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Some Provisions of House Republican Leaders' ObamaCare Alternative May Be Scrapped by the Byrd Rule

Monday, March 13, 2017 11:05
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(Before It's News)

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Christopher Jacobs has a great piece up over at "nofollow" target="_blank" href="/r2/?url=http://thefederalist.com/" target="_blank">The
Federalist
highlighting how the advanceable, refundable tax
credits proposed in House Republican leader’s ObamaCare
“alternative,” the American Health Care Act, target="_blank" href="/r2/?url=http://thefederalist.com/2017/03/13/4-key-problems-kill-tax-credits-obamacare-repeal/"
target="_blank">might wind up taking a Byrd bath in the Senate
.
He raises a good argument, but other aspects of the bill may also
fall victim to the “Byrd rule.”

Before diving into this, here are the basics of budget
reconciliation. Created by the Congressional Budget Act of 1974,
budget reconciliation allows Congress to fast-track the passage of
major fiscal policy with limited procedural hurdles. A
reconciliation measure, for example, needs only a simple majority,
or 51 votes, in the Senate for passage. It can’t be
filibustered.

Reconciliation can be used for legislation that changes
mandatory spending, revenue, or the debt limit. The House prevents
reconciliation legislation from creating a net increase in
mandatory spending. In the Senate, recent rule changes allow
reconciliation legislation that increased the budget deficit. The
Senate allows for only three uses of reconciliation each year and
limits its use to one per subject during a year.

The process of reconciliation begins with the passage of a
budget resolution that provides ten-year baseline budget figures
and directs the committees of jurisdiction in both chambers to
develop recommendations for changes in relevant law not to exceed a
certain dollar amount. Committees are given a deadline to report
their recommendations to the House and Senate budget committees,
which reconciles the recommendations into legislative text.

The process for the repeal and replacement of ObamaCare began
with the passage of "http://www.freedomworks.org//https://www.congress.gov/bill/115th-congress/senate-concurrent-resolution/3"
target="_blank">S.Con.Res. 3
, the FY 2017 budget resolution.
The resolution directed the House Ways and Means Committee and the
House Energy and Commerce to have their recommendations submitted
to the House Budget Committee on January 27. These committees
didn’t report their recommendations until March 8 and March 9.

One hurdle for any piece of reconciliation legislation is the
“Byrd rule.” Named after former Sen. Robert Byrd (D-W.V.), the Byrd
rule allows senators to object via a point of order to provisions
in budget reconciliation legislation that “extraneous,” not germane
to the subject or outside the committees of jurisdiction. The
Senate parliamentarian determines whether the point of order is
valid.

The parliamentarian’s ruling can be overturned by a
three-fifths, or 60-vote, majority. Sen. Ted Cruz’s (R-Texas)
former chief of staff, Chip Roy, "http://thefederalist.com/2017/03/10/yes-51-senators-can-fully-repeal-obamacare/"
target="_blank">has made a compelling case
that Vice President
Mike Pence could overrule the parliamentarian, Elizabeth
MacDonough, if she makes an unfavorable ruling on a point of
order.

Among the extraneous provisions defined in href=
"http://www.freedomworks.org//https://www.law.cornell.edu/uscode/text/2/644"
target="_blank">2 U.S. Code § 644
is “a provision of a
reconciliation bill or reconciliation resolution…shall be
considered extraneous if such provision does not produce a change
in outlays or revenues.” This has been used by House Republican
leadership as an argument not to repeal, alter or sunset
ObamaCare’s “essential health benefits.”

On Thursday, Speaker Paul Ryan (R-Wis.) defended the approach
House Republican leaders are are taking by not going after parts of
the bill that could fall victim to the Byrd rule. “[T]here are
folks who would love to see us put in this reconciliation bill all
these other ideas. One conservative group is saying put shopping
across state lines in this bill or else we’re not going to support
it,” said Speaker Ryan. “If we did that, we wouldn’t be able to
pass this bill. It would be filibustered in the Senate. It wouldn’t
even come up for a vote.”

There are sections of the American Health Care Act that could
fall victim to a Byrd rule point of order, making Speaker Ryan’s
argument for not adding in provisions conservatives want, like the
buying and selling of insurance across state lines or repealing or
sunsetting the essential health benefits, suspect.

Section 134 of the Energy and Commerce recommendations sunsets
ObamaCare’s actuarial value (AV) standards, which require insurers
to pay a minimum of 60 percent of health care expenses. We know
these as ObamaCare’s metal tiers:

  • Bronze: These plans are required to pay 60 percent of all health
    care expenses. The remaining 40 percent are paid by the insured
    through deductibles, copayments, and coinsurance.

  • Silver: These plans are required to pay 70 percent of all health
    care expenses. The remaining 30 percent are paid by the insured
    through deductibles, copayments, and coinsurance.

  • Gold: These plans are required to pay 80 percent of all health
    care expenses. The remaining 20 percent are paid by the insured
    through deductibles, copayments, and coinsurance.

  • Platinum: These plans are required to pay 90 percent of all
    health care expenses. The remaining 10 percent are paid by the
    insured through deductibles, copayments, and coinsurance.

The AV standards would sunset beginning January 1, 2020. While
this is a positive provision, how could it survive a Byrd rule
challenge when the AV standards are a mandate on health insurers?
Moreover, ObamaCare AV standards live in Section 1302, where the
essential health benefits are defined. Why include a sunset of the
AV standards but not sunset the essential health benefits?

Separately, the Section 135 of the House Energy and Commerce
Committee recommendations changes ObamaCare’s age-rating from a
3-to-1 ratio to a 5-to-1 ratio. What this price control means is
that under ObamaCare, a health insurer can charge only three times
more than younger enrollees. The American Health Care Act would
change it to five. Again, this is a private sector mandate. How can
revisions to the age-rating be included but not the essential
health benefits?

The same could be said of Section 133, which allows health
insurers to assess a 30 percent surcharge on top of base premiums
for individuals who haven’t maintained continuous coverage for more
than 63 days. Unlike like ObamaCare’s individual mandate, which is
zeroed out but not repealed through the American Health Care Act,
the coercive continuous coverage surcharge is paid to the health
insurer.

House Republican leadership’s argument for not targeting
ObamaCare’s essential health benefits while going after other
provisions of the 2010 law that could be scrapped under the Byrd
rule doesn’t make any sense.



Source: http://www.freedomworks.org/content/some-provisions-house-republican-leaders-obamacare-alternative-may-be-scrapped-byrd-rule

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