally begin debate on how it will repeal and replace the Affordable Care Act (ACA). Majority Leader McConnell (R-KY) will be able to dictate the repeal/replace legislation that will be considered by the full Senate. Although no formal plan has been announced yet, the Senate could vote on any of the following bills, subject to 50 votes for approval:

  1. 2015 reconciliation repeal of the ACA with no replacement
  2. BCRA (Senate’s version of the AHCA)
  3. Scaled down repeal bill that eliminates the individual and employer mandate penalties and at least some of the ACA’s taxes such as the medical device tax. If this option is passed, the Senate and House would form a conference committee to negotiate a repeal and replace bill that can pass both Chambers and that abides by the rules of reconciliation in the Senate.

Below is a more detailed description of how the process will work.

What Happens Now?

Under reconciliation, debate on the bill is limited to 20 hours –equally divided between the majority and minority.  The bill, like all legislation, is open to amendment and dozens of amendments are expected.  However, amendments are subject to “points of order”; they cannot add to the deficit and must be consistent with the underlying purpose of a reconciliation bill (that is, raising or spending of money).  In addition to amendments making changes in individual sections of the bill, we anticipate several amendments making sweeping changes, and at least two amendments to completely substitute new language for the House bill.

Leader McConnell will continue to negotiate with GOP Senators in hopes of garnering the 51 votes (that is, 50 votes counting the Vice President) needed to pass the bill.

Most amendments will likely be subjected to a “point of order” and, in all likelihood, most amendments will be ruled “out of order.” 

Any amendment against which a “point of order” has been lodged is subject to a ruling by the “President of the Senate” under guidance from the parliamentarian.  Principally these rulings will either be because the amendment is not considered “germane” to the underlying purpose of the reconciliation bill or the Senate lacks sufficient information (that is, a CBO score on the impact on the budget) to allow consideration.

A “point of order” ruling against an amendment by the presiding officer can be challenged and put to a vote, but it takes 60 votes to overturn a ruling of the presiding officer.

There are no limits on the number of amendments that can be offered, and any Senator offering an amendment can ask for a recorded vote.  This voting can extend beyond the 20 hours reserved for debate.  So it is possible that it may take longer than the 20 hours before a “final” vote will occur.

If the Senate is able to pass a bill, it will be different from the House bill.  The Senate bill will go to the House and it seems most likely the House will “reject” the Senate amendment and ask for a Conference. At that point, House and Senate leaders will appoint Conferees who will be tasked with reporting a single bill that can go back to the House and Senate for a vote.

The Conferees can completely re-write the legislation, but will need to come to an agreement on a single bill that can be brought back to the respective chambers for a single vote.

So an important step was taken today, but it is just that--a step.  This journey is a long way from being completed. 

“The woods are lovely, dark and deep, But I have promises to keep, And miles to go before I sleep, And miles to go before I sleep.”

Robert Frost

Stopping by Woods on a Snowy Evening

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This post was written by Bill Finerfrock

Bill Finerfrock is a consultant at Intermedix and is president of Capitol Associates (CAI). Finerfrock specializes in health care financing, health systems reform, health workforce and rural health. Finerfrock has worked in and with the U.S. Congress and Federal agencies on health policy matters for nearly 40 years