Volume 8 | Issue 26
Before the July 4 recess, Republican lawmakers acknowledged a lack of intraparty harmony and postponed a Senate vote on their version of a health care reform bill. This week, with Congress back in session, the Senate GOP will focus on how to modify and pass a health care bill before the upcoming month-long August recess. Meanwhile, Republicans lawmakers in both chambers introduced bills to roll back Obama-era labor rules.
ACA: Repeal and Replace
The GOP continues to target the Affordable Care Act (ACA). Although the House passed the American Health Care Act (AHCA) in early May to reform (albeit not fully repeal and replace) the ACA, the Better Care Reconciliation Act (BCRA), unveiled by Senate Republicans in June, has yet to be scheduled for a vote. Interfering are a handful of Republicans who have voiced consternation with it, as well as an unwillingness to commit to voting for it.
This week the GOP leadership is expected to entertain BCRA amendments with the intention of attracting sufficient Republican support for a final bill that would be scheduled for a vote in mid to late July. A proposal by Senator Ted Cruz, R-Texas, that is garnering consideration would permit insurance companies to offer plans that do not satisfy the ACA market mandate requirements so long as at least one ACA-compliant plan is offered.
Comment. Senator Cruz has commented that the BCRA does not do enough to lower health insurance premiums. His proposal would permit individuals “to choose among more affordable plans that are tailored for their individual healthcare needs.” It would seemingly reverse course to the pre-ACA days, allowing “mini-med” or “skinny” plans to be sold in the individual and small marketplaces, as long as one ACA-compliant plan is offered. It’s not clear what impact, if any, this would have on employer plans, but employers likely would welcome more flexibility around market mandates such as the annual and lifetime limit prohibition.
In terms of procedural next steps, if the bill passes the Senate, the House could vote to pass the same bill, or lawmakers from both chambers could assemble to resolve the differences.
Comment. In addition to differences in how Medicaid is addressed, the bills’ continuous coverage provisions are notably dissimilar and would need to be ironed out. Specifically, for individuals without insurance for more than 63 days, BCRA would require insurers to impose a six-month waiting period whereas the AHCA would require them to assess a 30% late-enrollment premium surcharge for a period of 12 months. Like the ACA individual mandate, both of these continuous coverage provisions would incent individuals eligible for employer-sponsored coverage to enroll in and maintain it.
If, on the other hand, the Senate bill is not put up for a vote or fails to be passed, GOP lawmakers may turn their attention to passing legislation to provide stability to the health care exchanges. Indeed, late last week Senate Majority Leader Mitch McConnell, R-Ky., remarked that if Senate Republicans can’t come up with a replacement, they may have to authorize short-term strategies that would be unacceptable in the long term.
Comment. Presumably, Sen. McConnell was referring to providing specific congressional authorization for cost-sharing reduction (CSR) payments that Republicans have charged are currently being made absent such authorization. (Please see our June 26 Legislate for background.)
Obama-Era Labor Rules
On June 14, Sen. Lamar Alexander, R-Tenn., introduced the Workplace Democracy and Fairness Act (S. 1350), a bill that would amend the National Labor Relations Act to roll back the National Labor Relations Board (board or NLRB) April 2015 “quickie election” rules and restore long-standing union election procedures with respect to election timing, pre-election hearings, and the identification of pre-election issues. Unlike the House Workplace Democracy and Fairness Act (H.R. 2776) introduced by Rep. Tim Walberg, R-Mich., on June 6, Sen. Alexander’s bill does not expressly address the Obama board’s 2011 Specialty Healthcare decision that overturned the decades-old standard for determining an appropriate bargaining unit and facilitated micro-unit organizing. Rather, S. 1350 appears to combine elements of both H.R. 2776 and the Employee Privacy Protection Act (H.R. 2775), which would restore the seven-day timeframe for providing lists of eligible voters to the board and require only one piece of contact information for each voter to be chosen by the employee. (See our June 19 Legislate.) Last week, the House Committee on Education and the Workforce approved both bills.
Comment. On June 19, the U.S. Supreme Court denied review of the Fifth Circuit’s controversial decision in Macy’s v. NLRB, which would have presented an opportunity for the high court to clarify or overturn the board’s Specialty Healthcare decision. While the micro-unions ruling remains board precedent for now, it likely will be reconsidered in an appropriate case after the board gains a more employer-friendly majority under President Trump. However, legislative reforms could reverse it sooner if either H.R. 2776 or the Representation Fairness Restoration Act (S. 1217/H.R. 2629) gains traction. (See our June 5 Legislate for more information on those bills.)
Republican lawmakers are quickly running out of time to advance their legislative agendas before the August recess. As a result, they may focus on accomplishing smaller chunks of their plan. However, if a comprehensive health care reform bill is not passed before the end of the fiscal year (September 30), Senate Republicans could lose the opportunity to pass such a bill under the budget reconciliation process (with a simple majority of 51 votes). In such an event, Senate Republicans likely would need to work with Democrats to pass a bill (possibly to shore up ACA marketplaces) with a minimum of two-thirds of the chamber voting in its favor.