Policy Fights, Senate Rules Could Thwart “Repeal-Plus” Strategy On Obamacare

Some GOP lawmakers want to add replacement provisions to an Obamacare repeal bill, but others warn this could slow the process and run afoul of the Senate rules.

House Speaker Paul Ryan (left) joined by House Majority Whip Steve Scalise (right), and Rep. Greg Walden, departs a news conference on Capitol Hill on Tuesday.
AP Photo/J. Scott Applewhite
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Erin Durkin
Feb. 14, 2017, 8 p.m.

Some GOP law­makers’ plans for a sweep­ing, party-line vote on Obama­care might be more than the Sen­ate can handle.

Key Re­pub­lic­ans have been push­ing to in­clude ele­ments of an Obama­care re­place­ment in the same re­con­cili­ation bill that they would use to re­peal parts of the law—a strategy dubbed “re­peal-plus.” But that idea has met staunch op­pos­i­tion from con­ser­vat­ives, and the Sen­ate’s pro­ced­ur­al rules could pose an even big­ger threat to quick, uni­fied ac­tion on Obama­care.

A con­gres­sion­al aide said there are con­cerns about how the “re­place” lan­guage is be­ing writ­ten in the House and wheth­er it would pass muster un­der the Sen­ate’s Byrd Rule, which lim­its the types of changes that law­makers can pass us­ing the budget-re­con­cili­ation pro­cess.

Un­der the rule, re­con­cili­ation can­not be used to pass meas­ures that don’t af­fect the de­fi­cit, or whose ef­fects on the de­fi­cit are in­cid­ent­al to a simple policy change. The Sen­ate’s par­lia­ment­ari­an rules on wheth­er spe­cif­ic pro­vi­sions com­ply with the rule. Any pro­vi­sions the par­lia­ment­ari­an re­jects would then need the stand­ard 60 votes to pass.

Rather than wade in­to that thorny ter­rit­ory, mem­bers of the House Free­dom Caucus say Re­pub­lic­ans should simply pass the same re­con­cili­ation bill they passed in 2015.

“We’re deal­ing with the up­per cham­ber. There is a more re­cept­ive at­ti­tude of just passing that than there is re­peal-plus,” Free­dom Caucus Chair­man Mark Mead­ows said Tues­day.

Mead­ows told re­port­ers that the Free­dom Caucus wants to vote on a re­place­ment plan at the same time as a re­peal, but in a sep­ar­ate vehicle.

“I’m hope­ful that the Free­dom Caucus takes a po­s­i­tion with­in the next 48 hours on a re­place­ment plan that ac­tu­ally goes sim­ul­tan­eously along with a re­peal po­s­i­tion. We’re not there yet, but we’re work­ing on the de­tails of that,” Mead­ows said.

He also sug­ges­ted that a second re­con­cili­ation bill could be used for a re­place­ment, though that would mean the re­peal and re­place lan­guages would be passed at dif­fer­ent times.

Some Re­pub­lic­ans have been push­ing for a sense of dir­ec­tion be­fore re­peal­ing the health care law, and Sen. Or­rin Hatch has said re­place­ment meas­ures will be in­cluded in a re­peal.

“I be­lieve that the work to re­place Obama­care should also be­gin im­me­di­ately, mean­ing that our re­peal bill should in­clude as many Obama­care-re­place­ment policies as pro­ced­ures al­low,” Hatch said in a floor speech last week.

A con­gres­sion­al aide told Na­tion­al Journ­al that Re­pub­lic­ans are con­sid­er­ing policies de­signed to “not only de­liv­er re­lief from Obama­care, but also to provide more free­dom and flex­ib­il­ity for states and in­di­vidu­als. We’re con­sid­er­ing dif­fer­ent op­por­tun­it­ies to strengthen con­sumer-dir­ec­ted health care op­tions, for ex­ample.”

Those policies could in­clude new tax cred­its, ex­pan­ded ac­cess to health-sav­ings ac­counts, Medi­caid block grants, and new high-risk pools.

But if the Sen­ate par­lia­ment­ari­an throws out pieces of that plan, it’s un­likely that Re­pub­lic­ans would win enough Demo­crat­ic sup­port to pass them in a second bill, said Robert Blendon, a pro­fess­or of health policy and polit­ic­al ana­lys­is at Har­vard Uni­versity.

Re­pub­lic­ans also are still di­vided over the sub­stance of their re­place­ment plan. Sen. Mike Lee said he thought it would be a bad idea for new sub­sidies to be in­cluded in re­peal, and said the law should be scrapped first be­fore de­cid­ing what comes next.

“There’s a lot less agree­ment on what comes next,” Lee told re­port­ers last week. When asked wheth­er he would sup­port a re­peal bill with tax cred­its, he said: “That’s go­ing to be a prob­lem, I’m telling you. That I think would im­per­il the re­peal ef­fort.”

Even if the pro­vi­sions such as new health in­sur­ance tax cred­its clear the Sen­ate’s pro­ced­ur­al rules, di­vi­sions over their mer­its could slow the pro­cess down sig­ni­fic­antly and force a lar­ger de­bate about taxes, said Larry Levitt, seni­or vice pres­id­ent for spe­cial ini­ti­at­ives at the Kais­er Fam­ily Found­a­tion.

“I think there is a big fis­sure among Re­pub­lic­ans over how much to spend on health care,” Levitt said. “With big dis­agree­ments over how much to spend, it will be hard to get con­sensus over what a re­fund­able tax cred­it for health in­sur­ance or Medi­caid caps might look like.”

Ed­mund Haislmaier, a seni­or re­search fel­low at the Her­it­age Found­a­tion’s Cen­ter for Health Policy Stud­ies, said a lot of the im­petus to in­clude re­place­ment policies in the re­peal bill stems from law­makers’ fears of destabil­iz­ing in­sur­ance mar­kets without a plan to re­shape them.

But he hopes that Tom Price’s con­firm­a­tion as Health and Hu­man Ser­vices sec­ret­ary, and an im­pend­ing pro­posed rule that aims to sta­bil­ize the mar­ket­place, would settle some con­cerns.

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