House Passes Bill to Repeal Obamacare – Senate Approval Uncertain

Embattled House Republicans were able to muster enough votes on May 4, 2017 to push their health care reform bill, known as the American Health Care Act (H.R. 1628), to the Senate. The passage marks a recovery for the party leaders after they jettisoned a previous bill to repeal and replace the Affordable Care Act for lack of support.

However, the razor-thin 217-213 passage is perhaps little more than a symbolic victory for Republicans. Whether it passes the Senate or not, it is unlikely to survive in its current form, as several key Senate Republicans have indicated that they will rewrite the legislation. Senator Lisa Murkowski (R-AK) has been critical of the House bill, even going as far to say that she hopes to start with a “clean slate” in the Senate, according to Bloomberg. Furthermore, Senator Rob Portman (R-OH) said in a statement that he supports changes to the health care system, but they “must be made in a way that does not leave people behind,” according to NBC News.

To get the law passed in the Senate, Majority Leader Mitch McConnell (R-KY) will have to assuage moderates and conservatives who want to see the law go in different directions. Republicans hold a slim 52-48 majority in the Senate. In an increasingly partisan Senate, there is little to no chance of Democratic support; thus Republicans can lose only two votes and still secure 51 votes, using Vice President Mike Pence’s vote to break the 50-50 tie. Senate Finance Committee Chairman Orrin Hatch (R-UT) said Republicans’ goal will be to craft a bill that will secure 51 Senators’ votes. Senator Hatch also said in a statement that Republicans will have to “manage expectations” as they move forward, which likely means the bill’s current form will not survive.

The earlier version of Republican health care reform failed, perhaps in part because of a Congressional Budget Office estimate that would have resulted in 24 million Americans without insurance within a decade. H.R. 1628 seeks to remedy the ill-fated March version by adding, among other things, a provision that would allow states to seek federal waivers from the Affordable Care Act’s essential health benefits requirement and its community rating rule. This means payers in states with waivers would not be required to cover some specific services and would be able to charge higher premiums to individuals with pre-existing conditions. States would also be able to opt for a provision that allows payers to charge a 30 percent penalty to enrollees who do not maintain continuous coverage. However, states with waivers would have to set up programs to ensure affordable coverage will still be available to people with pre-existing conditions, such as government-subsidized high risk pools.

Since Republicans are utilizing the budget reconciliation process to pass the bill to shield it from a filibuster and only require a 51-vote majority, the bill can only cover budgetary issues. This creates another obstacle for enacting the House version because the state waivers discussed above may not qualify as budgetary. Thus, the House bill will have to be reworked, and, according to Senator John Cornyn (R-TX), the Senate is in no hurry. Senator Cornyn told The Hill that they “are not under any deadlines, so [they] are going to take [their] time.” He also said last week that the House bill “will be modified here if for no other reason than the rules, the reconciliation rules, would require it.”

In the end, the bill has a long way to go before it is passed into law. If it does make it to President Trump’s desk, it is likely to be in a far different form. Employers and health care consumers alike have no immediate reason to panic.

If you would like to know more about how this development could impact your business, please contact Frantz Ward attorney Jeffrey Perlmuter.