Employee Benefits Compliance

Senate Votes Against “Skinny Repeal” Bill — ACA Remains the Law of the Land

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In the wee hours of the morning on July 28, 2017 (today, Friday), the Senate voted 51-49 AGAINST the “skinny repeal” bill – which would have repealed the individual and employer mandates, eliminated the medical device tax for three years, defunded Planned Parenthood, and increased contribution limits to health savings accounts for three years.

Three Republican Senators joined all the Democrats in voting against it. The three Senators were John McCain (Arizona), Lisa Murkowski (Alaska) and Susan Collins (Maine). Sen. McCain, who recently underwent brain surgery and has been diagnosed with brain cancer, flew to Washington, D.C. several days ago to be part of the historic vote on the various Republican health care reform bills. Senator McCain voted yes to open debate on the Republican health care reform bills several days ago, but kept his position on the “skinny repeal” bill a secret until after 1:30 am this morning, when he gave the “thumbs down” to signal his No vote.

Had McCain (or one other Senator) voted for the bill, Vice-President Pence could have cast the tie-breaking vote in favor of the bill, which then would have gone to the House and to a Conference Committee. Many people thought that the “skinny repeal” bill would be a placeholder, which would then go to Conference Committee where a more comprehensive bill would be drafted.  Concern grew in recent days, however, that the House would not send the bill to a Conference Committee but would simply adopt the “skinny repeal” bill and send it to President Trump for his signature.  Senators asked House Speaker Paul Ryan for his assurance this would not happen, and his ambiguous response was interpreted by many as NOT providing that assurance at all.

The Senate adjourned following the defeat and there are no further Senate votes scheduled for this week.

This means for now THE AFFORDABLE CARE ACT CONTINUES TO BE the LAW OF THE LAND.

What’s Likely to Happen Next?

Who knows, but here are some possibilities. Some or all these could occur, they are not mutually exclusive:

  1. Bipartisan Congressional action on a new health care reform bill
    1. This is not a joke, several articles have suggested this could happen. And a statement (this morning) from Sen. Majority Leader Mitch McConnell’s office also suggested this.
  2. Stabilizing the insurance markets –
    1. If something is not done, insurers might flee, or stay but increase premiums so much that people who don’t qualify for subsidies won’t be able to afford to buy insurance.
    2. Several members of Congress might produce a separate bi-partisan bill intended to stabilize the individual insurance market and not address other areas of health care reform (at least for now).
  3. Administration action to change the healthcare law
    1. This could be various actions or inactions, by HHS, IRS, DOL, and/or the President (hopefully at least by Executive Orders and not by Tweets).
    2. Examples: HHS could allow states to set their own Benchmark plans; IRS could not take action to impose individual mandate taxes or employer mandate penalties (but do NOT count on that, because the federal government needs those revenues).
  4. Another effort at a Republican-only bill.  Rep. Mark Meadows said some House and Senate members are working on another bill they hope can pass the Senate with 51 votes. It would include amendments that were previously made by several Senators but cannot be voted on yet because the CBO has not yet issued its analysis of them, and this is required under the budget reconciliation process which requires only 51 votes to pass a bill. (For brief description of these prior amendments by Sens. Cruz, Graham and others, see my July 25th article on HealthReformUpdates.com.)
  5. A separate bill to repeal the Cadillac tax, which is currently scheduled to apply in 2020?  Just prior to last night’s 51-49 vote against the GOP bill, the Senate voted (52-48) for an amendment (by Sen. Heller) that would have repealed the excise tax, and repeal has  had bipartisan support the past year or two. (Both Clinton and Trump pledged while campaigning to repeal it.)

Stay tuned!